In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2334

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL LEE MOKOL, JR.,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Indiana, Hammond Division.

No. 2:08-CR-97—Joseph S. Van Bokkelen, Judge.

ARGUED MARCH 31, 2011—DECIDED JUNE 22, 2011

Before CUDAHY, POSNER and MANION, Circuit Judges.

CUDAHY, Circuit Judge. Appellant Michael Lee Mokol,

Jr., appeals from his conviction for two counts of being

a felon in possession of a firearm. He raises four trial

procedure issues, three of which pertain to evidence

and one of which pertains to jury instructions. We do not

credit Mokol’s arguments, and accordingly we affirm

the judgment of the district court.
2 No. 10-2334

I. Background

Michael Mokol was charged with four counts of being

a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1), in connection with two residential burglaries

in early May of 2008. He was acquitted of the two

charges stemming from the first burglary. He was convicted of possessing the gun stolen in the second

burglary, and of possessing a magazine containing ammunition that was in his car when he was arrested. On

appeal, he raises several issues related to trial procedure.

We reproduce only those facts relevant to his arguments

on appeal, as related by the witnesses at trial.

Louis Batides testified that in April of 2008 he

separated temporarily from his wife and moved to the

Deluxe Inn in Merrillville, Indiana. He brought with him

a silver Smith & Wesson 9mm model 5903 handgun.

While staying at the Deluxe Inn, he conversed with an

unknown person who knew Michael Mokol. Batides

had attended Merrillville High School with Mokol, and

the unknown intermediary offered to put them back in

touch. Within a few days, Mokol called Batides and

arranged to visit him at the Deluxe Inn. When Mokol

arrived, Batides showed him his silver Smith & Wesson.

Mokol liked the gun, and asked whether Batides

wanted to sell it. Batides answered no.

Batides and Mokol arranged to meet over drinks

several days later, on May 6. Mokol arrived at the bar

at 11:30 in the evening and chatted with Batides, but

then received a phone call and left abruptly. When

Batides returned to his hotel room, he discovered that
No. 10-2334 3

it had been burglarized. The door had been forced open

and the silver Smith & Wesson handgun was missing.

Batides tried to reach Mokol to tell him what had happened while they had been out, but Mokol never

returned these calls.

Robert Flavin testified that in early May of 2008,

Mokol came to him with a plan to steal a gun from a

room in the Deluxe Inn. Mokol proposed that he

would meet with the room’s occupant (whom Flavin did

not know) at a bar while Flavin and another burglar,

Ryan Geary, broke into the room. Flavin testified that

the three men went to Wal-Mart and purchased a crowbar

in preparation. That evening, consistent with Mokol’s

plan, Flavin and Geary broke into the room and stole a

silver gun and a magazine. Flavin then called Mokol.

They met in a Wal-Mart parking lot, where Flavin gave

Mokol the gun.

Ryan Geary, twenty years old at the time of his testimony, testified that he was dating Michelle Arnold,

Michael Mokol’s daughter, at the time of the relevant

events. According to Geary, Mokol proposed that Geary

help Flavin break into a room at the Deluxe Inn. Geary

agreed. His testimony generally corroborated Flavin’s

account of the Deluxe Inn break-in.

A crack cocaine user named Marco Ottomanelli

testified that in early May of 2008, Mokol gave him a

“silver spray like” 9-millimeter Smith & Wesson, which

he traded for crack cocaine that he and Mokol used together.

Detective Jeffrey Snemis testified that he was present at

the scene when fellow police officers pulled Mokol’s car
4 No. 10-2334

over in mid-May. Mokol was driving with a woman

named Lori Miller. A handgun magazine was lying on

the floorboard of Mokol’s car.

The foregoing testimony encompasses the essential

facts underlying Mokol’s conviction of being a felon in

possession of a firearm, and none of it is challenged on

appeal. Mokol’s appellate arguments relate instead to

the testimony of his then-girlfriend Lori Miller and his

daughter Michelle Arnold.

Lori Miller testified that at the time of the relevant

events she was dating Mokol and was working as

a dancer at a strip club (she could not remember the

name of the club). She testified that Mokol had several

guns, and that Mokol had her carry a silver handgun in

her purse because he was not allowed to carry it. And

of particular relevance to this appeal, she stated that

Mokol told her that “[i]f anybody tells on [me, about

the burglaries or firearms], they would end up in the

ground.”

