In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3480
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ADOLPH COMMON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12‐CR‐893 — Robert W. Gettleman, Judge.
____________________
ARGUED JANUARY 14, 2016 — DECIDED APRIL 4, 2016
____________________
Before FLAUM and RIPPLE, Circuit Judges, and PETERSON,
District Judge.
FLAUM, Circuit Judge. In 2014, Adolph Common was con‐
victed of unlawful possession of a firearm by a felon in viola‐
tion of 18 U.S.C. § 922(g)(1). The arresting officers claim that
they saw a gun fall out of Common’s pants and that Common
Of the Western District of Wisconsin, sitting by designation.
2 No. 14‐3480
confessed to possessing the gun. Common denies having the
gun and making the confession. He alleges that the officers
planted the gun on him and failed to provide Miranda warn‐
ings. The district court denied Common’s motion to suppress
his alleged confession. After two mistrials, a jury convicted
Common. Common appeals, challenging the denial of his mo‐
tion to suppress, the admission of the testimony of a finger‐
print examiner, and the denial of his motion for a new trial
based on claims of prosecutorial misconduct. We affirm.
I. Background
A. Factual Background
On June 24, 2011, Chicago Police Officers Thomas Hanra‐
han, John Murphy, James McNichols, and Patrick Kelly were
patrolling a high‐crime area of the city. The officers saw Com‐
mon walking on the street. His left hand was clenched into a
fist, which made the officers suspect he was concealing some‐
thing. The officers allege that they also noticed a bulge near
Common’s waistband, which made them suspect he was con‐
cealing a gun.
Hanrahan called out to Common, who dropped several
small plastic bags of crack cocaine from his left hand onto the
ground. Common began to run away, and Murphy, Kelly, and
McNichols chased him. Common ran toward his residence,
tripping on his porch stairs. From this point forward, the gov‐
ernment and Common allege different versions of the facts.
1. Government’s Case‐in‐Chief
The government alleges that a gun fell from Common’s
pants when he tripped. Murphy and Kelly handcuffed Com‐
mon, while McNichols recovered the gun. The government
contends that Common was cooperative, did not ask what he
No. 14‐3480 3
did wrong, and did not express surprise about his arrest. The
officers did not see or speak with anyone else during the ar‐
rest. Murphy placed Common in the police car and gave him
Miranda warnings. Hanrahan says he witnessed the warnings.
They left the scene ten minutes after first spotting Common.
Upon arriving at the police station, consistent with their
regular practice, Hanrahan and Murphy performed a pat‐
down search and handcuffed Common. The government al‐
leges that Murphy again advised Common of his Miranda
rights, and Hanrahan again witnessed the warnings.1
The government contends that Murphy, in the presence of
Hanrahan, asked Common why he had a gun. Common re‐
sponded, “I’m making sure nothing happens to me out there.
They’re shooting.” The officers did not ask Common to write,
sign, or review this alleged confession. Murphy and Hanra‐
han then went to prepare arrest reports. Hanrahan wrote that
Common made a statement to Murphy about having the gun
for protection. Hanrahan did not write that he witnessed the
Miranda warnings or that he was present when Hanrahan con‐
fessed to Murphy.
2. Common’s Defense
Common admitted to possessing a personal use amount
of cocaine but denied having a gun. According to Common,
after the officers handcuffed him, one of them said, “You
know what we want” and “Give us a gun or you’ll get a gun.”
Common interpreted this to mean that the officers would
1 Murphy later explained that he gave Common his Miranda warnings a
second time because they had changed locations and some time had
passed. He said he wanted to “make sure it [was] done right.”
4 No. 14‐3480
falsely charge him with possessing a gun if he did not assist
them in finding an illegally possessed gun.
Common alleges that six witnesses were present outside
of his residence when the officers arrived and arrested him:
Common’s mother, stepfather, brother, girlfriend, neighbor,
and a friend of Common’s brother. At trial, each witness testi‐
fied that he or she spoke with, or saw another witness speak
with, the officers. Several witnesses testified that Common’s
mother asked the officers why they were arresting her son.
The officers allegedly responded that the arrest was for drugs
and did not mention a gun.
Common contends that when the officers were walking
him to the door of the police station, one of the officers said,
“We forgot to search the car.” The officer returned to the car
and said, “Oh shit. We got a 143.” The officer asked Common
what he had in the car. Common told him, “I ain’t have noth‐
ing in the car.… What you found is what you found.”
