United States v. Robert Thomas

321 F.3d 627, 60 Fed. R. Serv. 1059, 2003 U.S. App. LEXIS 3413, 2003 WL 464865
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 25, 2003
Docket02-1487
StatusPublished
Cited by108 cases

This text of 321 F.3d 627 (United States v. Robert Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Robert Thomas, 321 F.3d 627, 60 Fed. R. Serv. 1059, 2003 U.S. App. LEXIS 3413, 2003 WL 464865 (7th Cir. 2003).

Opinion

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 pri- or 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 *630 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 Nig-ga’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 *631 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, ie., 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

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321 F.3d 627, 60 Fed. R. Serv. 1059, 2003 U.S. App. LEXIS 3413, 2003 WL 464865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-thomas-ca7-2003.