In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4286

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAKEFFE HOLT,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 840—James B. Moran, Judge.

____________

ARGUED NOVEMBER 8, 2006—DECIDED MAY 15, 2007

____________

Before CUDAHY, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge. Jakeffe Holt was convicted of

possession of a firearm by a felon pursuant to 18 U.S.C.

§ 922(g)(1) and 18 U.S.C. § 924(e), and is serving a sentence of 200 months’ imprisonment. Holt argues that: (1)

the district court should have granted him a new trial

after excluding cross-examination of police officers regarding complaints and reprimands against them under

Federal Rule of Evidence 608(b); (2) he was denied due

process of law when the prosecution did not call certain

witnesses or offer evidence that an individual had

changed her story; and (3) the district court did not

make independent findings of fact or sufficiently explain

its reasons under 18 U.S.C. § 3553(a) for imposing a
2 No. 05-4286

sentence of 200 months’ imprisonment. Finding no error

below, we affirm.

I. BACKGROUND

On the night of July 12, 2004, Chicago Police Officers

Michael Connolly and Brendan Corcoran received a radio

broadcast directing them to the LeClaire Courts housing

project in Chicago, Illinois. They responded in uniform and

in a marked squad car. The officers spoke to a woman and

based upon that conversation they drove to the 4900 block

of West 44th Place. There, the officers saw Holt pushing

another man in a wheelchair, and Officer Connolly exited

the squad car and headed in Holt’s direction. Holt looked

at Connolly, removed a gun from his waistband, and fled

on foot.

The gun was a laser-sighted blue-steel pistol, and as

Officer Connolly chased Holt on foot, he observed the red

dot from the laser-sight moving along the ground next to

Holt. Officer Corcoran followed in the squad car, and

Officer William Seski arrived and chased on foot behind

Connolly. All of the officers observed the gun in Holt’s

right hand, and the red dot from the laser sight. As Officer

Connolly was closing in, Holt turned to face him and raised

the gun so that the laser-sight was pointed at Connolly’s

chest. Officer Connolly was within a matter of feet from

Holt at this time, and was running full speed. He crashed

into Holt, and Officers Seski and Corcoran, who by now

had exited his squad car, came to his aid. The officers

subdued Holt on the ground, and Officers Corcoran and

Seski handcuffed Holt after Officer Connolly recovered the

weapon. Officer Seski’s partner, Officer Jaime Rodriguez,

arrived during the struggle and observed the other officers subdue Holt and Officer Connolly recover the weapon.

The pistol was never fired.
No. 05-4286 3

Officer Connolly disarmed the weapon, which was fully

loaded with nine live rounds, one of which was in

the chamber. Holt was Mirandized and transported to a

nearby police station. He was placed in a room where he

was handcuffed to a bench and the officers completed

paperwork nearby. Without questioning or provocation,

Holt stated to Officer Connolly: “I should have killed your

pussy ass. I could have too. I should’ve shot you in the

face.” Other officers in the room heard this statement,

and Officer Connolly recorded the statement in his report.

Holt was retried after a mistrial resulting from a hung

jury. At the second trial, Officers Connolly, Corcoran,

Seski and Rodriguez testified for the government. Additionally, Jane Michalik, an evidence technician employed

by the Chicago Police Department, testified that fingerprints could not be recovered from the gun or magazine

and explained why that might be the case. Defense counsel attempted to enter the contents of the 911 call from the

complaining witness, Kimberly Nash. Nash had changed

her story since the time of the original incident, and

neither the prosecution nor the defense had called her

as a witness. The district court excluded the contents of

the call as inadmissible hearsay.

Defense counsel also attempted to cross-examine Officers

Connolly and Corcoran regarding complaints filed against

them and reprimands or other consequences resulting

from such complaints. The district court allowed defense

counsel to question the officers about the underlying

conduct alleged in the complaints, but did not allow

questioning regarding complaints or punishment, determining that such questioning was not permissible under

Federal Rule of Evidence 608(b) and additionally that it

would evoke hearsay. The defense called a witness who

testified that she saw the police hit Holt with a squad car,

and that Holt did not have a gun at the time. In rebuttal,

a physician who treated Holt that night testified for the
4 No. 05-4286

government that Holt had no injuries consistent with being hit by a car, and that he had not complained of such

an incident.

The jury convicted Holt, and the district court sentenced

him to 200 months’ imprisonment, which was sixty-two

months below the advisory Sentencing Guidelines range.