In the station, Common inquired about the charge. He al‐
leges that an officer responded that the charge had not yet
been decided. Common claims that he did not learn that he
was being charged with unlawful possession of a firearm un‐
til he was transported to jail and that he did not know about
the alleged confession until his public defender told him
about it.
B. Procedural Background
On November 15, 2012, a federal grand jury indicted Com‐
mon for unlawful possession of a firearm by a felon in viola‐
tion of 18 U.S.C. § 922(g)(1). On August 8, 2013, Common filed
a motion to suppress his alleged confession, arguing that the
officers failed to Mirandize him. However, Common neither
No. 14‐3480 5
denied possessing a gun nor accused the officers of other mis‐
conduct.
Common testified at a suppression hearing on November
5. For the first time, Common denied having a gun and mak‐
ing the confession. He alleged that six witnesses were present
for the arrest but did not call them to testify. The government
called Hanrahan and Murphy, who testified that they Miran‐
dized Common twice and that Common admitted to having
the gun for protection. They denied that any officers threat‐
ened Common or planted evidence. The district court denied
the motion to suppress, finding that Hanrahan and Murphy’s
testimony was credible while Common’s was not.
Common’s first trial commenced on November 18, 2013.
Hanrahan, Murphy, and McNichols testified on behalf of the
government. Chicago Police Officer and Evidence Technician
Matthew Savage testified for the government about his exam‐
ination of the gun for fingerprints and the infrequency with
which prints are recovered from firearms. Common objected
on relevance grounds to the statistical evidence regarding the
frequency of recovering prints from firearms. The district
court overruled the objection. Common called the six defense
witnesses. The jury could not reach a unanimous verdict, and
the court declared a mistrial.
Prior to the second trial, Common filed a motion to recon‐
sider his motion to suppress his alleged confession. Common
argued that his story was now corroborated by the testimony
of the six witnesses he presented at the first trial. The district
court denied the motion. Common also filed a motion in
limine to exclude any reference by Savage “to the statistical
percentage of guns examined for latent fingerprints in which
6 No. 14‐3480
latent fingerprints are found.” After a hearing, the court de‐
nied the motion. On February 4, 2014, the second trial began.
The parties called the same witnesses as in the first trial. The
jury could not reach a unanimous verdict, resulting in another
mistrial.
Before the third trial, the district court ordered that “all
prior motions by either side will stand as will the same previ‐
ous rulings.” The third trial began on April 7, 2014 with the
same witnesses. Hanrahan, Murphy, and McNichols de‐
scribed Common’s arrest, the recovery of the firearm and
drugs, and Common’s confession. Savage testified about his
credentials as an evidence technician, fingerprint‐recovery
generally, and his examination of the firearm in this case. He
stated that he did not recover any fingerprints from the gun
and explained why it is difficult to recover fingerprints from
firearms. Savage testified that it was “extremely uncommon”
to recover prints from firearms and that he had only recov‐
ered prints from 30 firearms after examining more than 800
throughout career. The jury returned a guilty verdict.
On June 13, Common filed a motion for acquittal, which
the district court denied. Common also filed a motion for a
new trial, based in part on his argument that the government
committed prosecutorial misconduct by distorting the burden
of proof and misstating the evidence during closing argu‐
ments. After reviewing the transcript of closing arguments,
the court denied the motion for a new trial.
On October 28, the district court found that Common qual‐
ified for sentencing as an armed career criminal pursuant to
18 U.S.C. § 924(e). It sentenced Common to the mandatory
minimum of 180 months in prison, followed by a three‐year
term of supervised release.
No. 14‐3480 7
II. Discussion
On appeal, Common argues that the district court erred by
denying his motion to suppress his alleged confession, admit‐
ting the testimony of the government’s fingerprint technician,
and denying his motion for a new trial based on claims of
prosecutorial misconduct.2 We address each argument in
turn.
A. Motion to Suppress
Common argues that the district court should have sup‐
pressed his alleged confession because the officers did not
provide Miranda warnings. In reviewing the denial of a mo‐
tion to suppress, we review factual findings for clear error,
with special deference to the district court’s credibility deter‐
minations. United States v. Jones, 614 F.3d 423, 427 (7th Cir.
2010). We will not disturb the district court’s credibility deter‐
minations unless they are “completely without foundation.”
United States v. Huebner, 356 F.3d 807, 812 (7th Cir. 2004) (cita‐
tion and internal quotation marks omitted).
