United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 21, 2003
_________________________________ Charles R. Fulbruge III
Clerk
No. 01-51108
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
JEFFERY A. JACKSON,
Defendant - Appellant.
____________________________________________________
Appeal from the United States District Court
For the Western District of Texas
____________________________________________________
Before: DAVIS, CYNTHIA HOLCOMB HALL*, and EMILIO M. GARZA,
Circuit Judges.
CYNTHIA HOLCOMB HALL, Circuit Judge:
Jeffery A. Jackson appeals his convictions for aiding and
abetting the interstate transportation of stolen jewelry, in
violation of 18 U.S.C. §§ 2 and 2314, and for conspiracy to
transport stolen jewelry in interstate commerce, in violation of
*
U.S. Circuit Judge, Ninth Circuit, sitting by designation.
18 U.S.C. §§ 371 and 2314. On appeal, Jackson contends that the
district court erred by admitting evidence of a prior state
conviction for theft of watches and by admitting evidence of his
state parole status.
The district court had jurisdiction over Jackson’s
prosecution under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291. Because the district court abused its
discretion by admitting both pieces of evidence and these errors
were not harmless, we REVERSE.
FACTS
At approximately 5:30 a.m., on June 15, 1999, a Bailey,
Banks and Biddle jewelry store in San Antonio, Texas, was
burglarized. The burglars smashed through a sliding glass door
and took several valuable watches and other jewelry worth almost
$700,000. The burglary, which only lasted a few minutes, was
caught on a security camera. The video showed four masked
individuals. No identifiable fingerprints were found in the
store.
Throughout the months surrounding this burglary, a number of
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Bailey, Banks and Biddle stores were burglarized in similar
“smash and grab jobs” throughout California and Nevada. The
burglaries were believed to be the work of the infamous “three-
minute gang” which may have been responsible for stealing up to
$80 million of jewelry in twelve states over a five-year-period.
The “three-minute gang,” referred to as such because of their
apparent ability to get in and out of a jewelry store in less
than three minutes, was based in California. See generally Scott
Marshall, ‘Three Minute Gang’ Suspects Arrested in Las Vegas,
Contra Costa Times, November 2, 1999.
Appellant, Jackson, a resident of San Antonio, was not a
member of the gang. According to the prosecutor, Jackson was
“local talent” used only in the burglary at issue. The core of
the gang consisted of Jackson’s co-defendant, Clinton Randolph,
Clinton’s brother Clayton and Jabby Lawson, the government’s
principal witness at trial. The three all resided in the Los
Angeles area. Other members of the gang who allegedly
participated in a number of robberies included Anthony Bilberry
and Tony Whitaker, both of whom were also from California.
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On the morning of June 15, 1999, several hours after the
burglary, an African-American male walked into a Mailboxes, Etc.
store in San Antonio and mailed two boxes to California. Chandra
Young, the clerk who handled the mailing of the packages,
positively identified the man as Clinton Randolph, Jackson’s co-
defendant. Young claims that Randolph pulled up to the store in
a dark-colored sports utility vehicle and parked close to the
store entrance. She saw, sitting in the front seat, one other
person whom she described as a “Hispanic male” or “light-skinned
black male.”1 Randolph filled out an air bill using his Los
Angeles address as a return address. He sent the packages
“express priority overnight” to the Los Angeles area home of a
long-time friend. He picked up the package several days later.
Shortly after Randolph left, Young saw something shining
close to the store entrance. She went outside to see what it was
and found four expensive watches. Later, Young stopped at two
pawn shops and sold one watch at each shop. When Young learned
1
According to the Government’s main witness, Jabby Lawson,
Jackson was sitting in this seat. From the photograph of Jackson
in the record, he does not appear to meet this description.
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about the jewelry store break-in, she promptly notified the
police and the jewelry store about the watches.
