In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2334
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL L EE M OKOL, 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.
A RGUED M ARCH 31, 2011—D ECIDED JUNE 22, 2011
Before C UDAHY, P OSNER and M ANION, Circuit Judges.
C UDAHY, 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 con-
victed of possessing the gun stolen in the second
burglary, and of possessing a magazine containing am-
munition 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 hap-
pened 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 testi-
mony, 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 to-
gether.
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 re-
turned 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 sin-
cerely 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 some-
body 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 deter-
mined 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 in-
structed the jury, over Mokol’s objection, with this
court’s pattern jury instruction with respect to con-
structive 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 fol-
lowing 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
(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 con-
frontation clause rights in restricting cross-examina-
tion 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 testi-
mony 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 wit-
nesses 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
1
These issues have been slightly reworded and reordered for
convenience in analyzing them.
8 No. 10-2334
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
2
The Government raises another reason this testimony might
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 Govern-
ment’s alternative argument.
No. 10-2334 9
guilt. This determination was well within the court’s con-
siderable 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 descrip-
tion of the gun Mokol brandished was similar (although
not identical)3 to the description of the gun stolen
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-
3
Michelle Arnold testified that the gun was “black and silver.”
Batides testified that his gun was “silver.”
10 No. 10-2334
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 Govern-
ment 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,4 and find no error.
Exposing bias is a “core concern” of the Sixth Amend-
ment confrontation clause. Nevertheless, a district court
4
A court’s limitation on a defendant’s cross-examination is
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.
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, confu-
sion of the issues, the witness’ safety, or interroga-
tion 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 exten-
sively 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 simulta-
neously 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 pro-
Government bias was not very compelling. This is not a
case where the court foreclosed a line of cross-examina-
12 No. 10-2334
tion without knowing where it would lead. The court
gave defense counsel the opportunity to probe the issue
outside the jury’s presence. 5 At that time, Michelle
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)
5
The district court’s procedure in this regard was consistent
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 ques-
tions 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) (up-
holding 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).
No. 10-2334 13
(district court properly restricted the defendant from
cross-examining a testifying law enforcement agent on
inspector general’s investigation of the agent that ulti-
mately 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 out-
weighed its probative value under Rule 403.6 In
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— O bjections and sidebars.
The trial produced a transcript that spans over a
thousand pages, exclusive of sentencing. Further,
Michelle Arnold was probably not among the Govern-
ment’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
6
Having so held, we do not reach the question of its relevancy
under Fed. R. Evid. 402.
14 No. 10-2334
(or possibly could diminish) Mokol’s confrontation
rights, but it does underscore the credibility of the
judge’s concerns about confusing the jury with periph-
eral 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 exam-
ples 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 permissi-
ble 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 Instruc-
tion 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.7 The
7
Compare Pattern Criminal Federal Jury Instructions for the
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...)
No. 10-2334 15
implication of Mokol’s argument is that instructing a
jury on any form of derivative liability creates an unac-
ceptable 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 A FFIRM the judgment of
the district court.
7
(...continued)
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