United States District Court, E.D. Louisiana
IN THE MATTER OF M&M WIRELINE & OFFSHORE SERVICES, LLC
SECTION:
“G” (5)
ORDER
NANNETTE JOLIVETTE BROWN UNITED STATES DISTRICT JUDGE
Before
the Court are Plaintiff Beaux Cormier's “Motion in
Limine to Exclude the Criminal Records of Beaux Cormier,
”[1] “Supplemental and Amended Motion in
Limine to Exclude the Criminal Records of Beaux Cormier,
”[2] and “Motion to Strike
Defendant's Proposed Finding of Fact No.
4.”[3] Having considered the motions, the
memoranda in support and in opposition, the record, and the
applicable law, the Court will grant in part and deny in part
Cormier's “Motion in Limine to Exclude the Criminal
Records of Beaux Cormier, ”[4] and deny as moot
Cormier's Supplemental and Amended Motion in Limine to
Exclude the Criminal Records of Beaux
Cormier”[5] and “Motion to Strike
Defendant's Proposed Finding of Fact No.
4.”[6]
I.
Background
A.
Factual Background
In this
litigation, Plaintiff Beaux Cormier (“Cormier”)
alleges that he was employed by Defendant M&M Wireline
& Offshore Services, LLC (“M&M Wireline”)
as a deckhand on the M/V M&M 102.[7] Cormier states that on
November 30, 2014, he was transported from a platform in the
Grand Bay Field to the nearby M/V M&M 102 by a “Jon
Boat” owned and/or operated by Defendant Saratoga
Resources, Inc. (“Saratoga”).[8] According to
Cormier, the operator of the Jon Boat positioned the boat so
that the front of the Jon Boat was near and/or pushed up
against the side of the M/V M&M 102.[9] When Cormier
attempted to step up onto the deck, he alleges that the Jon
Boat backed away from the M/V M&M 102, requiring Cormier
to jump back onto the Jon Boat.[10] As a result, Cormier
avers that he lost his balance and landed partially on the
Jon Boat and partially in the water, causing the injuries at
issue in this litigation.[11] Cormier contends that the Jon
Boat was not connected or secured to the M/V M&M 102 in
any way, nor were there other mechanisms in place to allow
for safe ingress and egress to the M/V M&M
102.[12] Cormier alleges that at the time of his
accident, the M/V M&M 102 was a vessel owned and operated
by M&M Wireline and engaged in operations by
Saratoga.[13] Cormier further alleges that Defendants
M&M Wireline and Saratoga (collectively,
“Defendants”) are liable to him for the injuries
caused by their negligent acts and for failing to provide
seaworthy vessels.[14] Defendants argue that any injury Cormier
sustained resulted solely from Cormier's own fault, and
that Cormier's alleged back injury pre-existed the
incident at issue in this litigation.[15]
B.
Procedural Background
On
October 6, 2015, M&M Wireline filed a complaint for
exoneration or limitation of liability pursuant to Rule F(2)
of the Supplemental Rules for Admiralty or Maritime Claims
and Asset Forfeiture Actions.[16] M&M Wireline filed an
amended complaint on October 21, 2015.[17]Cormier filed
his answer to M&M Wireline's complaint for limitation
of liability and his own claims on November 25,
2015.[18]
Before
the Court are Plaintiff Beaux Cormier's “Motion in
Limine to Exclude the Criminal Records of Beaux Cormier,
”[19] “Supplemental and Amended Motion
in Limine to Exclude the Criminal Records of Beaux Cormier,
”[20] and “Motion to Strike
Defendant's Proposed Finding of Fact No.
4.”[21]
On
September 15, 2016, Cormier filed his “Motion in Limine
to Exclude the Criminal Records of Beaux
Cormier.[22] On September 22, 2016, Defendants
opposed the motion.[23] With leave of Court, Cormier filed a
reply.[24] On December 8, 2016, Cormier filed his
“Supplemental and Amended Motion in Limine to Exclude
the Criminal Records of Beaux Cormier.”[25] On February
2, 2017, Defendants filed an opposition.[26] With leave of
Court, Cormier filed a reply.[27]Additionally, on September 22,
2016, Cormier filed his “Motion to Strike
Defendant's Proposed Finding of Fact No.
4.”[28] On September 23, 2016, Defendants filed
an opposition.[29]
II.
Parties' Arguments
A.
