NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 5, 2009
Decided October 7, 2009
Before
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐2396
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
06 CR 701‐1
JAMES THOMAS,
Defendant‐Appellant. Rebecca R. Pallmeyer,
Judge.
O R D E R
Following a jury trial, James Thomas was convicted of possession of a firearm after a
felony conviction, see 18 U.S.C. § 922(g)(1), and the district court sentenced him under the
Armed Career Criminal Act to 240 months’ imprisonment, see id. § 924(e)(1). Thomas filed a
notice of appeal. Appointed counsel, however, is unable to discern a nonfrivolous basis for
the appeal and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). We invited
Thomas to comment on counsel’s submission, see CIR. R. 51(b), but he has not responded.
We limit our review to the potential issues identified in counsel’s facially adequate brief.
See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
On the evening of March 30, 2006, Crystal Johnson was walking home when she saw
Thomas, whom she knew as a friend from the neighborhood. Thomas, however,
No. 08‐2396 Page 2
immediately shoved her against the wall of a nearby garage, held a gun to her neck, and
said, “Bitch, this is your calling card.” Just as this was happening, Johnson spotted a
passing police car and yelled for help, shouting that Thomas had a gun. The officers
stopped their car, and Officer Mike LaChance saw Thomas walk away and throw the gun
over a fence. Officer LaChance gave chase and caught Thomas, while his partner, Officer
Edward Garcia, retrieved the fully loaded gun.
At trial the parties stipulated that Thomas had a prior felony conviction and that the
gun had traveled in interstate commerce, leaving the government to prove only that
Thomas had possession of the gun. See United States v. Caldwell, 423 F.3d 754, 757 (7th Cir.
2005). The two officers and Johnson all testified that they saw Thomas holding the gun. An
expert in latent fingerprint identification testified that, as is common with firearms, only
partial prints, impossible to identify, were found on the gun. Thomas’s defense focused on
the credibility of the three eyewitnesses; counsel highlighted inconsistencies in the officers’
testimony and argued that, because Johnson was a drug user with criminal charges pending
against her at the time of the incident, her testimony was unreliable. The jury believed the
witnesses anyway, and found Thomas guilty. The district court denied his posttrial
motions for mistrial and acquittal.
At sentencing the district court determined that, in holding the gun to Johnson’s
head, Thomas had used the gun in connection with a crime of violence, and that, based on
his prior convictions, he qualified for sentencing as an armed career criminal, see 18 U.S.C.
§ 924(e)(1); U.S.S.G. § 4B1.4(a), (b)(3)(A). The court therefore applied the resulting offense
level of 34 and criminal history category of VI to reach a guidelines imprisonment range of
262 to 327 months. Next the court considered the mitigating evidence—Thomas’s strong
family ties, troubled childhood, educational and emotional difficulties, and recent efforts to
seek treatment—and imposed a below‐guidelines sentence of 240 months’ imprisonment.
Counsel first considers whether Thomas could argue that the trial evidence is
insufficient to support his conviction. We would overturn the jury’s verdict only if, after
viewing the evidence in the light most favorable to the government, no rational jury could
have found him guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318‐
19 (1979); United States v. Moore, 572 F.3d 334, 337 (7th Cir. 2009). Counsel postulates that
Thomas might challenge the credibility of the witnesses, argue that the absence of his prints
on the gun refutes their testimony, or submit additional evidence to show that the gun was
originally purchased by another individual. Counsel is correct, however, to reject each
possibility as frivolous. Three eyewitnesses testified that they saw Thomas with the gun in
his hand and saw him throw it over the fence, where it was immediately recovered. We will
not second‐guess a jury’s determination to credit a witness unless the testimony was “so
implausible that it cannot be trusted as a matter of law.” United States v. Calabrese, 572 F.3d
No. 08‐2396 Page 3
362, 369 (7th Cir. 2009). At trial Thomas pointed to Johnson’s previous drug use and to the
officers’ minor inconsistencies about the clothing Thomas was wearing, about whether they
drove past or stopped when they first saw him with Johnson, and about whether he walked
or ran from the scene. But none of this would render the witnesses’ testimony incredible as
a matter of law. See id. (“Neither inconsistencies nor motive to fabricate are capable of
rendering testimony legally incredible.”); United States v. Williams, 553 F.3d 1073, 1080 (7th
Cir. 2009) (refusing to second‐guess jury’s decision to believe witnesses who had prior
felony convictions, a history of lying, and motive to testify against the defendant). And
although the police found no identifiable prints on the gun, the government’s expert
testified that identifiable prints are rarely recovered from firearms. Finally, counsel’s
supposition that Thomas might ask this court to consider additional, non‐record evidence
would also be a non‐starter, as we would not consider evidence that the jury did not have.
