In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2337 & 09-2438
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
P RINCE P. B ECK and C OREY J. T HOMAS,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 08 CR 87—Barbara B. Crabb, Judge.
A RGUED M ARCH 31, 2010—D ECIDED N OVEMBER 5, 2010
Before M ANION and W ILLIAMS, Circuit Judges, and
D ARRAH, District Judge .
M ANION, Circuit Judge. Prince P. Beck and Corey J.
Thomas were convicted of several crimes involving a
bank robbery in Madison, Wisconsin. During the trial,
Hon. John W. Darrah, District Judge for the Northern
District of Illinois, is sitting by designation.
2 Nos. 09-2337 & 09-2438
their attorneys sought to cross-examine a key witness
about his potential bias. The judge, however, blocked
this line of questioning. On appeal, the defendants pri-
marily challenge this ruling. Although the limits placed
on the cross-examination violated their Sixth Amend-
ment rights, the error was harmless beyond a reasonable
doubt and we affirm.
I.
Beck and Thomas were charged with multiple crimes
stemming from two separate bank robberies. The first
robbery was on May 9, 2008. That morning, someone
called a Bank Mutual branch in Madison, Wisconsin
wanting to know when it opened. By itself the phone
call wasn’t suspicious, but moments later the bank
was robbed by three masked men. At that point the call
naturally became suspicious, and it was traced to
Beck’s phone. A review of the bank’s surveillance video
showed that Thomas had been in the bank the day
before the robbery. And after searching the getaway
car, the police found palm prints of Thomas and finger-
prints of Jarrell Murray.
After the robbery, Murray took his share and went
gambling with several others, two of whom have a promi-
nent role in this case: Lamar Liggons and Michael
Simmons. These last two were close friends. Simmons
is paralyzed from the waist down and confined to a
wheelchair; Liggons served as his nurse, helping him
in and out of cars and with his personal needs. In
the Spring of 2008, the two of them traveled from their
Nos. 09-2337 & 09-2438 3
homes in Chicago to Texas, where they picked up a van
Simmons’s uncle gave Simmons. They stayed there for
two weeks and before they left, that same uncle gave
Simmons three thousand dollars.
From there, the two went to Memphis and stayed with
another of Simmons’s relatives. They stayed a couple
of weeks there, and during that time Simmons used
some of the money his uncle gave him to purchase two
guns: a .45-caliber pistol and a Tech 9. Before leaving
Memphis, Simmons, Liggons, and several family
members posed for pictures brandishing the guns. After
leaving Memphis, the two of them took the guns back
to Chicago, and with the rest of the money Simmons’s
uncle gave him, they went gambling with Murray.
According to Liggons, on this trip the gamblers
included himself, Simmons, Murray, a woman named
Trina, and a man named George. During the trip,
Simmons either spent or gambled away all the money
his uncle gave him. At some point during the
gambling, Murray had bragged that he and Beck were
“takedown kings in Wisconsin,” i.e., that they success-
fully robbed both drug dealers and banks. Having lost
all of his money, Simmons was interested in this line
of work. So, shortly after leaving the casino, Beck, Murray,
Simmons, Liggons, and George met up in Chicago and
discussed their opportunities. Although Beck and
Simmons were old friends, until this meeting Liggons
and Beck had never met.
A day or so later, while still in Chicago, Murray, Beck,
Simmons, and Liggons met for a second time. At this
4 Nos. 09-2337 & 09-2438
second meeting, Simmons showed off his new guns, and
Beck proposed using Simmons’s van as a getaway car
for future robberies. Simmons agreed to let them use
his van; he then lent Beck the Tech 9, and they split up
after agreeing to meet up later that week in Madison to
rob a bank.
Early in the morning on May 19, Liggons and
Simmons drove to Madison with Alicia, Liggons’s girl-
friend, and stayed at her mother’s house. Later that
morning, Simmons and Liggons met up with Thomas,
Murray, Beck, a man named Mook, and another man
that neither Liggons nor Simmons could identify. The
seven of them spent the afternoon driving around
scouting banks to rob. They eventually found one
and were ready to rob it that day, but Simmons became
nervous. He thought that their reconnaissance was
too suspicious, and that their vehicle had been marked
by bank employees. After Simmons called it off, they
dropped off Mook and the unidentified man at the bus
station.