Cormier's “Motion in Limine to Exclude the
Criminal Records of Beaux Cormier”
1. Cormier's Arguments in Support of the
Motion
In his
motion, Cormier argues that this Court should exclude any
evidence of Cormier's criminal records from
trial.[30] First, Cormier avers that
Defendants' exhibit list and the parties' proposed
Pre-Trial Order include the overly vague statement that
Defendants wish to introduce the “Criminal records of
Beaux Cormier.”[31] Cormier asserts that this is a vague
and overbroad designation that does not specify which records
Defendants plan to introduce or provide an appropriate
description as required by the Court's Pre-Trial
Notice.[32] Second, Cormier contends that evidence
of any criminal records should be excluded under Federal
Rules of Evidence 401, 403, and 609.[33] Cormier argues that the
records are irrelevant pursuant to Rule 401, and any
probative value they may have is substantially outweighed by
the danger of unfair prejudice pursuant to Rule
403.[34] According to Cormier, the records are
also inadmissible pursuant to Rule 609, as more than ten
years have passed since the convictions and any probative
value they may have is outweighed by its prejudicial
effect.[35]
Additionally,
Cormier alleges that evidence of any convictions arising from
nolo contendere pleas should be excluded pursuant to Federal
Rule of Evidence 410.[36] Finally, Cormier asserts that if the
Court finds the evidence of criminal records to be
admissible, the evidence should be limited to the name of the
crime, the time and place of conviction, and the
punishment.[37]
2.
Defendants' Arguments in Opposition to the
Motion
Defendants
oppose Cormier's motion to exclude evidence of his
criminal records.[38] First, Defendants argue that the
criminal records are admissible for impeachment purposes
under Federal Rule of Evidence 609.[39] Defendants allege that
Cormier was convicted of a simple burglary felony in 2009
while he was already serving time after his probation was
revoked for a 2004 conviction for carnal knowledge of a
juvenile.[40] According to Defendants, Cormier was
sentenced to five years in prison for the simple burglary
conviction to be served concurrently with the seven and a
half year sentence for the carnal knowledge of a juvenile
conviction.[41] Defendants point out that under Federal
Rule of Evidence 609(b), a felony conviction is admissible if
the criminal defendant was either convicted or was still
serving jail time for the conviction within the past ten
years.[42]
Second,
Defendants aver that Cormier's criminal records may also
be offered as relevant evidence for the issue of
Cormier's future earnings.[43] Defendants argue that the
criminal records show that Cormier has repeatedly gone to
prison, making it difficult to maintain a job and creating a
“major hindrance getting hired in the
future.”[44] Additionally, Defendants argue that
while a no-contest plea itself may not be admissible as
evidence, it does not mean the underlying felony conviction
based on the plea is inadmissible as well.[45] Defendants
aver that the limitations under Rule 609 as to what
information regarding the conviction is admissible does not
apply when the criminal records are not used for impeachment
purposes, such as when they are relevant to Cormier's
future employability and likely future
earnings.[46] Defendants contend that there is no
undue prejudice here, as the fact that Cormier's criminal
records “paint him in a bad light is one of the reasons
they are relevant to his future employability and likely
future earnings.”[47]
3.
Cormier's Reply in Further Support of the Motion
Cormier
argues in response that because his convictions for simple
burglary and carnal knowledge of a juvenile resulted from
pleas of nolo contendere, they are inadmissible under Federal
Rule of Evidence 410.[48] Cormier asserts that while his
conviction for simple burglary in 2009 was within the 10-year
period for admissible convictions under Federal Rule of
Evidence 609(b), it should be excluded under Rule
609(a)(1)(A) as the probative value is substantially
outweighed by the danger of unfair prejudice.[49]
Cormier
represents that he pled nolo contendere to a felony carnal
knowledge of a juvenile charge in 2002 when he was seventeen
years old, and that he received a suspended sentence of seven
and a half years and placed on five years of supervised
probation.[50] Cormier avers that in 2007, his
probation was revoked after failing to appear at a probation
revocation hearing and he was sentenced to serve the seven
and a half years with credit for time served.[51] Cormier thus
contends that he was serving a sentence because his probation
was revoked, and not because of his felony carnal knowledge
of a juvenile conviction, and so that conviction should still
be excluded as being more than ten years old.[52] Cormier
argues that the carnal knowledge of a juvenile conviction has
no relevance or probative value, and any probative value it
may have is substantially outweighed by the danger of unfair
prejudice; thus, Cormier asserts that it should be excluded
under Federal Rule of Evidence 609(a)(1)(A).[53] Cormier
points out that this Court previously excluded from evidence
Cormier's driver license, bearing the phrase “sex
offender” on it, after Defendants “concede[d] the
point” that it should be excluded.[54] Cormier
further avers that he was never convicted of “cruelty
to animals” as Defendants suggested, as the misdemeanor
charge was dismissed in December of 2007.[55] Cormier
argues that evidence of mere arrests and criminal charges is
not admissible.[56]
Furthermore,
Cormier alleges that the fact that M&M Wireline hired him
within a few weeks after being released from prison
contradicts Defendants' argument that Cormier's
convictions are relevant to his future earning
capacity.[57] Cormier points out that he has not been
incarcerated again since his release in 2011 or convicted of
any other crime since he pled nolo contendere to the simple
burglary charge in 2009.[58] Cormier also asserts that
Defendants' economic expert, J. Stuart Wood, made no
mention of Cormier's criminal records when calculating
Cormier's future losses.[59] Moreover, Cormier argues that
Defendants' vocational rehabilitation expert, Barney
Hegwood, only mentions Cormier's criminal records in his
report, but does not indicate that it would have an adverse
impact on Cormier's employability or future
earnings.[60]
B.
