Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 95-CR-30006 William L. Beatty, Judge.
Before POSNER, Chief Judge, CUDAHY, and FLAUM, Circuit Judges.
John Irvin and Thomas Pastor were convicted by a jury of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. sec. 841(a)(1), and of using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. sec. 924(c). The defendants appeal their convictions, claiming that certain motorcycle gang evidence should have been excluded under Federal Rule of Evidence 403. We affirm Irvin's conviction and reverse Pastor's conviction and remand Pastor's case for a new trial. *fn1
On January 5, 1995, an Illinois State Policeman, Trooper Rob Eisenbarger, stopped a Ford Bronco truck with California plates being driven by John Irvin and carrying Thomas Pastor as a passenger. Eisenbarger became suspicious after observing the extreme nervousness of both of the occupants and after receiving conflicting stories as to their travel plans and purposes. He therefore asked and received consent from both Irvin and Pastor to search the car. The search revealed two weapons, each with a loaded magazine or ammunition clip nearby. The Trooper also discovered an opened box of laundry detergent containing eight duct-taped bundles of methamphetamine. At this point both men were placed under arrest and taken to the Illinois State Police Headquarters in Collinsville, Illinois.
At trial, Trooper Eisenbarger stated that he transported Irvin to the station, while another trooper took Pastor to headquarters. Eisenbarger told the jury that on the way to the station, he informed Irvin that an investigator would want to speak to him about the drugs and about the possibility of doing a controlled delivery. Eisenbarger testified that Irvin's response was "that he didn't believe that he could do that, because  they would kill his whole family, meaning the motorcycle gang that he was affiliated with." Irvin also stated, according to Eisenbarger, that a controlled delivery was not possible because Pastor had already made a phone call, and therefore "they" already knew that the police had stopped them on the highway.
Eisenbarger also told the jury that once Irvin and Pastor reached police headquarters, they were photographed as part of the booking procedures. One picture was taken of a large tatoo appearing on Pastor's back. The court did not allow the government to submit the photo to the jury, but the court did allow Eisenbarger to describe the tattoo to the jury. Eisenbarger testified that the tattoo started at the top and center of Pastor's back, near the base of his neck, where there was "a small triangle with the number 69 intertwined." Eisenbarger stated that below this triangle the word "Diablos" was written in a "border display." He explained that the Diablos were a motorcycle gang. Eisenbarger then described that there was a large devil's head with a hat on it in the center of the tattoo. To the side of the devil's head were the letters M and C, and below the devil's head, near the bottom of Pastor's back, the tattoo said "CONN," meaning Connecticut. Eisenbarger also told the jury that Pastor had the "same basic picture of the devil" tattooed on his left forearm. The defendants objected to this testimony concerning Pastor's gang tattoo and, in fact, had filed a motion in limine to exclude all testimony and references to the defendants' membership in a motorcycle gang or the gang's insignia. The court, however, determined the evidence was admissible to prove a joint venture between the defendants.
Officer Eisenbarger was also responsible for inventorying and processing the evidence gathered from the Bronco and the defendants. He testified that two rings were taken from Irvin, one that said Diablos and one of a devil's head. The rings were admitted into evidence. In addition, a picture of a vest found in the Bronco was introduced. Officer Eisenbarger testified that the insignia on the vest matched the insignia of Pastor's tattoo, and he again described to the jury the triangle with the 69 intertwined, the devil's head, and the word Diablos. He also explained that the symbols in the tattoo and on the vest were the signs of the Diablos motorcycle gang. A picture of a Diablos "greeting card" and a Diablos wallet placed with the narcotics and the guns was excluded, although Eisenbarger was allowed to tell the jury that in the Bronco there was "personal clothing . . . [and] other affiliations to gangs such as business cards and stickers of affiliation to a gang."
Officer Charles Bruggeman then testified that he was asked to interview Irvin at the police station, and as a result of the interview, a written statement was obtained from Irvin. The first three sentences read as follows:
I have been a Diablos for approximately five years, most recently serving as chapter president. The chapter is located in the San Fernando Valley and has eight members. Prior to joining the Diablos, I grew up with the Hell's Angels in the San Fernando Valley.
Irvin additionally explained in the statement how he had come into possession of the laundry detergent box. He told the officer that he was getting gas at a station in Illinois when a man approached him pulling a laundry cart. This man offered Irvin the box of detergent, telling him he didn't want it anymore. At first Irvin refused, but he later accepted the detergent when the man told him that he was just going to throw it away. Irvin also claimed ownership of the guns that were found in the truck. Irvin's statement was read to the jury by Officer Bruggeman.
When Irvin took the stand in his own defense, he told a similar but somewhat different story. He first explained how the laundry detergent box had come to be in the Bronco, basically telling the jury the same story that he had told the police about the man at the gas station. Irvin also testified that he had joined the Diablos motorcycle club about five years ago and that around the same time the club had outlawed the use of drugs. He stated that he did not use drugs and was not involved in the transporting and distribution of drugs. He told the jury that the Diablos rings, the vest, both of the guns, and the rest of the items in the cargo area of the Bronco were his, as he was moving some of his personal things to Indiana. He claimed that he had told both Trooper Eisenbarger and Investigator Bruggeman that he was set up by a former drug-dealing member of the Diablos, who was now a member of another gang, the Sons of Silence. Irvin testified that he was instrumental in getting this person kicked out of the Diablos and he believed this person had the man at the gas station plant the drugs on him. As far as the statement he made to Trooper Eisenbarger about not being able to cooperate because his motorcycle gang would kill him, Irvin testified that he did not say that the Diablos would kill him, but rather that the Sons of Silence would kill him if he tried to set them up. Trooper Eisenbarger admitted on cross examination that Irvin had mentioned this other gang at some point, but he stated it was his recollection that Irvin had said the ...