At around 9:00 p.m. on June 15, 1999, almost sixteen hours
after the burglary, Jackson was pulled over for speeding in
Reeves County, Texas, about 400 miles from San Antonio. He was
driving on Interstate 10 westbound in a dark sports utility
vehicle with California license plates. Jabby Lawson later
testified that he and Clinton Randolph were in the car with
Jackson when he was pulled over.
In October 1999, Clinton Randolph was arrested in Las Vegas,
along with Jabby Lawson and Anthony Bilberry, another member of
the gang.2 Shortly after the arrest, Detective Eddie Gonzales
interviewed Jabby Lawson in Las Vegas. In this interview, Lawson
claimed that Jackson was involved in the San Antonio burglary.
The Trial
2
On May 22, 1999, just a few weeks before the burglary that
is the subject of this appeal, Bilberry was pulled over in Texas.
He stated that he was on his way to San Antonio. With him were
Clinton Randolph and 51 pieces of expensive jewelry in the
original manufacturer’s packaging. Jackson’s lawyers implied
that Bilberry, not Jackson, was the fourth burglar involved in
the San Antonio burglary.
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Jackson and his co-defendant Clinton Randolph were not
indicted for burglarizing the jewelry store. Rather, they were
indicted for the federal offenses of transporting stolen goods in
interstate commerce and for conspiring to commit such
transporting. At trial, the prosecution connected Jackson to the
burglary mainly through the testimony of Jabby Lawson. Lawson
admitted that he was involved in the San Antonio burglary and
claimed that the other burglars were Clinton Randolph, Clayton
Randolph and Jackson. Lawson testified that after the burglary,
the four burglars went to a rented room at the Hampton Inn.
There, they placed the stolen jewelry in plastic sandwich bags
and packed them in boxes. Then Clinton Randolph, Jackson and
Lawson went to Mailboxes, Etc. Lawson claims that the three of
them left San Antonio in a black Dodge sports utility vehicle
later that morning. Lawson also admitted to a long history of
drug use and said that during the time of the burglary, he had a
five hundred dollar-a-week cocaine habit. He claimed to have
received about $7,000 for his participation in the San Antonio
burglary which yielded about $700,000 in stolen merchandise.
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Detective Gonzales, however, testified that Lawson told him he
only received $4,000 for his participation.
Lawson testified that he had been involved in eight other
burglaries. Detective Gonzales, however, testified that Lawson
had told him that he had been involved in twelve other
burglaries. Clinton Randolph and Clayton Randolph had
participated in all of these burglaries. Other members of the
gang, all of whom were from the Los Angeles area, had also
participated. Lawson testified that Jackson was involved only in
the San Antonio burglary. Lawson said that he had met Jackson
only one time before the San Antonio burglary.
FBI agent Kenneth Smith testified regarding an interview he
conducted with Lawson in December 1999, two months after
Detective Gonzales’s first interview in Las Vegas. In this
interview, Lawson acknowledged that he knew Jackson but did not
implicate him in any burglary. Lawson admitted to being in Texas
around June 1999 and admitted to being involved in one burglary.
Yet Lawson claimed that he could not clearly remember where in
Texas he had been and where he had committed the burglary. He
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told Smith that he had been partying in Texas with the Randolph
brothers and because he had consumed lots of drugs and alcohol,
his memory regarding this time was hazy. Lawson did claim to
remember, however, that he was not in San Antonio on June 15,
1999, the day of the burglary, just the contrary of Lawson’s
testimony in the courtroom.
In order to further implicate Jackson, the prosecution
introduced into evidence records of a large number of telephone
calls between Clinton Randolph’s Los Angeles home and Jackson’s
San Antonio home during the weeks surrounding the burglary.
Also, there was evidence of telephone calls being made from
Randolph’s Los Angeles home to Jackson’s San Antonio home and to
Jackson’s girlfriend’s San Antonio home while Jackson was in
California. The prosecution also placed Jackson at several
parties with Clinton Randolph in California after the burglary.
Finally, the prosecution pointed out that Jackson had been pulled
over on his way to California in a black sports utility vehicle
with Lawson and Clinton Randolph, sixteen hours after the
burglary.
