United States v. Polasek

Revised January 7, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-20724
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOYCE ELAINE POLASEK,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
December 11, 1998
Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Joyce Elaine Polasek appeals her

conviction and sentence for conspiracy, making false statements

relating to mileage registered on odometers, mail fraud, and

utterance and possession of counterfeited and forged securities.

We reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Joyce Elaine Polasek operated a service in Houston, Texas that

transferred motor vehicle title and registration documents from

automobile dealers to car purchasers. An indictment filed on
December 16, 1996 in the Southern District of Texas charged her

with altering the mileage on titles and related documents for

vehicles sold at Montgomery Motors Express, a Houston used car

dealership. Specifically, Count One of the indictment accused

Polasek of conspiracy to violate the laws of the United States,

Counts Two through Twelve of false odometer certification, Counts

Thirteen through Nineteen of mail fraud, and Counts Twenty through

Twenty-four of making, uttering, and possessing forged securities.

Polasek pleaded not guilty to all twenty-four counts.

At trial, a number of individuals formerly associated with

Montgomery Motors Express testified that they had seen Polasek

altering titles or heard her bragging that she had done so. John

Richard Hubert, who had owned the dealership during Polasek’s

tenure there, stated that he rolled back odometers on the cars he

sold and that he hired Polasek, an independent contractor, to alter

the paperwork associated with such vehicles.1 He also claimed that

he witnessed Polasek scraping off mileage numbers on titles.

Similarly, Scott Vaughan, a car buyer for Montgomery Motors, told

the jury that he saw Polasek altering a title reflecting mileage in

excess of 100,000 miles by changing the first digit to the letter

“A.” Vaughan recounted that Polasek even asked him how the

alteration looked. He described Polasek’s title work as “sloppy”

1
Hubert pleaded guilty to odometer fraud before Polasek’s
trial. He was sentenced to thirty-six months in prison, three
years of supervised release, and a $15,000.00 fine.

2
and “ridiculous,” observing that some of the titles appeared as

though they had been altered five or ten times. Gregory Hall, a

title clerk for Montgomery Motors in the late 1980s and early

1990s, testified that he saw Polasek alter a title by scratching it

with a pick. Once, while delivering a title to the courthouse as

a favor to Polasek, he noticed that the old odometer numbers had

been “carved” out of the paper; when the courthouse clerk

subsequently rejected the title, Polasek became angry and insisted

on seeing the clerk’s supervisor. William David Bolton, a closer

for the dealership, testified that Polasek had told him that she

had found a better way to alter titles using stencils and

typewriter correction tape and described how she demonstrated her

new technique. According to Bolton, Polasek kept a number of

title-altering instruments, including colored pens and pencils,

erasers, and a tool resembling a dental pick, in a special pouch.

He also claimed to have once seen her scratching at the odometer

reading on a title with the pick. Finally, Lisa Walling testified

that she worked for Polasek at Montgomery Motors for a short while

and that some of Polasek’s titles looked as though numbers in the

odometer box had been changed or erased. Walling also told the

jury that she had seen Polasek alter a title by erasing something

from the odometer box and that, on other occasions, she had

observed Polasek using a light to trace a signature from one

document to another. Walling testified further that Polasek had

numerous titles sent to Walling’s address rather than directly to

3
the car buyers.

In addition to this eyewitness testimony, the government

offered evidence of bad acts outside the scope of the indictment.

National Highway Traffic Safety Administration Special Agent Robert

Eppes testified that early in 1990, in the course of a Nebraska

odometer fraud investigation that turned up documents bearing her

signature, he warned Polasek against submitting titles with false

odometer statements and obtaining duplicate vehicle titles, which

are often used for the purpose of odometer fraud. In addition, the

prosecution showed that Polasek had been convicted in the United

States District Court for the District of Nebraska for conspiracy

to transport in interstate commerce false motor vehicle titles. It

also introduced a portion of her petition to enter a guilty plea in

that case, including her statement that “I helped Janzen and Brown

get certified copies of automobile titles so they could turn the

cars back on the odometers.” After the admission of this evidence,

the district court instructed the jury that it could consider the

evidence of acts outside the scope of the indictment only for

limited purposes.

