R E V I S E D February 25, 1998
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 97-60213
UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
JAMES LOWERY Defendant-Appellant.
Appeal from the United States District Court For the Southern District of Mississippi, Jackson Division
February 19, 1998
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.
1 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.
1 United States v. Sanders, Cause No. 3:96CR38WN.
2 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
3 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,
4 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 (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 error was harmless. We hold that
such error did occur, and the error was not harmless. Therefore,
we reverse and remand this case for new trial.
The district court excluded evidence from and with reference
to the Sanders trial on the grounds that such matters were
irrelevant to Lowery’s case. This was error, because any evidence
that the IRS was intimidating witnesses in the Sanders case would
be relevant to Lowery’s case, given that his theory of defense was
that he was trying to encourage witnesses to tell the truth in the
face of IRS pressure to do otherwise. It is well established that
a criminal defendant is entitled to present his theory of defense,
including witnesses, testimony, and exhibits. See United States v.
Partin, 493 F.2d 750, 763 (5th Cir. 1974). The grant of an overly
broad Motion In Limine, coupled with related rulings on
introduction of certain evidence and testimony, prevented Lowery
5 from properly presenting his theory of defense to the extent
necessary for a fair trial.
It is true that Lowery was able to discuss his affirmative
defense to some degree during the trial. His attorney discussed
the affirmative defense during his argument, Lowery was able to
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R E V I S E D February 25, 1998
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 97-60213
UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
JAMES LOWERY Defendant-Appellant.
Appeal from the United States District Court For the Southern District of Mississippi, Jackson Division
February 19, 1998
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.
1 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.
1 United States v. Sanders, Cause No. 3:96CR38WN.
2 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
3 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,
4 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 (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 error was harmless. We hold that
such error did occur, and the error was not harmless. Therefore,
we reverse and remand this case for new trial.
The district court excluded evidence from and with reference
to the Sanders trial on the grounds that such matters were
irrelevant to Lowery’s case. This was error, because any evidence
that the IRS was intimidating witnesses in the Sanders case would
be relevant to Lowery’s case, given that his theory of defense was
that he was trying to encourage witnesses to tell the truth in the
face of IRS pressure to do otherwise. It is well established that
a criminal defendant is entitled to present his theory of defense,
including witnesses, testimony, and exhibits. See United States v.
Partin, 493 F.2d 750, 763 (5th Cir. 1974). The grant of an overly
broad Motion In Limine, coupled with related rulings on
introduction of certain evidence and testimony, prevented Lowery
5 from properly presenting his theory of defense to the extent
necessary for a fair trial.
It is true that Lowery was able to discuss his affirmative
defense to some degree during the trial. His attorney discussed
the affirmative defense during his argument, Lowery was able to
testify about it, and it was included in the jury charge. However,
the Motion In Limine and related rulings prevented Lowery from
being able to develop and prove his case. Throughout the trial,
whenever the defense tried to elicit testimony which would have
supported the affirmative defense, the prosecution objected,
stating that such testimony related back to the Sanders trial, and
hence, violated the Motion In Limine. Such objections were
consistently sustained. Lowery was unable to prove his case, and
the issues which he claimed to be at the center of his affirmative
defense were relevant. Therefore, the district court erred in its
grant of the Motion In Limine and in its related rulings.
The prosecution argues that the effect of admission of
evidence and testimony regarding the Sanders trial would be
cumulative in addition to being irrelevant. We do not believe this
to be the case. The extent to which Lowery was able to discuss and
attempt to prove his affirmative defense was quite limited. Given
that Lowery wasn’t able to show very much to prove his defense, the
information which the Lowery was trying to elicit, particularly
from Agent Hull, would have not been cumulative. The information
sought by Lowery, if it existed and was true, would have helped
6 develop and support his theory of defense, and would not have been
“piling on.” The decision of the district court cannot be
supported on the grounds that the evidence Lowery tried to
introduce was cumulative.
The district court’s grant of the Motion In Limine left Lowery
little more than the ability to make unsubstantiated and (in
practice, given the situation) unprovable claims on the witness
stand. Lowery’s hands were tied. Further, it can be argued that
he was made worse off by arguing his theory without being allowed
to substantiate it, because without substantiation his theory of
defense looked like a desperate conspiracy theory. The information
Lowery sought was necessary to prove his defense, and it cannot be
said that the effect on the jury’s verdict was insubstantial or
harmless. Therefore, the decision of the district court in this
matter constitutes abuse of discretion and reversible error.
Conclusion
James Lowery was unable to properly conduct his defense at the
trial level due to the district court’s grant of the Motion In
Limine and related rulings. This was not harmless error.
Accordingly, we REVERSE AND REMAND for a new trial, one which
allows Lowery to fully develop his affirmative defense.
REVERSED AND REMANDED.
7 8