## Facts

- Guy S. Altobello, a former employee, sued Borden Confectionary Products, Inc. alleging discharge because of age in violation of the Age Discrimination in Employment Act (ADEA).
- The case was tried to a jury over five days, with sharply conflicting evidence on whether Altobello was fired for malingering or whether that rationale was a pretext for age discrimination.
- During cross-examination, the district court allowed Borden to impeach Altobello with a 1978 misdemeanor conviction for tampering with electric meters; Altobello admitted the conviction.
- The prior conviction was introduced solely to attack Altobello’s credibility as a witness.

## Issues

1. Whether a misdemeanor conviction for tampering with electric meters qualifies as a crime involving “dishonesty or false statement” admissible for impeachment under Federal Rule of Evidence 609(a)(2).
2. Whether an argument narrowing Rule 609(a)(2) to only traditional crimen falsi must be rejected as waived when raised for the first time on appeal.
3. Whether Rule 403 balancing applies to impeachment evidence admitted under Rule 609(a)(2).

## Decision

- The court affirmed the judgment entered on the jury’s verdict for Borden.
- Altobello’s appellate theory that Rule 609(a)(2) requires a showing of deception in the specific underlying acts was waived because it was not raised in the district court.
- Even on the merits, meter tampering is a deceit-based offense “akin to larceny by trick” and falls within Rule 609(a)(2).
- Under circuit precedent, Rule 403 does not apply to convictions admitted under Rule 609(a)(2); the district court was not required to balance prejudice against probative value.

## Legal Principles

- Under Rule 609(a)(2), impeachment by conviction is permitted for crimes involving dishonesty or false statement regardless of punishment, and admissibility is treated as categorical once the crime qualifies.
- The relevant distinction for Rule 609(a)(2) is between crimes that involve an element of deception and crimes that do not; not all criminal conduct is “dishonest” in the credibility-related sense.
- Offenses involving deceit are especially probative of a witness’s willingness to lie under oath and therefore bear directly on credibility.
- In the Seventh Circuit, Rule 403 does not limit admission of convictions that qualify under Rule 609(a)(2).
- Arguments not presented to the trial court are generally forfeited on appeal, and appellate courts ordinarily will not reverse based on a waived contention.

## Conclusion

The Seventh Circuit upheld impeachment of an ADEA plaintiff with a prior misdemeanor meter-tampering conviction, holding the offense involves deceit within Rule 609(a)(2) and is admissible without Rule 403 balancing, while also treating a newly raised limiting theory as waived.


Altobello v. Borden Confectionary Prods., Inc., 872 F.2d 215 (7th Cir. 1989)