Polasek took the stand in her own defense. She admitted to

the Nebraska conviction and acknowledged that her signature

appeared on various government exhibits but insisted that she

neither altered titles at Montgomery Motors nor knew of any

odometer tampering during most of the time that she worked there.

Her testimony contradicted that of several government witnesses,

4
each of whom she accused of lying for various reasons. She blamed

a “little short fat” man for the altered titles, claiming that she

left Montgomery Motors upon discovering the alterations but

returned after receiving false assurances that odometers no longer

were being altered. No other witness was asked about or testified

to the existence of the short, fat man.

On cross-examination, Polasek admitted that she understood the

logistics of odometer tampering and knew that titles had to be

altered in such schemes. She acknowledged telling the Federal

Bureau of Investigation that she was aware of another dealership

that rolled back odometers but nevertheless did their title work.

She also admitted falsely listing Walling’s address on titles. She

denied, however, that she had admitted to law enforcement personnel

that she had participated in odometer tampering for various other

dealers; when asked whether she was aware that other dealers for

whom she had worked had been convicted for odometer fraud, she

replied that she was not. Specifically, she acknowledged that she

had done work for Kenny Smith, but denied knowledge of his

conviction for odometer tampering; acknowledged that she had done

work for Dwayne Hutchins, but denied knowledge of his odometer

tampering conviction; acknowledged that she had worked for William

Witlow, but denied knowledge of whether he had altered odometers;

denied both doing any work for Travis Barnes and knowledge of any

convictions related to him; acknowledged doing title work for Danny

Coker, but denied knowledge that he had been convicted for odometer

5
tampering; and acknowledged that she had worked in Mississippi for

a company named S & S Auto, but denied knowledge of any convictions

for odometer tampering related to that establishment.

In rebuttal, the government recalled Special Agent Eppes.

Eppes testified that he had been investigating Lebanon, Missouri

car dealers, that Polasek had obtained some of the titles processed

by these dealers, and that this led him to speak with Polasek.

According to Eppes, Polasek admitted that her signature appeared on

one document, but when he told her it had been fraudulently

obtained, she retorted, “You can’t prove that.” Eppes testified

again, as he had on direct examination, that he warned Polasek to

stop handling altered documents and getting duplicate titles for

dealers involved in odometer fraud, but that he succeeded only in

angering her. The prosecutor then asked Eppes specific questions

about each of the car dealers with whom Polasek had been

associated:

Q Now, you heard Mr. Stearn ask the Defendant about a
number of people that the Defendant did business with?
A Yes.
Q Are you familiar with a man by the name of Coker?
A Yes.
Q Who is Mr. Coker?
A Dan Gallant Coker (phonetic spelling).
Q Did you, during the course of your investigation, find
paperwork handled by the Defendant?
A Yes.
MR. ROGERS: Your Honor, this is an extraneous matter, and
it’s irrelevant to this case.
THE COURT: Overruled.
MR. ROGERS: Please note our exception.
THE WITNESS: Yes, I did.
BY MR. MARTINEZ:
Q What happened to Mr. Coker?

6
A Mr. Coker was convicted.
Q You mentioned a Mr. Witlow?
A Yes, I’m familiar with Mr. William Witlow.
Q Did you do an investigation of Mr. Witlow?
A Yes, I did.
Q And during the course of that investigation, did you find
paper handled by the Defendant?
A During the course of that investigation, I did.
Q What happened with Mr. Witlow?
A Mr. Witlow was convicted.
Q And again, what was he convicted for?
A Odometer fraud.
Q Would that be the same for Mr. Coker?
A Yes.
Q What about a man by the name of Travis Barnes, did you
investigate him?
A Yes, I did.
Q And during the course of your investigation, did you find
paperwork? When I say, “paperwork,” I’m talking about
odometers that had been tampered with in that
investigation.
A Yes, we did.
Q And did you--who handled some of the paper in that
investigation?
A Ms. Polasek.
Q What happened to Travis Barnes? Was he prosecuted?
A Yes, he was.
Q And what was he convicted for?
A Odometer fraud.
Q Who is Dennison Barnes?
A Dennison Barnes is the son of Travis Barnes.
Q Was he also investigated?
A Yes, he was.
Q Was he also convicted?
A Yes, he was.
Q For what?
A Odometer fraud.
Q Again, did you see paperwork by the Defendant in that
prosecution?
A I would like to reiterate on all of those that you
mentioned that there were interviews done with them in
which they told me that and documents were seen handled
by Ms. Polasek.
MR. ROGERS: Judge, I object. That is hearsay.
THE COURT: Sustained.
BY MR. MARTINEZ:
Q The question is did you see documents that were handled
by the Defendant?
A Not by Mr. Dennison Barnes, no.