Cormier's “Supplemental and Amended Motion in
Limine to Exclude the Criminal
Records of Beaux Cormier”
1. Cormier's Arguments in Support of the
Motion
In this
motion, Cormier argues that Defendants have engaged in a
pattern of “overstating and/or mischaracterizing the
criminal history” of Cormier in “a concerted
effort to create a bias and unfairly prejudice this Honorable
Court by repeatedly relying on inadmissible evidence and
making false representations.”[61] For example, Cormier
points out that Defendants stated in a reply brief filed in
support of Defendants' motion for partial summary
judgment that Cormier was convicted “for the forcible
rape of [a] child, ” which Cormier contends is
“patently false.”[62]Likewise, Cormier avers that in
another filing, Defendants stated that the evidence shows
that Cormier “is frequently untruthful and quite
frankly, a reprehensible human being . . . even if the
evidence of his criminal records is not admitted, it does not
change the fact that he was incarcerated for those crimes and
what that says about what kind of person that he is and
whether or not he is credible.”[63]
Cormier
asserts that Defendants' repeated reliance on
inadmissible evidence, patently false statements, and
misrepresentations of Cormier's criminal records
demonstrates the unfair prejudice of this
evidence.[64] Therefore, Cormier argues that the
evidence should be excluded under Rule 403 or Rule 609 of the
Federal Rules of Evidence.[65]
2.
Defendants' Arguments in Opposition to the
Motion
Defendants assert in response that Cormier argument that his
criminal records should be excluded as a sanction is
baseless, and the motion should be denied.[66] Defendants
aver that the Federal Rules of Evidence determines the
admissibility of evidence, and that banning admissible
evidence is a harsh sanction for severe
misconduct.[67] Defendants argue that the conduct of
which Cormier complains does not warrant a sanction of any
kind, as it only involves inadvertent errors in reading
Cormier's criminal records.[68] Defendants point out that
their references to Cormier's criminal history were all
relevant to the issues in this trial.[69]
C.
Cormier's “Motion to Strike Defendant's
Proposed Finding of Fact No. 4”
1.
Cormier's Arguments in Support of the Motion
Cormier avers that in Defendants' “Proposed
Findings of Fact and Conclusions of Law, ”
Defendants' Proposed Finding of Fact No. 4 states the
following:
Cormier was initially incarcerated in 2004 after being
convicted on November 17, 2004 of the forcible rape of a 12
year old child and sentenced to seven and a half years of
hard labor which was to run concurrently with his conviction
for another offense. He was given five years of supervised
probation for that crime. The probation was revoked on May
24, 2007 when he was convicted of simple burglary. His
original sentence for the forcible rape was reinstated and he
was incarcerated. He was released from prison after serving
his seven year sentence in October 2014 - just a few weeks
before starting work at M&M Wireline.[70]
Cormier
argues that Defendants' Proposed Finding of Fact No. 4
should be stricken from the record because it is incorrect
and “a blatant misrepresentation” of
Cormier's criminal history.[71]Cormier contends that the
records are also irrelevant and unduly prejudicial, and
evidence of a nolo contendre plea should be excluded pursuant
to Rule 609.[72] Cormier asserts that Defendants included
this information to prejudice the trier of fact with
incorrect and inadmissible information, and thus it should
not be considered.[73]
2.Defendants'
Arguments in Opposition to the Motion
In
response, Defendants aver that a proposed finding of fact is
not the proper subject of a motion to strike.[74] Defendants
state that motions to strike are considered under Rule 12(f)
of the Federal Rules of Civil Procedure, which only provides
that a court may strike “from a pleading . . .
any redundant, immaterial, impertinent, or scandalous
matter.”[75] Defendants assert that, because a
proposed finding of fact is not a pleading, the motion to
strike should be denied.[76]
Moreover,
Defendants argue that the purpose of requiring parties to
submit proposed findings of fact is only to assist the Court
in formulating its own findings of fact after
trial.[77]Defendants assert that the Court
ultimately decides whether the parties' proposed findings
are supported by the evidence or should be included in the
Court's own findings.[78] Defendants contend that their
proposed finding of fact number four is relevant and
supported by the evidence, and thus it is up to the Court to
decide whether to accept or reject it.[79]
3.