The following day, May 20, Murray called Simmons
and told him they were going to rob a bank early the
next morning. The five of them, Liggons, Simmons,
Murray, Thomas, and Beck, met up later that evening
at Julia Bell’s house—Bell was Beck’s girlfriend. They
spent the night smoking marijuana and slept in her base-
ment. They all woke up early the next morning and
dressed, gathered the guns Simmons bought in Memphis
and some other tools of the trade, consumed more drugs,
and left to rob the bank. On the way, Thomas realized
Nos. 09-2337 & 09-2438 5
that in their haste they had forgotten gloves, so they
stopped off at a Dollar Store and picked up some com-
mon kitchen gloves. After that detour, they reached the
bank, conducted some brief surveillance, and parked
the van.
At this point things started to unravel, quickly.
Simmons, who, again, is confined to a wheelchair, de-
cided he wanted to help—beyond letting the others use
his van as the getaway car. He had a plan: he would go
in and pretend to open an account, and the others
“could put the money on his lap and wheel him out.”
Despite the fact that this plan was not well-received by
the others, Simmons insisted. At some point, he put an
end to the discussion, grabbed a gun, and wheeled
himself into the bank where, true to his plan, he asked
about opening a checking account. The others entered
soon after, brandishing guns and demanding access to
the safe. As they were collecting the money, Simmons
wheeled himself toward the exit but couldn’t open the
door. Eventually after the others escaped with the
money, Simmons managed to get outside, only to
discover that they had left without him.
Under the circumstances, Simmons did the best he
could and went around the neighborhood trying to blend
in. Naturally some of the bank employees had grown
suspicious of Simmons’s behavior both during and after
the robbery, and they shared these suspicions with the
police. The police found Simmons down the block, and
after his story fell apart, they arrested him for obstruc-
tion of justice.
6 Nos. 09-2337 & 09-2438
Meanwhile, the others sped off to Julia Bell’s house. In
the van, they took off their masks, gloves, and shirts and
threw them out the windows. Then at some point
during the drive, Beck exited the van with the money
and the guns, while the others continued to Bell’s house.
There, they changed clothes and emptied the van. But in
the excitement they forgot the bag of kitchen gloves
they had bought on the way to the bank—Liggons’s and
Thomas’s fingerprints were on the bag. They also left
the pictures Liggons and Simmons had taken in
Memphis showing off the guns. Once they finished,
Thomas and Liggons got a different car and went
looking for Simmons. But by this time, the bank was
surrounded by police and Simmons had been arrested,
so they returned to Bell’s house.
While Liggons and Thomas were looking for Simmons,
Beck and Murray counted the money. Beck eventually
called Thomas and let him know the take: they had
stolen over $130,000. Inexplicably, however, Liggons
decided to leave Madison with Alicia before getting his cut.
As Liggons was leaving Madison, Simmons sat in jail
hoping someone would post his bail. Initially, he called
George with whom he had been gambling earlier. When
George didn’t answer, he called Beck. The two of them
talked in an obvious and easily discernible code, the
gist of which was that Simmons swore he had not talked
to the police and told Beck to bail him out. Over the
next couple of days, they spoke several times. Two
aspects of these conversations are important. First, Beck
made many statements implying his own connection
Nos. 09-2337 & 09-2438 7
with the robbery. Second, they repeatedly referenced
George, another man named “Big Bro”, and a street gang
named “B.O.S.”—at trial Simmons defined it as the
“Brothers of the Struggle.”
At first Simmons’s bail was set at $300. But soon it
was raised to $250,000. No one came forward with
bail money, and after some time in jail, Simmons
decided to cooperate and gave a statement implicating
Beck, Thomas, Murray, and Liggons. Much later and
shortly before trial, Liggons was arrested. After he was
given Simmons’s statement, he too decided to cooperate.
While Murray was also arrested and pleaded guilty, he
did not cooperate with the government.
