### In the



# United States Court of Appeals

For the Seventh Circuit

No. 17

‐ 2818

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D EMARREL T. J ONES

, also known as

R OOSEVELT T UCKER

, Defendant

‐ Appellant.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:16

‐ cr

‐ 00179

‐ PP

‐ 1

— Pamela Pepper

, Judge.

A RGUED F EBRUARY 22, 2018

— D ECIDED M AY 9, 2018

Before B AUER

, E ASTERBROOK

, and R OVNER

, Circuit Judges

.

B AUER

, Circuit Judge. Demarrel Jones was convicted of

unlawfully possessing a firearm as a felon. Prior to trial, the

district court granted a motion in limine to preclude cross

‐

examination of Officer Anthony Milone in regard to his

testimony in United States v. Brantley

, 282 F. Supp. 3d 10692 No. 17

‐ 2818

(E.D. Wis. 2017), where both the magistrate and district court

judge did not find his testimony accurate. Jones moved for a

new trial on grounds of improper vouching during the prosecu

‐

tor’s rebuttal and a violation of his Sixth Amendment right by

precluding the judicial evaluation of Officer Milone’s testi

‐

mony in Brantley. The district court denied the motion and he

now appeals on the same grounds.

I. BACKGROUND

On appeal, Jones argues that the district court’s limitation

on Jones’ cross

‐ examination of Milone deprived him of his

Sixth Amendment right to confrontation and thus, his right to

a fair trial. He further argues that the government exacerbated

the district court’s error through prosecutorial misconduct of

vouching for Officer Milone in its rebuttal argument.

At trial, this case hinged on the credibility of Officer

Milone. The relevant events unfolded as follows. Around

12:30 a.m. on August 9, 2016, while standing with a group of

men, Jones took off running as three patrol officers in an

unmarked police car approached the group. Officers Milone

and Dillman exited the car and pursued Jones. Identifying

themselves as police officers, they ordered Jones to stop, but he

refused. At trial, Officer Milone testified that, through the use

of a flashlight, he observed Jones holding the front right

portion of his waistband while running. During their pursuit,

Officer Milone claimed that he observed Jones reach into his

pocket, grab a firearm, and throw it over a fence. Officer

Dillman stated that he heard the sound of the gun hitting the

ground. After the pursuit, a gun was recovered behind the

same fence.No. 17

‐ 2818 3

A federal grand jury returned a one

‐ count indictment

against Jones charging him with unlawful possession of a

firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). Before

trial, the government filed a motion in limine to preclude

cross

‐ examination of Officer Milone based on testimony he

gave in an evidentiary hearing in Brantley

. This testimony

pertained to his recollection of an armed robbery investigation,

and his observations of the defendant from about eighty feet

away.

The magistrate judge in Brantley concluded that he did not

believe Officer Milone was able to identify the subject from

this distance. The magistrate judge relied on the squad video

and photographs showing the amount of light outside at the

time of the identification, as well as the investigator’s testi

‐

mony that she was unable to see anything from the same

location as Officer Milone. In so finding, the magistrate judge

emphasized that he was not suggesting that Officer Milone

testified untruthfully, but rather that his testimony reflected an

inaccurate recollection of the sequence of events. The district

court later concluded the same.

The district court in Jones’ case granted the government’s

motion in limine, stating that the magistrate judge did not find

Officer Milone untruthful, and thus, testimony about details

from Brantley would prove unduly prejudicial.

Trial commenced and during closing arguments, defense

counsel commented on the general state of prison and the

likelihood of innocent people sitting in prison today. Counsel

also strayed into comments about shootings by police across4 No. 17

‐ 2818

the country. The prosecutor rebutted, amongst other com

‐

ments, as follows:

The defense suggests that Officers Milone and

Dillman essentially sat in that chair, under oath,

and told you something less than the truth in

this matter. Now, they’re Officers of the Mil

‐

waukee Police Department and their currency

is their reputation, and in this particular case if

their currency is their reputation then

‐‐ and if

Mr. Jones is someone they believe has commit

‐

ted a crime, if what the Defense says is true, that

the officers were less than truthful, then why

stop at one officer saying “I saw him throw it

over?” Why not, why didn’t both officers come

in and say “Yes, we both had our flashlights

trained on the Defendant. Yes, we both saw him

throw it over the fence. Yes, we had on our body

cameras but they were absolutely defective.”

