                              R E V I S E D
                            February 25, 1998

                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                              No. 97-60213



                       UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee,

                                 VERSUS


                              JAMES LOWERY
                                                  Defendant-Appellant.



          Appeal from the United States District Court
            For the Southern District of Mississippi,
                         Jackson Division

                            February 19, 1998

Before REYNALDO G. GARZA, DUHE’, and STEWART, CIRCUIT JUDGES.

PER CURIAM:

     This is an appeal from the United States District Court for

the Southern District of Mississippi, the Honorable William H.

Barbour, Jr., presiding.       The Defendant-Appellant, James Lowery

(“Lowery”),   was   found   guilty   of   obstruction   of   justice,   in

violation of Title 18, U.S.C. §1512(b)(1). Lowery timely appealed,

and the matter now lies before this panel.




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                               Background

     Lowery was a businessman in Jackson, Mississippi, and the

owner-operator of a gentleman’s club called the Legends Cabaret.

Lowery, in his capacity as owner and operator of Legends Cabaret,

hired Bonnie Sanders (“Sanders”) as an exotic dancer and Betty

Murphy (“Murphy”) as a maintenance and clean-up person.             Arthur

Taylor (“Taylor”) was the son of Murphy and an acquaintance of

Lowery.   Sanders was Lowery’s girlfriend.

     Sanders was the target of an investigation for tax-evasion by

the Internal Revenue Service (“IRS”) and IRS Special Agent Phil

Hull (“Agent Hull”). She was indicted on two counts of tax-evasion

and tried in the Southern District of Mississippi before Judge

Henry T. Wingate (“the Sanders trial”).1         Sanders was found guilty

on one count of tax evasion, but Judge Wingate set aside the

conviction.      This case arises from incidents surrounding the

Sanders trial.

     Subsequently,     James   Lowery     was   indicted   and   tried   for

obstruction    of   justice.   He   was   convicted,   and   sentenced   to

imprisonment for thirteen (13) months, payment of a fine of $2,000,

and a special assessment of $100. Lowery is presently serving said

sentence.     Lowery’s theory of defense during his trial was that

during the time leading up to the Sanders trial, he encouraged

Taylor (through Taylor’s mother, Murphy) to testify truthfully.


     1
      United States v. Sanders, Cause No. 3:96CR38WN.

                                    2
Lowery claimed that the IRS realized the weakness of its position

while   investigating     the   Sanders   case,    and     began    to   pressure

witnesses to testify in a manner consistent with the IRS position.

     Lowery spoke with Murphy regarding the testimony of her son,

Taylor, during the course of the investigation. Lowery claims that

he was aware that Taylor made statements to Sanders’ attorney

consistent   with   her    innocence,     and     he    feared     the   IRS   was

intimidating Taylor to state otherwise.                During the course of a

conversation with Murphy in which this matter was discussed, Lowery

and Murphy got into an argument, and Lowery fired her. Immediately

thereafter, Murphy went to the IRS, reported the incident, and went

back to speak with Lowery while wearing a wire.                     It is these

conversations which are at the core of the instant case, and are

central to the underpinnings of Lowery’s affirmative defense.

     Title 18 U.S.C. §1512(d) states an affirmative defense for

obstruction of justice as follows:

     (d) in a prosecution for an offense under this section,
     it is an affirmative defense, as to which the Defendant
     has the burden of proof by a preponderance of the
     evidence, that the conduct consisted solely of lawful
     conduct and that the Defendant’s sole intention was to
     encourage, induce and cause the other person to testify
     truthfully.

Lowery claims that he did nothing illegal and was merely trying to

encourage Murphy and Taylor to tell the truth, as is allowed under

this affirmative defense. He coupled this with an argument stating

that the IRS, and particularly Agent Hull, was obsessed with

convicting Sanders, and that the IRS was intimidating witnesses to

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achieve their ends.

     The prosecution filed a Motion In Limine at the outset of the

trial, which sought to prevent Lowery from introducing evidence,

testimony, and the ultimate outcome of the results of the Sanders

trial. Judge Barbour believed that such evidence and testimony was

irrelevant,    granted   the   Motion   In   Limine,   and   excluded   such

evidence.     He also sustained objections made by the prosecution

when testimony which related back to the Sanders trial was given.

Lowery claims that the grant of this Motion In Limine, coupled with

the exclusion of certain necessary evidence and testimony during

the trial, prevented him from being able to present his defense.

