United States v. Thomas, Robert ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1487
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT THOMAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 203-1—Charles R. Norgle, Sr., Judge.
____________
ARGUED SEPTEMBER 10, 2002—DECIDED FEBRUARY 25, 2003
____________
Before COFFEY, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Robert Thomas was con-
victed 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
2 No. 02-1487
Chicago, Illinois, the dispatcher noting a “possible gun
on scene.” The two responding officers saw Thomas leav-
ing 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 build-
ing 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 com-
plaint 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 sim-
ple 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.
No. 02-1487 3
A. Admissibility of the Photograph of Thomas’s Tattoo
Prior to trial, Thomas moved to have a photograph tak-
en 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 “can-
not say that the probative value is substantially out-
weighed by the danger of unfair prejudice or confusion of
the issues.”
We review evidentiary decisions for an abuse of discre-
tion. 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 out-
weighed 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 proba-
tive value and prejudice is a highly discretionary assess-
ment, 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
4 No. 02-1487
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 com-
posed 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 photo-
graph 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 photo-
graph as a “photograph of a tattoo which is etched in the
right forearm of defendant Robert Thomas.” The tattoo
1
Nevertheless, in its closing argument, the government re-
sponded to the defendant’s closing argument implication that
the gun may have been planted by asking the jury, “And boy, [the
police] got lucky, didn’t they, that [the gun they found] hap-
pened to be the one that was etched into his arm?”
No. 02-1487 5
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 entertain-
ment, 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
2
In addition to the retort presented in footnote 1, supra, the
government stated in its closing argument that the tattoo was
one of the eight ways the jury could know beyond a reasonable
doubt that Thomas had possessed the firearm that night.
3
In 2001, there were 102,913 licensed firearm dealers in the
country. See Bureau of Alcohol, Tobacco & Firearms, FIREARMS
COMMERCE IN THE UNITED STATES 2001/2002 at E-12 (2002). That
year, there were only 21,800 dealerships that sold new cars. See
National Automobile Dealers Association, NADA DATA 2002
at 4 (2002).
6 No. 02-1487
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 indi-
cate 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 photo-
graph 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 identifi-
able 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 “aca-
demic 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 pro-
fesses 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 indict-
No. 02-1487 7
ment.” 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 that “one would
expect that a person with [a tattoo of a revolver] might
possess the .357 revolver,” and asks “who, other than a
person who advertises his knowledge and love for revolv-
ers and likes to possess them, would have such a tattoo?”
In other words, the government asks us, doesn’t this tat-
too show that Thomas is the kind of person who would
have possessed the revolver as charged in the indictment?
Indeed, the government put the same question to the
jury during closing arguments, asking, “And boy, [the po-
lice] got lucky, didn’t they, that [the gun they found]
happened to be the one that was etched into his arm?”
While we might agree that Thomas may be that kind of
person, these sorts of questions illustrate how the photo
is merely propensity evidence and of no other probative
value.
The government next argues that the tattoo is a “pictorial
admission” of the fact that he knowingly possessed the
gun charged in the indictment. Since there was no di-
rect testimony describing Thomas as actually holding
the gun found under the stairs (or any other gun, for that
matter), the government argues, despite its promise not
to do so during the evidentiary hearing, that “[t]he revolv-
ers emblazoned onto defendant’s body are near replicas
of the revolver that he possessed in the apartment and
then hid.” Indeed, in its closing argument, the govern-
ment stated that the tattoo was one of the eight ways
8 No. 02-1487
the jury could know beyond a reasonable doubt that
Thomas had possessed the firearm that night.
These images, the government contends, are analogous
to the two photographs we found admissible in Conley, a
felon-in-possession case where the photo showed the
defendant brandishing several firearms. We found the
photos relevant in Conley since they were offered to
rebut his defense that he assiduously avoided all contact
with firearms and because “the photos showed Conley
in actual possession of a bevy of weapons.” See Conley,
291 F.3d at 473 (emphasis in original). Here, Thomas
presented no such defense, and the photo was entered
into evidence during the prosecution’s case-in-chief. The
tattoo on Thomas’s arm just shows that he wanted a gun
tattoo. If a tattoo indicates ownership of an object, the
mind reels at the legal and evidentiary consequences of
the unicorns, dragons, mermaids, and other flights of
fancy that decorate people’s bodies.