Why not that extra mile? I think it strains credu

‐ lity and common sense in this case to believe

that the Officers (sic) came in here and were

anything less than truthful.

Defense counsel objected to this last sentence, but the judge

overruled this objection. The prosecutor then asked the jury to

put themselves in the shoes of the residents where the defen

‐

dant was arrested. Defense counsel objected, and the judge

sustained, giving the jury proper curative instructions. The

jury also received opening and closing instructions that the

lawyers’ arguments were not evidence and that they mustNo. 17

‐ 2818 5

decide the case only on the evidence. After three hours of

deliberation, the jury found Jones guilty.

On June 16, 2017, Jones filed a motion for a new trial based

on two grounds: prosecutorial misconduct for improper

vouching and a Sixth Amendment violation for precluding

cross

‐ examination of Officer Milone about Brantley

. The judge

denied this motion on both grounds and imposed a sentence

of 48 months’ imprisonment. Jones then timely filed an appeal.

II. ANALYSIS

A. Cross

‐ Examination of Officer Milone

Jones argues the district court deprived him of his Sixth

Amendment rights in denying him the opportunity to cross

‐

examine Officer Milone about his testimony in Brantley and the

magistrate judge’s findings about his testimony. A district

court is afforded “broad discretion to permit or exclude cross

‐

examination.” United States v. Abair

, 746 F.3d 260, 269 (7th Cir.

2014). Appellate review of a district court’s decision to limit the

scope of cross

‐ examination is deferential, thus we review only

for an abuse of discretion. Id. Only if the Sixth Amendment

right to confrontation is implicated do we review de novo

. United States v. Holt

, 486 F.3d 997, 1001 (7th Cir. 2007). In

practice, this means “close cases are resolved in favor of

upholding the judge’s exercise of discretion to control the

admission of evidence at trial; reversal is appropriate only if no

reasonable judge would make the same decision.” Abair

, 746

F.3d at 269.

The Sixth Amendment’s Confrontation Clause guarantees

two protections to a criminal defendant: the right to physically6 No. 17

‐ 2818

confront and, relevant here, to cross

‐ examine witnesses

testifying against him. Pennsylvania v. Ritchie

, 480 U.S. 39, 51

(1987). A violation of this right occurs when a defendant is not

afforded “the opportunity to show that a witness is biased, or

that the testimony is exaggerated or unbelievable.” Id. at 51–52.

However, this right does not provide “an unlimited right to

pursue any subject on cross

‐ examination.” Searcy v. Jaimet

, 332

F.3d 1081, 1090 (7th Cir. 2003). “Trial judges retain wide

latitude

... to impose reasonable limits on such cross

‐ examina

‐

tion based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.”

Delaware v. Van Arsdall

, 475 U.S. 673, 679 (1986).

