In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-4387

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WESLEY BOWMAN,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 898—Elaine E. Bucklo, Judge.

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ARGUED SEPTEMBER 3, 2003—DECIDED DECEMBER 23, 2003

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Before POSNER, KANNE, and EVANS, Circuit Judges.

KANNE, Circuit Judge. On April 4, 2002, a jury convicted

Wesley Bowman of being a felon in possession of a firearm

in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Bowman

urges us to grant him a new trial based on various errors he

claims prevented the jury from rendering a fair verdict.

Because we find no error in the proceedings below, we

affirm.

I. Background

On Thanksgiving Day in 2000, two Chicago police officers

stopped Bowman in an alley near his home after observing

him driving without headlights after dark. The officer who
2 No. 02-4387

approached Bowman in his vehicle asked him to produce his

license and proof of insurance. Bowman could not comply,

as his license had been revoked, and he was uninsured.

Bowman was arrested and searched in preparation for

transport to the police station. The search uncovered a

handgun in Bowman’s jacket pocket and three baggies of

marijuana in his pants pocket. The arresting officer’s

partner, who was out of the squad car and standing behind

Bowman and the arresting officer to secure the scene,

witnessed everything. 

In opposition to this factual scenario, Bowman produced

three witnesses at trial, all family or friends, who testified

they too saw the arrest and no gun was recovered from

Bowman. Absent any physical evidence linking Bowman to

the gun, the parties readily admit the case swung on

witness credibility. The jury believed the police account over

Bowman’s witnesses and convicted Bowman on the sole

count of the indictment. Bowman unsuccessfully sought a

new trial, and this appeal followed. We will relate additional facts as necessary to address Bowman’s arguments

on appeal.

II. Analysis

Bowman bases his request for a new trial on four

grounds: (1) improper testimony by the government’s

fingerprint expert; (2) improper rebuttal testimony offered

by the government; (3) improper comments by the prosecutors during the opening statement and closing and rebuttal

arguments; and (4) insufficient evidence to support the

jury’s verdict. None have merit.

A. Fingerprint expert

The government called Richard Canty, a senior fingerprint specialist with the Bureau of Alcohol, Tobacco, and
No. 02-4387 3

Firearms, to testify regarding the fingerprint tests he ran

on the gun recovered from Bowman. After asking preliminary questions regarding Canty’s extensive professional

training and experience in recovering and identifying latent

fingerprints and palm prints, the government moved to

admit Canty as an expert in the field of analysis and

comparison of fingerprints and palm prints. Bowman, by

counsel, stated he had no objection.

Canty then testified that he recovered a latent thumbprint and palm print from the gun submitted to him for

testing, but that neither belonged to Bowman and neither

had been positively identified. The thumbprint was recovered from the gun slide and the palm print was found on

the gun handle, underneath the grips. The government then

asked Canty whether the location of the thumbprint was

consistent with someone making the gun “safe” (the arresting officer had previously testified that after he recovered

the gun from Bowman’s jacket pocket, the officer, without

gloves, made the gun “safe” by removing the magazine and

a bullet from the chamber). Bowman objected repeatedly to

the question and, after a sidebar, the trial judge allowed the

testimony. Following foundation questions clarifying that

Canty understood what was meant by making the gun

“safe,” he answered that the location of the unidentified

print could be consistent with such an action. Bowman then

subjected Canty to vigorous cross- examination.

Bowman argues that the trial court erred in allowing

Canty to answer the hypothetical. We review a trial court’s

evidentiary decisions for abuse of discretion and with great

deference. United States v. Aldaco, 201 F.3d 979, 985 (7th

Cir. 2000). “Accordingly, we will find reversible error only

if the district court’s decision is not within the range of

options from which one would expect a reasonable trial

judge to select.” Id. (quoting United States v. Van Dreel, 155

F.3d 902, 905 (7th Cir. 1998)).
4 No. 02-4387

* Bowman urges that allowing Canty to speculate about how

the thumbprint may have been left impermissibly bolstered the

officers’ testimony that the gun was removed from Bowman and

(continued...)

Bowman cannot dispute that Canty testified as an expert

witness and that experts are allowed to testify in the form

of opinions. See Fed. R. Evid. 702 (“[a] witness qualified

as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion . . . .”). The thrust of Bowman’s argument, though, is

that Canty, although qualified as an expert in fingerprint

identification, was not qualified as an expert in gun handling. Thus, Bowman contends, Canty’s testimony that the

placement of the thumbprint on the gun appeared consistent with someone making the gun safe was outside his

realm of knowledge, not based on sufficient facts, unreliable, and therefore inadmissible. See Fed. R. Evid. 702

(allowing expert opinion testimony if “(1) the testimony is

based upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the

witness has applied the principles and methods reliably to

the facts of the case.”). We fail to see the distinction. 