The government’s other variant of its “pictorial admis-
sion” argument is that only law enforcement officers,
gun store owners, or hunters have a valid reason to get a
tattoo of a gun, and that this somehow shows that Thomas
is a gun owner just like the globe-and-anchor tattoo
shows that its wearer served in the Marine Corps. This
argument ignores the redaction of the photo and the con-
text of the guns. This is like redacting the photo of a tat-
too of the Marine Corps’ globe-and-anchor symbol, leav-
ing only the eagle atop the globe, and using the photo
to claim that the wearer was a bird-watcher. In addi-
tion, without knowing when Thomas got the tattoo, it is
impossible to say that it was drawn after he was con-
victed of a felony, or if it was a relic of earlier days when
it would have been legal for Thomas to pursue his sup-
posed affinity for guns.
The government’s final defense of the tattoo’s admis-
sion into evidence is that the danger of prejudice was
No. 02-1487 9
minimized by redacting the photograph, leaving only the
revolvers. However, it is the images of the revolvers, not
the words and blood that were redacted, that we find
unduly prejudicial, so the redaction was of little help here.
B. Admissibility of Thomas’s Prior Convictions
Thomas also moved before trial to have two prior ar-
rests for gun possession ruled inadmissible. On May 23,
1992, Thomas was pulled over in a car in which a revolv-
er was in plain view. Thomas pleaded guilty to a state
charge of unlawful use of a weapon. Thomas also pleaded
guilty in 1996 to unlawful use of a weapon after he was
arrested by an officer who saw him walking down the
street with a handgun in his waistband. The district
court ruled that witnesses (here, the arresting officers)
could testify as to the facts of these incidents, and that
Thomas’s guilty pleas (though not the docket entries
reflecting the judgments of conviction themselves) were
admissible to establish knowledge, intent, opportunity,
absence of mistake or accident, or as to motive.
To be admissible under Rule 404(b), Thomas’s prior
convictions must:
(1) be directed toward establishing a matter in
issue other than the defendant’s propensity to
commit the crime charged; (2) show that the
other act is similar enough and close enough in
time to be relevant to the matter in issue; (3) be
sufficient to support a jury finding that the de-
fendant committed the similar act; and (4) have a
probative value that is not substantially out-
weighed by the danger of unfair prejudice.
United States v. Moore, 115 F.3d 1348, 1354 (7th Cir. 1997)
(quoting United States v. Smith, 103 F.3d 600, 603 (7th
Cir. 1996)). Neither party contests that the second and
10 No. 02-1487
third requirements of this test are met. We therefore
focus on the first and fourth prongs. The first prong re-
quires us to determine if the prior convictions were ad-
mitted to show anything other than a defendant’s pro-
pensity to possess weapons. The fourth prong requires us
to apply Federal Rule of Evidence 403 as described
above. We use Rule 404(b) to exclude evidence “which
has some probative value but the admission of which
would tend as a practical matter to deprive a person with
a criminal record of the protection, in future prosecu-
tions, of the government’s burden of proving guilt beyond
a reasonable doubt.” United States v. Wright, 901 F.2d 68,
70 (7th Cir. 1990).
At trial, the government presented testimony by two
Chicago Police Department officers who described their
arrests of Thomas for possessing a firearm in 1992 and
1996, and introduced the transcript of Thomas’s guilty
pleas relating to those arrests. Thomas objected to this
evidence before trial, and the district court found it admis-
sible, as it went towards motive, opportunity, and identity.
At trial, Thomas properly objected to the introduction of
the convictions.
The government asserts that the prior convictions are
evidence of motive insofar as the two incidents provided
Thomas with first-hand experience with the legal conse-
quences of possessing a gun. Thomas, the government
argues, knew more than other people that possessing a
gun would put him in severe trouble and, therefore, he
would have had a motive to hide the gun in the apart-
ment building. However, the two convictions introduced
by the government were state proceedings, not federal,
and Thomas was not prosecuted under the felon-in-posses-
sion provisions of 18 U.S.C. § 922. As Thomas points out,
possession of a concealed weapon is a violation of Illi-
nois state law no matter the criminal history of the pos-
sessor. Accordingly, anyone exiting a building onto a public
No. 02-1487 11
street with such a weapon, whether a convicted felon or
not, would have motive to get rid of the weapon when he
left the building. Therefore, Thomas’s motive is of some
probative value, but no more than showing by other
means that he knew that carrying a concealed weapon
is against the law.
The government next defends the admission of the
convictions by arguing that they are evidence of opportu-
nity, i.e., they show that Thomas was able to acquire
firearms, even though, as a convicted felon, he is barred
from purchasing them. However, the government is not
required to show how Thomas acquired the firearm, just
that he had possession of one. Even if he held a gun only
to inspect it, Thomas would be guilty under 18 U.S.C.
§ 922(g). See United States v. Lane, 267 F.3d 715, 718
(7th Cir. 2001) (“Once the gun is in the defendant’s hands
he need only pull the trigger, an act which can be com-
pleted in a split second and which is controlled and influ-
enced by nothing more than the defendant’s whim.”).