At trial Liggons testified first. His testimony was
straightforward and the defense’s cross-examination
was relatively harmless. He unremarkably testified that
he was not in a gang and he did not have any friends in
common with Simmons. Simmons testified next, and
he gave the same basic details about the robbery as
Liggons. The difference was that in Simmons’s version,
Mook and the unidentified man were missing. Simmons
assured the prosecutor that they were not with the
group that went scouting banks on the 19th and they
were not dropped off at a bus station that day. Simmons
also testified that both he and Liggons were part of
the Gangster Disciples and had many mutual friends.
During Simmons’s cross-examination, the defense
began by questioning him about points in Liggons’s
testimony and then asked some preliminary questions
about the phone calls between Simmons and Beck, specifi-
8 Nos. 09-2337 & 09-2438
cally inquiring about “Big Bro.” After several objections
concerning Simmons and his gang activity, the attor-
neys went sidebar. There, the defense attorneys ex-
plained for the first time the theory of the defense:
Simmons was protecting higher-ups in the Gangster
Disciples by framing the defendants who were in-
nocent, lower or non-members of the gang. They argued
that Simmons and Liggons were covering up for
others: namely, “Big Bro”, George, Mook, and the uniden-
tified man, all of whose appearances and place in the
story are hard to reconcile between the testimonies. And
it was critical to their defense that they be allowed
to confront Simmons about his gang membership be-
cause it provided a motive for him to lie and frame
the defendants.
After hearing the arguments, the judge sustained
the government’s objection and would not allow the
defense to question Simmons concerning his gang mem-
bership or ask whether he was protecting gang mem-
bers who were the real robbers. At the next recess, the
defense made an offer of proof articulating what it
wanted to ask Simmons, including that he was a lower-
level gang member, that the real robbers (not Thomas
and Beck) were above him, that he would be exposed to
danger if he testified against higher-level gang members,
and that he expected protection and financial assistance
in prison from the other gang members.
Although the bulk of the evidence concerning the
May 21 robbery came from Liggons and Simmons, the
government also produced several pieces of evidence
Nos. 09-2337 & 09-2438 9
that tied Beck and Thomas to the robbery. The bag of
kitchen gloves that were used in the robbery were found
in the van, with Liggons’s and Thomas’s fingerprints
on them. In the days after the robbery, both Thomas
and Beck purchased cars; Thomas purchased his with
hundred-dollar bills. Bell testified that the night before
the robbery, five men may have spent the night at her
place. In addition, the government produced transcripts
of Beck’s conversations with Simmons, who was calling
from jail. These transcripts were rife with incriminating
statements that showed Beck’s familiarity with the
robbery and the other robbers, allusions to the money
being divided and the gun Liggons took with him into
the bank, and many other statements that showed
Beck’s consciousness of guilt. Ultimately, the jury
acquitted Beck and Thomas of the May 9 robbery
but convicted them of three charges stemming from
the May 21 robbery.
II.
On appeal, Beck and Thomas argue two points of
error from the trial. The first concerns the May 9 rob-
bery and the government calling, over Beck’s objection,
his probation officer to testify that he gave her the
same phone number as the one used to call the bank
the morning of the robbery. Although Beck was
acquitted of this charge, he argues that the error tainted
the whole trial for him. We review the judge’s decision
to allow testimony for an abuse of discretion. United
States v. Harris, 587 F.3d 861, 867 (7th Cir. 2009).
10 Nos. 09-2337 & 09-2438
Second, the defendants argue that the limits the
district court placed on their cross-examination of
Simmons violated their Sixth Amendment Confronta-
tion Clause rights. Sixth Amendment challenges require
a two-step review. As an initial matter, we must deter-
mine whether the questions concern peripheral matters
in the trial or whether they touch on the core values of
the Confrontation Clause. United States v. Smith, 454
F.3d 707, 714 (7th Cir. 2006). If the questions only
concern peripheral matters, we review the judge’s
ruling for an abuse of discretion, but if the questions
implicate the Confrontation Clause, then we review the
ruling de novo. Id. And if we find there was an error in
the judge’s ruling, then we must determine whether or
not it was harmless. Id. at 715.
