                                  PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
             _____________

                 No. 12-4468
                _____________


               IMAN SHARIF,

                                Appellant

                       v.

C.O. NATHAN PICONE; C.O. BRIAN POTANCE;
 C.O. THOMAS PINTO; LIEUTENANT JOSEPH
               KOSPIAH;
         JOHN DOE C.O. NOS 1-10



  Appeal from the United States District Court
    for the Eastern District of Pennsylvania
      (District Court No.: 5-09-cv-02501)
   District Judge: Honorable Robert F. Kelly


           Argued October 18, 2013
 Before: RENDELL, JORDAN and LIPEZ*, Circuit Judges


             (Opinion Filed: January 21, 2014)


Stephen D. Brown, Esquire
Donald C. Le Gower, Esquire (Argued)
Dechert, LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104-2808

                    Counsel for Appellant


David J. MacMain, Esquire (Argued)
Brian H. Leinhauser, Esquire
The MacMain Law Group
101 Lindenwood Drive
Suite 160
Malvern, PA 19355

                    Counsel for Appellees




        *Honorable Kermit V. Lipez, Senior United States
Circuit Judge for the Court of Appeals for the First Circuit,
sitting by designation.




                             2
                        OPINION


RENDELL, Circuit Judge:

       Plaintiff, Iman Sharif, appeals from a jury verdict in
favor of Defendants - several Northampton County Prison
officers - on Sharif’s 42 U.S.C. § 1983 excessive force claim.
On appeal, Sharif argues that the District Court erred in
admitting evidence of Sharif’s prior plea of nolo contendere
and resulting conviction for assault in connection with the
incident that is at the heart of his § 1983 claim. He notes that
Federal Rule of Evidence 410 prohibits the admission of his
nolo plea. He also urges that the Court abused its discretion
under Federal Rule of Evidence 609 in admitting evidence of
the conviction as relevant to his credibility.

                               I.

                   A. Factual Background

       On March 11, 2009, Iman Sharif was an inmate at the
Northampton County Prison.           He was housed in the
Restrictive Housing Unit (“RHU”) where Defendant-
Appellees Corrections Officers Nathan Picone (“C.O.
Picone”), Thomas Pinto (“C.O. Pinto”), and Brian Potance
(“C.O. Potance”) were all on duty. While C.O. Picone was
collecting dinner trays, he claims that Sharif “sucker
punched” him. (J.A. 369.) In contrast, Sharif claims that
C.O. Picone initiated the altercation by punching Sharif first.
       C.O. Picone testified that once he was struck, he
attempted to protect himself from additional punches and




                               3
kicks. He further testified that C.O. Potance, who was
assigned to help C.O. Picone retrieve dinner trays, entered
Sharif’s cell and attempted to restrain Sharif. At this point,
C.O. Picone hit Sharif in the head with an open hand in an
effort to “get him to the ground.” (J.A. 371.) Conversely,
Sharif asserted that once C.O. Picone began to hit him, C.O.
Potance and C.O. Pinto entered his cell and joined in the
attack by choking him.

       Following the altercation, Sharif was handcuffed and
moved to a “suicide cell.” (J.A. 446.) According to
Appellees, this was for his own safety; however, he continued
to cause commotion so he was moved to a restraint chair.
Sharif contends that while he was in the restraint chair, he
was punched repeatedly by unnamed corrections officers, all
of which was observed and permitted by Appellee-Defendant
Lieutenant Joseph Kospiah (“Lt. Kospiah”).

       Sharif was charged with aggravated assault pursuant to
18 Pa. Cons. Stat. § 2702(a)(3) (2012) as a result of the
altercation with C.O. Picone, C.O. Potance and C.O. Pinto.
Sharif entered a plea of nolo contendere and was convicted
under the statute as charged.1 Sharif’s excessive force claim
under 42 U.S.C. § 1983 is based on this incident.
                    B. Procedural History


1
  18 Pa. Cons. Stat. § 2702(a)(3) reads, “(a) Offense defined.
– A person is guilty of aggravated assault if he . . . (3)
attempts to cause or intentionally or knowingly causes bodily
injury to any of the officers, agents, employees, or other
persons enumerated in subsection (c), in the performance of
duty.” Subsection (c) includes corrections officers.