The district court found the officers’ testimony that they
Mirandized Common to be credible. Common argues that
Hanrahan’s testimony that he witnessed Murphy Mirandize
Common should have been discredited because Hanrahan
2 Common also challenges the enhancement of his sentence under the
Armed Career Criminal Act, 18 U.S.C. § 924(e). He argues that his prior
convictions should have been charged in the indictment and proven to the
jury beyond a reasonable doubt. However, Common concedes his argu‐
ment is foreclosed by Almendarez‐Torres v. United States, 523 U.S. 224, 226–
27 (1998), which held that prior convictions are sentencing factors that
may be determined by a judge and need not be alleged in the indictment
or proven to a jury. Since Almendarez‐Torres is still good law, we affirm the
district court’s imposition of this sentencing enhancement.
8 No. 14‐3480
did not record this in the police reports. Common also points
out that Hanrahan’s reports did not state that he heard Com‐
mon confess. Rather, the reports state that Common confessed
to Murphy.
However, Common has not shown that the district court
clearly erred in finding that the officers were credible. The dis‐
trict court acknowledged Common’s argument but was not
convinced. The court noted that police reports are often not as
detailed as they could be. Additionally, the court was con‐
vinced by Hanrahan’s explanation for why he wrote that
Common confessed to Murphy, even though Hanrahan was
also present for the confession. Hanrahan explained that he
wrote the reports this way “because Officer Murphy was the
one talking to [Common] and the one asking the questions.”
The district court’s findings are not “completely without foun‐
dation,” thus we will not second guess its credibility determi‐
nation. See Huebner, 356 F.3d at 812.
The district court also based its denial of the motion to
suppress on its finding that Common was not credible when
he claimed he was not Mirandized. The court considered Com‐
mon’s credibility generally, as reflected by his other state‐
ments at the hearing3 and his criminal history. The court also
noted that Common’s story lacked corroboration, as Common
did not call any witnesses at the suppression hearing. On ap‐
peal, Common argues that since his witnesses corroborated
3 Specifically, the court discussed Common’s statement that he did not
recognize the officers as policemen until they handcuffed him, which the
court did not find believable. The court acknowledged that this statement
was not material to the Miranda issue but found that it reflected on Com‐
mon’s general credibility. This was not clear error.
No. 14‐3480 9
his story at trial, the district court should have granted his
motion to reconsider his motion to suppress.
We disagree. When denying Common’s motion to recon‐
sider the motion to suppress, the court acknowledged that
Common’s story had been corroborated at trial and still found
his testimony incredible. Further, as noted above, Common
chose not to present his witnesses at the suppression hearing,
where they could have been cross‐examined more broadly in
the absence of a jury. It is not our role to rescue Common from
the consequences of his strategic choice. See United States v.
Addison, 803 F.3d 916, 920 (7th Cir. 2015). In sum, we affirm
the district court’s denial of Common’s motion to suppress.
B. Testimony of the Fingerprint Technician
Common argues that the district court erred in admitting
the testimony of Savage, the government’s fingerprint techni‐
cian. We review a district court’s evidentiary rulings for an
abuse of discretion. United States v. Jackson, 787 F.3d 1153, 1156
(7th Cir. 2015). “[W]e will defer to the district court unless no
reasonable person could adopt its view.” United States v.
Schmitt, 770 F.3d 524, 532 (7th Cir. 2014), cert. denied, 135 S. Ct.
1537 (2015).
Common challenges the portion of Savage’s testimony in
which he stated that it was “extremely uncommon” to recover
fingerprints from firearms and that he had only recovered fin‐
gerprints from 30 out of 800 firearms. In Common’s view, this
statistical evidence should have been barred because it is ir‐
relevant. Federal Rule of Evidence 401 states that evidence is
relevant if “it has any tendency to make a fact [of conse‐
quence] more or less probable than it would be without the
evidence.” Common argues that the sole fact of consequence
10 No. 14‐3480
is whether he possessed a gun on June 24, 2011 and that sta‐
tistical evidence of this kind has no bearing on this fact.
We disagree. The statistical evidence about how often fin‐
gerprints are recovered is relevant because it helps the jury
decide how much weight to give the fact that no prints were
found. In other words, the statistical evidence helps explain
the absence of prints. The lack of prints does not necessarily
mean that Common never touched the gun or that somebody
wiped the prints off the gun. The absence could simply be due
to the fact that fingerprints are difficult to recover from fire‐
arms. The district court provided a useful analogy: If Savage
had testified that fingerprints are found ninety‐eight percent
of the time, then this would be relevant. If fingerprints were
found on most firearms, the fact that fingerprints were not
found on this gun would carry more weight.