7
Q Are there any other persons whom you have investigated
that have been convicted for odometer tampering where you
saw paperwork, odometer paperwork, titles, that were
handled by the Defendant?
A Yes.
Q Can you please tell the jury those folks.
MR. ROGERS: Your Honor, that’s irrelevant. We would object
to all that as just extraneous offense matters.
THE COURT: Overruled.
MR. ROGERS: It doesn’t prove that she had anything to do
with altering anything or had knowledge of it.
THE COURT: Overruled.
MR. ROGERS: Note our exception.
THE WITNESS: Yes, I have.
BY MR. MARTINEZ:
Q Can you tell the jury who those people were or what
dealerships they owned or were involved with?
A Mr. Ken Smith operating as KNS Auto Sales, Auto Mart, and
Quality Auto Sales, Lebanon, Missouri.
Q Who else?
A Mr. Larry Scott Bennett. His conviction was not--it was
related to our odometer case but his charge was not
odometer fraud.
Q What was he convicted for?
A I don’t know the exact statute. It was a Texas state
statute for shooting into a building with the intent to
harm someone.
MR. ROGERS: Your Honor, this is all totally irrelevant.
THE COURT: Sustained. The jury is instructed to disregard
the last answer.
Q The question is--
MR. ROGERS: Your Honor, in light of the harmful nature of all
this, I would move for a mistrial.
THE COURT: Your motion is denied.
MR. ROGERS: Please note our exception.
BY MR. MARTINEZ:
Q The question, Mr. Eppes, is the investigations related
only to the work you do, that is, odometer-related fraud,
was that last case that you spoke of related--that
individual that you investigated related to odometer
tampering?
A That investigation and that person was related to the
odometer fraud, yes.
Q Is there anybody else that the Defendant did odometer
work for that were prosecuted and convicted?
A Yes. Mr. Dwayne Hutchins.
Q Who is Mr. Dwayne Hutchins?
A Doing business as H & H Auto Sales, Dallas, Texas.
Q And what was he investigated for?

8
 A Odometer fraud.
Q Was he convicted?
A Yes.
Q Was that federal or state?
A Federal.
Q And again, did you, during the course of that
investigation, find paperwork, title documents, that were
tampered with and handled by the Defendant?
A Yes.

On cross-examination, Eppes admitted that, except for her Nebraska

conviction, Polasek had not been charged or convicted in connection

with any of the investigations about which he had testified.

During the government’s rebuttal closing argument, the

prosecutor emphasized the fact that many of Polasek’s former

business associates had been convicted of odometer fraud:

Defense counsel would have you believe that it’s
irrelevant that the Defendant associated with a number of
people that have been convicted. I submit to you that that is
a lot to be said about intent and motive and knowledge. A
person who is working in the industry for that long, there is
no coincidence whatsoever, whatsoever, that these folks got
convicted; and that would show that she had some intent or
knowledge.
She knew these folks for many years. How could she not
know in the case of Montgomery Motors where she said, “I
didn’t know anything was going on there. When I found out, I
was out of there”? That doesn’t make any sense. She had been
in the industry how long? She did it for a number of years.
For a number of people to get convicted?

Polasek did not object to this line of argument.