Cormier's Reply in Further Support of the Motion
Cormier
avers that Defendants' conduct was not the result of
inadvertent errors in reading Cormier's criminal
records.[80] Cormier points out that he informed
Defendants in several emails that they were misrepresenting
Cormier's criminal history, but that Defendants failed to
address Cormier's concerns until he filed his motion to
strike.[81]
III.
Law and Analysis
A. Legal Standard for Rules 401 and 403 of the
Federal Rules of Evidence
Federal Rule of Evidence 401 provides that evidence is
relevant if: “(a) it has any tendency to make a fact
more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the
action.” Pursuant to Federal Rule of Evidence 403,
“the court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” The Fifth
Circuit instructs that “[t]he exclusion of evidence
under Rule 403 should occur only
sparingly[.]”[82]
B.
Legal Standard for Rules 410 and 609 of the Federal Rules of
Evidence
Pursuant
to Federal Rule of Evidence 410, the following evidence of
criminal history is not admissible against the defendant who
made the plea in either civil or criminal cases: (1) a guilty
plea that was later withdrawn; (2) a nolo contedere plea; (3)
a statement made during a proceeding on either of those
pleas; or (4) “a statement made during plea discussions
with an attorney for the prosecuting authority if the
discussions did not result in a guilty plea or they resulted
in a later-withdrawn guilty plea.”[83]
Pursuant
to Federal Rule of Evidence 609, evidence of a criminal
conviction may be introduced as impeachment evidence to
attack a witness's character for truthfulness. Evidence
of a criminal conviction for a crime that was punishable by
death or by imprisonment for more than one year “must
be admitted, subject to Rule 403, ” in a civil or
criminal case when the witness is not a
defendant.[84] Evidence of any criminal conviction,
regardless of the punishment, that required proving a
dishonest act or false statement must also be
admitted.[85]
Federal
Rule of Evidence 609(b) specifically addresses the treatment
of convictions that are remote in time. Rule 609(b) provides
in pertinent part that “if more than 10 years have
passed since the witness's conviction or release from
confinement for it, whichever is later, ” then evidence
of that conviction is only admissible if: “(1) its
probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial
effect; and (2) the proponent gives an adverse party
reasonable written notice of the intent to use it so that the
party has a fair opportunity to contest its
use.”[86]
The
Fifth Circuit has “read Rule 609(b) to say that the
probative value of a conviction more than 10 years old is by
definition outweighed by its prejudicial
effect.”[87] “The general rule is
inadmissibility. It is only when the court admits evidence of
a conviction over ten years old that the court must engage in
a balancing test on the record.”[88] Further,
“the mere fact that [a witness's] credibility is in
issue-a circumstance that occurs whenever [a witness] takes
the stand-cannot, by itself, justify admission of convictions
over ten years old. Such a rule would make the ten year limit
in Rule 609(b) meaningless.”[89]
C.
Analysis
Cormier
argues that this Court should exclude evidence of his
criminal records on four grounds: (1) Cormier's criminal
records are irrelevant; (2) any probative value the records
may have is substantially outweighed by the danger of unfair
prejudice; (3) criminal convictions involving pleas of nolo
contendere are inadmissible under Federal Rule of Evidence
410; and (4) records of criminal convictions that are more
than ten years old are inadmissible under Federal Rule of
Evidence 609.[90] Cormier also argued that Defendants had
not adequately designated which criminal records Defendants
intended to introduce at trial.[91] However, during the
Pre-Trial Conference held on January 26, 2017, Cormier
conceded that he had subsequently received sufficient notice
of which criminal records Defendants seek to introduce at
trial and agreed that his vagueness argument here is
moot.[92] Accordingly, the Court will address each
of Cormier's remaining arguments in turn.
As a
preliminary matter, the Court notes that Defendants seek to
introduce a wide array of Cormier's “criminal
records, ” including: arrest and police reports
detailing the factual allegations against Cormier underlying
several charges; an indictment for a forcible rape charge
that was later amended to a felony carnal knowledge of a
juvenile charge; arraignment documents for each charge; and
minute entries from the state court proceedings reflecting
the procedural history of each charge and/or conviction.