Canty testified that in his thirty-seven years in law

enforcement and the military, he had the opportunity to

analyze prints on thousands of guns. He necessarily had to

handle all of them. He demonstrated his familiarity with

the model in question by showing the jury, without objection, how one would normally hold it and by discussing

the areas one would expect to find prints. He testified

well within his area of expertise when concluding that,

based on his undisputed recovery of a left thumbprint from

the right side of the gun slide, the print was deposited in

the process of someone making the gun safe. Bowman’s

argument otherwise borders on spuriousness, and the trial

judge acted reasonably in allowing the testimony.*
No. 02-4387 5

* (...continued)

made safe upon his arrest and that it created an impermissible

inference that the unidentified thumbprint belonged to the

arresting officer. Yet, we note that defense counsel went to great

lengths on cross-examination to ensure the jury understood that

the thumbprint was not identified and that the government

requested that Canty compare the prints to Bowman’s and no one

else’s. The government’s disinterest in whether the print belonged

to the arresting officer, made clear by Bowman’s counsel, arguably

supported Bowman’s overarching theory that the police planted

the gun. The jury was free to draw that conclusion. That they did

not does not warrant a new trial.

B. Rebuttal testimony

The arresting officer and his partner testified that after

they pulled Bowman over and discovered that he was driving without a license, insurance, or license plates and was

carrying a loaded gun and marijuana, the arresting officer

drove Bowman to the police station alone. The partner

followed, driving Bowman’s car to the police station for impoundment. Two defense witnesses testified later that both

police officers drove away in the squad car with Bowman,

implying that his car was left behind. On rebuttal, the

government called Steven Sorfleet, general superintendent

with the City of Chicago Department of Streets and Sanitation, to testify about the procedure for impounding cars and

to explain documentation showing that Bowman’s car was

towed from the police station, not the alley where he was

pulled over. 

Bowman claims the government called, and the court

improperly allowed, the rebuttal witness simply to reiterate

the facts of the government’s case in chief. There is no merit

to Bowman’s argument, and we summarily reject it. The

trial judge correctly determined that the testimony proffered was proper rebuttal, as the trial transcript bears out.
6 No. 02-4387

C. Prosecutorial misconduct

Bowman contends, for the first time on appeal, that the

prosecutors made improper comments during their opening

statement and closing and rebuttal arguments. Bowman’s

failure to raise this issue at trial relegates our review to

that of plain error, which requires Bowman to establish “not

only that the remarks denied him a fair trial, but also that

the outcome of the proceedings would have been different

absent the remarks.” United States v. Sandoval, 347 F.3d

627, 631 (7th Cir. 2003) (quoting United States v. Anderson,

303 F.3d 847, 854 (7th Cir. 2002), cert. denied, ___ U.S. ___,

123 S.Ct. 1604 (2003)). When evaluating whether the

government’s comments to the jury reached the level of

prosecutorial misconduct, we first examine whether the

remarks themselves were improper. Id. If improper, we

then evaluate the statements in the context of the entire

record and determine whether Bowman was deprived of a

fair trial. Id. In so doing, we consider:

(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 the 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.

Id. (quoting Anderson, 303 F.3d at 854). We note that “[a]s

a general matter, improper comments during closing arguments rarely rise to the level of reversible error,” United

States v. Amerson, 185 F.3d 676, 685-86 (7th Cir. 1999)

(quoting United States v. Wilson, 985 F.2d 348, 353 (7th Cir.

1993)), and this case is no exception.

Bowman alleges that the prosecutor made numerous inappropriate propensity arguments during the opening

statement and closing argument by stating, for example,

that Bowman was a convicted felon; that he carried an

unregistered, loaded gun with a “bullet in the chamber;”
No. 02-4387 7

that he carried marijuana; and by listing the various traffic

violations discovered as a result of the police stop. According to Bowman, these comments improperly led the jury to

conclude that because he was guilty of past or other crimes,

he must be guilty of illegally possessing a firearm. We are

unconvinced. All of the statements made by the prosecutor

were either based on stipulated facts or facts that were

testified to, without objection, during trial. The prosecutor

used these facts for permissible purposes—for example, to

reiterate the narrative told by the police officers with

regard to the traffic stop. See Sandoval, 347 F.3d at 631

(finding that the prosecutor’s statements during opening,

closing and sentencing accurately reflected witness testimony and thus were supported by the evidence and not

improper). The prosecutor neither misrepresented the

witnesses’ testimony or the parties’ stipulations, nor asked

the jury to draw the inference that because Bowman had

admitted problems abiding by the law, he must be guilty of

the crime in question. The statements were therefore

proper. 