Federal Rule of Evidence 608 governs the admissibility of

evidence of a witness’s character or conduct. Rule 608(b) states,

“extrinsic evidence is not admissible to prove specific instances

of a witness’s conduct in order to attack or support the wit

‐

ness’s character for truthfulness. But the court may, on cross

‐

examination, allow them to be inquired into if they

are probative of the character for truthfulness or untruthful

‐

ness

... .” Fed. R. Evid. 608(b). In determining whether evi

‐

dence of a specific instance is admissible under 608(b), we turn

to Rule 403. Thompson v. City of Chicago

, 722 F.3d 963, 977 (7th

Cir. 2013). Rule 403 allows a court to exclude relevant evidence

“if its probative value is substantially outweighed by a danger

of one or more of the following: unfair prejudice, confusing of

issues, [or] misleading the jury

... .” Because we do not find an

implication of Jones’ Sixth Amendment rights, we review the

district court’s decision for an abuse of discretion.No. 17

‐ 2818 7

Even if the district court had allowed Jones to attack Officer

Milone on cross about his credibility in relation to his testi

‐

mony in Brantley

, the defense would not have been able to

solicit an answer that any judge had previously found that

Officer Milone had lied, been untruthful, or purposely misled

a jury in prior testimony. Both judges that ruled in Brantley

indicated they did not find Officer Milone to have lied, been

untruthful, or misleading with his testimony. Rather, the line

of questioning Jones would have had to use would have

been about the specific facts Officer Milone testified to in the

Brantley case. This line of questioning would have taken the

trial testimony on an irrelevant tangent that would likely have

confused the jury as to the information relevant to their own

determination as to the charges against Jones. Furthermore, the

probative values would have been substantially outweighed

by the danger of unfair prejudice and confusion of the issues,

thus the court appropriately excluded it. Accordingly, we find

the district court did not abuse its discretion in prohibiting

Jones from cross

‐ examining Officer Milone about credibility

findings in Brantley

.

B. Prosecutor’s Statements in Rebuttal

Jones next contends the district court erred in denying a

new trial due to the prosecutor improperly vouching for

Officer Milone’s credibility in her rebuttal argument. “We

review for abuse of discretion a district court’s denial of a new

trial based on alleged prosecutorial misconduct.” United States

v. Bloom

, 846 F.3d 243, 254 (7th Cir. 2017). In making such a

determination, we must first “determine whether the prosecu

‐

tor’s conduct was improper in itself.” Id. If it was, we must

then determine, in light of the whole record, whether the8 No. 17

‐ 2818

defendant was denied a fair trial because of the improper

conduct. Id. We turn to the following five factors when

reaching such a determination: “(1) the nature and seriousness

of the misconduct; (2) the extent to which the comments were

invited by the defense; (3) the extent to which any prejudice

was ameliorated by the court’s instruction to the jury; (4) the

defense’s opportunity to counter any prejudice; and (5) the

weight of the evidence supporting the conviction.” United

States v. Bowman

, 353 F.3d 546, 550 (7th Cir. 2003). Though not

impossible, improper statements made in closing arguments

rarely constitute reversible error. United States v. Philpot

, 733

F.3d 734, 745–46 (7th Cir. 2013).

Impermissible vouching occurs when a prosecutor ex

‐

presses her personal belief in the truthfulness of a witness, or

when a prosecutor implies that facts not in evidence lend to a

witness’s credibility. United States v. Wolfe

, 701 F.3d 1206, 1212

(7th Cir. 2012). However, a comment about a witness’s credibil

‐ ity that “reflects reasonable inferences from the evidence

adduced at trial rather than personal opinion” are permissible.

Id. (quoting United States v. Nunez

, 532 F.3d 645, 654 (7th Cir.

2008)).

Jones argues the prosecutor improperly vouched for

Officer Milone’s credibility in her rebuttal when she stated that

the officers’ “currency is their reputation,” that, “I think it

strains credulity and common sense” to not believe the officers.

Although this was not an ideal use of words, we do not find

the prosecutor improperly vouched for the officers’ credibility.

As the district court noted, nothing the prosecutor said brought

in outside evidence or spoke to her personal belief in theNo. 17

‐ 2818 9

truthfulness of Officer Milone. Rather, she invited the jury to

use common sense in drawing a conclusion about Officer

Milone’s credibility and buffered this statement with her

credibility argument. While she used the phrase “I think,” it

was in context of encouraging the jury to use their common

sense, not in context of drawing a conclusion from the evidence

for the jury. We will admit that this statement was dangerously

close to improper vouching, however we agree with the district

court’s conclusion and do not believe the prosecutor’s state

‐

ments amounted to reversible error.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

findings.