Michelle Arnold, twenty years old at the time of

her testimony, testified as a Government witness. Two

parts of her testimony are contested on appeal. First, she

testified to an incident that occurred in the parking lot

of the Rising Sun nude dancing club, when Lori Miller

was working inside. Michelle testified that, when she

arrived at the Rising Sun, her father “got in the car

and pulled a gun, and said, ‘How much you got?’ And

I said, ‘Just fifty.’ And he put [the gun] back. It wasn’t

meant to be a threat or scare, it was a joke.” Michelle

stated that the gun Mokol used in this prank was black

and silver.
No. 10-2334 5

The jury never heard the second significant portion

of Michelle Arnold’s testimony: because of objections,

the judge excused the jury and allowed defense counsel

to make a proffer while he considered the testimony’s

admissibility. At that time, Michelle testified to an

incident in the parking lot of the Lake County jail, where

she had gone to visit her father after he was arrested

on the present charges. She testified that when she returned to her car from the jail, she found some cocaine

in the car’s interior door handle. It occurred to her that

perhaps the police were setting her up to secure her

cooperation against her father. Her testimony was, in

relevant part:

Defense Counsel: Now—and at that time—you sincerely believed that law enforcement officers may have

put those drugs on you, correct?

Michelle: I didn’t sincerely believe. It has crossed

my mind, yes.

Defense Counsel: But you do believe somebody

planted those drugs on you? 

Michelle: I didn’t have drugs, so I believed somebody put something in my car.

* * *

Defense Counsel: Let me ask you this. Do you have, or

at any point since you have been cooperating with

the government, have you had any fear that you

might be charged with something?

Michelle: No.
6 No. 10-2334

Defense Counsel: You have no fear that you would

be charged?

Michelle: No.

Defense Counsel: None at all?

Michelle: None at all.

At the end of a lengthy proffer, the district court determined to preclude defense counsel from cross-examining

Michelle about this incident. The judge stated that it

was irrelevant, and that in the alternative it should

be excluded under Federal Rule of Evidence 403 because

it would tend to confuse the jury.

Finally, when charging the jury, the district court instructed the jury, over Mokol’s objection, with this

court’s pattern jury instruction with respect to constructive possession (of the gun and magazine). Mokol

voiced the concern that this instruction would allow

the jury to improperly convict Mokol on the basis of

the physical possession of the gun by others.

As noted, the jury returned a guilty verdict with respect

to the possession of Batides’s gun and an ammunition

magazine. The judge imposed a sentence of 262 months

of incarceration followed by five years of supervised

release. Mokol timely appealed, and presents the following issues for our consideration:

(1) Whether the district court abused its discretion

in admitting bad acts testimony through Lori Miller’s

testimony as to Mokol’s statement that he would

put anyone who told on him “in the ground”;
No. 10-2334 7

These issues have been slightly reworded and reordered for 1

convenience in analyzing them.

(2) Whether the district court abused its discretion in

admitting bad acts evidence involving Michelle’s

testimony about the gun “prank” in the Rising Sun

parking lot;

(3) Whether the district court offended Mokol’s confrontation clause rights in restricting cross-examination of Michelle; and

(4) Whether the district court abused its discretion

by instructing the jury as to constructive possession.1

II. Analysis

1.

We first address the admissibility of Lori Miller’s testimony that Mokol stated that anyone who informed on

him would “end up in the ground.” This testimony

fits comfortably within the widely recognized principle

that a defendant’s attempts to intimidate potential witnesses are probative of his consciousness of guilt.

See, e.g., United States v. Johnson, 624 F.3d 815, 820-21

(7th Cir. 2010); United States v. Calabrese, 572 F.3d 362,

368 (7th Cir. 2009); United States v. Miller, 276 F.3d 370,

373 (7th Cir. 2002); United States v. Balzano, 916 F.2d

1273, 1281 (7th Cir. 1990). Rule 404(b), restricting bad

acts evidence, will ordinarily not keep such evidence

from the jury. See Miller, 276 F.3d at 373-74; United States
8 No. 10-2334

The Government raises another reason this testimony might 2

have been properly admitted: because it tends to explain

why, in her early discussions with law enforcement, Lori Miller

related a different account of the facts that tended to exculpate

Mokol. Having held the first argument sufficient and the

testimony properly admitted, we need not reach the Government’s alternative argument.

v. DeAngelo, 13 F.3d 1228, 1232 (8th Cir. 1994) (“[A]s

direct evidence of the crime charged, the evidence of

threats is not even Rule 404(b) evidence.”). Mokol

attempts to factually distinguish his case on the

ground that, unlike in some of the cases cited, the

threat was not made while Mokol was in custody. This

is unavailing, because this line of precedent has

permitted evidence of threats made in a variety of

factual contexts. Compare Calabrese, 572 F.3d at 366-67

(organized crime boss captured by wire threatening

suspected informant) with United States v. Zierke, 618

F.3d 755, 758 (8th Cir. 2010) (defendant who had been

in jail for over seven months encouraged son to harm

witnesses) and United States v. Young, 248 F.3d 260, 271-

72 (4th Cir. 2001) (murder suspect was convicted for

reckless endangerment and assault on victim’s mother

who was cooperating with authorities).2

Further, the district court did not abuse its discretion

in treating this evidence as more probative than

prejudicial within the meaning of Rule 403. The court

entertained a lengthy sidebar in advance of Miller’s

testimony, and ultimately credited the Government’s

argument that it showed Mokol’s consciousness of
No. 10-2334 9

Michelle Arnold testified that the gun was “black and silver.” 3

Batides testified that his gun was “silver.”

guilt. This determination was well within the court’s considerable discretion.