In
particular, the records show that Cormier was charged with
forcible rape of a juvenile on July 29, 2002, [93] but entered a
plea of nolo contendere to felony carnal knowledge of a
juvenile on November 17, 2004, after the State amended the
charge.[94] Pursuant to his plea agreement, Cormier
was sentenced to seven and a half years at hard labor, which
was suspended, and five years of supervised
probation.[95] The court also ordered Cormier to comply
with all sex offender registration and notification
requirements.[96] On May 24, 2007, Cormier's probation
was revoked by the state court after failing to attend a
previous probation revocation hearing and failing to comply
with the state court's orders regarding Cormier's sex
offender status.[97] Cormier was then ordered to serve his
original sentence of seven and a half years at hard labor
with credit for time served.[98] The records also show that
Cormier entered a plea of nolo contendere to a charge of
simple burglary on August 24, 2009.[99] Pursuant to his plea
agreement, Cormier was sentenced to five years at hard labor,
to run concurrent with the probation revocation sentence that
Cormier was then serving.[100] Moreover, the criminal
records show that Cormier was charged with theft of property
valued in excess of $300 in 2002, and appears to have been
convicted in November of 2004 and given a suspended sentence
of two years and a period of probation.[101] The
records further show that in 2009, Cormier's probation
was revoked and he was ordered to serve the two year sentence
for the felony theft charge concurrently with the sentences
he was then serving.[102]
Additionally,
Defendants seek to introduce evidence that Cormier was
charged with possession of a firearm by a convicted
felon[103] and cruelty to animals in 2007,
[104] although both charges were dismissed
by the State.[105] Defendants also seek to offer evidence
that Cormier was charged with cyberstalking in
2002.[106] Defendants did not provide the Court
with any evidence of how the cyberstalking charges were
resolved, but Defendants have not asserted that it ended in a
conviction.
Moreover,
Defendants seek to offer additional information regarding
Cormier's charges and convictions, including: a
“Warrant of Arrest” and an “Arrest
Report” for the burglary conviction; a
“Supplemental Investigation Narrative” detailing
the factual allegations underlying the cruelty to animals
charge that was dismissed; an indictment for a charge of
forcible rape, which was subsequently amended by the State to
felony carnal knowledge of a juvenile; and a police report
and an arrest report detailing the factual allegations
underlying the felony carnal knowledge of a juvenile
conviction.
1.
Whether Cormier's criminal records are relevant
First,
Cormier asserts that his criminal records should be excluded
as irrelevant under Rule 401 because they “have
absolutely nothing to do” with the facts of this
case.[107] In response, Defendants argue that
Cormier's criminal records are relevant evidence on the
issue of Cormier's future earning capacity, and that the
records may also be used for impeachment
purposes.[108]
Pursuant
to Federal Rule of Evidence 401, evidence is relevant if
“it has any tendency to make a fact more or
less probable” and the fact “is of consequence in
determining the action.”[109] Rule 402 states that
irrelevant evidence is inadmissible.[110] District
courts have wide discretion to determine the relevancy and
admissibility of evidence under Rules 401 and
402.[111]
As
Defendants point out, several courts of appeals outside the
Fifth Circuit and courts in the Eastern District of Louisiana
have found that evidence of a plaintiff's criminal
history may be relevant to the issue of future
damages.[112] Cormier, by contrast, did not point to
any case where a court has found such evidence to be
irrelevant under Rule 401. In general, courts typically look
to a wide range of factors to determine loss of earning
capacity, including a plaintiff's pre-injury physical
condition and earning capacity, [113] the extent to which
plaintiff's post-injury condition disadvantages him or
her in the work force, [114] actual post-accident wage
losses, [115] potential future wage increases,
[116] and the extent of the plaintiff's
remaining working life, [117] while also adjusting for
factors such as its present value and applicable
taxes.[118] Here, the Court finds that
Cormier's criminal records may also have some relevance
to the issue of future earning capacity. Accordingly, the
Court declines to exclude evidence of Cormier's criminal
records pursuant to Rule 401.
2.