III.
Against Beck, the evidence concerning the first rob-
bery centered on the use of his phone to call the bank
minutes before the robbery. The phone at issue was not
registered to Beck but to Ms. Kayla King. She testified
that while she owned the phone, Beck was the primary
user. The government then called Erin Graf, Beck’s proba-
tion officer, to testify that she used that same number
to reach Beck. The defense objected to Graf testifying
and over its objection, the judge allowed her to
testify and tell the jury that she was a probation officer.
We review the district court’s admission of this testi-
mony over the defendant’s objection for an abuse of
discretion. Harris, 587 F.3d at 867. The Rules of Evidence
Nos. 09-2337 & 09-2438 11
carefully govern the admission of a defendant’s prior
convictions. E.g., Fed. R. Evid. 404, 609. This ensures
that he is not convicted on anything but the evidence
produced at trial. United States v. Johnson, 27 F.3d 1186,
1193 (6th Cir. 1994). And we have repeatedly cautioned
courts to consider carefully the introduction of previous
convictions. See, e.g., United States v. Taylor, 522 F.3d
731, 732-33 (7th Cir. 2008).
Here, while there was not an explicit statement that
Beck was previously convicted of a crime, most jurors
would likely understand that a person on probation
has previously been convicted of a crime. And although
the probation officer only stated that she was a proba-
tion officer and not Beck’s probation officer, the dis-
tinction does not address the concern courts have with
such evidence. No matter how thinly the government
would slice the semantic distinctions between “his pro-
bation officer” and “a probation officer” on appeal, the
obvious inference at trial was that she was Beck’s pro-
bation officer and that he had been previously convicted
of a crime.
While evidence of Beck’s probation could be admitted
to establish his identity, under Rule 404(b), the judge
still has to weigh its appropriateness under Rule 403.
Taylor, 522 F.3d at 732-33. Here, the probative value of
the testimony was minimal given Ms. King’s cumulative
testimony tying Beck to the phone. And what little proba-
tive value there was in having the probation officer
testify was substantially outweighed by the danger of
unfair prejudice that comes with the jury learning the
12 Nos. 09-2337 & 09-2438
defendant is a convicted felon. Therefore, we find that
the district court erred in allowing the probation officer
to testify. Further, even if it was necessary to have the
probation officer testify that Beck used that phone, the
court should not have allowed her to identify herself as
a probation officer.
When a district court errs, as it did in this case, by
admitting evidence at trial we review it under the
harmless error standard. Taylor, 522 F.3d at 735. The
probation officer’s testimony concerned the first robbery
and Beck was acquitted of that charge. Thus, we must
analyze whether the prejudice from that testimony
affected Beck’s rights regarding the second robbery. We
address that analysis later in the opinion.
IV.
Both defendants raise the second point of error that
centers on the limits the district judge placed on the cross-
examination of Simmons. While trial courts enjoy wide
discretion to impose reasonable limits on cross-exam-
ination, when, for example, the questioning is con-
fusing, repetitive or irrelevant, defendants have the
right to cross-examine witnesses and expose “a witness’
motivation in testifying.” Davis v. Alaska, 415 U.S. 308,
316 (1974); U.S. Const. amend. VI; Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986). And the exposure of
these motivations lies at the “core” of the confrontation
right. Davis, 415 U.S. at 316; see also United States v.
Presbitero, 569 F.3d 691, 703 (7th Cir. 2009) (“Cross exam-
ining a witness to establish bias implicates a core value
Nos. 09-2337 & 09-2438 13
of the Sixth Amendment’s Confrontation Clause.”).
This encompasses everything from a witness’s personal
preferences to his self-interest. United States v. Abel, 469
U.S. 45, 52 (1984). We have consistently noted that such
evidence is always relevant, and “parties should be
granted reasonable latitude in cross-examining target
witnesses.” United States v. Manske, 186 F.3d 770, 777
(7th Cir. 1999); United States v. Thompson, 359 F.3d 470,
479 (7th Cir. 2004).
A.