The jury convicted Polasek of conspiracy to violate the laws

of the United States, false odometer certification, mail fraud, and

making, uttering, and possessing forged securities, in violation of

18 U.S.C. § 371, 49 U.S.C. § 32703, 18 U.S.C. § 1341, and 18 U.S.C.

§ 531, respectively. The district court sentenced Polasek to

9
concurrent terms of imprisonment of 108 months on the securities

counts, sixty months on the conspiracy and mail fraud counts, and

thirty-six months on the false odometer certification counts. In

addition, the court imposed a three-year term of supervised

release. Polasek appeals both her conviction and her sentence.

II. STANDARD OF REVIEW

We review a district court’s evidentiary rulings under an

abuse-of-discretion standard so long as the party challenging the

ruling makes a timely objection to the admission of the evidence.

See United States v. Westmoreland, 841 F.2d 572, 578 (5th Cir.

1988). Otherwise, we apply the plain error standard. See United

States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997).

We must therefore determine whether Polasek adequately

objected to Eppes’s testimony about the convictions of her former

business associates. Federal Rule of Evidence 103(a)(1) prohibits

predicating error on a ruling admitting evidence unless “a timely

objection or motion to strike appears of record, stating the

specific ground of objection, if the specific ground was not

apparent from the context.” FED. R. EVID. 103(a)(1). A loosely

formulated and imprecise objection will not preserve error. See

United States v. Waldrip, 981 F.2d 799, 804 (5th Cir. 1993).

Rather, a trial court judge must be fully apprised of the grounds

of an objection. See United States v. Jimenez Lopez, 873 F.2d 769,

773 (5th Cir. 1989).

10
 Polasek’s objection that “[i]t doesn’t prove that she had

anything to do with altering anything or had knowledge of it” put

the court on notice that the fact that Polasek had done title work

for individuals later convicted of odometer fraud was, essentially,

a suggestion that she was guilty by association. Polasek was

contending that her relationship with individuals later convicted

of fraud did not, without more, show any bad acts or guilty

knowledge on her part. As a result, it could only constitute guilt

by association evidence, which is prohibited because “[t]hat one is

married to, associated with, or in the company of a criminal does

not support the inference that that person is a criminal or shares

the criminal’s guilty knowledge.” United States v. Forrest, 620

F.2d 446, 451 (5th Cir. 1980). Polasek’s situation differs

markedly from those cases in which we have held that a generic

objection does not put the court on notice that the defendant is

objecting on specific grounds. See United States v. Berry, 977

F.2d 915, 918 (5th Cir. 1992); United States v. Martinez, 962 F.2d

1161, 1166 (5th Cir. 1992). Polasek did not simply assert that she

objected to Eppes’s testimony; she articulated reasons that go to

the very heart of our ban on guilt by association evidence. Nor is

this case analogous to those situations in which a party objects on

one ground at trial and attempts to rely on a different ground on

appeal. See United States v. Musa, 45 F.3d 922, 924 & n.5 (5th

Cir. 1995); United States v. Heath, 970 F.2d 1397, 1407 (5th Cir.

1992). Polasek protested at trial that Eppes’s testimony showed

11
only her association with persons later convicted of odometer

fraud, and she makes the same claim now. While perhaps not as

eloquent as she could have been, Polasek pointed out that the

evidence of her associates’ convictions showed nothing about her

guilt of the crime charged or of any other bad act that might have

been admissible under Rule 404(b), and thus constituted no more or

less than proof that some of her friends were convicts.

Accordingly, we find that she made a timely objection and review

the district court’s admission of the evidence of her associates’

convictions for abuse of discretion.

III. DISCUSSION

It is well established in this circuit that the government may

not attempt to prove a defendant’s guilt by showing that she

associates with “unsavory characters.” United States v.

Singleterry, 646 F.2d 1014, 1018 (5th Cir. Unit A June 1981)

(finding plain error where the prosecutor asked the defendant

whether he associated with felons). Accordingly, we found error in

United States v. Parada-Talamantes, 32 F.3d 168, 170 (5th Cir.

1994), where the government showed that the defendant’s brother had

sold the co-defendant a van with secret compartments for smuggling

marijuana, and in United States v. Romo, 669 F.2d 285, 288-89 (5th

Cir. 1982), where the prosecution introduced evidence that a

defendant on trial for drug offenses associated with drug dealers.