2.

We disagree with Mokol that the district court erred

or abused its discretion by admitting Michelle

Arnold’s testimony that Mokol had jokingly pointed

a handgun at her in the parking lot of the Rising

Sun strip club. Since this was understood and

apparently intended as a joke, it is not clear why its

import must be seriously analyzed. Michelle’s description of the gun Mokol brandished was similar (although

not identical) to the description of the gun stolen 3

from Batides’s hotel room on the evening of May 6, so

its possession may simply be evidence of the crime

charged. The defendant challenges this interpretation

on the ground that Michelle said the event occurred

in late April, before the May 6 burglary. But she also

testified that Lori Miller was inside the Rising Sun

working at the time of the incident—and that could not

have been the case in late April because Lori Miller was

in jail until May 8. If one credits Michelle’s statement

that Lori Miller was inside the Rising Sun working,

then the gun very well could have been Batides’s. The

existence of some uncertainty as to the date of events

does not transform direct evidence of guilt into imper-
10 No. 10-2334

A court’s limitation on a defendant’s cross-examination is 4

reviewed for an abuse of discretion, but whether the limitation

offends the confrontation clause is reviewed de novo. See United

States v. Martin, 618 F.3d 705, 727 (7th Cir. 2010). Exposing

witness bias directly implicates the Sixth Amendment, and is

reviewed de novo. Id.

missible “prior bad acts” testimony. Discrepancies as

to dates ordinarily go to the weight of testimony, not

its admissibility, and the actual date of events is a proper

matter for jury consideration. See United States v. Byrd,

771 F.2d 215, 224 (7th Cir. 1985); United States v.

Fleming, 504 F.2d 1045, 1048 (7th Cir. 1974).

Since Michelle’s testimony arguably served as direct

evidence of Mokol’s possession of the gun stolen

from Batides, it was probative of the Government’s

felon-in-possession case. In any event, the Government did not highlight the significance of the incident,

and Michelle herself downplayed it by testifying that

she was not scared. There was therefore no error under

Rule 404(b) or abuse of discretion under Rule 403.

3.

We review de novo the question whether the district

court improperly restricted Mokol’s cross-examination

of Michelle Arnold as to her discovery of drugs in her

car, and find no error. 4

Exposing bias is a “core concern” of the Sixth Amendment confrontation clause. Nevertheless, a district court
No. 10-2334 11

may restrict cross-examination into such issues so long

as the defense still has an adequate opportunity to

explore the witness’s motives and biases. See Olden v.

Kentucky, 488 U.S. 227, 232 (1988) (“[A] trial court may . . .

impose reasonable limits on defense counsel’s inquiry

into the potential bias of a prosecution witness, to take

account of such factors as ‘harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that [would be] repetitive or only marginally

relevant . . . .’”) (citation omitted); United States v. Martin,

287 F.3d 609, 620 (7th Cir. 2002) (“ ‘So long as

cross-examination elicits adequate information to allow a jury

to assess a witness’s credibility, motives, or possible bias,

the Sixth Amendment is not compromised.’”) (quoting

United States v. Scott, 145 F.3d 878, 888 (7th Cir. 1998)).

Although the court foreclosed defense counsel

from questioning Michelle Arnold about the incident in

which she found drugs in her car after visiting her father

in jail, the court did not generally prevent Mokol from

probing into possible pro-Government bias, or fear

of prosecution, on Michelle’s part. Defense counsel extensively cross-examined her. Counsel elicited testimony,

for example, that tended to show that her father had

interfered with her relationship with her fiancé Ryan

Geary, including by introducing him to drugs and simultaneously encouraging her to leave him because he was a

drug user. Counsel also elicited testimony about Michelle’s

cooperation with the Government in advance of trial.

Moreover, Mokol’s theory of Michelle Arnold’s proGovernment bias was not very compelling. This is not a

case where the court foreclosed a line of cross-examina-
12 No. 10-2334

The district court’s procedure in this regard was consistent

5

with Fed. R. Evid. 103(c), which provides that “[i]n jury cases,

proceedings shall be conducted . . . so as to prevent inadmissible

evidence from being suggested to the jury by any means,

such as making statements or offers of proof or asking questions in the hearing of the jury.” The Advisory Committee

Notes further clarify, “[t]he judge can foreclose a particular line

of testimony . . . without a series of questions before the jury,

designed at best to waste time and at worst ‘to waft into the

jury box’ the very matter sought to be excluded.” See, e.g.