Whether Cormier's criminal records should be excluded
pursuant to Rule 403
Next,
Cormier avers that even if the Court finds that his criminal
records are relevant, the criminal records' minimal
probative value would be substantially outweighed by the
danger of unfair prejudice, rendering the evidence
inadmissible under Rule 403.[119] Pursuant to Rule 403 of the
Federal Rules of Evidence, a court “may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair
prejudice[.]”[120] The Committee Notes to Rule 403
explain that “‘[u]nfair prejudice' within its
context means an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an
emotional one.”[121] As the Fifth Circuit has made
clear, “unfair prejudice” in the context of Rule
403 “is not to be equated with testimony simply adverse
to the opposing party . . . [t]he prejudice must be
‘unfair.'”[122] The Fifth Circuit has
further cautioned that excluding evidence under Rule 403
“should occur only sparingly.”[123]
While
the Court found supra that Cormier's criminal
records may have some relevance to the issue of future
earning capacity, the probative value and prejudicial effect
of each type of record varies greatly. In particular,
Defendants seek to introduce three broad categories of
records: (1) records regarding Cormier's three past
convictions; (2) records regarding several charges brought
against Cormier but subsequently dropped; and (3) records of
arrest reports and police reports detailing the underlying
facts of Cormier's carnal knowledge of a juvenile
conviction and the dropped cruelty to animals charge.
With
regard to records of Cormier's convictions for carnal
knowledge of a juvenile, simple burglary, and felony theft,
[124] the Court finds that the probative
value of the evidence is not substantially outweighed by the
danger of undue prejudice. Evidence of Cormier's prior
convictions is relevant in determining Cormier's future
earning capacity, [125] and, because this is a bench trial,
the Court finds that there is less danger that this evidence
may produce any unfair prejudice.[126] Accordingly, the Court
denies Cormier's motion to the extent that he seeks to
exclude evidence of his criminal convictions under Rule 403.
By
contrast, criminal records of (1) charges that did not result
in a conviction, (2) charges that were later amended to a
lesser charge, and (3) police and arrest reports detailing
the factual allegations of Cormier's alleged criminal
activity are significantly less probative than a conviction
with regard to Cormier's future earning capacity
damages.[127] Moreover, evidence of detailed factual
allegations of criminal activity unrelated to the instant
litigation and of charges that Cormier was never convicted of
presents a danger of unfair prejudice against
Cormier.[128] A person is presumed innocent until
proven guilty, and Defendants have not shown that the
probative value of these additional criminal records beyond
Cormier's convictions outweigh their prejudicial effect.
Therefore, the Court finds that the minimal probative value
of such evidence is substantially outweighed by the danger of
unfair prejudice. Accordingly, pursuant to Rule 403, the
Court will exclude evidence of: (1) charges against Cormier
that did not result in a conviction, such as the charges for
possession of a firearm by a convicted felon, cruelty to
animals, and cyberstalking; (2) an indictment of forcible
rape that was later amended to carnal knowledge of a
juvenile; and (3) arrest reports, police reports, and
warrants for arrest related to Cormier's convictions and
charges.
3.
Whether criminal convictions involving pleas of nolo
contendere are admissible under Rule
410
Next,
Cormier argues that, because he was convicted of felony
carnal knowledge of a juvenile and simple burglary after
pleading nolo contendere, this evidence should be excluded
pursuant to Rule 410.[129] In response, Defendants argue that
while evidence of a nolo contendere plea standing alone may
not be admissible as evidence of an admission of guilt, a
felony conviction based on such a plea is
admissible.[130] Rule 410 of the Federal Rules of
Evidence provides in pertinent part that, “[i]n a civil
or criminal case, evidence of the following is not admissible
against the defendant who made the plea or participated in
the plea discussions: . . . (2) a nolo contendere
plea[.]”[131]
The
Fifth Circuit has held that the purpose of allowing a plea of
nolo contendere is to permit a defendant to accept a judgment
of conviction in a criminal proceeding while preserving his
ability to later deny guilt.[132] “Nolo pleas create a
significant incentive for the defendant to terminate the
pending litigation in order to avoid admitting guilt for
subsequent litigation.”[133] In United States v.
Williams, the Fifth Circuit noted that Rule 410's
prohibition against using a plea of nolo contendere against
the defendant who made the plea is intended to promote this
goal and encourage “disposition of criminal cases by
compromise.”[134]
The
Fifth Circuit has held that, “[o]nce convicted, whether
as a result of a plea of guilty, nolo contendere, or of not
guilty (followed by trial), convictions stand on the same
footing.”[135]While the Fifth Circuit does not appear
to have addressed this precise issue regarding the scope of
Rule 410, the courts of appeals that have addressed it have
found that Rule 410 does not prohibit the use of evidence of
a criminal conviction based on an underlying plea of nolo
contendere. For example, the First Circuit has expressly held
that Rule 410 “is not applicable when the conviction
and sentence are used to show nothing more than the fact of a
valid sentence and conviction.”[136]Similarly,
the Sixth Circuit has held that Rule 410 prohibits the
“use of ‘a plea of nolo
contendere, ' not a conviction pursuant to
a nolo plea.”[137]
Thus,
the Court finds Rule 410's prohibition against using a
nolo contendere plea against the defendant who made
the plea does not extend to excluding evidence of a
plaintiff's criminal conviction in a subsequent
civil proceeding.[138] Here, Defendants seek to introduce the
existence of Cormier's criminal convictions to
demonstrate how it may impact his future earning capacity as
a civil plaintiff, regardless of how the conviction was
obtained, and not as an admission of guilt against a
defendant as Rule 410 seeks to prevent.[139]
Accordingly, the Court denies Cormier's motion to exclude
evidence of Cormier's convictions from being offered on
the issue of Cormier's future earning capacity on the
basis of Rule 410.