Holt’s Guideline range was 262-327 months based on an

Offense Level of 34 and a Criminal History Category of VI.

The district court classified Holt as an armed career

criminal under 18 U.S.C. § 924(e)(1), based partly upon a

prior conviction for a commercial burglary which qualified

as a “violent felony.” When asked if he had anything to

say that might help the judge make his sentencing decision, Holt only explained that, in his view, he had been

denied justice. The district court explained its sentencing

decision, stating that it “believe[d] that it happened the

way that the government’s witnesses testified it happened.” Tr. Oct. 28, 2005, p. 35. The court also noted Holt’s

extensive criminal record before imposing a below-guidelines sentence, explaining: “By the time you get out, you’re

going to be passed [sic] the age when people, generally

speaking, are involved in violent crimes. Hopefully in the

interim you’re going to refocus on what you want to do

when you get out of prison, because you will be approaching about middle age, and change things around, because

you sure need to.” Id.

II. ANALYSIS

Holt raises three issues on appeal: (1) whether he was

improperly denied a new trial after the district court

prohibited defense counsel from cross-examining officers

concerning reprimands or punishments imposed by their

employers; (2) whether he was denied due process of law

by the government’s failure to call certain witnesses or

present evidence that one individual had changed her
No. 05-4286 5

story; and (3) whether the district court made sufficient

findings of fact and adequately explained its reasons for

the sentence imposed under 18 U.S.C. § 3553(a).

A. Prior Conduct Under Federal Rule of Evidence 608(b)

Holt contends that the district court should have granted

him a new trial based on its alleged error under FED. R.

EVID. 608(b) in prohibiting cross-examination of officers

concerning prior discipline they had received. We review

the district court’s decision to limit the scope of crossexamination for an abuse of discretion. United States v.

McClurge, 311 F.3d 866, 873 (7th Cir. 2002). If the Sixth

Amendment right to confrontation is directly implicated,

however, our review is de novo. Id. We review the denial

of a motion for a new trial for an abuse of discretion.

United States v. Childs, 447 F.3d 541, 544 (7th Cir. 2006).

Officer Connolly received a thirty-day suspension for

conduct that occurred in 2001 that did not involve Holt or

anyone else involved in this case. Based upon an unrelated

complaint, Officers Connolly and Corcoran were also

both reprimanded for neglect of duty. The government

moved to exclude all evidence and questioning regarding

the police department’s investigation, findings, and

discipline of the officer witnesses. In response to a motion

in limine, the district court ruled that on cross-examination, defense counsel could inquire into the underlying

conduct that led to the discipline but could not ask questions about complaints, investigations or discipline, and

that no extrinsic evidence would be heard on the matter.

At trial, the district court sustained the government’s

objection to such questioning.

Federal Rule of Evidence 404 excludes character evidence as a general matter. Rule 608 deals more particularly with evidence of a witness’s character or conduct.
6 No. 05-4286

Attacking a witness’s character for truthfulness through

opinion or reputation testimony is allowed by Rule 608(a).

See Beard v. Mitchell, 604 F.2d 485, 503 (7th Cir. 1979).

Thus, in this case, Holt could have put forth witnesses

who would testify either that in their personal opinions

Officers Connolly and Corcoran are not truthful people, or

that the officers have a reputation for untruthfulness. The

use of specific instances of conduct to show a witness’s

character for truthfulness is governed by Rule 608(b),

which states: “Specific instances of the conduct of a

witness, for the purpose of attacking or supporting the

witness’ character for truthfulness . . . may not be proved

by extrinsic evidence. They may, however, in the discretion

of the court, if probative of truthfulness or untruthfulness,

be inquired into on cross-examination of the witness . . .

concerning the witness’ character for truthfulness or

untruthfulness . . . .” FED. R. EVID. 608(b); see United

States v. McGee, 408 F.3d 966, 981-83 (7th Cir. 2005);

United States v. Wilson, 985 F.2d 348, 351-52 (7th Cir.

1993).

Under Rule 608(b), the district court properly allowed

Holt’s counsel to ask Officer Connolly whether he had

ever engaged in a particular course of conduct. The record

does not indicate whether Holt attempted to offer any

reports proving that Officer Connolly had been suspended,

but Rule 608(b) would obviously exclude such extrinsic

evidence in order to prove Connolly’s character for truthfulness. What we are now concerned with lies in between:

whether the district court could prohibit Holt’s counsel

from asking Connolly on cross-examination if he had

been suspended for his conduct.

