Admission of Gang Membership Harmful Error

United States v. Hamilton, No. 12-20250 (July 11, 2013) (Stewart, Higginbotham, Jones)

Hamilton was on trial for unlawful possession of a firearm as a convicted felon. The evidence of possession was circumstantial: an agent saw him move his arm outside of his parked car and later found a gun under the tire of an SUV next to where Hamilton parked. When he was stopped for a traffic violation, a record check revealed that he was affiliated with the Black Disciples gang ("BD"), and Hamilton admitted to an agent that he "was" a BD.

The court permitted testimony regarding Hamilton’s gang membership over his objection. An agent testified that Hamilton had been affiliated with the BD since 1998, that Hamilton stated that he "was" a BD, and that the agent had never known a gang member who really left a gang. The agent proceeded to testify that he had made numerous arrests of gang members who possessed guns. The case then went to the jury without a limiting instruction, and the jury convicted Hamilton.
The panel determined that the agent’s gang-related testimony was extrinsic and that it did not pass the Beechum test, which allows extrinsic evidence to be admitted that (1) is relevant to an issue other than the defendant’s character, and (2) has a probative value not substantially outweighed by its undue prejudice. 

Because the evidence of guilt was sparse, and the prejudice that comes with gang membership may be great, ‘there is a reasonable possibility that the improperly admitted evidence contributed to [Hamilton’s] conviction.’ United States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992) (internal citation marks omitted).

The panel reversed and remanded. It noted, however, that testimony related solely to the record check and to Hamilton’s comment was intrinsic to the offense - as part of the on-scene investigation - and not subject to Beechum. The agents testimony went far beyond that int rinsic evidence, however.