                              4
        Sharif brought this § 1983 action alleging that C.O.
Picone, C.O. Potance and C.O. Pinto are liable for attacking
him in his cell in violation of his Eighth Amendment right to
be free from cruel and unusual punishment. Further, he
contends that Lt. Kospiah is liable for allowing the physical
abuse to proceed while Sharif was restrained. Sharif sought
relief of “nominal, compensatory, and punitive damages” for
Appellees’ actions against him. (J.A. 20.)

       Pre-trial, Sharif filed a motion in limine to exclude
evidence of his nolo contendere plea under Rule 410. The
Court noted that Sharif planned to take the stand and deny
any wrongdoing in connection with the altercation. The
Court stated that if that were to happen, then evidence of his
plea “may end up being relevant” and would thus be
admitted. (J.A. 123-24.) During a hearing on the motion, the
Court accepted Appellees’ counsel’s argument that “it would
be inconsistent to allow [Sharif] to have taken the position in
a prior court proceeding that he wasn’t going to contest the
charges.” (J.A. 123.) In other words, the plea would be
admitted as inconsistent with his assertion at trial that he had
done nothing wrong and, therefore, as relevant to the issue of
his credibility.

       Pursuant to the Court’s ruling, during cross-
examination of Sharif, Appellees’ counsel twice referred to
Sharif’s plea of nolo contendere to suggest that the plea was
inconsistent with his statement at trial that he had done
nothing wrong. We quote directly from the trial transcript:
       Q: You stand before this jury and you have
       testified that you did absolutely nothing wrong,
       correct?
       A: Yes, sir.




                               5
      Q: The officers just came in and struck you for
      no reason?
      A: Yes, sir.
      Q: Yet, in another court at another time you had
      an opportunity to say the same thing, correct?
      A: No, sir.
      Q: You were criminally charged with assaulting
      Officer Picone, correct?
      A: Yes, sir.
      Q: And you didn’t contest those charges?
      A: No, sir.
      Q: You pled no contest?
      A: Yes, sir.

(J.A. 216-17.)

      Q: Sure. Now, I want to get back to the first
      incident. It’s your testimony as to the first part,
      the incident with Picone, that he came in, struck
      you, you had absolutely done nothing wrong,
      correct?
      A: Wrong morally, like I did, I tried to get
      under his skin, I did talk about him.
      Q: Right, but you did nothing physical?
      A: Exactly.
      Q: You did not strike him first?
      A: Exactly.
      Q: Okay. But, that’s what you were charged
      with, correct, striking him first, that’s what you
      were criminally charged with?
      A: That's what -- [Objection]
                               …




                               6
       Q: Sure. You were charged with striking Officer
       Picone, correct?
       A: I was charged with assaulting him, yes.
       Q: Assaulting him. Okay. But, your testimony
       here today is you did not assault him in any
       way, shape, or form?
       A: And that’s [Objection regarding the
       definition of assault under this statute,
       i.e.,assault of an employee of the state]
       …
       A: You asked me if I assaulted him?
       Q: Correct.
       A: The same thing that I said before, I did not
       hit Officer Picone.
       Q: But, you did not contest in the criminal case
       that you assaulted him, correct?

(J.A. 241 - 44.)

        In his closing, counsel again referenced Sharif’s nolo
plea, stating:

       He says he didn’t do a darn thing that day…yet
       when he had an opportunity in another court
       proceeding to contest that he didn’t do what he
       was accused of doing, he didn't contest it…yet
       he comes in here in another court proceeding
       and takes a different position. That should speak
       volumes about his credibility.

(J.A. at 577.)




                               7
       During trial, the District Court allowed Appellees to
introduce evidence of Sharif’s five prior convictions,
including the conviction for assault resulting from his nolo
plea, pursuant to the Court’s denial of Sharif’s motion in
limine in which Sharif urged that the minimal probative value
of these convictions was outweighed by their prejudicial
effect. The other convictions were for simple assault and for
false reporting to a police officer. The convictions were all
admitted for the purpose of assessing Sharif’s character for
truthfulness.

