889 F.3d 876
7th Cir.2018Background
- Jones was indicted for being a felon in possession of a firearm after officers pursued him, observed him apparently discard a gun over a fence, and a gun was recovered behind that fence.
- Officer Anthony Milone’s credibility was central; Milone testified he saw Jones reach into his pocket and throw a firearm while running.
- Before trial the government moved to preclude cross-examination about Milone’s prior testimony at an evidentiary hearing in United States v. Brantley, where a magistrate and district judge found Milone’s identification testimony to be inaccurate as to recollection (not necessarily deceit).
- The district court granted the motion in limine, excluding questioning about the Brantley credibility findings as unfairly prejudicial and confusing.
- At closing, the prosecutor argued that it “strains credulity” not to believe the officers and that their reputation is their “currency”; defense objected but the judge overruled or sustained certain objections and instructed the jury properly; jury convicted.
- Jones moved for a new trial arguing (1) the limitation on cross-examination violated his Sixth Amendment confrontation rights and (2) prosecutorial vouching in rebuttal; the district court denied the motion and Jones appealed.
Issues
| Issue | Jones's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether exclusion of cross-examination about Milone’s Brantley testimony violated the Sixth Amendment confrontation right | Excluding questioning about Brantley and the judges’ findings deprived Jones of showing bias/inaccuracy of Milone’s testimony | The Brantley findings did not say Milone lied; questioning would be marginally relevant, confusing, and unfairly prejudicial under Rules 403 and 608(b) | No Sixth Amendment violation; district court did not abuse its discretion in limiting cross-examination |
| Whether prosecutor improperly vouched for Milone in rebuttal, requiring a new trial | Prosecutor’s comments about officers’ “currency” and that it “strains credulity” were improper vouching that prejudiced the jury | Statements were reasonable inferences from the record and invited the jury to use common sense; did not inject outside facts or personal belief | Not reversible error; comments were close to improper but did not deny Jones a fair trial |
Key Cases Cited
- United States v. Abair, 746 F.3d 260 (7th Cir. 2014) (district court has broad discretion to control cross-examination)
- United States v. Holt, 486 F.3d 997 (7th Cir. 2007) (Sixth Amendment confrontation issues reviewed de novo)
- Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (Confrontation Clause guarantees cross-examination to test bias and truthfulness)
- Delaware v. Van Arsdall, 475 U.S. 673 (1986) (trial judges have wide latitude to impose reasonable limits on cross-examination)
- Thompson v. City of Chicago, 722 F.3d 963 (7th Cir. 2013) (analysis of Rule 608(b) and Rule 403 balancing)
- United States v. Bloom, 846 F.3d 243 (7th Cir. 2017) (standard for reviewing prosecutorial misconduct/new-trial claims)
- United States v. Bowman, 353 F.3d 546 (7th Cir. 2003) (factors for assessing prosecutorial misconduct prejudice)
- United States v. Wolfe, 701 F.3d 1206 (7th Cir. 2012) (distinguishing permissible credibility argument from impermissible vouching)