In United States v. Labarbera, 581 F.2d 107, 109 (5th Cir. 1978),

12
we held improper the cross-examination of a defendant, charged with

a gun law violation, concerning the arrest of his son for a similar

offense. And in United States v. Vigo, 435 F.2d 1347, 1350-51 (5th

Cir. 1970), we held the admission of evidence that the defendant’s

husband had been convicted of selling and possessing heroin to be

error.2

2
We have not yet explicitly determined what statute or rule
of evidence guilt by association evidence violates. Many of our
sister circuits, however, have concluded that such evidence is
irrelevant under Federal Rules of Evidence 401 and 402 or unduly
prejudicial under Rule 403. See United States v. Johnson, 934 F.2d
936, 942-43 (8th Cir. 1991) (analyzing the defendant’s guilt by
association argument under Rules 401 and 403); United States v. St.
Michael’s Credit Union, 880 F.2d 579, 600-02 (1st Cir. 1989)
(applying Rules 401, 402, and 403 in evaluating the defendant’s
challenge to testimony about her father’s alleged gambling
activity); United States v. Cunningham, 804 F.2d 58, 61-62 (6th
Cir. 1986) (finding evidence that defendants’ relative had been
convicted of the same crime for which they were on trial, which
presented a “clear danger of guilt by association,” was irrelevant
under Rule 401); United States v. Peters, 791 F.2d 1270, 1307-08
(7th Cir. 1986) (stating that the defendant challenged guilt by
association evidence as unduly prejudicial under Rule 403 and
analyzing the allegedly erroneous admission of that evidence under
this rule); United States v. Khan, 787 F.2d 28, 34 (2d Cir. 1986)
(recounting that the “defendant contends that the trial judge
should have excluded the evidence under [Rule] 403 on the ground
that its probative value was substantially outweighed by the danger
of unfair prejudice, because it ‘subliminally appeal[ed] to guilt
by association and potentially to prejudice against foreigners’”
but ultimately concluding that the district court did not abuse its
discretion in overruling the Rule 403 objection) (quoting
defendant-appellant’s brief); United States v. Hernandez, 780 F.2d
113, 118 (D.C. Cir. 1986) (holding that the challenged evidence
violated Rule 403 because it was only a “slightly refined version
of guilt by association,” not legitimately admissible proof).
Rule 401 defines relevant evidence as “evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.” FED. R. EVID. 401. Rule
402 prohibits the admission of irrelevant evidence. See FED. R.
EVID. 402. Rule 403 provides that relevant evidence nonetheless may

13
Similarly, Eppes’s statements that Polasek had done title work for

persons later convicted of odometer fraud showed only that she

associated with criminals. It was therefore inadmissible guilt by

association evidence.

The government attempts to justify Eppes’s testimony as proper

extrinsic offense evidence. Federal Rule of Evidence 404(b)

provides:

Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident . . . .

FED. R. EVID. 404(b). That Polasek’s former business associates had

been convicted of odometer fraud, the government claims, was

evidence that Polasek herself had altered titles or otherwise

facilitated odometer tampering through manipulating paperwork.

be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” FED. R.
EVID. 403. Accordingly, there are two arguments against guilt by
association evidence: first, that it is not relevant as that term
is defined in Rule 401 and hence is inadmissible under Rule 402,
and second, that even if it is relevant, it is unduly prejudicial
and excludible under Rule 403. Polasek’s associates’ convictions
are simply irrelevant to her case. The government never
demonstrated that Polasek participated in or even knew of the
schemes for which the associates were convicted. Even assuming
that the evidence was relevant for some purpose, its prejudicial
effect substantially outweighed its probative value: It altogether
failed to prove any wrongdoing on Polasek’s part but insidiously
linked her with criminals in such a way that the jury might have
concluded, as the government argued in its closing argument, that
it was no coincidence that many of her associates had been
convicted of the crime for which she was on trial.

14
Although Polasek was not charged with these incidents, such other

crimes were admissible to show knowledge and intent in order to

rebut Polasek’s contention that she neither knew how to further

odometer fraud nor had the intent to do so at Montgomery Motors.

