                                   REVISED - May 8, 2000

                      UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT



                                        No. 98-51225



UNITED STATES OF AMERICA,
                                                                          Plaintiff-Appellee,

                                            versus

JENELL GOODLEY TAYLOR,
                                                                      Defendant-Appellant.



                     Appeal from the United States District Court
                         for the Western District of Texas

                                       April 14, 2000
Before POLITZ, GIBSON,* and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

       Jenell Goodley Taylor appeals her conviction and sentence, contending that

the trial court committed various evidentiary errors that, considered either

separately or cumulatively, resulted in unfair prejudice and require a reversal.


   *
    The Honorable John R. Gibson, Senior United States Circuit Judge for the Eighth Circuit Court
of Appeals, sitting by designation.
Taylor also raises two issues relevant to the calculation of her sentence. Finding

reversible error we reverse Taylor’s conviction and sentence and remand for a new

trial.

                                        BACKGROUND

         Taylor was charged, along with 16 other defendants in a 54 count indictment,

with one count of conspiracy to possess and distribute cocaine and cocaine base in

violation of 21 U.S.C. § 846; one count of aiding and abetting another to possess

cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2; and two counts of money laundering in violation of 18 U.S.C. §

1956(a)(1).1 Taylor pleaded not guilty on all counts and her case was severed. The

drug charges were tried to a jury and the government gave notice that it would seek

a sentence enhancement based on the alleged involvement of over 50 grams of

cocaine base.

         Taylor’s first trial ended in a mistrial.2 On retrial the jury returned guilty

verdicts on both counts. The Presentence Investigation Report characterized



    1
     The money laundering charges were dismissed prior to trial. Additionally, the evidence at trial
was limited to cocaine base (crack). No evidence was offered respecting possession or distribution
of cocaine powder.
    2
    The evidentiary rulings at issue in this appeal were essentially made by the court in the first trial
and were deemed the law of the case for purposes of the second trial. United States v. O’Keefe, 169
F.3d 281 (5th Cir. 1999) (describing doctrine).

                                                   2
Taylor’s role as one of a manager/supervisor.         Taylor’s objections to the

information contained in the PSI were rejected and the court imposed concurrent

sentences of imprisonment for 262 months and supervised release for eight years

on each count. Taylor timely appealed.

       Taylor raises several issues on appeal. She first contends that the court

committed reversible error by admitting into evidence an organizational chart

prepared by the government, claiming that the chart was not an accurate depiction

of the testimony adduced at trial and that the jury was given an improper

instruction regarding its use. She further contends the court improperly admitted

two 1994 state court convictions of an alleged co-conspirator, Derrick Goodley,

ostensibly as overt acts in furtherance of the conspiracy. In addition, she asserts

that the court erroneously admitted evidence of her prior drug conviction and

claims the prosecutor made improper statements during closing argument. Taylor

maintains that each of these errors independently warrant reversal, and she urges

that their cumulative effect mandates same. She also contends that the district

court erred in imposing a three-level upward adjustment for her role as a

manager/supervisor in the criminal organization. Her final point of error is that

under the Supreme Court’s teachings in Jones v. United States,3 because the

   3
    119 S. Ct. 1215 (1999).

                                         3
quantity of drugs involved increased the maximum penalty, that quantity should

have been set forth in the indictment and proven to the jury beyond a reasonable

doubt. We consider each of these issues in turn.

                                        ANALYSIS

1. Admission of organizational chart.

        We review the admission of evidence for abuse of discretion, considering any

errors under the harmless error doctrine.4 Evidentiary rulings will be affirmed

“unless they affect a substantial right of the complaining party.” 5

       Throughout the trial the government made reference to a large organizational

chart that purported to list the players in the drug conspiracy, and their relevant

positions within the hierarchy. The chart was approximately 3' x 3' 6" in size and

included photographs of each of the alleged conspirators. Colored lines connecting

the photographs represented the flow of drugs. Taylor’s picture was placed directly

below the alleged leader of the conspiracy and the lines purported to show that she

supplied crack cocaine to eight other co-conspirators, four of whom supposedly

distributed the drugs to others within the lower ranks.