Additionally,
Defendants aver that Cormier's convictions arising from a
nolo contendere plea may be used for impeachment purposes as
well.[140] The Fifth Circuit has expressly ruled
that a conviction entered pursuant to a nolo contendere plea
is admissible under Rule 609 as impeachment
evidence.[141] “Clearly the rule governing our
issue, [Rule] 609, creates no difference between convictions
according to the pleas that preceded them. Indeed, as we have
seen, the history of this rule discloses that a difference
was originally proposed and finally
rejected.”[142]Accordingly, while the Court will
consider infra whether Cormier's convictions are
admissible under Rule 609 for impeachment purposes, the Court
finds here that Rule 410 does not otherwise bar the use of
Cormier's convictions for impeachment purposes.
4.
Whether Cormier's criminal convictions are admissible
under Rule 609
Next,
Cormier contends that evidence of any felony convictions that
are more than ten years old are inadmissible under Rule
609(b) of the Federal Rules of Evidence because their
probative value does not substantially outweigh their
prejudicial effect.[143] In opposition, Defendants assert
that the conviction for simple burglary occurred in 2009,
within the last ten years, and that while the conviction for
carnal knowledge of a juvenile occurred in 2004, the record
is clear that Cormier was serving time for that crime after
his probation was revoked in 2007.[144]According to
Defendants, a felony conviction is admissible under Rule 609
if the criminal defendant was either convicted or still
serving his sentence within the past ten years.[145]
Pursuant
to Federal Rule of Evidence 609(a), a party may attack a
witness's character for truthfulness using a
witness's prior criminal convictions. In particular,
evidence of criminal convictions for a crime punishable by
death or by imprisonment for more than one year “must
be admitted, subject to Rule 403, in a civil case or in a
criminal case in which the witness is not a
defendant.”[146] Federal Rule of Evidence 609(b)
establishes limits on the use of convictions after a ten year
period. Rule 609(b) provides that, if more than ten years
have passed since the conviction or “release from
confinement for it, ” the evidence of that conviction
is only admissible if: (1) its probative value substantially
outweighs its prejudice effect; and (2) the adverse party
received reasonable written notice of the proponent's
intent to use such evidence so as to provide the adverse
party a fair opportunity to contest its use.[147]
Cormier
was convicted of simple burglary and sentenced to five years
at hard labor in 2009, less than ten years ago.[148] Thus,
such evidence is admissible to impeach Cormier's
character for truthfulness under Rule 609(a)(1)(A), subject
to Rule 403.[149] As the Court found supra, the
probative value of evidence of Cormier's conviction for
simple burglary is not substantially outweighed by the danger
of unfair prejudice, and thus will not be excluded pursuant
to Rule 403. Accordingly, the Court finds that such evidence
of Cormier's simple burglary conviction may be used for
impeachment purposes pursuant to Rule 609(a).