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Jackson’s ex-wife testified that she had introduced Jackson
to Clinton Randolph several years before the burglary and that
Randolph had been a “family friend” of the Jacksons for a long
time. Jackson’s ex-wife also testified that Jackson was living
with her in San Antonio during the months surrounding the
burglary and at least one of the calls from Clinton Randolph’s
Los Angeles home to her home may have been for her.
Jackson’s defense was simple and clearly laid out in his
opening statement—Jackson had nothing to do with the burglary.
He was not one of the men on the videotape. He similarly claimed
he had nothing to do with the shipping of the bounty of the
burglary to Los Angeles. Jackson claims that Jabby Lawson
accused Jackson of being the fourth burglar to protect another
member of Lawson’s gang.
At trial, the prosecutor sought to introduce evidence of
Jackson’s 1994 Texas felony conviction for theft of watches. The
prosecutor claimed that he offered the evidence “to demonstrate
the defendant’s intent to commit this offense.” Jackson’s
attorney responded:
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Mr. Jackson’s state of mind isn’t – we haven’t contested
anything about state of mind. . . . The issue here is
whether or not he was there. You know, if he was there in
that burglary, no question what his state of mind is. He’s
– you saw the video what those guys are doing. There’s no
question what the people who are in that burglary are doing,
they are stealing.
To this the prosecution responded, “they enter a not guilty plea,
Your Honor, and all issues – everything is in issue, everything
in the indictment. . . . Intent is always an issue.” The
district court permitted the evidence to be introduced.
Jackson’s attorney then stated, “Your Honor, before – I also urge
under Rule 403 that the prejudicial value – outweighs the
relevance. And I request the Court to make a finding[.]” The
district court never responded to this request except by saying,
“you’re on the record.”
Later, the prosecution called as a witness Janita Lee, an
officer of the Texas Department of Justice, Parole Division. The
prosecutor’s purported reason for calling Janita Lee was to
introduce evidence of Jackson’s parole status in order to prove
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Jackson’s address in San Antonio.3 The defense objected stating:
Your Honor, his ex-wife has already put him there. This is
doing it just to get parole records in. If the Court
doesn’t just exclude this testimony, then I would move that
under Rule 403 you order them to redact any reference to the
agency she was working for or the fact that he was on parole
. . . And she just testifies that in her business records
this is Jackson’s address on these dates.
The prosecutor responded, as follows:
She’s going to have to say who she works for, Judge. Now I
don’t even care about putting the record in. All I [want]
her to do is to say that she does – she is employed by the
parole division. Obviously, she says we made a home visit
in July 16th of ‘99, she’s going to have to say why that
[sic] made a home visit, but she’s going to have to say we
had him as a listed address on that date, and we made a home
visit, according to our records. I don’t even want to put
the record in, for that matter. I just want her to testify
from, just because it is a business record.
The judge overruled Jackson’s objection. Lee was called as a
witness and identified herself as a parole officer. Despite the
prosecutor’s statements that he didn’t “even want to put the
record in,” he immediately introduced Jackson’s parole record
into evidence. Jackson again objected and the objection was
3
As noted above, Jackson’s address was relevant because of
telephone calls made to Jackson’s home originating from Clinton
Randolph’s home in Los Angeles in the period surrounding the
burglary.
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overruled. The records contained the following notation:
OFFENSE OF RECORD: LARCENY–THEFT, OF CREDIT CA
Lee testified to Jackson’s address and stated that a home visit
was made on July 16, 1999.
Jackson was convicted of both offenses. This appeal
followed.
STANDARDS OF REVIEW
We review the district court’s admission of extrinsic
offense evidence over a 404(b) objection under a “heightened”
abuse of discretion standard. United States v. Wisenbaker, 14
F.3d 1022, 1028 (5th Cir. 1993). “[E]vidence in criminal trials
must be ‘strictly relevant to the particular offense charged.’”
