U.S. v. Thomas

• Decision Date: 25 February 2003
• Docket Number: No. 02-1487.,02-1487.
• Citation: 321 F.3d 627
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

321 F.3d 627

UNITED STATES of America, Plaintiff-Appellee, v. Robert THOMAS, Defendant-Appellant.

No. 02-1487.

United States Court of Appeals, Seventh Circuit.

Argued September 10, 2002.

Decided February 25, 2003.

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Joseph Alesia (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

William T. Huyck (argued), Chicago, IL, for Defendant-Appellant.

Before COFFEY, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Robert Thomas was convicted by a jury of possession of a firearm by a convicted felon and possession of cocaine with intent to distribute. We find that the district court abused its discretion when it admitted as evidence a photograph of one of Thomas's tattoos and two of Thomas's prior convictions for gun possession. Because we believe that admission of this evidence unfairly prejudiced his trial, we remand his case for a new trial.

I. BACKGROUND

On September 14, 1999, police officers responded to a domestic disturbance call in an apartment building in Chicago, Illinois, the dispatcher noting a "possible gun on scene." The two responding officers saw Thomas leaving the apartment building's courtyard. They stopped and frisked Thomas, found nothing, and let him leave the courtyard. As the officers walked toward the building, Thomas's sister ran out of the building, pointed at Thomas and, according to the officers, told them that he was the one who pointed a gun at her. Thomas ran from the building and was chased by the officers on foot and by squad car. He was caught a few blocks away.

While Thomas was being handcuffed, a search revealed a bag containing cocaine, but no gun was found. As Thomas was being brought back to the apartment building, his sister told police that he threw a gun in the bushes around the building. After a short search, the officers found a loaded .357 revolver under the stairs leading to the building's entrance. Thomas was charged in Illinois state court with possession of cocaine, pleaded guilty, and was sentenced to three years' incarceration. Paroled on March 9, 2001, Thomas was arrested on a federal complaint charging him with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), as well as possession of over five grams of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a). A jury found Thomas guilty of the gun count and of simple possession of crack cocaine, in violation of 21 U.S.C. § 844, a lesser included offense to the crack possession count. Thomas was sentenced to 235 months' imprisonment and now appeals.

II. ANALYSIS

Thomas's principal challenge on appeal is that two pieces of evidence, a photograph and evidence relating to prior convictions, were erroneously admitted at trial.

A. Admissibility of the Photograph of Thomas's Tattoo

Prior to trial, Thomas moved to have a photograph taken of one of his tattoos ruled inadmissible. The tattoo was of two revolvers crossed, with blood dripping around them and the words "Made Nigga's" above them. After the government agreed to redact the blood and words from the photograph, leaving just the images of the guns, the district court ruled that the photograph was admissible, under Federal Rule of Evidence 403, finding that it "cannot say that the probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues."

We review evidentiary decisions for an abuse of discretion. See United States v. Williams, 216 F.3d 611, 614 (7th Cir.2000). Rule 403 requires district courts to exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." When considering the prejudicial nature of evidence under Rule 403, we have noted that "most relevant evidence is, by its very nature, prejudicial, ... that evidence must be unfairly prejudicial to be excluded." United States v. Curry, 79 F.3d 1489, 1496 (7th Cir.1996) (quoting United States v. Pulido, 69 F.3d 192, 201 (7th Cir.1995)) (emphasis in original). Evidence is unfairly prejudicial "if it will induce the jury to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented." Id. (quoting Pulido, 69 F.3d at 201). The balancing of probative value and prejudice is a highly discretionary assessment, and we accord the district court's decision great deference, only disturbing it if no reasonable person could agree with the ruling. See United States v. Kevin Foster, 30 F.3d 65, 68 (7th Cir.1994).