       The Court instructed the jury as to the purpose for
which past convictions were admitted into evidence: “You
may wish to consider those convictions as you weigh his
credibility as a witness.” (J.A. 605.) The Court explained
that one of the convictions was the result of a nolo contendere
plea which, according to the Court, could be used only to
evaluate Sharif’s credibility. (J.A. 605-06; 222-23 (“[T]hose
incidents of prior convictions are admitted for the sole
purpose for you[, the jury,] to use if you so desire to consider
the credibility of the witness.”)). The jury returned a verdict
against Sharif, and this timely appeal followed.




          II. Jurisdiction and Standard of Review

       The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. § 1331. We have jurisdiction over
Sharif’s appeal pursuant to 28 U.S.C. § 1291.




                               8
       A district court’s interpretation of the Federal Rules of
Evidence is reviewed de novo. United States v. Furst, 886
F.2d 558, 571 (3d Cir. 1989). The application of a particular
rule by a district court is reviewed under an abuse of
discretion standard. United States v. Balter, 91 F.3d 427, 437
(3d Cir. 1996).

                              III.

  A. Rule 410: Admissibility of the Nolo Contendere Plea

        Sharif urges that the District Court erred in allowing
evidence of his plea of nolo contendere to be admitted
because Rule 410 bars such admission. Rule 410 states, in
relevant part, “[i]n a civil or criminal case, evidence of [a
nolo contendere plea] is not admissible against the defendant
who made the plea.” Fed. R. Evid. 410(a)(2); see also Fed.
R. Crim. P. 11(f) (“The admissibility or inadmissibility of a
plea . . . is governed by Federal Rule of Evidence 410.”); Fed.
R. Evid. 803(22) (plea of nolo contendere excluded from
exceptions to hearsay rule). This prohibition is based on the
fact that “a nolo plea is not a factual admission that the
pleader committed a crime. Rather, it is a statement of
unwillingness to contest the government’s charges and an
acceptance of the punishment that would be meted out to a
guilty person.” Olsen v. Correiro, 189 F.3d 52, 59 (1st Cir.
1999); see also North Carolina v. Alford, 400 U.S. 25, 35 n.8
(1970) (“Throughout its history…the plea of nolo contendere
has been viewed not as an express admission of guilt but as a
consent by the defendant that he may be punished as if he
were guilty and a prayer for leniency.”). An important policy
consideration animating Rule 410 is that it encourages




                               9
compromise in criminal cases, which, in turn, lessens the
burden on courts, defendants and prosecutors, producing a
more efficient criminal justice system. See Olsen, at 60 (“A
second reason behind Rule 410’s exclusion of nolo pleas is a
desire to encourage compromise resolution of criminal
cases.”); see also 21 Am. Jur. 2d Criminal Law § 675 (2013)
(“A plea of nolo contendere is used by the accused in criminal
cases to save face and avoid exacting an admission that could
be used as an admission in other potential litigation, to avoid
trial with its attendant expense and adverse publicity in the
event of a conviction.”). Thus, the use of a nolo plea as
tantamount to an admission of guilt would defeat one of its
primary purposes.

        Despite Rule 410’s apparent clear command, there is
caselaw supporting the admission of a defendant’s nolo plea
in certain circumstances. 2 In Walker v. Schaeffer, 854 F.2d
138 (6th Cir. 1988), two African-American men were
threatened and harassed by a mob of several hundred white
high school students in a McDonald’s parking lot. Id. at 139.
As they attempted to flee the parking lot, they were arrested
for disorderly conduct and reckless driving. Id. at 140. After
pleading no contest to these charges, the defendants sued the
arresting police officers for false arrest and wrongful
imprisonment. Id. The police officers asserted a qualified
immunity defense. To determine whether they were entitled
to this defense, the court examined whether the officers had
violated the plaintiffs’ clearly established rights. Id. at 141.

2
   We note that, at oral argument, Appellees urged the
applicability of caselaw allowing the admission of such a
plea, but they failed to even mention Rule 410, or the relevant
caselaw, in their brief.




                              10
The court found that the plaintiffs were “estopped” from
arguing that their rights had been violated because, by
pleading nolo contendere, they had “in effect, admitted facts
in open court evidencing [their] guilt.” Id. at 141-42.