        The chart was first used by the government in its opening statement to the


   4
    United States v. Haese, 162 F.3d 359 (5th Cir. 1998).
   5
    Id. at 364 (citing United States v. Skipper, 74 F.3d 608 (5th Cir. 1996)).

                                               4
jury as reflective of that which the prosecutor intended to prove. It also was used

as an aid to assist the jury in distinguishing between the alleged conspirators, most

of whom were related and had the same last name. The chart was placed before the

jury during opening statements and when witnesses were questioned about it. At

other times the chart was turned away from the jury.           At the close of the

government’s case the chart was admitted into evidence as a summary of

testimony. As such, the chart was before the jury during closing arguments and

was in the jury room during deliberations. Defense counsel objected to the chart

both before opening statements and when the prosecutor sought its admission into

evidence.

      The court gave two instructions regarding the chart’s use. After the

government’s opening statement the court instructed the jury that the chart

reflected what the government believed the facts to be, but that it would be up to

them to evaluate whether it was an accurate depiction of the events. The second

instruction, given after the chart was admitted into evidence, advised that the chart

should be evaluated just like any other evidence and should be given whatever

weight the jury deemed appropriate.

      The admission of organizational charts and summary evidence is governed

by Federal Rules of Evidence 611(a) and 1006. We previously have stated that

                                         5
allowing the use of charts as “ ‘pedagogical’ devices intended to present the

government’s version of the case” is within the bounds of the trial court’s discretion

to control the presentation of evidence under Rule 611(a).6 Such demonstrative

aids typically are permissible to assist the jury in evaluating the evidence, provided

the jury is forewarned that the charts are not independent evidence.7 Additionally,

such charts are not admitted into evidence and should not go to the jury room

absent consent of the parties.8 In contrast, Rule 1006 applies to summary charts

based on evidence previously admitted but which is so voluminous that in-court

review by the jury would be inconvenient.9 Although the plain language of Rule

1006 does not apply to summaries of testimonial evidence, we have permitted such

use in conspiracy cases to aid the jury “[in] put[ting] the myriad of complex and

intricate pieces of testimonial and documentary evidence comprising the puzzle


    6
     United States v. Posada-Rios, 158 F.3d 832, 869 (5th Cir. 1998); Pierce v. Ramsey Winch
Co., 753 F.2d 416 (5th Cir. 1985). Rule 611(a) pro vides, “[t]he court shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the ascertainment of the truth, [and] (2) avoid needless
consumption of time....” FED. R. EVID. 611(a).
    7
     Posada-Rios, 158 F.3d at 869; Pierce, 753 F.2d at 431.
    8
     Pierce, 753 F.2d at 431.
    9
     United States v. Tannehill, 49 F.3d 1049 (5th Cir. 1995); United States v. Duncan, 919 F.2d
981 (5th Cir. 1990) (citing United States v. Stephens, 779 F.2d 232 (5th Cir. 1985)). Rule 1006
provides in relevant part, “[t]he contents of voluminous writings, recordings, or photographs which
cannot conveniently be examined in court may be presented in the form of a chart, summary, or
calculation.” FED. R. EVID. 1006.

                                                   6
together....”10        The government contends that the district court did not err in

admitting the organizational chart because there was testimony both supporting and

not supporting the way the pictures were placed and the lines drawn. It also asserts

that the testimony revealed numerous alleged participants with various familial

relationships and a variety of relevant dates. As such, the chart enabled the jury to

understand the conspiracy’s structure and the nature and extent of Taylor’s

involvement. We are not persuaded.