To resolve this issue, the district court turned to the

Advisory Committee Notes to Rule 608(b): “[T]he extrinsic

evidence prohibition of Rule 608(b) bars any reference to

the consequences that a witness might have suffered as a

result of an alleged bad act. For example, Rule 608(b)

prohibits counsel from mentioning that a witness was
No. 05-4286 7

1 We questioned in Dawson whether our conclusion that thirdparty credibility determinations may be inquired of on crossexamination under Rule 608(b) was dependent upon the facts

of that case, wherein the third-party was a judge and the

determination was part of official court proceedings. Dawson, 434

F.3d at 958.

suspended or disciplined for the conduct that is the subject of impeachment, when that conduct is offered only to

prove the character of the witness.” FED. R. EVID. 608(b)

advisory note to 2003 Amendments (citing United States v.

Davis, 183 F.3d 231, 257 n.12 (3d Cir. 1999)). This language, however, appears to be in tension with our recent

opinion in United States v. Dawson, 434 F.3d 956 (7th Cir.

2006). In Dawson, we focused on the scope of Rule 608(b),

noting that it only prohibits the use of extrinsic evidence, not lines of questioning. Id. at 958; see also United

States v. Redditt, 381 F.3d 597, 602 (7th Cir. 2004). The

exclusion of extrinsic evidence does not mandate the

prohibition of questions regarding the punishment imposed on a witness for a given course of conduct. Dawson,

434 F.3d at 958.1

However, we further explained in Dawson that “[t]his

is not to suggest that every question a lawyer might

want to ask about a third party’s opinion of the credibility

of a witness would be proper cross-examination. . . . The

trial judge has a responsibility not to allow cross-examination to get out of hand, confuse the jury, and prolong the

trial unnecessarily. . . . The important point is that the

decision whether to allow a witness to be cross-examined

about a judicial determination [in that case] finding him

not to be credible is confided to the discretion of the trial

judge . . . .” Id. at 958. Rule 608(b) leaves the trial judge

with broad discretion to limit such questioning, stating

only that prior instances of conduct “may” be inquired of

“in the discretion of the court, if probative of truthfulness
8 No. 05-4286

or untruthfulness.” FED. R. EVID. 608(b); see United States

v. Seymour, 472 F.3d 969, 971 (7th Cir. 2007); United

States v. Werbrouck, 589 F.2d 273, 278 (7th Cir. 1978).

In this case, as to Officer Connolly’s prior suspension,

the district court thought questioning was limited not

only by Rule 608, but also because such questioning

would interject hearsay into the proceedings. That is,

asking Officer Connolly whether the police department had

punished him would introduce the opinion of members of

the police department. If Holt wanted to use the opinions

of members of the police department to undermine Officer

Connolly’s credibility, he could have used Rule 608(a) and

called a member of the department to testify directly

about his opinion or the reputation of Officer Connolly.

United States v. Tedder, 403 F.3d 836, 839 (7th Cir. 2005).

Holt did not do so, and it was within the district court’s

discretion to exclude this line of questioning. As to

Officers Connolly and Corcoran’s former reprimands for

neglect of duty, the district court simply found that this

evidence was not even relevant under Rules 401 and 402

because it did not bear on their characters for truthfulness. See Seymour, 472 F.3d at 971. The district court

did not abuse its discretion in excluding either lines of

questioning.

B. Government Witnesses and Due Process

Holt next argues that the government’s failure to

introduce evidence of the complaining witness’s inconsistent statements and Officers Connolly and Corcoran’s

alleged prior misconduct was so fundamentally unfair as

to deny Holt due process of law.

The officers had been directed to the LeClaire Courts

housing project as a result of a 911 call placed by Kimberly

Nash reporting that a man had pulled a gun on her
No. 05-4286 9

2 Holt’s due process argument appears to be an ineffective

assistance of counsel argument in disguise. We note, however,

that he has preserved that argument for collateral review.

daughter. Nash subsequently changed her story and

claimed that she had not seen the gun. Some of Nash’s

conflicting statements were admitted into evidence in

Holt’s first trial because the government offered the

contents of the 911 call into evidence to give the officers’

actions context. Believing that this evidence confused the

jury in the first trial, the government decided not to enter

the contents of the 911 tapes in the second trial, and

Nash’s statements, which were never offered for the

truth of the matter asserted, were thus excluded in the

second trial. Holt did not attempt to call Nash as a witness.2

Brady v. Maryland requires prosecutors to disclose

material exculpatory statements to defendants. 373 U.S.