United States v. Hays, 872 F.2d 582, 587 (5th Cir. 1989) (quoting
Williams v. New York, 337 U.S. 241, 247, 69 S. Ct. 1079, 1083, 93
L. Ed. 1337 (1949)). If the district court abused its
discretion, we do not reverse if the error was harmless. United
States v. Torres, 114 F.3d 520, 526 (5th Cir. 1997).
DISCUSSION
In United States v. Beechum, this court, sitting en banc,
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laid out the two conditions that must be met before extrinsic
evidence of prior offenses, or other misconduct, can be
introduced. 582 F.2d 898, 911 (5th Cir. 1979) (en banc).
“First, it must be determined that the extrinsic offense evidence
is relevant to an issue other than the defendant’s character.
Second, the evidence must possess probative value that is not
substantially outweighed by its undue prejudice and must meet the
other requirements of rule 403.” Id. Jackson argues that
neither the evidence of his prior conviction nor the evidence of
his parole status and accompanying parole record meets the two
requirements of the Beechum test.
The Prior Conviction
At trial, the prosecutor stated that he was introducing
evidence regarding Jackson’s prior theft conviction to show
Jackson’s “intent and motive in connection with this offense.”
Jackson was charged with two offenses. The prosecutor, when he
introduced the conviction did not make clear to which of the two
offenses he was referring. In closing argument, the prosecutor
told the jury that the prior conviction could be considered “in
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determining whether . . . [Jackson] act[ed] in the conspiracy
knowingly and intentionally.” In the government’s brief in this
court, it also focuses on the relevance of Jackson’s prior
conviction to the issue of intent in the conspiracy charge. We
therefore address whether the prior conviction was relevant to
prove intent on the conspiracy charge.
“Once it is determined that the extrinsic offense requires
the same intent as the charged offense,” the admission of the
extrinsic offense “satisfies the first step” of Beechum. Id. at
913. “The similarity in intent required between the extrinsic
and charged offenses only means that the defendant ‘indulge
himself in the same state of mind in the perpetration of both . .
. offenses.’” United States v. McMahon, 592 F.2d 871, 873 (5th
Cir. 1979)(quoting Beechum, 582 F.2d at 911). In McMahon, we
found that the extrinsic offense of aiding and abetting an alien
to elude examination “required the defendant to possess the same
‘state of mind’ as agreeing with others” to transport aliens.
Id. Here, the extrinsic offense admitted into evidence,
Jackson’s conviction under Texas Penal Code section 31.03,
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required that Jackson intend “to deprive the owner of property.”
The conspiracy charge required that Jackson intend to agree to
transport property deprived from its owner. The two offenses
require Jackson to “indulge himself in the same state of mind”
and therefore require the “same” intent under Beechum and
McMahon.
At trial, Jackson never made any arguments based on intent.
His defense was clearly laid out to the jury in his opening
statement. His defense was simply that the government had the
wrong man. He was not involved in the burglary and the
subsequent shipping of the stolen jewelry in interstate commerce.
Jackson argues that if the jury believed Lawson’s testimony that
Jackson was the fourth burglar on the videotape and that he
participated in the packing and shipping of the stolen jewelry
then the jury would inevitably believe that he intended to join a
plan to do so.