Bowman also alleges that the prosecutor improperly

inferred that he had “personal knowledge” of the case by

characterizing it as “extremely important”and the circumstances leading up to the events of Bowman’s arrest as a

“recipe for disaster.” Neither statement can be fairly

recognized as an attempt to make the jury think the prosecutor knew damaging information about Bowman outside

of the evidence presented. A prosecutor is entitled to

impress upon a jury the seriousness of the crime charged.

United States v. Zylstra, 713 F.2d 1332, 1340 (7th Cir.

1983). In context, the prosecutor’s statement regarding the

importance of the case was meant to convey no more than

that. The “recipe for disaster” comment, which came in the

closing argument following the prosecutor’s accurate

summary of the facts as testified to by the police officers, is

not the type of overt injection of a prosecutor’s personal
8 No. 02-4387

knowledge condemned by this Court. Compare, Anderson,

303 F.3d at 856 (finding a prosecutor’s comment on rebuttal

that he knew from personal experience that the investigator

in question was a very nice guy and would not try to

intimidate a witness to be “a classic case of injecting facts

within the personal knowledge of the prosecutor into a case,

and [ ] blatantly improper.”). And, heard in context, it

seems unlikely that the jury would have gathered the

meaning from the statement that Bowman assigns.

Finally, Bowman makes much of the prosecutor’s comments in rebuttal about the credibility of the defense

witnesses. As both parties acknowledge, this entire case

swung on witness credibility—either the jury would believe

the police officers or the defense witnesses in reaching their

verdict. The prosecutor’s comments, which were based, for

example, on testimony regarding the defense witnesses’

relationship to Bowman, were proper. See Sandoval, 347

F.3d at 632 (stating that a prosecutor is entitled to ask the

jury to weigh the credibility of the witnesses); United States

v. Holt, 817 F.2d 1264, 1275-76 n.10 (7th Cir. 1987) (finding

that a prosecutor may comment on the possible interest a

witness may have in testifying where such a comment is

supported by evidence in the record, even to the point of

calling witnesses “liars”).

Even if we found that any of the government’s comments

challenged by Bowman were improper, that error did not

deprive Bowman of a fair trial. Specifically, we note that

defense counsel emphasized to the jury repeatedly during

his opening statement and at the beginning of his closing

argument that the arguments were just that—arguments

and not evidence. That message was properly repeated

by the judge through the jury instructions. Also, defense

counsel’s opening and closing responded to the prosecutor’s

comments stressing, for example, that the jury was to evaluate Bowman with a “clean slate” even though he admitted

to being a convicted felon and by attacking the police
No. 02-4387 9

officers’ credibility. Finally, based on our review of the record, there was sufficient evidence to convict Bowman (which

we discuss in more detail below), and we cannot say that,

absent the alleged prosecutorial misconduct in remarks to

the jury, the case would have been decided differently.

D. Sufficiency of evidence

Bowman bases his insufficient evidence theory on the errors discussed and dismissed above, arguing in conclusory

fashion that but for the evidence and argument allowed as

a result of those prejudicial errors the jury would have had

to acquit. As we have already determined that no prejudicial errors were committed, the argument fails. 

In addition, Bowman alleges that since his witnesses

directly contradicted the government’s, the jury had insufficient evidence to convict. Although Bowman acknowledges

that an appellate court will not review witness credibility or

reweigh the evidence, it appears this is what he is requesting us to do. We will not. See United States v. Pulido, 69

F.3d 192, 205 (7th Cir. 1995) (stating that in reviewing a

jury verdict for sufficiency of evidence, “we will not reweigh

the evidence or judge the credibility of witnesses. That is

the role of the jury, not an appellate court.” (citation

omitted)).

Bowman also states, without elaboration, that the evidence against him was not overwhelming and thus insufficient to support a conviction. We review such claims in the

light most favorable to the government and will overturn a

conviction “only if no rational trier of fact could have found

[Bowman] guilty beyond a reasonable doubt.” United States

v. Hodges, 315 F.3d 794, 799 (7th Cir.) cert. denied ___ U.S.

___, 123 S. Ct. 1943 (2003) (citation omitted). It is clear

from the record that the police officers testified consistently

that the gun in question was recovered from Bowman. The

officers’ testimony was supported by the contemporaneous
10 No. 02-4387

paperwork generated in the course of Bowman’s arrest.

There was sufficient evidence to convict Bowman, and the

jury’s determination stands.

III. Conclusion

For the foregoing reasons, we AFFIRM the decision of the

trial court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-23-03