Further, the district court correctly pointed out that there
is a common misconception about the prevalence of finger‐
print evidence. Savage’s testimony was relevant to helping ju‐
rors overcome this misconception.
Common argues that United States v. Paladino, in which we
noted that similar statistical evidence was “obscure,” sup‐
ports his argument that this evidence is irrelevant. 401 F.3d
471, 478 (7th Cir. 2005). However, this case is more similar to
United States v. Glover, in which we acknowledged that the
dicta in Paladino could be read to suggest that this type of sta‐
tistical evidence could have limited probative value, but still
No. 14‐3480 11
affirmed the district court’s admission of the statistical evi‐
dence.4 479 F.3d 511, 518 (7th Cir. 2007). We explained that in
Glover, the testimony helped rebut the defendant’s argument
that the lack of fingerprints indicated innocence, stating:
[The statistical evidence] assisted the jury in un‐
derstanding that … certain objects are not par‐
ticularly conducive to finding prints. [The de‐
fendant] did not have an opportunity to wipe
his prints from the gun, nor was there evidence
that he wore gloves. Without [the fingerprint
technician’s] testimony, the jury may not have
understood how [the defendant] could have
possessed the weapon without leaving prints.
Id. As in Glover, the jury may not have understood how Com‐
mon could have possessed the gun without leaving prints.
Common attempts to distinguish Glover by arguing that
unlike the defendant in Glover, Common did not seek to use
evidence of the lack of prints to prove innocence. But his de‐
fense rested on his allegations of police misconduct. While he
4 In Paladino, the district court judge had an exchange with the govern‐
ment’s fingerprint expert that emphasized that it is uncommon to find fin‐
gerprints. 401 F.3d at 477–78. We explained that the central issue was
whether the trial judge improperly signaled to the jury that he thought the
defendant was guilty. Id. at 478. Thus, our discussion of the relevance of
the statistical evidence is dicta. Further, Paladino is distinguishable. In that
case, it was irrelevant whether the defendant touched the gun car because
he admitted to driving the car with the gun in it and was thus in posses‐
sion of the gun. Id. Therefore, the statistical evidence was irrelevant. In
contrast, Common did not admit to being in possession of the gun and
rather accused the police of planting it on him. Thus, it is relevant that no
prints were found on the gun, and the statistical evidence explained how
much weight to give the absence of prints.
12 No. 14‐3480
did not explicitly argue that the lack of fingerprints indicated
that the officers planted the gun on him, this argument was
implied in his theory of the case. Therefore, the statistical ev‐
idence was relevant because it allowed the government to re‐
but this position.
Finally, Common argues that even if Savage’s testimony
was relevant, it was unfairly prejudicial and should have been
excluded under Federal Rule of Evidence 403. Common as‐
serts that the testimony was confusing because Savage did not
discuss the circumstances in the other cases in which he did
not recover prints from the guns. We disagree. The circum‐
stances of the other cases were not necessary for the jury to
understand Savage’s point that fingerprints are rarely recov‐
ered from guns. We conclude that the district court did not
abuse its discretion in admitting Savage’s testimony.
C. Motion for a New Trial
Next, Common argues that prosecutorial misconduct dur‐
ing closing arguments violated his Fifth Amendment right to
due process and a fair trial. Common did not object to the gov‐
ernment’s closing arguments at trial, so we review for plain
error. See United States v. Bowman, 353 F.3d 546, 550 (7th Cir.
2003). Common must establish “not only that the remarks de‐
nied him a fair trial, but also that the outcome of the proceed‐
ings would have been different absent the remarks.” Id. (cita‐
tion and internal quotation marks omitted).
To evaluate a claim of prosecutorial misconduct, we first
determine whether the remarks by the prosecutor were im‐
proper when viewed in isolation. United States v. Alexander,
741 F.3d 866, 869 (7th Cir. 2014). If the remarks were improper,
we then evaluate them “in the context of the entire record”
No. 14‐3480 13
and determine whether the defendant was deprived of a fair
trial. United States v. Sandoval, 347 F.3d 627, 631 (7th Cir. 2003).
“[I]mproper comments during closing arguments rarely rise
to the level of reversible error … .” United States v. Amerson,
185 F.3d 676, 685 (7th Cir. 1999) (citation and internal quota‐
tion marks omitted).