Jackson’s argument overlooks the unique nature of the intent
element in conspiracy. In order to be found guilty of
conspiracy, the government must prove beyond a reasonable doubt
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that the defendant knowingly joined a plan to further an unlawful
objective—here the mailing of stolen property. See United States
v. Suarez, 608 F.2d 584, 586 (5th Cir. 1979). In United States
v. Roberts, this court expressly considered the question of
whether a prior conviction is relevant to prove intent in a
conspiracy case when the defendant has not raised the issue. 619
F.2d 379 (5th Cir. 1980). The defendant, Roberts, was convicted
of conspiracy to operate an illegal gambling business. Id. at
380. At trial, the government sought admission of a prior
gambling offense. Roberts’ counsel argued that the conviction
was not relevant unless the issue of intent were first
affirmatively raised by the defense. The district court rejected
that argument and we affirmed. We focused on the special nature
of the element of intent in conspiracy cases:
Charges of conspiracy involve considerations not present in
other criminal prosecutions. The offense of conspiracy
requires an element of intent or knowledge which is often
difficult to prove. Because the prosecution must prove that
the defendant knowingly joined a plan to commit a crime,
evidence that establishes a defendant's participation in a
criminal act, United States v. Suarez, 608 F.2d 584 (5th
Cir. 1979), or evidence establishing his association with
co-conspirators, Panci v. United States, 256 F.2d 308 (5th
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Cir. 1958), may be insufficient to support the inference
that the defendant voluntarily joined a conspiracy to commit
a crime. Intent is particularly difficult to prove when a
defendant is a passive or minor actor in a criminal drama. .
. . Unequivocal evidence that a defendant committed a
substantive offense may justify the inference that he
intended to do so, but it does not plainly support the
conclusion that he agreed and planned with others to commit
the crime.
Id. at 383. The court therefore upheld the admission of the
prior conviction notwithstanding the fact that the defendant had
not previously made intent an issue.
The same considerations are present here. While, it is
difficult to imagine that a jury would credit Jabby Lawson’s
testimony and nevertheless conclude that Jackson had not
knowingly joined a plan to ship stolen goods, it is theoretically
possible. Based on Roberts, we conclude that evidence of the
prior offense was relevant to an issue other than
character—specifically, Jackson’s intent to join an agreement to
ship stolen goods in interstate commerce. The extrinsic offense
evidence therefore meets the first part of the Beechum test.
Under Beechum, however, extrinsic offense evidence that is
relevant to a non-character purpose must still possess probative
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value that is not substantially outweighed by its undue
prejudice. Beechum, 582 F.2d at 898. “[W]hat counts as the Rule
403 ‘probative value’ of an item of evidence, as distinct from
its Rule 401 ‘relevance,’ may be calculated by comparing
evidentiary alternatives.” Old Chief v. United States, 519 U.S.
172, 184 (1997). “Probity in this context is not an absolute; its
value must be determined with regard to the extent to which the
defendant's unlawful intent is established by other evidence,
stipulation, or inference. . . . Thus, if the Government has a
strong case on the intent issue, the extrinsic offense may add
little and consequently will be excluded more readily.” Beechum,
582 F.2d at 914. In Roberts, the court took two considerations
into account when determining the probative value of the prior
offense. First, the court noted that “[t]here was little other
independent evidence of intent.” Roberts, 619 F.2d at 383.
Second, the court observed that evidence of Roberts’ prior
gambling conviction was necessary to counter his claim that he
was merely an ignorant participant in the operation and never
knowingly agreed to participate in a gambling business. Id.
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Neither consideration is present in the instant case.
First, unlike Roberts, there was other substantial evidence
going to the issue of intent to enter into an unlawful agreement.
Jabby Lawson testified that Jackson participated in the burglary
to acquire the stolen property, went to a hotel room to help
three other people package the stolen property and then drove
with two others to Mailboxes Etc. to mail the stolen property in
interstate commerce. If Jabby Lawson’s testimony were credited,
a jury would be hard-pressed to conclude that Jackson did not
intend to enter into an agreement to ship stolen property. The
prior conviction could not have added much to a jury’s analysis
of the issue except to make the jury more likely to credit
Lawson’s assertion that Jackson was the fourth burglar because of
Jackson’s prior criminal conduct. This is exactly what Rule 404
forbids.
Second, unlike the defendant in Roberts, Jackson never made
a claim that he was just an ignorant participant in the burglary
and shipping of the jewelry. Rather, he claimed that he was not
involved at all. The nature of Jackson’s defense further lessens
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the probative value of the prior conviction. See United States
v. Hernandez-Guevera, 162 F.3d 863, 872 (5th Cir. 1998)
(probative value of prior convictions for smuggling aliens was
“relatively great” when defendant “based his defense on a claim
that he was merely in the wrong place at the wrong time”).