      The Walker court went beyond the issue of collateral
estoppel when it stated that its decision was not barred by
Rule 410:

       Rule 410 was intended to protect a criminal
       defendant’s use of the nolo contendere plea to
       defend himself from future civil liability. We
       decline to interpret the rule so as to allow the
       former defendants to use the plea offensively, in
       order to obtain damages, after having admitted
       facts which would indicate no civil liability on
       the part of the arresting police.

Id. at 143.

This language has been cited by district courts within our
Circuit, as well as by the Tenth Circuit, for the proposition
that nolo contendere pleas are not always precluded by Rule
410, particularly when a pleader attempts to bring a § 1983
claim against officials for false arrest, false imprisonment or
malicious prosecution.3 See Rose v. Uniroyal Goodrich Tire

3
  The underlying principle is that courts will not allow
someone who has consented to be convicted, and therefore
punished, pursuant to a nolo plea to claim that he was
wrongfully arrested, wrongfully imprisoned or prosecuted
maliciously, because the conviction that results from a nolo
plea validates the government action.




                              11
Co., 219 F.3d 1216, 1220 (10th Cir. 2000) (reasoning that the
nolo contendere plea was “not being admitted ‘against the
defendant’” in the civil action); 4 Douglas v. Public Safety
Comm’n, 1:01cv00419, 2002 WL 31050863, at *8 (D. Del.
Sept. 13, 2002) (finding Walker to be “instructive and
persuasive”); Domitrovich v. Monaca, 2:08cv1094, 2010 WL
3489137, at *6 (W.D. Pa. Sept. 1, 2010) (relying on Walker to
hold that prior nolo plea barred claims for malicious
prosecution and false arrest).
        We view Walker as imprecise, and in any event,
distinguishable. First, Walker’s reference to a defendant
“having admitted facts” through a nolo plea, 854 F.2d at 143,
misconstrues the nature of the plea. Indeed, we held in
United States v. Adedoyin, 369 F.3d 337, 344 (3d Cir. 2004),
that a nolo plea is not an admission. See also United States v.
Poellnitz, 372 F.3d 562, 566 (3d Cir. 2004) (“While a nolo
plea is indisputably tantamount to a conviction, it is not

4
  In Rose the court allowed a plea of nolo contendere to be
admitted in the narrow circumstance where a plaintiff was
fired under the company’s no tolerance drug policy based on
the plaintiff’s plea of nolo contendere to a drug possession
charge. Rose, 219 F.3d at 1219. The plaintiff asserted
wrongful discharge and argued that his plea of nolo
contendere was inadmissible under Rule 410. Id. The court
ultimately held that Rule 410 could not be construed “to
affirmatively prevent an employer from presenting the very
evidence used as a basis for its termination decision.” Id. at
1220. Even though the court in Rose allowed the nolo plea to
be admitted, it nonetheless noted that, “although a plea of
nolo contendere has the same legal effect as a guilty plea, it is
not a factual admission to the underlying crime.” Id.
(emphasis in original).




                               12
necessarily tantamount to an admission of factual guilt.”).
Second, the logic of Walker seems to flow from the Supreme
Court’s decision in Heck v. Humphrey, 512 U.S. 477, 487
(1994), where the Court held that when a § 1983 claim
amounts to a collateral attack on a criminal conviction, the
conviction or sentence must be reversed, or invalidated by
other means, before a court can entertain the claim.5
Similarly, the collateral attack in Walker would not be
permitted, presumably, as a matter of fairness, outweighing
the dictates of the Federal Rules of Evidence. But we need
not decide whether Rule 410 stands as a bar to the admission
of a nolo plea when a defendant levels a collateral attack on
his prior conviction.
       We need not decide that question because even
Appellees concede that Sharif’s claim of excessive force does
not amount to a collateral attack on his aggravated assault
conviction. They further concede that he did not admit any
“facts which would indicate no civil liability on the part of”
the corrections officers. Walker, 854 F.2d at 143. Indeed, we
held in Nelson v. Jashurek, that Heck does not bar an
excessive force claim because the claim can stand without

5
  District courts in our Circuit have relied upon Heck and
Walker in tandem for the proposition that nolo contendere
pleas, and the resulting convictions, bar pleaders from
bringing 42 U.S.C. § 1983 claims in certain instances. See
Domitrovich, 2010 WL 3489137, at *7-8 (Heck bars § 1983
false arrest and malicious prosecution claims because they
would necessarily implicate the convictions, but an excessive
force claim is not barred) (internal quotation marks omitted);
Douglas, 2002 WL 31050863, at *8 (§ 1983 excessive force
claim barred because Walker found to be “instructive and
persuasive” and Heck controlling).