1. Distorting the Burden of Proof
Common argues that the government distorted the bur‐
den of proof in closing arguments. A prosecutor’s statements
that “in effect distort the burden of proof by suggesting incor‐
rectly what the jury must find in order to reach a certain ver‐
dict” can warrant reversal. United States v. Vargas, 583 F.2d 380,
386 (7th Cir. 1978).
Common analogizes his case to Vargas, in which the gov‐
ernment said: “[I]f you find the defendant not guilty, I want
you to write on there that all of those [government agents]
lied.” Id. at 387. The other alternative, the prosecutor argued,
was a verdict of guilty. Id. We held that the prosecutor’s state‐
ment was improper because it distorted the burden of proof.
Id. In order to acquit the defendant, the jurors did not have to
believe that the government agents were lying. Id. Instead, the
jurors could have decided—without adopting one side’s ver‐
sion of the story in its entirety—there was insufficient evi‐
dence to convict beyond a reasonable doubt. Id.
Common also analogizes his case to United States v. Cor‐
nett, in which we held that it was error—albeit harmless er‐
ror—for the prosecutor to argue that to acquit the defendant,
the jurors had to conclude that the police lied. 232 F.3d 570,
574 (7th Cir. 2000). The prosecutor in Cornett argued: “[I]f you
are going to find [the defendant] not guilty … you are going
14 No. 14‐3480
to have to find that [the officers] lied to you…. It’s really that
black and white.” Id. at 573 (emphasis added). We held that this
remark “misstated the burden of proof because the jury could
have believed that the witnesses told the truth and yet still
found that the government had failed to prove … guilt be‐
yond a reasonable doubt.” Id. at 574.
Common argues that, as in Vargas and Cornett, the prose‐
cutor improperly misstated the burden of proof by saying:
If you believe that [the officers] framed an inno‐
cent man that they did not know … vote not
guilty…. [I]f [Common’s argument] overcomes
the government’s evidence and proves that
these officers who testified are liars, please ac‐
quit the defendant…. [T]o discount those offic‐
ers’ testimony, you must find them to be cor‐
rupt, reckless, and stupid…. How can you de‐
termine who lied? … You can absolutely reach a
verdict, and the Judge is going to instruct you
on how to get there. There are two tests that you
can walk through and determine … who lied to
you.
The government’s comments in this case can be distinguished
from those in Vargas and Cornett. The prosecutors in Vargas
and Cornett presented the jury with an improper mandate by
stating that to find the defendant not guilty, the jury had to
believe that all of the government witnesses must have lied. In
other words, the government presented a biconditional state‐
ment: You can acquit the defendant if and only if you find that
the government is lying. This misstates the burden of proof
because the jury could acquit if it believed the government
No. 14‐3480 15
witnesses but concluded that the government did not prove
guilt beyond a reasonable doubt.
In contrast, the prosecutor in this case did not state that
the only way to find Common not guilty was to find that the
officers lied. Rather, the government presented a conditional
statement: If the jury believed the officers were lying and
framed Common, then the jury should acquit. This did not
preclude the jury from acquitting Common for another rea‐
son, such as the government not meeting its burden of proof.
Thus, the statements were not improper. See United States v.
Marshall, 75 F.3d 1097, 1107–08 (7th Cir. 1996) (holding that it
was not improper for the prosecutor to comment that jury
should acquit if it disbelieved FBI agent because the prosecu‐
tor did not state that disbelieving FBI agent was the only way
to acquit); United States v. Hernandez, 865 F.2d 925, 930 (7th Cir.
1989) (“The prosecutor correctly posited that if the jury disbe‐
lieved the government’s witnesses, they should acquit the de‐
fendant. No error exists in this statement.”)
Even assuming, arguendo, that the government’s state‐
ments were improper, any error was harmless. To evaluate
whether these statements deprived Common of a fair trial, we
evaluate them in the context of the entire record, considering
five factors:
1) the nature and seriousness of the misconduct;
2) the extent to which the comments were in‐
vited by the defense; 3) the extent to which the
prejudice was ameliorated by the court’s in‐
struction to the jury; 4) the defense’s oppor‐
tunity to counter any prejudice; and 5) the
weight of the evidence supporting the convic‐
tion.
16 No. 14‐3480
Sandoval, 347 F.3d at 631 (citation and internal quotation
marks omitted).