The prior conviction in this case had very little probative
value when considering the other evidence going to intent and the
nature of Jackson’s defense but the potential to cause unfair
prejudice was substantial. "'Unfair prejudice' within its
context means an undue tendency to suggest decision on an
improper basis[.]" Advisory Committee's Notes on Fed. Rule Evid.
403. Here, where the threshold issue was one of identity, there
was great danger that the jury would decide that Jackson was
involved in the conspiracy because of his prior criminal conduct.
This is precisely the inference Rule 404 forbids. The
prosecutor, moreover, invited the jury to think about Jackson’s
character when he referred to Jackson as “local talent.”4 The
4
The prosecutor, when he referred to Jackson as “local
talent” in his opening statement, was explaining why an
experienced gang of Los Angeles jewelry thieves would work with
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prior conviction’s probative value was substantially outweighed
by its undue prejudice. See United States v. Kirk, 528 F.2d
1057, 1060-61 (5th Cir. 1976) (When intent is not being
contested, “evidence of the defendant's commission of a crime not
charged in the indictment goes more to the inadmissible purpose
of proving that the defendant is a bad man than to the admissible
purpose of proving intent.”). Its admission therefore fails the
second part of the Beechum test. Beechum, 582 F.2d at 911.5
Jackson, a resident of San Antonio who had never stolen with them
before. The inference the prosecutor invited the jury to draw
was clearly that because Jackson was an experienced thief he was
more likely to be involved in this criminal activity. Such an
inference is prohibited by Rule 404.
5
We have noted that evidence of a “conviction for a similar
crime is more probative than prejudicial and that any prejudicial
effect may be minimized by a proper jury instruction.” United
States v. Taylor, 210 F.3d 311, 318 (5th Cir. 2000);
but see Hernandez-Guevera, 162 F.3d at 872 (“[A] close
resemblance between the extrinsic offense and the charged offense
also increases the unfair prejudice to the defendant.”). As we
noted in Roberts, and reiterate today, the inchoate crime of
conspiracy involves unique elements not present in other crimes.
Here, Jackson was accused of conspiring with three expert jewelry
thieves first to obtain almost a million dollars in stolen
jewelry in Texas and then to ship the jewelry across the country
to California. The extrinsic offense was for a simple theft of
around ten watches worth about seven hundred dollars. We do not
find the crimes similar enough to compel a finding that the prior
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Our review of whether a district court abused its discretion
is “heightened” in criminal cases. Wisenbaker, 14 F.3d at 1028.
We recognize that a district court has wide discretion in
criminal evidentiary matters. Review for abuse of discretion is
not, however, “tantamount to no review at all.” Wilton v. Seven
Falls Co., 515 U.S. 277, 289 (1995) (internal quotation and
citation omitted). We find that, under the facts and
circumstances of this case, the admission of Jackson’s prior
conviction was an abuse of discretion and therefore error.
The Parole Record
We also conclude that the district court abused its
discretion by allowing a witness to testify regarding Jackson’s
parole status and by admitting Jackson’s un-redacted parole
record into evidence. The government claims to have introduced
those records to prove Jackson’s address from April 16, 1999
until July 16, 1999. The government also claims that the record
was relevant to show that Jackson was present at his residence on
July 16, 1999. Evidence that Jackson resided at this address was
conviction was more probative than prejudicial.
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relevant because there were a large number of telephone calls
between Clinton Randolph’s Los Angeles home telephone number and
the telephone number corresponding to this address. The
government, however, does not explain why it was relevant that
Jackson was at his residence on July 16, 1999. No relevant
telephone call was placed on this date. Except for one call
placed on July 17, every relevant telephone call was placed
before July 16, 1999. In fact, the overwhelming majority of the
relevant telephone calls occurred in June during the weeks
surrounding the burglary.