In
2004, more than ten years ago, Cormier pled nolo contendere
to felony carnal knowledge of a juvenile, and he received a
suspended sentence of seven and a half years at hard labor
and five years on supervised probation.[150] However,
in 2007, Cormier's supervised probation was revoked, and
he was ordered to serve his original sentence of seven and a
half years at hard labor with credit for time
served.[151] Cormier argues that, because over ten
years have passed since he was originally convicted of this
crime, evidence of this conviction should be excluded
pursuant to Rule 609(b).[152]Cormier asserts that the
prison sentence he began serving in 2007 was a result of his
probation revocation, and not for the carnal knowledge of a
juvenile conviction, and thus the conviction does not fall
within the ten year limitation pursuant to Rule
609(b).[153] The Court is not persuaded by
Cormier's argument. Cormier received a suspended sentence
of seven and a half years upon his conviction for carnal
knowledge of a juvenile, and the state court records are
clear that, when his supervised probation was revoked, the
state court “ordered [Cormier] to serve the
original sentence imposed on November 17,
2004.”[154]
As
stated supra, Rule 609(b)'s limitation on the
use of convictions is triggered if more than ten years have
passed since the conviction or “release from
confinement for it.”[155] Therefore, the Court must
consider whether the ten year time limit under Rule 609(b)
applies from the date of Cormier's conviction in 2004,
since he was not originally confined, or whether the ten year
time limit began after Cormier's subsequent confinement
in 2007. While the Fifth Circuit has concluded that
“confinement” as used in Rule 609(b) does not
include a probationary period itself, [156] it has
not yet addressed whether a revocation of probation and
imposition of a suspended sentence restarts the commencement
of the ten-year clock under Rule 609(b). However, several
other courts of appeals and federal district courts that have
addressed this issue have held that confinement imposed after
probation is revoked is “confinement” for the
original offense within the meaning of Rule
609(b).[157] Here, as the state court records make
clear, Cormier was confined in 2007 for his conviction for
carnal knowledge of a juvenile, and, according to Cormier,
was released in 2011.[158] Accordingly, the Court finds that
Rule 609(b) is inapplicable, as Cormier was released from
confinement for that conviction less than ten years ago, and
that evidence of Cormier's conviction for carnal
knowledge of a juvenile is admissible under Rule
609(a)(1)(A), subject to Rule 403.[159] As the Court found
supra, the probative value of evidence of
Cormier's conviction for carnal knowledge of a juvenile
is not substantially outweighed by the danger of unfair
prejudice and thus will not be excluded pursuant to Rule 403.
Accordingly, the Court finds that such evidence of
Cormier's carnal knowledge of a juvenile conviction may
be used for impeachment purposes pursuant to Rule 609(a).
Additionally,
Defendants represent that Cormier was convicted of a third
felony conviction for felony theft in November of
2004.[160] Cormier's criminal records further
show that Cormier's probation was revoked in connection
with the conviction for felony theft in October of 2009, and
that the two year sentenced imposed in November 2004 was made
executory and would run concurrent with the sentences Cormier
was then serving.[161] Accordingly, for the same reasons
stated supra, the Court finds that Rule 609(b) does
not prohibit the introduction of evidence of Cormier's
felony theft conviction, as he was released from confinement
for it less than ten years ago. Thus, evidence of
Cormier's conviction for felony theft is admissible under
Rule 609(a)(1)(A), subject to Rule 403.[162] As the
Court found supra, the probative value of evidence
of Cormier's conviction for felony theft is not
substantially outweighed by the danger of unfair prejudice
and thus will not be excluded pursuant to Rule 403.
Accordingly, the Court finds that such evidence of
Cormier's felony theft conviction may be used for
impeachment purposes pursuant to Rule 609(a).
Additionally,
the Court notes that it is unclear whether Defendants contend
that evidence of Cormier's arrests and charges that were
subsequently dropped may be used for impeachment purposes
under Rule 609.[163] However, the Court finds that such
evidence is inadmissible under Rule 609, as Rule 609 only
applies to impeachment “by evidence of a criminal
conviction.”[164]
5.
Whether Defendants' Proposed Finding of Fact No. 4 Should
be Stricken
In a
separate motion, Cormier argues that this Court should strike
Defendants' proposed finding of fact number four, as it
is “patently incorrect, ” “a blatant
misrepresentation” of Cormier's criminal records,
and an attempt to prejudice the fact finder “with
incorrect, inflammatory and blatantly false and/or incorrect
representations.”[165] After Cormier filed his
motion to strike, Defendants received leave of the Court to
file an “Amended Proposed Findings of Fact and
Conclusions of Law.”[166] In their “Amended
Proposed Findings of Fact and Conclusions of Law, ”
Defendants provide the Court with a substantially altered
proposed finding of fact number four regarding Cormier's
criminal records.[167] Cormier has not raised any objection
to the amended proposed finding of fact. Accordingly, the
Court will deny Cormier's “Motion to Strike
Defendants' Proposed Finding of Fact No. 4” as
moot.
6.
Cormier's Supplemental and Amended Motion in Limine to
Exclude the Criminal Records of Beaux Cormier
Finally, in Cormier's “Supplemental and Amended
Motion in Limine to Exclude the Criminal Records of Beaux
Cormier, ” Cormier seeks to supplement and amend his
first motion in limine to exclude Cormier's criminal
records.[168] In the motion, Cormier alleges that
Defendants have engaged in a concerted effort to create a
bias and unfairly prejudice the Court by making false
representations about Cormier's criminal records
throughout Defendants' filings in this
matter.[169]Cormier argues that this supports his
original motion's contention that Cormier's criminal
records should be excluded under Rule 403, but Cormier does
not appear to request any ...