Therefore, the government insists, the proof of Polasek’s

associates’ convictions was qualitatively different from that in

Singleterry, Parada-Talamantes, Romo, and Vigo, in which the

prosecution merely showed that the defendant knew or was related to

criminals. We disagree. At trial, the government failed to

demonstrate that Polasek in fact falsified titles or committed any

other crimes in connection with the convicted associates.3 The

prosecutor asked only whether Agent Eppes had found any paperwork

done by Polasek among the papers of her convicted associates;

3
We acknowledge that at the end of his rebuttal examination
of Agent Eppes, the prosecutor asked whether Eppes had, during his
investigation of Dwayne Hutchins, found titles “tampered with and
handled by” Polasek, to which Eppes replied, “Yes.” At all other
times, however, the prosecutor asked only whether Polasek had
“handled” paperwork for the convicted individuals. Even if the
last question was proper 404(b) evidence that Polasek had altered
titles for Hutchins, the others clearly asked only whether Polasek
had worked for persons convicted of odometer fraud. We also note
that at one point during Eppes’s rebuttal testimony, the prosecutor
asked whether Eppes found “paperwork” in connection with his
investigation of Travis Barnes, and added: “When I say
‘paperwork,’ I’m talking about odometers that had been tampered
with in that investigation.” Eppes answered that some of the
“paper” had been “handled” by Polasek. We recognize that this
testimony conceivably could be understood as stating that Polasek
altered documents for Barnes. We find this interpretation
something of a stretch, however, especially since the prosecutor
never explicitly asked whether Polasek altered documents and almost
invariably phrased his questions as whether she had “handled”
paperwork for the convicted car dealers.

15
indeed, he did not even inquire whether the paperwork she had

handled had been altered. While evidence that Polasek previously

had committed odometer fraud might have been admissible to show

knowledge and intent, the proof adduced by the government at trial

simply did not demonstrate wrongdoing on Polasek’s part. Rather,

it established only that she had done title work for persons who

had later been convicted of odometer fraud. Thus, this case does

not differ from those Polasek cites.

The government also argues that even if introducing the

convictions of Polasek’s associates was error, it is not reversible

error because the evidence against Polasek was overwhelming. See

United States v. Escamilla, 666 F.2d 126, 128 (5th Cir. 1982).

This is essentially an argument that the admission of Polasek’s

associates’ convictions constituted harmless error. Even if the

district court erred in its evidentiary rulings, such error can be

excused if it was harmless. See United States v. Lowery, 135 F.3d

957, 959 (5th Cir. 1998). A nonconstitutional trial error is

harmless unless it “had substantial and injurious effect or

influence in determining the jury’s verdict.” Id. (quoting

Kotteakos v. United States, 328 U.S. 750, 776 (1946)) (internal

quotation marks omitted); see United States v. Sanchez-Sotelo, 8

F.3d 202, 210 (5th Cir. 1993) (stating that in order to reverse a

conviction on the basis of an evidentiary error, the appellate

court must find a “significant possibility that the testimony had

a substantial impact on the jury”) (quoting United States v. Cain,

16
587 F.2d 678, 682 (5th Cir. 1979)) (internal quotation marks

omitted).

In support of its contention that the evidence of Polasek’s

guilt was overwhelming and that her associates’ convictions could

have had no effect on the jury’s verdict, the government points out

that five witnesses testified either that they saw Polasek alter

titles, that Polasek bragged about falsifying titles, or both. The

prosecution further contends that the cases in which guilt by

association evidence was found to be reversible error involved

circumstantial or weak evidence against the defendant. We do not

agree that the guilt by association evidence in this case was

harmless.

First, the cases in which the prosecution’s proof was found to

be “overwhelming” involved situations where the defendant’s guilt

was established by undercover government agents or informers acting

with the defendant. See Westmoreland, 841 F.2d at 580 (finding

“overwhelming” tape recordings of the defendant discussing a

kickback scheme with an undercover government agent and laughingly

accepting his money); United States v. Blalock, 564 F.2d 1180, 1182

(5th Cir. 1977) (finding evidence of guilt overwhelming where an

informer testified as to the defendant’s active participation in a

drug smuggling scheme and government agents saw him and his co-

defendant pick up smuggled drugs); see also United States v.