He moved for mistrial twice during the trial on this issue.              The

prosecution prevailed at the trial level, and the appeal now lies

before us.



                           Standard of Review

     A district court’s evidentiary rulings are reviewed for abuse

of discretion.   United States v. White, 972 F.2d 590, 598 (5th Cir.

1992).   The abuse of discretion must create the likelihood of

prejudice to the defendant and the substantial right at issue must

be made known to the court.       United States v. Tansley, 986 F.2d

880, 886-887 (5th Cir. 1993).      However, even if the district court

erred in its evidentiary rulings, such error can be excused if it

was harmless error. United States v. Capote-Capote, 946 F.2d 1100,


                                    4
1105 (5th Cir. 1991).          A nonconstitutional trial error is harmless

unless it “had substantial and injurious effect or influence in

determining the jury’s verdict.”               Kotteakos v. United States, 328

U.S. 750, 776 (1946); see also United States v. Sanchez-Sotelo, 8

F.3d 202, 210 (5th Cir. 1993).



                                      Analysis

      The key issue is whether the district court erred in granting

the Motion In Limine (and subsequent rulings relating to the

Motion), and if so, whether such error was harmless.                 We hold that

such error did occur, and the error was not harmless.                  Therefore,

we reverse and remand this case for new trial.

      The district court excluded evidence from and with reference

to   the    Sanders    trial    on   the   grounds   that    such    matters    were

irrelevant to Lowery’s case.           This was error, because any evidence

that the IRS was intimidating witnesses in the Sanders case would

be relevant to Lowery’s case, given that his theory of defense was

that he was trying to encourage witnesses to tell the truth in the

face of IRS pressure to do otherwise.              It is well established that

a criminal defendant is entitled to present his theory of defense,

including witnesses, testimony, and exhibits. See United States v.

Partin, 493 F.2d 750, 763 (5th Cir. 1974).                The grant of an overly

broad      Motion     In   Limine,    coupled      with    related    rulings    on

introduction of certain evidence and testimony, prevented Lowery


                                           5
from properly presenting his theory of defense to the extent

necessary for a fair trial.

     It is true that Lowery was able to discuss his affirmative

defense to some degree during the trial.                  His attorney discussed

the affirmative defense during his argument, Lowery was able to

testify about it, and it was included in the jury charge.                  However,

the Motion In Limine and related rulings prevented Lowery from

being able to develop and prove his case.                 Throughout the trial,

whenever the defense tried to elicit testimony which would have

supported    the    affirmative     defense,       the    prosecution     objected,

stating that such testimony related back to the Sanders trial, and

hence, violated      the   Motion    In       Limine.     Such    objections   were

consistently sustained.         Lowery was unable to prove his case, and

the issues which he claimed to be at the center of his affirmative

defense were relevant.         Therefore, the district court erred in its

grant of the Motion In Limine and in its related rulings.

     The    prosecution    argues    that       the     effect    of   admission   of

evidence    and    testimony    regarding       the     Sanders   trial   would    be

cumulative in addition to being irrelevant. We do not believe this

to be the case.     The extent to which Lowery was able to discuss and

attempt to prove his affirmative defense was quite limited.                    Given

that Lowery wasn’t able to show very much to prove his defense, the

information which the Lowery was trying to elicit, particularly

from Agent Hull, would have not been cumulative.                   The information

sought by Lowery, if it existed and was true, would have helped

                                          6
develop and support his theory of defense, and would not have been

“piling   on.”      The    decision    of   the    district     court    cannot   be

supported   on     the    grounds   that    the    evidence     Lowery   tried    to

introduce was cumulative.

     The district court’s grant of the Motion In Limine left Lowery

little more than the ability to make unsubstantiated and (in

practice, given the situation) unprovable claims on the witness

stand.    Lowery’s hands were tied.          Further, it can be argued that

he was made worse off by arguing his theory without being allowed

to substantiate it, because without substantiation his theory of

defense looked like a desperate conspiracy theory. The information

Lowery sought was necessary to prove his defense, and it cannot be

said that the effect on the jury’s verdict was insubstantial or

harmless.       Therefore, the decision of the district court in this

matter constitutes abuse of discretion and reversible error.



                                    Conclusion

     James Lowery was unable to properly conduct his defense at the

trial level due to the district court’s grant of the Motion In

Limine    and    related    rulings.        This   was    not   harmless    error.

Accordingly, we REVERSE AND REMAND for a new trial, one which

allows Lowery to fully develop his affirmative defense.



                                                         REVERSED AND REMANDED.



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