Therefore, proving that Thomas had the opportunity to
buy a firearm illegally is of no probative value as to
Thomas’s possession of the revolver the night he was
arrested in this case.
Last, the government argues that the two prior convic-
tions are evidence of identity, or more specifically, modus
operandi, as they describe a pattern of Thomas being
met on the street carrying a handgun, dropping it, and
then fleeing on foot before being apprehended. For
modus operandi evidence to be useful, it must “bear a
singular strong resemblance to the pattern of the offense
charged” with the similarities between the two crimes
“sufficiently idiosyncratic to permit an inference of pat-
tern for purposes of proof.” United States v. Smith, 103 F.3d
600, 603 (7th Cir. 1996) (internal quotation marks and
citations omitted) (emphasis added). Here, the pattern
the government considers specific enough to demonstrate
12 No. 02-1487
modus operandi is a defendant in possession of contra-
band, who, upon seeing police at night, drops or hides
that contraband, then flees on foot. If a pattern so generic
can establish modus operandi, this fairly limited exception
to Rule 404(b) would gut the Rule, rendering it useless
as a check on character evidence that would otherwise
be inadmissible. Though we have found slippery slope
arguments unpersuasive in the past, see United States
v. Hernandez, 84 F.3d 931, 935 (7th Cir. 1996), use of
such “garden variety” criminal acts to establish a pattern
can only lead to an inference of propensity that is improp-
er under Rule 404(b). See United States v. Carroll, 207
F.3d 465, 468-69 (8th Cir. 2000).
Given our recognition that “a jury is not likely to insist
on the government’s satisfying so demanding a standard
of proof if the defendant is a thoroughly bad sort who
even if not clearly guilty of the crime with which he
is charged is no doubt guilty of some [other] crime,” Wright,
901 F.2d at 70, we find that the minimal probative
value relating to Thomas’s motive to hide the gun was
outweighed by the danger of unfair prejudice that the
introduction of the convictions presented. We once
again note that district courts “faced with the problem of
admissibility of other crimes evidence should cautiously
approach the weighing of probative value against prejudi-
cial effect of prior convictions.” United States v. Lewis, 110
F.3d 417, 420 (7th Cir. 1997).
C. Harmless Error
Though we have found the district court abused its
discretion when it admitted the photograph of Thomas’s
tattoo and his two prior convictions for unlawful use of
a weapon, we are constrained by Federal Rule of Crim-
inal Procedure 52(a), which says that “[a]ny error, defect,
irregularity or variance which does not affect substantial
No. 02-1487 13
rights shall be disregarded.” Errors that affect “substan-
tial rights” are those which are “prejudicial,” which in
this context means that the error must have affected
the outcome of the district court proceedings. United
States v. Olano, 507 U.S. 725, 734 (1993). Rule 52(a)
requires the government to prove that the error was
harmless, i.e., that there was no prejudice as a result of
the error. See id. at 735.
The government argues that even if admissions of the
tattoo and convictions were erroneous, these errors
were harmless. Though it had no direct evidence that
Thomas possessed the gun in question, the government
believes that the circumstantial evidence was strong
enough to withstand any potential prejudice. As primary
support, it points to two of Thomas’s statements the
night of his arrest. At trial, an arresting officer testified
that after Thomas had been apprehended and was sitting
in the back of the squad car in front of the apartment
building, he was shown the revolver found under the
stairs. Thomas was asked if it looked familiar, to which he
replied, “You could have shot me in my toe. I would
have never gave up that gun.” Once at the police station,
Thomas was placed in an interview room, shown the gun
again and asked where he got it. He answered, “Yeah,
that’s the gun. I bought it in the streets.”4
While these statements acknowledge the gun and that
at one point Thomas bought the gun, we do not think
they constitute an admission to possession of the gun.
Under 18 U.S.C. § 922(g)(1), defendants are in construc-
tive possession if they have “the power and the intention
at a given time to exercise dominion and control over an
object, either directly or through others.” United States v.
Walls, 225 F.3d 858, 864 (7th Cir. 2000) (internal quota-
4
Thomas did not testify at trial.
14 No. 02-1487
tion and citations omitted). However, mere proximity to
a weapon is not enough by itself to confer liability.
United States v. Quilling, 261 F.3d 707, 712 (7th Cir. 2001)
(“[A] [d]efendant’s mere presence in a dwelling where
a prohibited item was found, without more, is not suffi-
cient to establish constructive possession.”); United States
v. Herrera, 757 F.2d 144, 150 (7th Cir. 1985) (no construc-
tive possession of heroin in a locked footlocker when de-
fendant’s fingerprints were not found on the footlocker
and he did not have a key). Even when a defendant con-
tinues to have weapons in his home that he legally ob-
tained before his felony convictions, he is not guilty of
violating 18 U.S.C. § 922(g)(1) without a showing that
he exercised control over the firearms. See Conley, 291 F.3d
at 469 n.2.