We have found tattoos admissible when the tattoo was used to identify the defendant, see, e.g., United States v. Galati, 230 F.3d 254, 258 (7th Cir.2000); United States v. Brooks, 125 F.3d 484, 493 (7th Cir.1997); United States v. Osborn, 120 F.3d 59, 61 (7th Cir.1997); see also United States v. Esdaille, 769 F.2d 104, 107 (2d Cir.1985); United States v. Bay, 762 F.2d 1314, 1315 (9th Cir.1984), or to show the defendant's membership in a conspiracy composed of gang members. See, e.g., United States v. Phillips, 239 F.3d 829 (7th Cir.2001); United States v. Lewis, 910 F.2d 1367 (7th Cir.1990). However, we have found tattoos inadmissible when they are only admitted to show membership in a gang, because "the possibility that a jury will attach a propensity for committing crimes to defendants who are affiliated with gangs or that a jury's negative feelings toward gangs will influence its verdict." United States v. Irvin, 87 F.3d 860, 865 (7th Cir. 1996).

Here, the government agreed to redact from the photograph the writing and image of dripping blood, leaving only the image of the two revolvers. The district court ruled the redacted photo admissible, finding that it went toward showing Thomas's awareness of weapons, an absence of mistake, and his opinion of guns, i.e., that he thought so highly of them as to have them tattooed on his body. The government also stated that it would not argue to the jury that the tattoo was of the actual gun found under the stairs.¹ The picture was entered into evidence via a stipulation, which identified the photograph as a "photograph of a tattoo which is etched in the right forearm of defendant Robert Thomas." The tattoo was not discussed again until closing arguments,² and not addressed by a jury instruction.

We fail to see how the redacted photo of the tattoo was admitted for any purpose other than to establish Thomas's propensity to possess guns. The district court's reasons for admitting the photograph, as well as the additional reasons the government provides, all circle back to one basic proposition—because Thomas tattooed a pair of revolvers on his forearm, he is the kind of person who is likely to possess guns.

The district court first stated that it found the tattoo relevant because it showed Thomas's knowledge about the existence of guns. Though such knowledge would be relevant regarding a relatively rare item, firearms are not a specialized area of knowledge. In addition to the omni-presence of guns in today's news and entertainment, their sheer numbers make them commonplace objects. In 1999, the latest year for which statistics are available, 1.3 million new handguns and nearly 2.6 million new rifles and shotguns were sold by licensed firearms dealers. See Bureau of Alcohol, Tobacco & Firearms, FIREARMS COMMERCE IN THE UNITED STATES 2001/2002 at 3 (2002). There are nearly five times more licensed firearm dealers in this country than new car dealers,³ and surely we would not require evidence that Thomas knew what an automobile was if he were on trial for possession of a stolen automobile. While Thomas's tattoo may indicate that he knows that guns exist, we think that this revelation is of little, if any, probative value, especially when balanced against the prejudicial effect the photo may have had on the jury.

The district court's second reason for finding the photograph admissible, an absence of mistake, is also of little probative value. In this case, the gun was not disguised to look like a pen or other trinket one might read about in a spy novel. Rather, it was a revolver, easily identifiable as such. All that the prosecution must show to prove Thomas guilty of being a felon in possession of a firearm is that (1) Thomas was convicted of a felony, and (2) that he was in possession of a firearm for more than an "academic period of time." United States v. Conley, 291 F.3d 464, 473 (7th Cir.2002). Thomas has never claimed that the police were mistaken when they found the gun, nor that he thought it was anything other than a gun when he was shown it the night of his arrest. While an absence of mistake may be relevant when the defendant professes ignorance when being caught red-handed with incriminating evidence, see, e.g., United States v. Derek Foster, 939 F.2d 445 (7th Cir.1991), mistake is not at issue here. Either Thomas did or did not possess a gun that night. Therefore, using the photo of Thomas's tattoo to refute a claim of mistake is of little probative value.

The district court's last reason for admitting the photo of the tattoo, and the government's primary justification for its admission, is that the tattoo shows that Thomas had a high opinion of guns. We think this only goes to propensity. The government stresses repeatedly that the tattoo was not admitted to show that Thomas is the sort of person who likes guns, but rather that Thomas "is proud of his association with the gun charged in the indictment." We fail to see any meaningful difference in that distinction.

According to the government, the tattoo "shows that the defendant has an affinity for such weapons and went to great lengths to display his affection for that type of firearm to the world, because the tattoo is on his forearm, in plain view." This all but admits that the tattoo was offered for its propensity value, as further described when the government tells us in its brief...