                             13
challenging any element of the conviction. 109 F.3d 142,
145-46 (3d Cir. 1997) (“[T]here undoubtedly could be
substantial force which is objectively reasonable and
substantial force which is excessive and unreasonable.”)
(internal quotation marks omitted); see also Thomas v. Roach,
165 F.3d 137, 144 (2d Cir. 1999) (plaintiff’s § 1983 claim
predicated on excessive force during his arrest is not barred
by his nolo contendere plea to the offense for which he was
arrested). Regardless of whether he engaged in assaultive
conduct, Sharif remains free to contend that the reaction of
the corrections officers was such that it constituted excessive
force in comparison to the threat he posed. Thus, Walker is
distinguishable from this case.

       District courts within the Third Circuit that have
chosen to consider or admit past nolo pleas, have done so
largely on the basis of collateral estoppel principles discussed
in Heck. As explained above, those principles are not
applicable in this case, particularly given our holding in
Nelson that Heck does not bar an excessive force claim
because such a claim would not negate any element of the
conviction. Nelson, 109 F.3d at 145-46. Given these
considerations, we hold that Rule 410 barred the admission of
Sharif’s plea of nolo contendere.
       The admission of Sharif’s plea of nolo contendere was
not harmless error. See Glass v. Phila. Elec. Co., 34 F.3d
188, 191 (3d Cir. 1994) (“In reviewing evidentiary rulings, if
we find nonconstitutional error in a civil suit, such error is
harmless only ‘if it is highly probable that the error did not
affect the outcome of the case.’”) (quoting Lockhart v.
Westinghouse Credit Corp., 879 F.2d 43, 53 (3d Cir. 1989)).
First and foremost, the District Court clearly ruled that the
nolo plea should be admitted, and used by the jury, to assess




                              14
Sharif’s credibility because his trial statement was
inconsistent with his previous nolo plea. (J.A. 223, 606.) But
this is incorrect. Indeed, a significant basis for prohibiting the
evidence of the plea is the fear that it could be improperly
viewed as an admission, and, unfortunately, that is how the
District Court viewed it. This was reversible error.

       In Adedoyin, which was controlling authority at the
time of the District Court decision, we unmistakably held
that, with respect to a criminal charge, a nolo plea does not
admit underlying facts or guilt. 369 F.3d at 344 (“[A] plea of
nolo contendere is not an admission of guilt and thus the fact
that a defendant made such a plea cannot be used to
demonstrate that he was guilty of the crime in question.”); see
also Poellnitz, 372 F.3d at 566 (“While a nolo plea is
indisputably tantamount to a conviction, it is not necessarily
tantamount to an admission of factual guilt.”). Consequently,
Sharif’s claim that he did nothing wrong was not inconsistent
with his previous plea of nolo contendere, and, thus, would
not be relevant in assessing his character for truthfulness.

       Moreover, insofar as it went to credibility, the
Appellees’ line of questioning was very damaging. Sharif
was the only witness who testified on his behalf. His
credibility was of the utmost importance to his case. By
admitting his prior nolo plea, in violation of Rule 410, the
District Court allowed Appellees to severely undermine
Sharif’s credibility. This damage was particularly acute given
the method by which counsel strategically used the nolo plea
to make Sharif appear untruthful as to the incident at issue.6

6
   As quoted supra, Appellees’ counsel closed with the
following statement: “[Y]et when he had an opportunity in




                               15
As Sharif points out, “[Appellees] argued that Mr. Sharif’s
statements in this case should not be believed because they
were contrary to his decision to plead nolo in his criminal
case.” Appellant’s Reply Br. at 3. For these reasons, we
cannot say that the error did not affect the outcome of the
case.