Echavarria-Olarte, 904 F.2d 1391, 1399 (9th Cir. 1990) (refusing to

reverse where defendant neither challenged undercover agent’s

17
testimony that he had participated in a drug smuggling conspiracy

with the defendant nor explained why, as he claimed in his defense,

he would want to pretend to be a smuggler). Although the

government introduced evidence that Polasek previously had been

convicted of odometer fraud and that Agent Eppes had warned her not

to submit falsified titles, the only direct evidence against

Polasek was the testimony of five Montgomery Motors co-workers.

One of these already had been convicted for his role in the

odometer fraud scheme, and some of the others admitted to

potentially felonious conduct in connection with their jobs at the

dealership. The defendant vigorously challenged their credibility

at trial. We do not wish to imply, of course, that guilt by

association evidence is always harmful where the only evidence

against the defendant is accomplice testimony, or that evidence of

guilt can never be overwhelming unless government agents or

informers testify that they observed the defendant committing a

crime. Rather, we simply note that the evidence against Polasek,

while strong, is perhaps not “overwhelming.”

This case is also distinguishable from United States v. MMR

Corp., 907 F.2d 489, 501-02 (5th Cir. 1990), where we found

evidence that the defendant corporation’s business associates and

alleged co-conspirators had been charged with bid rigging harmless

where it was largely cumulative of properly admitted evidence that

they participated in a bid rigging conspiracy. In contrast, the

evidence of Polasek’s associates’ convictions was not cumulative of

18
any other evidence presented at trial. Moreover, in MMR, the

district court carefully prohibited any evidence of the disposition

of the charges in an effort to tailor the evidence to the object of

its offer, that the alleged co-conspirators had become “preferred

clients” of the government. Id. That was not the case here, where

the testimony included statements that Polasek’s associates had

been convicted and was not tailored to any legitimate purpose.4

More important, we find that the guilt by association evidence

likely had substantial impact on the jury’s verdict as a result of

the emphasis the government placed upon it. As a preliminary

matter, we note that we repeatedly have characterized guilt by

association evidence as “highly prejudicial,” Parada-Talamantes, 32

F.3d at 170; Romo, 669 F.2d at 288; Labarbera, 581 F.2d at 109, and

“damaging,” Vigo, 435 F.2d at 1351. We must evaluate the admission

of such evidence on a case-by-case basis, however. See United

States v. Howell, 664 F.2d 101, 106 n.4 (5th Cir. Unit B Dec.

1981). One relevant consideration, of course, is the amount of

time spent on the guilt by association evidence. See Westmoreland,

841 F.2d at 579 (finding no prejudicial impact in part because

references to the defendant’s guilty associates did not “permeate

4
One could argue, of course, that the evidence of Polasek’s
associates’ convictions was tailored to rebut her claim that she
did not know that certain car dealers for whom she had worked had
been convicted of odometer fraud. This argument lacks merit,
however. While Eppes’s testimony shows that Polasek’s associates
had in fact been convicted, it in no way demonstrates her knowledge
of that fact.

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the record”). Although the challenged evidence in this case took

up only six transcript pages of a four-volume trial transcript, it

constituted most of Agent Eppes’s rebuttal testimony, and the

government methodically elicited information about each target of

Eppes’s investigation, whether he had found paperwork done by

Polasek, whether the target was prosecuted, whether he was

convicted, and what for. Furthermore, the prosecutor highlighted

the extraneous convictions during its closing rebuttal argument,

telling the jury that Polasek must have known about and

participated in the Montgomery Motors scheme because she had worked

for dealers convicted of odometer fraud in the past. This

insistence that the defendant’s associates’ convictions somehow

showed her guilt was thus the last thing the jury heard before

retiring to deliberate. Given the totality of the circumstances,

we find that this blatant appeal to guilt by association was not

harmless. We must therefore reverse Polasek’s conviction. Because

we reverse on this issue, we need not reach Polasek’s other

challenges to her conviction and sentence.

IV. CONCLUSION

For the reasons given above, we REVERSE defendant-appellant’s

conviction.

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