U.S. v. Lowery

• Decision Date: 19 February 1998
• Docket Number: No. 97-60213,97-60213
• Citation: 135 F.3d 957
• Parties: -903 UNITED STATES of America, Plaintiff-Appellee, v. James LOWERY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 957

135 F.3d 957

81 A.F.T.R.2d 98-903

UNITED STATES of America, Plaintiff-Appellee, v. James LOWERY, Defendant-Appellant.

No. 97-60213.

United States Court of Appeals Fifth Circuit.

Feb. 19, 1998.

Rehearing Denied March 26, 1998.

Richard Terrell Starrett, Asst. U.S. Atty., Donald Ray Burkhalter, Jackson, MS, for Plaintiff-Appellee.

Charles W. Wright, Jr., Meridian, MS, for Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Mississippi.

Before REYNALDO G. GARZA, DUHE and STEWART, Circuit Judges.

PER CURIAM:

This is an appeal from the United States District Court for the Southern District of Mississippi, the Honorable William H. Barbour, Jr., presiding. The Defendant-Appellant, James Lowery ("Lowery"), was found guilty of obstruction of justice, in violation of Title 18, U.S.C. § 1512(b)(1). Lowery timely appealed, and the matter now lies before this panel.

Background

Lowery was a businessman in Jackson, Mississippi, and the owner-operator of a gentleman's club called the Legends Cabaret. Lowery, in his capacity as owner and operator of Legends Cabaret, hired Bonnie Sanders ("Sanders") as an exotic dancer and Betty Murphy ("Murphy") as a maintenance and clean-up person. Arthur Taylor ("Taylor") was the son of Murphy and an acquaintance of Lowery. Sanders was Lowery's girlfriend.

Sanders was the target of an investigation for tax-evasion by the Internal Revenue Service ("IRS") and IRS Special Agent Phil Hull ("Agent Hull"). She was indicted on two counts of tax-evasion and tried in the Southern District of Mississippi before Judge Henry T. Wingate ("the Sanders trial"). ¹ Sanders was found guilty on one count of tax evasion, but Judge Wingate set aside the conviction. This case arises from incidents surrounding the Sanders trial.

Subsequently, James Lowery was indicted and tried for obstruction of justice. He was convicted, and sentenced to imprisonment for thirteen (13) months, payment of a fine of $2,000, and a special assessment of $100. Lowery is presently serving said sentence. Lowery's theory of defense during his trial was that during the time leading up to the Sanders trial, he encouraged Taylor (through Taylor's mother, Murphy) to testify truthfully. Lowery claimed that the IRS realized the weakness of its position while investigating the Sanders case, and began to pressure witnesses to testify in a manner consistent with the IRS position.

Lowery spoke with Murphy regarding the testimony of her son, Taylor, during the course of the investigation. Lowery claims that he was aware that Taylor made statements to Sanders' attorney consistent with her innocence, and he feared the IRS was intimidating Taylor to state otherwise. During the course of a conversation with Murphy in which this matter was discussed, Lowery and Murphy got into an argument, and Lowery fired her. Immediately thereafter, Murphy went to the IRS, reported the incident, and went back to speak with Lowery while wearing a wire. It is these conversations which are at the core of the instant case, and are central to the underpinnings of Lowery's affirmative defense.

Title 18 U.S.C. § 1512(d) states an affirmative defense for obstruction of justice as follows:

(d) in a prosecution for an offense under this section, it is an affirmative defense as to which the Defendant has the burden of proof by a preponderance of the evidence that the conduct consisted solely of lawful conduct and that the Defendant's sole intention was to encourage, induce and cause the other person to testify truthfully.

Lowery claims that he did nothing illegal and was merely trying to encourage Murphy and Taylor to tell the truth, as is allowed under this affirmative defense. He coupled this with an argument stating that the IRS, and particularly Agent Hull, was obsessed with convicting Sanders, and that the IRS was intimidating witnesses to achieve their ends.

The prosecution filed a Motion In Limine at the outset of the trial, which sought to prevent Lowery from introducing evidence, testimony, and the ultimate outcome of the results of the Sanders trial. Judge Barbour believed that such evidence and testimony was irrelevant, granted the Motion In Limine, and excluded such evidence. He also sustained objections made by the prosecution when testimony which related back to the Sanders trial was given. Lowery claims that the grant of this Motion In Limine, coupled with the exclusion of certain necessary evidence and testimony during the trial, prevented him from being able to present his defense. He moved for mistrial twice during the trial on this issue. The prosecution prevailed at the trial level, and the appeal now lies before us.

Standard of Review

A district court's evidentiary rulings are reviewed for abuse of discretion. United States v. White, 972 F.2d 590, 598 (5th Cir.1992). The abuse of discretion must create the likelihood of prejudice to the defendant and the substantial right at issue must be made known to the court. United States v. Tansley, 986 F.2d 880, 886-887 (5th Cir.1993). However, even if the district court erred in its evidentiary rulings, such error can be excused if it was harmless error. United States v. Capote-Capote, 946 F.2d 1100, 1105 (5th Cir.1991). A nonconstitutional trial error is harmless unless it "had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946); see also United States v. Sanchez-Sotelo, 8 F.3d 202, 210 (5th Cir.1993).

Analysis

The key issue is whether the district court erred in granting the Motion In Limine (and subsequent rulings relating to the Motion), and if so, whether such...