        A necessary precondition to the admission of summary charts is that they

accurately reflect the underlying records or testimony, particularly when they are

based, in part, on the government’s factual assumptions.11 In this case, the

organizational chart did not accurately reflect the underlying testimony. For

example, the government never alleged and there was no evidence to support the

assertion that Taylor supplied cocaine base to Hilliard Goodley. The lines of the

chart would show that she did. The chart also reflects that Taylor supplied crack


   10
      United States v. Winn, 948 F.2d 145, 157 (5th Cir. 1991); Duncan, 919 F.2d at 988 (“We
cannot rationally expect an average jury to compile summaries and to create sophisticated flow charts
to reveal patterns that provide important inferences about the defendants’ guilt.”).
   11
       Stephens, 779 F.2d at 238-39 (5th Cir. 1985) (no abuse of discretion in admitting summary
charts where all the records on which the charts were based were in evidence); United States v.
Jennings, 724 F.2d 436, 442 (5th Cir. 1984) (summary charts premised on the government’s
assumptions permissible as long as supporting evidence has been presented to the jury and the jury
is instructed that they determine what weight the evidence should be given) (quoting United States
v. Means, 695 F.2d 811 (5th Cir. 1983)).

                                                 7
cocaine directly to Patricia Miller and Clarence Blaylock, both of whom testified

that they never received such.12 Additionally, the chart would show that Freddie

Goodman, the government’s star witness, received crack cocaine only from Taylor

and that he never supplied drugs to anyone else in the alleged conspiracy. His

testimony, however, established that he received drugs from Carla Goodley Brady

and Derrick Goodley, the purported head of the conspiracy, as well as from Taylor.

Further, he testified that he provided cocaine base to at least four other individuals

pictured on the chart, yet there are no lines drawn to reflect same. Thus, admission

of the chart allowed the government to assume that which it was required to prove

beyond a reasonable doubt as operative facts of the alleged offense.13 The

admission of the chart into evidence was error.

         We further conclude that this error was not harmless. As noted, the chart was

viewed by the jury throughout virtually the entire trial and it was available to them

during deliberations. Taylor’s picture was placed directly below the alleged leader

of the conspiracy. By omitting connections between the other alleged participants,

and including connections to Taylor that did not exist, the chart gave Taylor a more



   12
      Clarence Blaylock testified that he received drugs directly from Freddie Goodman and assumed
that they came from Taylor.
   13
        Baines v. United States, 426 F.2d 833, 840 (5th Cir. 1970).

                                                 8
central role in the conspiracy than the testimony supported and stretched the bounds

of permissible government assumptions well beyond the breaking point.14 Under

these circumstances, we must conclude that Taylor’s substantial rights were

affected by the presence of and repeated references to the government’s

organizational chart.15        Although we have held that proper jury instructions

regarding the function of summary charts may neutralize their potential prejudicial

effect,16 the instructions herein do not pass muster. We therefore hold that

admission of the chart unduly prejudiced Taylor’s trial and requires a reversal. We

deem it appropriate to address other issues raised in this appeal.

2. Admission of co-conspirator’s prior convictions.

        In her second point of error, Taylor contends that the district court erred in

admitting into evidence two 1994 state court convictions of Derrick Goodley, the

purported head of the conspiracy. Taylor complains that Goodley’s convictions are

   14
     We also note that the pictures of the defendants are like mug shots, contributing to the chart’s
prejudicial impact.
   15
      United States v. Castillo, 77 F.3d 1480, 1500 (admission of summary witness’ testimony
harmless error because witness “did not misstate or put an unfair ‘spin’ on the testimony repeated or
paraphrased and it was uncontradicted”); Jennings, 724 F.2d at 442 (that defendant was convicted
of only four out of twelve counts necessarily implies that the jury did not take at face value the
government’s summary chart, thereby indicating no unfair prejudice occurred); United States v.
Apodaca, 666 F.2d 89 (5th Cir. 1982) (defendant not prejudiced by summary charts where he was
not convicted of all counts in the indictment).
   16
     Winn, 948 F.2d at 158 (quoting Duncan, 919 F.2d at 988); United States v. Tannehill, 49
F.3d 1049, 1056 (5th Cir. 1995); Means, 695 F.2d at 817.