In Cornett, we found that the government’s improper state‐
ments constituted harmless error because there was no indi‐
cation that the jury would have returned a different verdict
absent the statements. 232 F.3d at 575. We noted that in eval‐
uating the five factors and assessing the prejudicial effect of a
prosecutor’s misstatement, we place considerable emphasis
on the curative effect of jury instructions and the weight of the
evidence. Id. at 574.
Here, the district court gave proper instructions on the
burden of proof. “Absent evidence to the contrary, we pre‐
sume that the jury understood and followed the district
court’s instructions.” Id. Regarding the weight of the evidence,
this was a case based primarily on competing credibility de‐
terminations. Turning to the remaining factors, while Com‐
mon did not invite the prosecutor’s statements, the serious‐
ness of the alleged misconduct was not significant, as the
statements were not clearly out of bounds.
Finally, the statements were made in rebuttal, so Common
did not have a chance to respond. However, Common never
objected to the statements at trial, so the district court was not
presented with the opportunity to give curative instructions,
nor did the prosecutor have the opportunity to clarify or
amend the statements. See id. at 575 (noting that improper
comments were made during rebuttal but that defendant did
not object and finding harmless error). We conclude, based on
this analysis, that Common has not shown that the jury would
have returned a different verdict absent the government’s
statements, so the statements were at most harmless error.
No. 14‐3480 17
2. Misstating the Evidence
Next, Common contends that the government made three
factual misstatements during closing arguments. Misstating
the evidence is a form of prosecutorial misconduct that can
deprive a defendant of a fair trial. See Darden v. Wainwright,
477 U.S. 168, 180–82 (1986). Common did not make this objec‐
tion at trial, so we review for plain error. Bowman, 353 F.3d at
550.
First, Common argues that the government misstated the
evidence by saying: “Did Adolph Common have these drugs
or not, because all six defense witnesses said he didn’t?” Com‐
mon contends that this was incorrect because only three wit‐
nesses were asked whether Common had drugs, and only one
of these three witnesses (his brother) stated directly that Com‐
mon did not have drugs on him. The other two witnesses
(Common’s mother and stepfather) stated that to their
knowledge, Common did not have drugs on him.
However, the other three defense witnesses testified that
Common was doing nothing wrong and described the items
the officers took from Common during the search without
mentioning drugs. Since these witnesses gave detailed ac‐
counts of the search but did not reference drugs, it was not
improper for the government to argue that all six defense wit‐
nesses said Common did not have drugs on him.
Second, Common objects to the government saying: “How
many cell phone videos or photos were taken during the ap‐
proximately 10‐15 minute frame job? … Zero.” Common cor‐
rectly points out that the non‐existence of cell phone videos
or photos was not in evidence. We are not fully convinced that
18 No. 14‐3480
this comment misstated the evidence because it could be in‐
terpreted as “there is zero evidence of cell phone videos or
photos.” Without deciding this issue, we conclude that this
was at most harmless error, as explained below.
Third, Common takes issue with the statement: “How
many defense witnesses who watched the arrest asked the of‐
ficers about what they were doing to the defendant? Zero.”
Common correctly points out that at trial both his girlfriend
and his mother testified about asking the officers what they
were doing. The government concedes to having made a mis‐
take about the girlfriend’s testimony.5
However, the second and third remarks were harmless er‐
ror when considered in the context of the entire record. Turn‐
ing to the first of the five factors used to determine whether
the defendant was denied a fair trial, the district court in‐
structed the jury that “[t]he evidence includes only what the
witnesses said …. The lawyers’ statements and arguments are
not evidence. If what a lawyer said is different from the evi‐
dence as you remember it, the evidence is what counts.” This
jury instruction had a curative effect. See Cornett, 232 F.3d at
573–74.
Regarding the weight of the evidence, this was a case
based on opposing credibility determinations. The alleged
misconduct was not serious, as these were minor misrepre‐
sentations of peripheral facts. Recognizing that Common did
not invite the statements made in rebuttal, we note that this
must be balanced against his failure to object at trial, which
5 The government did not misstate the evidence with regard to the testi‐
mony of Common’s mother. Rather, the government acknowledged her
testimony and argued that she was not believable.
No. 14‐3480 19
means that Common must show now that the jury would
have returned a different verdict absent the government’s
statements.
Common has given us no reason to conclude that the gov‐
ernment’s statements affected the outcome. Based on our re‐
view of the government’s statements in the context of the par‐
ties’ closing arguments, we conclude that the government’s
statements were at most harmless error. Thus, the district
court did not plainly err in denying Common’s motion for a
new trial.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.