       Finally, Appellees urge that it would be unfair to
exclude Sharif’s nolo plea. Appellees’ Br. at 20 (“To ignore
his nolo contendere plea and attempt to keep from the jury
that he, in a previous legal proceeding, and under oath, took a
contrary position, would be inconsistent and dishonest on the
part of the Plaintiff.”).       But this argument regarding
inconsistency demonstrates how Appellees misconstrue the
very meaning of a nolo plea and one of the purposes of
excluding such pleas from evidence. A nolo plea reflects a
prosecutorial choice to permit a defendant to persist in not
admitting the crime for the sake of obtaining the conviction.
Thus, there is no inconsistency or “contrary position” at all.
          B. Rule 609: Admissibility of the Conviction

       Sharif’s second argument on appeal is that the District
Court erred in admitting his conviction for aggravated assault
in connection with the altercation in prison, which he
contends should have been excluded pursuant to Rule 609.
As noted supra, we, along with other courts of appeals, have
held that Rule 410 does not bar the admission of a conviction


another court proceeding to contest that he didn't do what he
was accused of doing, he didn't contest it . . . yet he comes in
here in another court proceeding and takes a different
position. That should speak volumes about his credibility.”
(J.A. at 577.)




                              16
resulting from a nolo plea, but rather prohibits only the
admission of the plea itself. See Adedoyin, 369 F.3d at 344-
45; Olsen, 189 F.3d at 58-62.

       In Olsen, for example, the defendant was tried and
convicted of first-degree murder. After five years in prison
his conviction was overturned and he was released pending a
new trial. Olsen, 189 F.3d at 55. Rather than go through a
new trial, Olsen pled nolo contendere to the charge of
manslaughter. Id. He was sentenced to time already served
and released. Following his release, he brought a § 1983
claim against the city and two police officers, seeking
damages for his imprisonment. Id. On appeal, Olsen argued
that Rule 410 barred admission of not only his nolo plea, but
also of the resulting conviction and sentence. The Olsen
court held that Rule 410 clearly barred the admission of the
plea itself, but declined to hold that the resulting conviction
and sentence were barred under Rule 410.7 Id. at 62.
       While the nolo plea is not a factual admission of guilt,
and is to be excluded in light of the policy reasons we have
discussed, the conviction resulting from the nolo plea is a
legal finding of guilt, and there are no similar policy reasons
that would support its exclusion. See Poellnitz, 372 F.3d at
566 (“While a nolo plea is indisputably tantamount to a

7
  To illustrate the policy behind Rule 410’s prohibition on
admitting pleas of nolo contendere, the court in Olsen noted
the distinction between nolo pleas and guilty pleas: “[A] nolo
plea is not a factual admission that the pleader committed a
crime.” 189 F.3d at 59. Conversely, a “guilty plea is an
admission of all the elements of a formal criminal charge.”
Id. at 60 (internal quotation marks omitted).




                              17
conviction, it is not necessarily tantamount to an admission of
factual guilt.” (citing Adedoyin, 369 F.3d. at 344)). Indeed, it
is well-established that Rule 410 does not apply to the
conviction itself, which is admissible subject to the
limitations of the other Rules of Evidence. See Brewer v. City
of Napa, 210 F.3d 1093, 1096 (9th Cir. 2000) (“Rule 410 by
its terms prohibits only evidence of pleas (including no
contest pleas), insofar as pleas constitute statements or
admissions. Rule 609, by contrast, permits admission for
impeachment purposes of evidence of convictions.”)
(emphasis in original); United States v. Williams, 642 F.2d
136, 139 (5th Cir. 1981) (“[T]here is a distinct and
meaningful difference between the evidentiary use of a plea
to a criminal charge and a conviction of a criminal charge.”).

       Rule 609 governs when prior convictions can be
admitted to attack a witness’s character for truthfulness. Rule
609 reads in pertinent part:

       (a) In General. The following rules apply to
       attacking a witness’s character for truthfulness
       by evidence of a criminal conviction: (1) for a
       crime that . . . was punishable by death or by
       imprisonment for more than one year, the
       evidence: (A) must be admitted, subject to Rule
       403, in a civil case or in a criminal case in
       which the witness is not a defendant.

Fed. R. Evid. 609(a)(1)(A) (emphasis added).