See Moore, 572 F.3d at 337; see also Ruvalcaba v. Chandler, 416 F.3d 555, 563 (7th Cir. 2005)
(noting that “we generally decline to supplement the record on appeal with materials that
were not before the district court”).
Counsel next considers whether Thomas could argue that the prosecutor committed
misconduct during closing argument when, in describing Thomas’s actions, he stated, “All
the time bad people attack other people that might be considered to be bad people.”
Thomas’s counsel immediately objected, and the trial court instructed the jurors that
argument by counsel is not evidence and that they could consider only the evidence
presented from the witness stand. Given Thomas’s objection, we would review the court’s
ruling for an abuse of discretion. See United States v. Clark, 535 F.3d 571, 580 (7th Cir. 2008).
“[I]mproper comments during closing arguments rarely rise to the level of reversible error,”
United States v. McMath, 559 F.3d 657, 667 (7th Cir. 2009) (internal quotation marks and
citation omitted), and in evaluating such comments, we consider whether the remarks in
isolation were improper, and, if so, we then evaluate the remarks in the context of the entire
record and assess whether they caused the defendant prejudice by denying him a fair trial,
United States v. Myers, 569 F.3d 794, 798 (7th Cir. 2009); Clark, 535 F.3d at 580. Here, to the
extent that the prosecutor’s remark could be interpreted as implying that Thomas was
“bad” and had a propensity to attack other people, it was improper. Considering the
remark in context, however, we could not conclude that he was prejudiced. The
prosecutor’s remark was made during the government’s rebuttal argument, and although
Thomas did not have an opportunity to rebut it, defense counsel invited the remark by
improperly arguing that Johnson, a drug user, perhaps “had crack in her pocket” or might
have been high, giving her motive to lie about the assault. See Kunz v. DeFelice, 538 F.3d 667,
677 (7th Cir. 2008) (explaining that evidence of drug use may be used to impeach a witness’s
recollection of events but not for the impermissible “inference that drug users tend to lie”);
United States v. Robbins, 197 F.3d 829, 843 (7th Cir. 1999) (concluding that defense attacks on
witness credibility invited prosecutor’s attempt to “right the scale”); United States v. Magana,
No. 08‐2396 Page 4
118 F.3d 1173, 1196 (7th Cir. 1997) (suggesting that defendant will have difficulty
establishing prejudice “if defense counsel strikes the first blow” and “the prosecutor
attempts to even the scales by making a reasonable but otherwise improper response”). The
prosecutor’s comment did not misstate the evidence or implicate a specific right, and the
court mitigated the effect of the comment by promptly instructing the jury to consider only
the evidence presented. See Clark, 535 F.3d at 581; Robbins, 197 F.3d at 843. Jurors are
presumed to follow their instructions, and counsel cannot identify any reason to believe that
the jury was so tainted by the comment that the limiting instruction was ignored. See Clark,
535 F.3d at 581; United States v. Serfling, 504 F.3d 672, 677 (7th Cir. 2007), cert. denied, 128
S. Ct. 1718 (2008). Moreover, the evidence weighs strongly against Thomas given that all
three eyewitnesses saw him with the gun. See Clark, 535 F.3d at 580‐81; Serfling, 504 F.3d at
677 (explaining that weight of the evidence is “the factor ‘most important’ to the prejudice
inquiry”). In light of this evidence and the court’s curative instruction, we agree with
counsel that arguing that the comment prejudiced Thomas would be pointless.
