Unpublished Disposition, 881 F.2d 1084 (9th Cir. 1988)

MEMORANDUM^** 

Pedro Avila-Castorena appeals from his convictions for possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and (b) (1) (C) and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. We affirm.

BACKGROUND

On January 13, 1988, Avila-Castorena was indicted for possession of marijuana with intent to distribute and conspiracy to possess marijuana with intent to distribute. Prior to trial, the government filed a motion in limine seeking to introduce evidence of Avila-Castorena's 1986 state felony conviction for possession of marijuana. The district court ruled that the government could not introduce evidence of the conviction in its case-in-chief, but reserved ruling on use of the conviction for impeachment purposes until after Avila-Castorena testified.

During the government's case-in-chief, the court permitted the government to introduce evidence that Avila-Castorena had attempted to conceal his true identity at the time of his arrest. The government admitted into evidence the false identification documents which were found in Avila-Castorena's wallet at the time of his arrest. The government also elicited testimony that Avila-Castorena had informed the arresting officers that his name was Pedro Diaz.

After Avila-Castorena testified, the government renewed its motion to introduce evidence of Avila-Castorena's prior felony conviction. Because Avila-Castorena had testified that he possessed the marijuana under duress, the government wished to impeach his testimony with his prior conviction. The district court ruled that the government could introduce evidence that Avila-Castorena had been convicted of a felony, but would not permit the government to inquire into the nature of the felony conviction.

On March 11, 1987, Avila-Castorena was convicted of both charges. He now appeals his conviction.

DISCUSSION

Avila-Castorena contends that the district court erred in admitting evidence of his prior felony conviction under Fed.R.Evid. 609. We review a district court's decision to admit such evidence for an abuse of discretion. United States v. Browne, 829 F.2d 760, 762 (9th Cir. 1987).

Fed.R.Evid. 609(a) provides that a prior felony conviction is admissible to impeach a witness if the court determines that the probative value of the evidence outweighs its prejudicial effect. This court has articulated five factors to be considered in determining whether the probative value of a prior conviction outweighs its prejudicial effect: (1) the impeachment value of the prior crime; (2) the period of time elapsed between the prior conviction and the charged offense; (3) the similarity between the prior crime and the charged offense; (4) the importance of the defendant's testimony; and (5) the centrality of the defendant's credibility. Browne, 829 F.2d at 762-63.

We find that the district court did not abuse its discretion in admitting evidence of Avila-Castorena's prior conviction. Four of the five factors set forth in Browne tip the balance in favor of admissibility. First, the period of time elapsed between the prior conviction and the charged offense supports admissibility. While Fed.R.Evid. 609(b) authorizes the admission of a prior conviction for a period of up to ten years, only thirteen months elapsed between Avila-Castorena's prior conviction and his arrest for the present charges. Second, the importance of Avila-Castorena's testimony and the centrality of his credibility both favor admissibility. Avila-Castorena's duress defense rested entirely upon his testimony that he was forced to possess and transport marijuana. If believed, Avila-Castorena's duress defense would exonerate him from all criminal liability. Because Avila-Castorena's testimony and credibility touched upon a central issue of the case, the need for impeachment was critical. See Browne, 829 F.2d at 764 (where defendant's alibi defense rested solely upon his testimony, government was permitted to impeach defendant with prior conviction). Finally, the similarity between the prior crime and the charged offense also weighs in favor of admissibility. Although Avila-Castorena's prior conviction is similar to the present charges, the district court prohibited the government from inquiring into the nature of the prior conviction and thereby avoided the possibility that the jury would impermissibly infer that Avila-Castorena has a propensity to possess marijuana.

The remaining factor, the impeachment value of the prior crime, arguably supports exclusion of the prior conviction. By "sanitizing" the conviction, the district court avoided a potential prejudicial effect, but in so doing, also removed much of the conviction's impeachment value. Despite this diminished impeachment value, however, the conviction was properly admitted because the Browne factors predominantly weigh in favor of admissibility.

In holding that the district court did not abuse its discretion, we note that the nature of Avila-Castorena's prior conviction would have been admissible even if the government had been permitted to elicit that it was for possession of marijuana. By restricting the government's inquiries, the district court aided Avila-Castorena's defense. Not only was the potential prejudicial effect of the conviction removed, but the impeachment value was diminished. As the prime beneficiary of the district court's decision, Avila-Castorena cannot now argue that the conviction was improperly admitted because its impeachment value was diminished.

Avila-Castorena also contends that the district court erred in admitting evidence of his possession of false identification documents at the time of his arrest. We also review the district court's decision to admit this evidence for an abuse of discretion. United States v. Guerrero, 756 F.2d 1342, 1347 (9th Cir. 1984).

The district court properly admitted evidence of Avila-Castorena's possession of false identification. The evidence is probative as "an admission 'by conduct, constituting circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself.' " Id. Although the evidence was "prejudicial" in the sense that it was damaging to Avila-Castorena's defense, it was not inadmissible.

AFFIRMED.