Even where we have found constructive possession of
firearms when they are found in close proximity to the
defendants, see, e.g., United States v. Alanis, 265 F.3d
576, 592 (7th Cir. 2001); Quilling, 261 F.3d at 712; United
States v. Lloyd, 71 F.3d 1256, 1266-67 (7th Cir. 1995), the
weapons were found in areas over which the defendant
exercised control, such as a bedroom, garage, or work-
place. Here, the gun was found under the apartment
building’s entrance stairs, a public area Thomas did not
control. There is no indication that Thomas lived in the
apartment building, either in his sister’s apartment or else-
where in the building, and therefore constructive pos-
session could not be established by his mere proximity
to the firearm.
In addition, the government reminds us that there was
testimony that Thomas’s sister told the officers that
Thomas had a gun, but that statement was admitted via
the reporting officers and not the sister herself, who did
not testify. This statement was also contradicted by
Thomas’s girlfriend, who was in the apartment at the
No. 02-1487 15
time and neither saw a gun nor heard Thomas’s sister
yell to the officers.
Without direct evidence showing that Thomas actually
possessed the revolver, the government relies on a series
of inferences. While it is certainly possible that a jury
could conclude that Thomas possessed a firearm that
night, we do not believe that the government can show
that the admission of either the tattoo or the prior convic-
tions was harmless when the jury was drawing those
inferences. Evidence is prejudicial because it causes juries
to decide cases “on an improper basis, commonly an emo-
tional one, rather than on the evidence presented.” United
States v. Curry, 79 F.3d 1489, 1496 (7th Cir. 1996).
Regarding the prior convictions, the district court is-
sued a limiting instruction to the jury, telling it that
the prior convictions could only be used to determine
motive, opportunity, or modus operandi. We assume
that juries follow their instructions, see id. at 1497, un-
less the matter improperly presented “is so powerfully
incriminating that they cannot reasonably be expected to
put it out of their minds.” Smith, 308 F.3d at 739 (citing
Richardson v. Marsh, 481 U.S. 200, 208 (1987)). In Richard-
son, the Supreme Court commented on the curative na-
ture of limiting instructions, saying “with regard to infer-
ential incrimination the judge’s instruction may well be
successful in dissuading the jury from entering onto the
path of inference in the first place, so that there is no
incrimination to forget.” 481 U.S. at 208.
Here, Thomas’s two prior convictions incriminate him
not via direct evidence, but by inference, and the dis-
trict court’s instruction told the jury to consider the evi-
dence for characteristics of little probative value. If the
jury used the two convictions as evidence of motive, oppor-
tunity, and modus operandi, as instructed, it would find
that these three factors all circled back to propensity,
16 No. 02-1487
which is why we found admission of the convictions un-
fairly prejudicial in the first place. During its initial clos-
ing argument, the government acknowledged the limit-
ing instruction and framed the prior convictions within
its limits. However, in its rebuttal argument, the govern-
ment ignored the instruction and appealed directly to
the propensity value of the convictions, asking the jury,
“And boy, [the police] got lucky, didn’t they, because there
happened to be a person who on two prior occasions
had access to a gun and had a motive to hide a gun?”
Though the government attempts to use motive and
opportunity as a shield, what the government’s use of
the prior convictions really does is appeal to Thomas’s
propensity to carry guns, and nothing more. Therefore,
despite the district court’s use of a limiting instruction,
we are not convinced that the two evidentiary admis-
sions, with their attendant connotations of propensity
to possess firearms, had no effect on the jury when it
weighed the other circumstantial evidence of possession
presented by the government. Accordingly, we find that
it was not harmless error to admit either the tattoo or
the two prior convictions, and we remand for a new trial.
D. Other Issues on Appeal
In addition to his evidentiary challenges, Thomas al-
leges that the district court erred in not declaring a mis-
trial when the jury announced that it was deadlocked,
that his motion for discovery to inquire as to the prosecu-
tion’s motives for bringing the firearm charge against
him was improperly denied, and that errors were made
in the calculation of his sentence. However, because we
find that the evidentiary rulings made by the district
court warrant a new trial, we need not decide the addi-
tional issues raised by the defendant.
No. 02-1487 17
III. CONCLUSION
For the following reasons, we VACATE Robert Thomas’s
conviction and REMAND for a new trial. Circuit Rule 36
shall apply on remand.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-25-03