                                                 9
irrelevant in determining her guilt and were highly prejudicial because they

wrongly insinuated guilt by association. We must agree. It is well-settled that a

codefendant’s prior convictions are not relevant in the determination of a

defendant’s guilt, and are inadmissible as substantive proof of a defendant’s

involvement in the crime charged.17 A codefendant’s prior convictions may only

be admitted when two or more codefendants are tried together, or when the

codefendant is a witness against the defendant. In neither case, however, is such

evidence admissible against the defendant.18 In the case at bar, Goodley was not

tried with Taylor and was not called as a witness against her. Thus, “there was no

legitimate reason for offering this evidence,”19 and it should have been excluded.

The government claims, however, that Goodley’s 1994 convictions were intrinsic

evidence because the underlying conduct occurred during the life of the charged

conspiracy. We are not persuaded.

   17
      United States v. Leach, 918 F.2d 464 (5th Cir. 1990); Bridge v. Lynaugh, 838 F.2d 770 (5th
Cir. 1988); United States v. Miranda, 593 F.2d 590 (5th Cir. 1979).
   18
      Leach, 918 F.2d at 466-67 (district court committed reversible error by admitting conspiracy
conviction of a codefendant where co defendant did not testify and his conviction was not part of
defendant’s trial strategy) (citations omitted); United States v. Cihak, 137 F.3d 252, 258 (evidence
of conviction for acts similar to crime charged admitted where codefendants were tried together, but
jury instructed that conviction of one defendant could not be used as proof of other defendant’s guilt);
United States v. Marroquin, 885 F.2d 1240, 1246 (5th Cir. 1989) (convictions of codefendant may
be used by defendant to impeach codefendant where he is a witness and may be introduced by
prosecutor to “ ‘blunt the sword’ of anticipated impeachment”).
   19
        Leach, 918 F.2d at 468.

                                                  10
         Evidence of prior acts is intrinsic to the charged conspiracy if the prior acts

are “inextricably intertwined” with the acts underlying the charged offense, if both

acts are part of a “single criminal episode,” or the prior acts were “necessary

preliminaries” to the crime charged.20 Such evidence is admissible “to complete

the story of the crime by proving the immediate context of events in time and

place.”21 The convictions admitted herein resulted from Goodley’s delivery of

cocaine on two occasions in 1993. The only evidence adduced at trial, with respect

to these convictions, however, were the judgments of conviction. These judgments

may not be construed as inextricably intertwined with, related to as part of a single

criminal episode, or necessary preliminaries to the conspiracy of which Taylor was

charged. Criminal judgments are not acts in furtherance of a conspiracy. The

government’s reliance on cases in which we have allowed the admission of prior

conduct of a codefendant as intrinsic to the charged offense is misplaced. The

relevant cases involve evidence of either uncharged conduct or acts which resulted

in a conviction.22 None involved admission of the judgment of conviction alone.


   20
      United States v. Powers, 168 F.3d 741, 749 (5th Cir. 1999) (quoting United States v.
Williams, 900 F.2d 823, 825 (5th Cir. 1990)); United States v. Coleman, 78 F.3d 154, 156 (5th
Cir. 1996).
   21
        Coleman, 78 F.3d at 156 (citations omitted).
   22
     See, e.g., United States v. Krout, 66 F.3d 1420 (5th Cir. 1995); United States v. Maceo, 947
F.2d 1191 (5th Cir. 1995).

