In the
United States Court of Appeals
For the Seventh Circuit
No. 17‐2818
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DEMARREL T. JONES, also known as
ROOSEVELT TUCKER,
Defendant‐Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16‐cr‐00179‐PP‐1 — Pamela Pepper, Judge.
ARGUED FEBRUARY 22, 2018 — DECIDED MAY 9, 2018
Before BAUER, EASTERBROOK, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Demarrel Jones was convicted of
unlawfully possessing a firearm as a felon. Prior to trial, the
district court granted a motion in limine to preclude cross‐
examination of Officer Anthony Milone in regard to his
testimony in United States v. Brantley, 282 F. Supp. 3d 1069
2 No. 17‐2818
(E.D. Wis. 2017), where both the magistrate and district court
judge did not find his testimony accurate. Jones moved for a
new trial on grounds of improper vouching during the prosecu‐
tor’s rebuttal and a violation of his Sixth Amendment right by
precluding the judicial evaluation of Officer Milone’s testi‐
mony in Brantley. The district court denied the motion and he
now appeals on the same grounds.
I. BACKGROUND
On appeal, Jones argues that the district court’s limitation
on Jones’ cross‐examination of Milone deprived him of his
Sixth Amendment right to confrontation and thus, his right to
a fair trial. He further argues that the government exacerbated
the district court’s error through prosecutorial misconduct of
vouching for Officer Milone in its rebuttal argument.
At trial, this case hinged on the credibility of Officer
Milone. The relevant events unfolded as follows. Around
12:30 a.m. on August 9, 2016, while standing with a group of
men, Jones took off running as three patrol officers in an
unmarked police car approached the group. Officers Milone
and Dillman exited the car and pursued Jones. Identifying
themselves as police officers, they ordered Jones to stop, but he
refused. At trial, Officer Milone testified that, through the use
of a flashlight, he observed Jones holding the front right
portion of his waistband while running. During their pursuit,
Officer Milone claimed that he observed Jones reach into his
pocket, grab a firearm, and throw it over a fence. Officer
Dillman stated that he heard the sound of the gun hitting the
ground. After the pursuit, a gun was recovered behind the
same fence.
No. 17‐2818 3
A federal grand jury returned a one‐count indictment
against Jones charging him with unlawful possession of a
firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). Before
trial, the government filed a motion in limine to preclude
cross‐examination of Officer Milone based on testimony he
gave in an evidentiary hearing in Brantley. This testimony
pertained to his recollection of an armed robbery investigation,
and his observations of the defendant from about eighty feet
away.
The magistrate judge in Brantley concluded that he did not
believe Officer Milone was able to identify the subject from
this distance. The magistrate judge relied on the squad video
and photographs showing the amount of light outside at the
time of the identification, as well as the investigator’s testi‐
mony that she was unable to see anything from the same
location as Officer Milone. In so finding, the magistrate judge
emphasized that he was not suggesting that Officer Milone
testified untruthfully, but rather that his testimony reflected an
inaccurate recollection of the sequence of events. The district
court later concluded the same.
The district court in Jones’ case granted the government’s
motion in limine, stating that the magistrate judge did not find
Officer Milone untruthful, and thus, testimony about details
from Brantley would prove unduly prejudicial.
Trial commenced and during closing arguments, defense
counsel commented on the general state of prison and the
likelihood of innocent people sitting in prison today. Counsel
also strayed into comments about shootings by police across
4 No. 17‐2818
the country. The prosecutor rebutted, amongst other com‐
ments, as follows:
The defense suggests that Officers Milone and
Dillman essentially sat in that chair, under oath,
and told you something less than the truth in
this matter. Now, they’re Officers of the Mil‐
waukee Police Department and their currency
is their reputation, and in this particular case if
their currency is their reputation then ‐‐ and if
Mr. Jones is someone they believe has commit‐
ted a crime, if what the Defense says is true, that
the officers were less than truthful, then why
stop at one officer saying “I saw him throw it
over?” Why not, why didn’t both officers come
in and say “Yes, we both had our flashlights
trained on the Defendant. Yes, we both saw him
throw it over the fence. Yes, we had on our body
cameras but they were absolutely defective.”
Why not that extra mile? I think it strains credu‐
lity and common sense in this case to believe
that the Officers (sic) came in here and were
anything less than truthful.
Defense counsel objected to this last sentence, but the judge
overruled this objection. The prosecutor then asked the jury to
put themselves in the shoes of the residents where the defen‐
dant was arrested. Defense counsel objected, and the judge
sustained, giving the jury proper curative instructions. The
jury also received opening and closing instructions that the
lawyers’ arguments were not evidence and that they must
No. 17‐2818 5
decide the case only on the evidence. After three hours of
deliberation, the jury found Jones guilty.
On June 16, 2017, Jones filed a motion for a new trial based
on two grounds: prosecutorial misconduct for improper
vouching and a Sixth Amendment violation for precluding
cross‐examination of Officer Milone about Brantley. The judge
denied this motion on both grounds and imposed a sentence
of 48 months’ imprisonment. Jones then timely filed an appeal.
II. ANALYSIS
A. Cross‐Examination of Officer Milone
Jones argues the district court deprived him of his Sixth
Amendment rights in denying him the opportunity to cross‐
examine Officer Milone about his testimony in Brantley and the
magistrate judge’s findings about his testimony. A district
court is afforded “broad discretion to permit or exclude cross‐
examination.” United States v. Abair, 746 F.3d 260, 269 (7th Cir.
