United States v. Brackeen

United States Court of Appeals for the Ninth Circuit (en banc) · 1992 · Evidence

969 F.2d 827 (9th Cir. 1992)

Updated August 22, 2026

EvidenceImpeachment by prior convictionFederal Rule of Evidence 609(a)(2)Federal Rule of Evidence 609609(a)(2)dishonestyfalse statementimpeachment

Facts

Brackeen robbed three banks on three separate days in July 1990. He pleaded guilty to two unarmed bank robberies and went to trial on a separate count alleging that he aided and abetted an armed bank robbery committed with Jermaine Moore, claiming he did not know Moore had a gun. After Brackeen testified as the sole defense witness, the district court permitted impeachment with his guilty pleas to the two unarmed bank robberies. The court admitted them only under Rule 609(a)(2), expressly declining to admit them under Rule 609(a)(1).

Issue

Whether bank robbery is per se a crime involving "dishonesty" within the meaning of Federal Rule of Evidence 609(a)(2), so that a prior bank robbery conviction must be admitted for impeachment. More specifically, the question was whether bank robbery falls within Rule 609(a)(2) even though it does not involve a false statement or fraudulent means.

Rule

For purposes of Federal Rule of Evidence 609(a)(2), "dishonesty" is used in the narrow sense and covers only crimes that factually or by definition involve some element of deceit, untruthfulness, falsification, misrepresentation, or are in the nature of crimen falsi. Crimes such as bank robbery, which are not actually committed by fraudulent or deceitful means, are not per se crimes of dishonesty under Rule 609(a)(2).

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a federal trial in Phoenix, defendant Marcus Hale testifies that he never joined a warehouse break-in. On cross-examination, the prosecutor seeks to impeach him with a prior conviction for armed street robbery in Nevada and argues that robbery is inherently dishonest because it involves stealing.

Under the governing rule, how should the court rule if the prosecutor relies only on Rule 609(a)(2)?

Explanation. Rule 609(a)(2) uses "dishonesty" in a narrow sense. It covers only crimes that factually or by definition involve deceit, untruthfulness, misrepresentation, or falsification. Robbery, even though dishonest in a broad moral sense, is not automatically admissible under Rule 609(a)(2) because it is not ordinarily committed by deceitful or fraudulent means.