                                                11
        Even if Goodley’s state court convictions constituted proper intrinsic

evidence, which they do not, they nonetheless should have been excluded as unduly

prejudicial under Federal Rule of Evidence 403.23 When considered in conjunction

with the government’s organizational chart depicting Taylor as Goodley’s chief

lieutenant, the propensity for error in admitting these convictions is twofold. First,

the jury may infer that Taylor must be guilty of the charged offenses because she

associated with convicted felons. We repeatedly have held that such “guilt by

association evidence” should be excluded.24 Second, it allows the jury to assume

that if Goodley delivered drugs, he must have delivered them to Taylor. There is

no evidence that such was the case herein. Because of the nonexistent probative

value and highly prejudicial nature, the district court clearly abused its discretion

in admitting Goodley’s prior convictions.

3. Admission of Taylor’s prior drug conviction.

        Taylor next complains that the district court abused its discretion in admitting



   23
     Rule 403 provides:
   Although relevant, evidence may 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.
   24
      United States v. Polasek, 162 F.3d 878, 885 (5th Cir. 1998); United States v. Parada-
Talamantes, 32 F.3d 168, 170 (5th Cir. 1994) (“Because evidence of ‘guilt by association’ is
typically highly prejudicial, it should be excluded.”) (citation omitted).

                                                12
as extrinsic evidence her prior conviction for possession of cocaine base with intent

to deliver.      Conceding that this evidence is relevant to prove her intent to

participate in the charged conspiracy and her intent to distribute cocaine base under

Rule 404(b), she asserts that its probative value was far outweighed by its

prejudicial effect. We consistently have held that evidence of a defendant’s prior

conviction for a similar crime is more probative than prejudicial and that any

prejudicial effect may be minimized by a proper jury instruction.25 In this case, the

district court twice admonished the jury that Taylor’s prior conviction was to be

considered only for the limited purpose of determining her intent or state of mind

and not as evidence that she committed the offenses charged.26 We find no abuse

of discretion in the admission of this evidence.

4. Prosecutor’s comments.

         Taylor also claims that the prosecutor made improper comments during

closing argument which compromised her right to a fair trial. The government

contends that the prosecutor’s argument was an entirely proper response to defense

counsel’s attack on the credibility of the government’s witnesses. As Taylor did



   25
    United States v. Harris, 932 F.2d 1529 (5th Cir. 1991) (citing cases); United States v.
Bermea, 30 F.3d 1539 (5th Cir. 1994).
   26
        Harris, 932 F.2d at 1534.

                                            13
not object to the prosecutor’s statements at trial, we review for plain error.27 An

error is plain if it affects the defendant’s substantial rights.28 In this context, plain

error results if the prosecutor’s comments “seriously affected the fairness, integrity,

or public reputation of a judicial proceeding and resulted in a miscarriage of

justice.”29 To determine whether plain error has occurred, we must view the

statements in the context of the entire record.30

         As a general rule, the prosecutor may not bolster the credibility of its

witnesses by personally attesting to their truthfulness, as “doing so may imply that

the prosecutor has additional personal knowledge about the witness and facts that

confirm such witness’ testimony, or may add credence to such witness’

testimony.”31 Where defense counsel insinuates that the government’s witnesses

perjured themselves because they entered into plea-bargains and were hoping to

receive lighter sentences, a prosecutor may rebut those accusations, even if those




   27
     United States v. Washington, 44 F.3d 1271 (5th Cir. 1995); United States v. Goff, 847 F.2d
149 (5th Cir. 1988).
   28
        FED. R. CRIM. P. 52(b).
   29
        Goff, 847 F.2d at 162 (citing United States v. Livingston, 816 F.2d 184 (5th Cir. 1987)).
   30
        United States v. Young, 470 U.S. 1 (1985).
   31
        Washington, 44 F.3d at 1278 (footnote omitted); Bermea, 30 F.3d at 1563.

                                                 14
statements otherwise would amount to a bolstering argument.32 While defense

counsel at bar took this position, the government went beyond rebuttal of that

argument when the prosecutor stated:

         And what it comes down to, if you want to believe [the defense’s]
         theory, is that myself, these two detectives, the members of the DEA
         who assisted, members of the Midland Police Department all got
         together to subborn [sic] perjury, to obstruct justice to make up a fairy
         tale about this Defendant, and if you believe that, ladies and
         gentlemen, let me be the first to tell you, you must acquit the
         Defendant.