2014). Appellate review of a district court’s decision to limit the
scope of cross‐examination is deferential, thus we review only
for an abuse of discretion. Id. Only if the Sixth Amendment
right to confrontation is implicated do we review de novo.
United States v. Holt, 486 F.3d 997, 1001 (7th Cir. 2007). In
practice, this means “close cases are resolved in favor of
upholding the judge’s exercise of discretion to control the
admission of evidence at trial; reversal is appropriate only if no
reasonable judge would make the same decision.” Abair, 746
F.3d at 269.
The Sixth Amendment’s Confrontation Clause guarantees
two protections to a criminal defendant: the right to physically
6 No. 17‐2818
confront and, relevant here, to cross‐examine witnesses
testifying against him. Pennsylvania v. Ritchie, 480 U.S. 39, 51
(1987). A violation of this right occurs when a defendant is not
afforded “the opportunity to show that a witness is biased, or
that the testimony is exaggerated or unbelievable.” Id. at 51–52.
However, this right does not provide “an unlimited right to
pursue any subject on cross‐examination.” Searcy v. Jaimet, 332
F.3d 1081, 1090 (7th Cir. 2003). “Trial judges retain wide
latitude … to impose reasonable limits on such cross‐examina‐
tion based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Federal Rule of Evidence 608 governs the admissibility of
evidence of a witness’s character or conduct. Rule 608(b) states,
“extrinsic evidence is not admissible to prove specific instances
of a witness’s conduct in order to attack or support the wit‐
ness’s character for truthfulness. But the court may, on cross‐
examination, allow them to be inquired into if they
are probative of the character for truthfulness or untruthful‐
ness … .” Fed. R. Evid. 608(b). In determining whether evi‐
dence of a specific instance is admissible under 608(b), we turn
to Rule 403. Thompson v. City of Chicago, 722 F.3d 963, 977 (7th
Cir. 2013). Rule 403 allows a court to exclude relevant evidence
“if its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing of
issues, [or] misleading the jury … .” Because we do not find an
implication of Jones’ Sixth Amendment rights, we review the
district court’s decision for an abuse of discretion.
No. 17‐2818 7
Even if the district court had allowed Jones to attack Officer
Milone on cross about his credibility in relation to his testi‐
mony in Brantley, the defense would not have been able to
solicit an answer that any judge had previously found that
Officer Milone had lied, been untruthful, or purposely misled
a jury in prior testimony. Both judges that ruled in Brantley
indicated they did not find Officer Milone to have lied, been
untruthful, or misleading with his testimony. Rather, the line
of questioning Jones would have had to use would have
been about the specific facts Officer Milone testified to in the
Brantley case. This line of questioning would have taken the
trial testimony on an irrelevant tangent that would likely have
confused the jury as to the information relevant to their own
determination as to the charges against Jones. Furthermore, the
probative values would have been substantially outweighed
by the danger of unfair prejudice and confusion of the issues,
thus the court appropriately excluded it. Accordingly, we find
the district court did not abuse its discretion in prohibiting
Jones from cross‐examining Officer Milone about credibility
findings in Brantley.
B. Prosecutor’s Statements in Rebuttal
Jones next contends the district court erred in denying a
new trial due to the prosecutor improperly vouching for
Officer Milone’s credibility in her rebuttal argument. “We
review for abuse of discretion a district court’s denial of a new
trial based on alleged prosecutorial misconduct.” United States
v. Bloom, 846 F.3d 243, 254 (7th Cir. 2017). In making such a
determination, we must first “determine whether the prosecu‐
tor’s conduct was improper in itself.” Id. If it was, we must
then determine, in light of the whole record, whether the
8 No. 17‐2818
defendant was denied a fair trial because of the improper
conduct. Id. We turn to the following five factors when
reaching such a determination: “(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 any 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.” United
States v. Bowman, 353 F.3d 546, 550 (7th Cir. 2003). Though not
impossible, improper statements made in closing arguments
rarely constitute reversible error. United States v. Philpot, 733
F.3d 734, 745–46 (7th Cir. 2013).
Impermissible vouching occurs when a prosecutor ex‐
presses her personal belief in the truthfulness of a witness, or
when a prosecutor implies that facts not in evidence lend to a
witness’s credibility. United States v. Wolfe, 701 F.3d 1206, 1212
(7th Cir. 2012). However, a comment about a witness’s credibil‐
ity that “reflects reasonable inferences from the evidence
adduced at trial rather than personal opinion” are permissible.
Id. (quoting United States v. Nunez, 532 F.3d 645, 654 (7th Cir.
2008)).
Jones argues the prosecutor improperly vouched for
Officer Milone’s credibility in her rebuttal when she stated that
the officers’ “currency is their reputation,” that, “I think it
strains credulity and common sense” to not believe the officers.
Although this was not an ideal use of words, we do not find
the prosecutor improperly vouched for the officers’ credibility.
As the district court noted, nothing the prosecutor said brought
in outside evidence or spoke to her personal belief in the
No. 17‐2818 9
truthfulness of Officer Milone. Rather, she invited the jury to
use common sense in drawing a conclusion about Officer
Milone’s credibility and buffered this statement with her
credibility argument. While she used the phrase “I think,” it
was in context of encouraging the jury to use their common
sense, not in context of drawing a conclusion from the evidence
for the jury. We will admit that this statement was dangerously
close to improper vouching, however we agree with the district
court’s conclusion and do not believe the prosecutor’s state‐
ments amounted to reversible error.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
findings.