Since Rule 609 is subject to Rule 403, courts must consider
whether the probative value of a prior conviction is
substantially outweighed by the prejudicial effect of admitting




                              18
the conviction. See Fed. R. Evid. 403.8 In doing so, we have
directed that four factors should be weighed against the
potential for prejudice in admitting a conviction: (1) the
nature of the conviction; (2) the time elapsed since the
conviction; (3) the importance of the witness’s testimony to
the case; and (4) the importance of credibility to the claim at
hand. United States v. Greenidge, 495 F.3d 85, 97 (3d Cir.
2007) (citing Gov’t of the Virgin Islands v. Bedford, 671 F.2d
758, 761 n.4 (3d Cir. 1982)).

       We review a district court’s application of a particular
rule of evidence for abuse of discretion. Balter, 91 F.3d at
437. In denying Sharif’s motion in limine and admitting his
four assault convictions, including the 2009 conviction
underlying his § 1983 claim that is the focus of his appeal, the
District Court failed to conduct the required Rule 403
analysis. While that might normally prevent us from being
able to review the Court’s exercise of discretion, here, we can
easily conclude from our evaluation of the four Greenidge
factors that the admission of the 2009 conviction was not a
proper exercise of discretion.

      Regarding the nature of the conviction, in pre-trial
proceedings Sharif contended that, while his false reporting



8
  Rule 403 states: “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.” Fed. R. Evid.
403.




                              19
conviction9 was probative, the probative value of his other
convictions – all for assault – was minimal. See Mot. In
Limine To Exclude Certain Irrelevant And/Or Prejudicial
Evidence at 5. At trial, without explanation or mention of
Rules 609 or 403, the District Court permitted all four of his
assault convictions to be introduced for impeachment
purposes and gave a limiting instruction as to the jury’s
consideration of them:

      You[, the jury,] have also heard that [Sharif]
      had been convicted of various crimes, and the
      only purpose for the admission of those crimes
      was as they affect his credibility. You may
      wish to consider those convictions as you weigh
      his credibility as a witness.

      One of those convictions involved the assault
      and battery that was testified to at the beginning
      of this case. That evidence may be considered
      by you in determining credibility. If you think
      that it does that is your decision.

(J.A. 605-06.)

       On appeal, Sharif focuses specifically on the
admission of his March 2009 assault conviction as error.
Because the District Court allowed all three of his prior
assault convictions to be admitted, we agree that the
additional probative value of the March 2009 conviction
regarding Sharif’s truthfulness was minimal, if not nil.

9
  This specific conviction was under 18 Pa. Cons. Stat. §
4914.




                             20
Moreover, often, crimes of violence are less probative of
honesty than are crimes involving deceit or fraud.10

        This does not mean that convictions for acts of
violence should be excluded, but it does require a district
court to be diligent in considering the nature of the conviction
and its relationship to the issues at trial, and in explaining its
reasons for admission under Rule 403. This is particularly
true in a case where the nature of the conviction is so closely
related to the issue at trial. Not only was the trial about
violent conduct, Sharif’s 2009 aggravated assault conviction
was for the very incident at the center of his civil claim. It
was not simply similar to the issue at hand, it was the issue at
hand. Thus, the first factor, “nature of the conviction,”
weighs heavily in Sharif’s favor.
        Examining the probative value under the remaining
three prongs of the Greenidge test yields a balance in Sharif’s
favor, and against the probative value of the 2009 assault
conviction. This conclusion is bolstered by the District
Court’s decision to admit all three of Sharif’s other prior
assault convictions, thereby further lowering the probative
value of the conviction for aggravated assault at the center of
this dispute.



10
    As noted by the Court of Appeals for the District of
Columbia in Gordon v. United States, “[i]n common human
experience acts of deceit, fraud, cheating, or stealing, for
example, are universally regarded as conduct which reflects
adversely on a man’s honesty and integrity. Acts of violence .
. . generally have little or no direct bearing on honesty and
veracity.” 383 F.2d 936, 940 (D.C. Cir. 1967).




                               21
       The second Greenidge factor, time elapsed between
the conviction and the defendant’s testimony at trial, does not
weigh in favor of either side. When a prior conviction is not
“remote in time” from the time of trial, it is more relevant to
the case at hand than when it is an older conviction.
Greenidge, 495 F.3d at 96; see also Fed. R. Evid. 609(b)
(limit on using prior convictions that are more than 10 years
old). For example, compare United States v. Causey, 9 F.3d
1341, 1344 (7th Cir. 1993) (conviction within the last six
months was highly probative) with United States v. Paige,
464 F. Supp. 99, 100 (E.D. Pa. 1978) (eight year old
conviction was deemed to have diminished probative value).
Mr. Sharif’s three year old 2009 conviction was not so far
remote in time as to be irrelevant.