Such comments repeatedly have been condemned as highly improper, if not

pernicious, for they raise the likelihood that a jury would believe that the only way

to acquit the defendant is by “abandon[ing] [their] confidence in the integrity of the

government.”33 Because the prosecution’s comment referred to all of the witnesses

who testified against Taylor its effect was to bolster the government’s entire case.

Although the argument was error, whether it constitutes plain error presents a

difficult question. Because we otherwise reverse this conviction, we need not

decide this question. We are confident that it will not be repeated in any new trial.

5. Sentence enhancement.

   32
        Washington, 44 F.3d at 1278; United States v. Dorr, 636 F.2d 117 (5th Cir. Unit A 1981).
   33
       Goff, 847 F.2d at 164; Young, 470 U.S. at 18-19 (the danger in such comments is that “the
prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to
trust the Government’s judgment rather than its own view of the evidence”); Dorr, 636 F.2d at 120-
21; United States v. Garza, 608 F.2d 659 (5th Cir. 1979).

                                               15
          Because we reverse Taylor’s conviction, we do not consider whether the

district court properly enhanced her sentence for a role as a manager or supervisor.

6. Jones v. United States.

          Finally, Taylor asks us to consider whether the recent Supreme Court

decision in Jones v. United States34 requires that drug quantity be alleged as an

element of the offense charged. Jones held that the provisions of the federal car-

jacking statute, which provides for different maximum penalties depending on the

presence of certain aggravating factors, must be construed as creating three distinct

offenses rather than a single crime with three different penalties.35 While the Court

stated that it reached this conclusion to resolve constitutional doubt on the issue of

statutory construction for which there was no dispositive precedent, it intimated

that constitutional guarantees may require that “any fact which increases the

maximum penalty for a crime must be charged in an indictment, submitted to a

jury, and proven beyond a reasonable doubt.”36 It is on this language that Taylor

grounds her contention that drug quantity is an element of 21 U.S.C. § 841(a)(1),

because the maximum penalty she could receive depends, in major part, on the


   34
        119 S. Ct. 1215 (1999).
   35
        Id. at 1228.
   36
        Id. at 1224 n.6.

                                         16
amount of drugs involved in the offense.

          Although Jones was decided while this appeal was pending, we recently

addressed this issue in United States v. Rios-Quintero.37 Rios-Quintero was

convicted of possession of heroin with the intent to distribute in violation of 21

U.S.C. § 841(a)(1), and importation of heroin in violation of 21 U.S.C. §§ 952(a)

and 960(a)(1). Like Taylor, Rios-Quintero had not raised this issue in the district

court because Jones was decided after judgment and sentencing but before the

appellate briefs were filed. Consequently, our review was limited to whether the

failure to allege drug quantity in the indictment and subsequently prove it to the

jury amounted to plain error.

          We held that “the impact of Jones is not sufficiently obvious or clear to

permit this panel to deviate from this Circuit’s existing precedent characterizing

drug quantity as a sentencing factor,” and thus any error was “not sufficiently plain

to merit relief.”38 We further reasoned that due attention to the complex issue

raised by the Jones decision can only be given when it has been “presented to and

preserved in the district court.”39 Thus, consistent with Rios-Quintero, we conclude


   37
        204 F.3d. 214 (5th Cir. 2000).
   38
        Id. at 215 (citations omitted).
   39
        Id. at 220.

                                          17
that any error resulting from the government’s failure to allege drug quantity in the

indictment does not rise to the level of plain error. We recognize, however, that

Taylor is not foreclosed from raising this issue on remand, nor is the government

foreclosed from revisiting its indictment.

                                 CONCLUSION

      For the reasons set forth above, we REVERSE Taylor’s conviction and

sentence and REMAND to the district court for further proceedings consistent

herewith.




                                         18