Counsel also evaluates whether Thomas could contend that the district court erred in
refusing to exclude as unduly prejudicial Johnson’s testimony that Thomas threatened her
with the gun. We review rulings on objections under Federal Rule of Evidence 403 for
abuse of discretion. United States v. Samuels, 521 F.3d 804, 813 (7th Cir. 2008). Counsel
posits that Johnson’s testimony made the incident sound frightening and was unnecessary,
but this testimony was probative of Johnson’s credibility: she not only saw the gun in
Thomas’s hand, but she saw it up close to her face and felt it against her neck. “‘Rule 403
was never intended to exclude relevant evidence simply because it is detrimental to one
party’s case.’” United States v. Perkins, 548 F.3d 510, 515 (7th Cir. 2008) (quoting United States
v. Dennis, 497 F.3d 765, 769 (7th Cir. 2007)). Rather, the relevant inquiry is whether any
unfair prejudice from the evidence substantially outweighs its probative value such that the
jury may be induced to decide the case on emotional grounds or some other improper basis.
See id.; United States v. Harris, 536 F.3d 798, 809 (7th Cir. 2008). And here, as the result of a
separate motion in limine, the government refrained from eliciting testimony about
Johnson’s emotional state during the assault. We therefore agree with counsel that a claim
about this testimony would be frivolous because the possible prejudice to Thomas did not
substantially outweigh the probative value of Johnson’s testimony.
Finally, as to the trial, counsel assesses whether Thomas could challenge the denial
of his motion to call the prosecutor as a witness to impeach Officer LaChance’s testimony
that he remembered the clothing Thomas was wearing. The district court concluded that
the prosecutor’s testimony was unnecessary because Thomas could cross‐examine Officer
LaChance, and, indeed, Thomas successfully obtained an admission that the officer had not
told the prosecutors about the clothing before trial. See United States v. Ashman, 979 F.2d
469, 493‐94 (7th Cir. 1992) (upholding district court’s denial of motion to call prosecutor
No. 08‐2396 Page 5
where information was available from another source). Thus, any argument that the court’s
ruling was an abuse of its discretion would be frivolous.
As to Thomas’s sentence, counsel questions whether he might argue that the district
court committed “minor errors” in the course of sentencing. But the court committed no
error at all. As the sentencing transcript shows, the parties agreed and understood that
Thomas was being sentenced under U.S.S.G. § 4B1.4 as an armed career criminal. The court
found that Thomas had assaulted Johnson with the gun, and although, as counsel notes, the
court stated that “a 2K2.1(b)(6) finding is appropriate here,” it went on to apply the correct
offense level and criminal history category under the armed career criminal guideline for a
defendant who used the firearm in connection with a crime of violence, see U.S.S.G.
§ 4B1.4(b)(3)(A), (c)(2); United States v. Vallejo, 373 F.3d 855, 859‐60 (7th Cir. 2004).
Last, counsel considers whether Thomas could argue that his trial lawyer was
ineffective. As counsel acknowledges, we rarely consider a claim of ineffective assistance
on direct appeal because the appellant cannot develop a factual record and must rely solely
on the trial record, from which ineffective assistance is rarely apparent. See United States v.
Recendiz, 557 F.3d 511, 531‐32 (7th Cir.), petition for cert. filed (U.S. Aug. 21, 2009) (No. 09‐
238). Appellate counsel points to the trial lawyer’s statement in the record that she limited
her attack on Johnson “in many areas that would have been inflammatory” because of
“certain things that the defense knew and chose not to go into.” This statement, counsel
suggests, could be read to suggest that the trial lawyer should have brought forth “even
more damaging evidence” to attack Johnson’s credibility. But none of this evidence is
currently in the record, nor is there any evidence that the decision to limit the attack on
Johnson was anything but a strategic move. See id. at 532; United States v. Harris, 394 F.3d
543, 557‐58 (7th Cir. 2005). Thus, a claim that trial counsel’s ineffectiveness is obvious on
the face of the trial record would also be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.