        The final two Greenidge factors, the importance of the
witness’s testimony and the importance of credibility to the
claim at hand, overlap.         Sharif’s testimony was very
important as he was his only witness, and for that very reason,
his credibility was also crucial to his claim. Sharif concedes
that his credibility was “paramount to his case” as he was the
only person to testify on his behalf about the events that led to
this suit. Appellant’s Br. at 24. In assessing all of these
factors we cannot help but conclude that the probative value
of Sharif’s 2009 assault conviction was minimal. Even
though his credibility was the key factor in the case, this
fourth assault conviction added little on top of the three the
jury were already made aware of.

       Balancing the limited probative value against the
potential for prejudice, we conclude that the 2009 assault
conviction should not have been admitted. The primary
concern regarding prejudice is that the jury may believe that




                               22
the defendant has a propensity towards acting in conformity
with a prior bad act. See Gordon v. United States, 383 F.2d
936, 940 (D.C. Cir. 1967) (“[T]here is inevitable pressure on
lay jurors to believe that if he did it before he probably did it
this time.”). Accordingly, we ask whether the admission of
this conviction “ha[d] the potential to so prejudice the jury
that its weighing of all the factual issues in the entire case
may be impaired.” Tabron v. Grace, 898 F. Supp. 293, 296
(M.D. Pa. 1995). The fact that the 2009 conviction stems
from the same incident at issue here makes this type of
prejudice a particular danger, and given its limited probative
value, the balance clearly favors not admitting the conviction
pursuant to Rule 403.

        In some situations, a limiting instruction, such as that
given by the District Court, can minimize the prejudice.
Here, however, we cannot imagine the jury being able to
compartmentalize the most recent assault conviction – already
having evidence of the other three – as relevant only to
Sharif’s character for truthfulness. Such mental gymnastics
may well be beyond the ability of the common man, and may
be more confusing than helpful to the jury in light of the
circumstances, as Sharif urges. Appellant’s Br. at 25. Jurors
would be left wondering what the assault that relates to this §
1983 action has to do with honesty.
        Sharif’s credibility was sufficiently suspect given the
falsification conviction, the three other assault convictions,
and his status as a prisoner. See Tabron, 898 F. Supp. at 296
(“[T]he mere fact of incarceration in a state institution . . . is a
significant tool for undermining the credibility of the
witness.”). Thus, the probative value of any conviction is
diminished by virtue of the fact that the witness’s credibility
is already tarnished. The admission of the 2009 assault




                                23
conviction added nothing to the notion that Sharif’s
credibility was suspect. But it put the proverbial nail in the
coffin as to the merits of his substantive claims in a way that
we will not sanction. Accordingly, we hold that in the new
trial of Sharif’s case, the evidence of his 2009 assault
conviction should not be permitted.

       As with the admission of the nolo plea itself, the
admission of the conviction was not harmless error. As we
said previously, Sharif’s testimony was critical to his claim.
It was his account against the accounts of those accused of the
wrongdoing. The other convictions that were admitted, along
with the fact that Sharif was incarcerated, already diminished
his credibility. Adding this additional conviction did not
serve any purpose beyond making it nearly impossible for any
juror to believe Sharif’s version of events. Thus, we cannot
say that the admission of this conviction did not affect the
outcome of the trial.

                C. Punitive Damages Claim

        Insofar as we will vacate the judgment of the District
Court and remand this case for a new trial, we find it
unnecessary to reach Sharif’s argument that the District Court
improperly granted judgment against Sharif on his punitive
damages claim, based upon the insufficiency of the evidence
under Federal Rule of Civil Procedure 50. We expect that
Sharif will again pursue punitive damages in his new trial and
put forth evidence to support it. The District Court will have
the opportunity to assess the evidence presented at that trial;
consequently, our ruling regarding what was presented at this
trial, would be little more than an advisory opinion.




                              24
                     IV. Conclusion

      For the foregoing reasons, the District Court’s
judgment in favor of Appellees is vacated and the case is
remanded for a new trial.




                           25