This case cannot be materially distinguished from United
States v. Palmer, 37 F.3d 1080 (5th Cir. 1994). In Palmer, we
found that the district court abused its discretion by admitting
a parole certificate for the purpose of showing that the
defendant fled from the police because he knew he could not
legally own a firearm due to his parole status. Id. at 1085.
The government had already offered evidence showing this. The
court held that since the parole certificate referred to a prior
conviction—not otherwise admissible into evidence—the district
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court abused its discretion by admitting the parole certificate.
Id.
Here, like Palmer, there was already evidence that Jackson
resided at his ex-wife’s residence during the relevant time
period. The prosecution called Jackson’s ex-wife to testify to
this fact. Furthermore, during cross-examination of Jackson’s
ex-wife, Jackson’s counsel never questioned this fact. At no
point in the trial did Jackson ever claim that he did not live at
this address.
Also like Palmer, the parole record appeared to refer to a
prior conviction not otherwise admissible into evidence,
specifically, a conviction for credit card theft. The parole
record contained the following notation:
OFFENSE OF RECORD: LARCENY–THEFT, OF CREDIT CA
The government has since explained that this notation had nothing
to do with a theft of a credit card but had to do with some
credit Jackson received for time served. The government asks us
to look at the Pre-Sentencing Report which shows that Jackson had
never been convicted for credit card theft. But the Pre-
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Sentencing Report did not exist at the time of trial. We
therefore cannot consider it when considering how a jury
interpreted the parole record notation. A plain reading of that
notation implies that Jackson had been convicted of theft of a
credit card and nothing to the contrary was ever explained to the
jury.
Moreover, the government offers no plausible justification
for not redacting the document and for not requiring the parole
officer to identify herself as just an officer of the State of
Texas. At oral argument, the government claimed that because the
state is required to keep track of its parolees’ addresses, the
document and the parole officer’s testimony were more credible
regarding Jackson’s address. At trial, however, the government
never tried to establish that the document and testimony were
more credible for this reason and, as previously noted, Jackson
did not challenge the fact that he resided at his ex-wife’s
address. The only case the government cites as authority for its
position that the unredacted parole record was admissible is one
where the parole certificate was redacted to exclude reference to
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the prior conviction. United States v. DeLeon, 170 F.3d 494, 497
(5th Cir. 1999) (redacted parole certificate without any
reference to nature of crime admissible where it was necessary to
prove defendant was a felon).
The minuscule probative value of the parole officer’s
testimony and the parole record were clearly outweighed by their
potential to cause undue prejudice. The district court therefore
abused its discretion by allowing the unredacted parole record to
be admitted and by allowing a witness to testify regarding
Jackson’s parole status. See Palmer, 37 F.3d at 1085.
Harmless Error
Given the evidence against Jackson, we cannot say that the
evidentiary errors here were harmless. The evidence against
Jackson, while certainly enough to go forward with a prosecution,
was not overwhelming. This was a close case. The government’s
case depended heavily on the testimony of Jabby Lawson. Lawson
had a five-hundred dollar-a-week cocaine habit at the time of the
burglary at issue and told one FBI agent that he was using such
large quantities of drugs and alcohol, at the time he was in
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Texas, that he could not remember where in the state he was. He
told inconsistent stories about who was involved in the San
Antonio burglary, whether he himself was involved in the burglary
at all, the amount of money he received for participating in the
burglaries, and the total number of burglaries in which he was
involved. Although there was some evidence linking Jackson to
Clinton Randolph, such evidence could not have sustained a
conviction without the testimony of Lawson. The erroneously
admitted evidence regarding Jackson’s prior conviction and parole
status could have been what convinced the jury to believe Jabby
Lawson’s claim that Jackson was involved in the shipping of
stolen jewelry. We therefore cannot say that the errors were
harmless.
CONCLUSION
Jeffery A. Jackson’s convictions, under 18 U.S.C. §§ 2, 371
and 2314, are REVERSED. The sentences imposed pursuant to those
convictions are VACATED. We REMAND for retrial, or other
proceedings, consistent with this opinion.
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