## Facts

- James Dale Brewer was indicted on one count of kidnapping (18 U.S.C. § 1201) and one count of transporting a stolen motor vehicle in interstate commerce.
- The indictment was returned in the Middle District of Georgia, Valdosta Division, and the case was later transferred under Federal Rule of Criminal Procedure 21 to the Eastern District of Tennessee, where the alleged abduction began (near Jellico, Tennessee).
- Trial was set for March 15, 1978.
- Before trial, a dispute arose over whether the government could use Brewer’s prior felony convictions to impeach him if he chose to testify.
- Brewer had a federal kidnapping conviction from October 20, 1960, for which he was sentenced to 10 years; he was released on June 27, 1967, and placed on parole.
- While on parole, Brewer committed and was convicted in Greene County, Ohio, of rape, aggravated assault, and assault with a deadly weapon (convictions entered January 6, 1968; sentences imposed March 22, 1968, ranging from one to twenty years).
- After completing state time, Brewer was returned to federal custody as a parole violator on the earlier kidnapping case and was released again on February 9, 1976.
- The parties agreed the prior convictions were felonies punishable by more than one year, so the dispute focused on Federal Rule of Evidence 609(a)(1)’s probative-value versus prejudice balancing.

## Issues

1. Under Federal Rule of Evidence 609(a)(1), does the probative value of admitting each of Brewer’s four prior felony convictions for impeachment outweigh the danger of unfair prejudice if Brewer testifies?
2. Specifically, should Brewer’s earlier federal kidnapping conviction be excluded because it is similar to the kidnapping charge to be tried?

## Decision

- The court granted the motion in part and denied it in part.
- The court excluded Brewer’s prior federal kidnapping conviction from impeachment use under Rule 609(a)(1).
- The court allowed the government to use Brewer’s Ohio convictions for rape, aggravated assault, and assault with a deadly weapon to impeach him if he testified.

## Legal Principles

- Under Federal Rule of Evidence 609(a)(1), a felony conviction may be used to attack a witness’s credibility only if the court finds its probative value for credibility outweighs its prejudicial effect to the accused.
- The government bears the burden of showing admissibility under Rule 609(a)(1).
- Similarity between a prior conviction and the charged offense increases the risk the jury will treat the conviction as evidence of guilt rather than only as credibility evidence, making exclusion more likely under Rule 609(a)(1).
- In weighing prejudice and probative value, courts may consider the age of the conviction and whether intervening incarceration or parole reduces the force of a “remoteness” argument.
- Trial courts have discretion to admit some convictions and exclude others based on individualized Rule 609 balancing.

## Conclusion

The district court ruled on a pretrial impeachment question under Federal Rule of Evidence 609(a)(1), permitting the government to use Brewer’s prior rape and assault-related felony convictions if he testified, but barring use of his earlier kidnapping conviction because its similarity to the charged kidnapping created an unacceptable risk of unfair prejudice.


United States v. Brewer, 451 F.Supp. 50 (1978)