United States v. Wilson, 605 F.3d 985, 1011-14 (D.C. Cir. 2010) (upholding against a confrontation argument the district court’s

decision to foreclose a line of questioning after testimony

outside the jury’s presence proved fruitless for the defendant),

cert. denied, 131 S. Ct. 841 (2010); United States v. Dischner, 974

F.2d 1502, 1514 (9th Cir. 1992) (same), overruled on other grounds

as stated in Loral Infared & Imaging Sys. v. ERA Helicopters,

Nos. 94-55821 & 95-55094, 1997 U.S. App. LEXIS 14850, at *2 n.2

(9th Cir. June 17, 1997); see also United States v. Oldbear, 568 F.3d

814, 821 (10th Cir. 2009) (upholding against a due process

challenge the exclusion of a defense witness after the court

ruled her testimony outside the jury’s presence irrelevant).

tion without knowing where it would lead. The court

gave defense counsel the opportunity to probe the issue

outside the jury’s presence. At that time, Michelle 5

Arnold testified both that she did not actually believe

the police planted drugs in her car, and that she had

no fear of prosecution. Given her express denial of

Mokol’s hypothesis, Mokol’s insistence that Michelle’s

testimony would have exposed bias is not persuasive. Cf.

United States v. Saunders, 166 F.3d 907, 919 (7th Cir. 1999)
No. 10-2334 13

Having so held, we do not reach the question of its relevancy 6

under Fed. R. Evid. 402.

(district court properly restricted the defendant from

cross-examining a testifying law enforcement agent on

inspector general’s investigation of the agent that ultimately absolved the agent, because it “would not have

exposed a bias,” since “a report concluding that the

agent was not biased simply cannot be probative of his

bias.”). In other words, the court did not restrict Mokol

from showing Michelle’s bias because the proposed

line of questioning did not reveal any source of bias.

The court properly determined that Mokol’s proposed

line of questioning had a tendency to confuse that outweighed its probative value under Rule 403. In 6

this connection, despite the simplicity of the charges

against Mokol, his trial was not a simple affair. It

lasted five days and featured sixteen witnesses, many

of whom had criminal histories that surfaced in

their testimony. Energetic advocacy on both sides led to

numerous—even pervasive—Objections and sidebars.

The trial produced a transcript that spans over a

thousand pages, exclusive of sentencing. Further,

Michelle Arnold was probably not among the Government’s most important witnesses. True, her testimony

placed a silver handgun in Mokol’s possession—but so

did several other witnesses, and Michelle had no

firsthand knowledge of the burglary through which the

silver gun was obtained (unlike Flavin and Geary, who

participated). Of course, none of this context diminishes
14 No. 10-2334

 Compare Pattern Criminal Federal Jury Instructions for the 7

Seventh Circuit, 18 U.S.C. § 922(g) (Definition of Possession)

(“Possession may exist even when a person is not in physical

contact with the object, but knowingly has the power and

(continued...)

(or possibly could diminish) Mokol’s confrontation

rights, but it does underscore the credibility of the

judge’s concerns about confusing the jury with peripheral matters.

4.

Finally, the district court did not err or abuse its

discretion in giving the jury a constructive possession

instruction. Indeed, it was proper for the court to do so,

because the Government’s case included evidence that

would support a conclusion that Mokol was a felon

in possession through constructive possession: two examples are the handgun Lori Miller testified to carrying in

her purse at Mokol’s behest, and the handgun magazine

on the driver’s side floorboard of Mokol’s car at the time

of his arrest. And constructive possession was a permissible theory on which to convict Mokol for being a felon

in possession of a gun. See, e.g., United States v. Lloyd,

71 F.3d 1256, 1268 (7th Cir. 1995).

We decline Mokol’s invitation to hold that the

Seventh Circuit Pattern Criminal Federal Jury Instruction for constructive possession misleads juries into

convicting defendants on a conspiracy theory of liability.

These two respective forms of liability have different

elements, which the pattern jury instructions reflect. The 7
No. 10-2334 15

(...continued) 7

intention to exercise direction or control over it, either directly

or through others.”) with Pattern Jury Instruction No. 5.10 (“A

conspirator is responsible for offenses committed by his fellow

conspirators if he was a member of the conspiracy when the

offense was committed and if the offense was committed

in furtherance of and as a foreseeable consequence of the

conspiracy.”).

6-22-11

implication of Mokol’s argument is that instructing a

jury on any form of derivative liability creates an unacceptable risk that the jury will convict the defendant on

some other. But we presume that juries understand and

follow instructions. See United States v. O’Neill, 116

F.3d 245, 249 (7th Cir. 1997).

For the foregoing reasons, we AFFIRM the judgment of

the district court.