83 (1963). Holt cites Napue v. Illinois in support of his

argument that the prosecutors in this case were required not only to disclose such evidence (as they did), but

also to present such evidence at trial. 360 U.S. 264 (1959).

Napue stands for the proposition that prosecutors may

not suborn perjury, not that prosecutors must present

evidence exculpatory to a defendant in their case-in-chief.

Id. at 270. Our legal system remains an adversary one,

and prosecutors are not required to make a defendant’s

case for him. We note that Napue predates Brady, and if

the Supreme Court wished to impose such a broad obligation on criminal prosecutors, they could have done so at

that time. The government’s failure to offer the conflicting

statements of Nash and the disciplinary records of the

police officers involved did not deny Holt due process of

law.
10 No. 05-4286

C. Sentencing

Holt’s final argument is that the district court did not

adequately consider the sentencing factors in 18 U.S.C.

§ 3553(a) or make sufficient findings of fact to allow

meaningful review by this court. He also seems to confuse

this issue with that of proper calculation of the advisory

sentencing guidelines range. As Holt has not pointed

to any particular claimed error in the calculation of either

his offense level or his criminal history category, we limit

our review to the application of the § 3553(a) factors.

The district court determined that Holt had an Offense

Level of thirty-four and a Criminal History Category of VI.

This yielded a guideline range of 262 to 327 months. Holt’s

sentence was also subject to a mandatory minimum term

of 180 months. 18 U.S.C. § 924(e). The district court

stated: “Mr. Holt, you can tell me anything you wish that

you think would be helpful to me in the decision I have

to make.” Tr. Oct. 28, 2005, p. 34. Holt replied only with

general statements of injustice and reiterated the perceived unfairness of excluding Officer Connolly’s disciplinary record. Id.

The district court sentenced Holt to 200 months’

imprisonment—sixty-two months below the guidelines

range. The district court explained its sentence, stating:

“I heard the evidence at the trial, and I did believe that it

happened the way that the government’s witnesses

testified it happened.” Id. at p. 35. The court noted Holt’s

extensive criminal record and explained that the only

reason it was giving him a below-guidelines sentence was

because of his age. The court reasoned that by the time

Holt is released he will have “passed the age when people,

generally speaking, are involved in violent crimes.” Id. The

court concluded: “Hopefully in the interim you’re going to

refocus on what you want to do when you get out of prison,

because you will be approaching about middle age, and

change things around, because you sure need to.” Id.
No. 05-4286 11

Post-Booker a district court must engage in a two-part

sentencing procedure: (1) properly calculate the guidelines

sentence; and (2) consider the sentencing factors set forth

in 18 U.S.C. § 3553(a) to arrive at a reasonable sentence.

United States v. Dean, 414 F.3d 725, 727 (7th Cir. 2005).

Holt’s argument concerns the second part of this procedure. The district court must give the defendant “an

opportunity to draw the judge’s attention to any factor

listed in section 3553(a) that might warrant a sentence

different from the guidelines sentence.” United States v.

Wallace, 458 F.3d 606, 609 (7th Cir. 2006) (quoting Dean,

414 F.3d at 730). Application of § 3553(a) is mandatory,

but this does not require the sentencing court to pick

apart the factors in minute detail—particularly where, as

here, the defendant has given the court scant mitigating

evidence to work with. Wallace, 458 F.3d at 609; United

States v. Cunningham, 429 F.3d 673, 678-79 (7th Cir.

2005); Dean, 414 F.3d at 729; see United States v. Booker,

543 U.S. 220, 259-60 (2005). If the district court departs

from the guidelines range, it must explain its reasons;

and, the farther it departs, the more compelling its

justification must be. Dean, 414 F.3d at 729. However,

explicit findings of fact are required only if contested facts

are material to the judge’s decision. Id. at 730 (citing

United States v. Ahmad, 2 F.3d 245, 247 (7th Cir. 1993)).

We are satisfied that the district court has met all of its

obligations in imposing Holt’s sentence. The only mitigating factor that the court could find was Holt’s age, which

diminished the need to deter Holt from future crimes. The

court found this persuasive enough to impose a sentence

sixty-two months below the guidelines range, and only

twenty months above the statutory minimum, despite

the strength of the government’s case and Holt’s extensive criminal background. It is hard to imagine how much

more generous the district court could have been.
12 No. 05-4286

The district court adequately explained its consideration

of the § 3553(a) factors to withstand Holt’s challenge.

III. CONCLUSION

For the forgoing reasons, the conviction and sentence

of Jakeffe Holt are AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-15-07