As an initial matter, we review the limits a judge
places on cross-examination to determine if they touch
on peripheral matters or strike at the core of the Sixth
Amendment. If they involve the defendant’s constitu-
tional rights, we review the judge’s ruling de novo; other-
wise our review is for an abuse of discretion. Smith,
454 F.3d at 714. This inquiry hinges on whether, with
the limits placed on the cross-examination, the jury
has sufficient information to make an appraisal of the
witness’s bias.1 Davis, 415 U.S. at 316. If so, the
limits drawn along those lines only touch on peripheral
matters: “it is of peripheral concern how much oppor-
1
In this context, we break from the dictionary and use the
terms “motive to lie” or “motive to testify” synonymously
with the term “bias.” United States v. Salem, 578 F.3d 682, 686
(7th Cir. 2009); see also United States v. Abel, 469 U.S. 45, 52
(1984) (“Bias may be induced by a witness’ like, dislike, or
fear of a party, or by the witness’ self-interest.”). We use them
all in reference to why Simmons might testify falsely.
14 Nos. 09-2337 & 09-2438
tunity defense counsel gets to hammer that point down
to the jury.” United States v. Sasson, 62 F.3d 874, 882
(7th Cir. 1995). But when the defense is kept from ex-
posing the witness’s bias, then the Constitution is impli-
cated. Id. at 883.
With this line of questioning, the defense was trying
to establish Simmons’s motive to lie: Simmons claimed
to be a gang member possibly in league with other gang
members to rob this bank, and his allegiance to the
gang, his fear of retribution from the gang, and his antici-
pation of future benefits from the gang motivated
him to frame the defendants. By cutting off that line
of questioning, the judge kept the defendants from at-
tempting to expose Simmons’s bias. It also kept them
from developing for the jury a plausible reason for
why Simmons and Liggons would frame them. Without
this basis for why Simmons and Liggons would lie, the
jury would be left with the mere fact that their stories
did not match in several particulars. Mere incon-
sistencies do not suggest they would frame the defen-
dants. There must be a reason. The defendants insist
that the limitations the judge placed on the cross-exam-
ination kept the jury from accurately assessing
Simmons as a witness, and this kept the defendants
from developing their theory of the defense, all of which
strikes at the core of the Sixth Amendment. Abel, 469
U.S. at 48-49; Davis, 415 U.S. at 317; see also United States
v. Vega Molina, 407 F.3d 511, 523 (1st Cir. 2005) (reversing
when defense was kept from inquiring into his
“framing defense”). Thus, we review the trial court’s
evidentiary rulings de novo. Smith, 454 F.3d at 713.
Nos. 09-2337 & 09-2438 15
B.
At trial, the government gave three reasons for barring
the defense’s line of questioning: first, defense counsel
lacked a good-faith basis for the inquiry; second, it was
improper Rule 404(b) evidence; and three, it was irrele-
vant. In sustaining the government’s objection, the
judge did not state the basis for her ruling. She could
have found all three reasons persuasive, so we will exam-
ine each of them as a possible basis for sustaining
the government’s objection.
The first reason given was that the defense did not
have a good-faith basis to ask these questions. No
attorney may ask a question if he doesn’t have a good-
faith basis to ask it; that is, attorneys cannot take a shot-in-
the-dark approach to their questions. Taylor, 522 F.3d
at 736. But an attorney does not need definitive proof
to have a good-faith basis, just “[a] well reasoned
suspicion that a circumstance is true.” United States v.
Sampol, 636 F.2d 621, 658 (D.C. Cir. 1980). At sidebar the
defense articulated several facts and corresponding
inferences that provided a good-faith basis for this line
of questioning, including inconsistencies in the testi-
mony; allusions to “Big Bro” and “George” in the
recorded calls; and common knowledge that gangs
operate with a hierarchy. See United States v. White, 582
F.3d 787, 794-95 (7th Cir. 2009) (noting the typical
hierarchy inherent in street gangs). These facts and the
corresponding inferences provided what is arguably a
good-faith basis for the defense counsel to probe
Simmons’s gang membership as it relates to him
16 Nos. 09-2337 & 09-2438
covering up for the real robbers, including his motive
for doing so. Furthermore, cross-examination into a wit-
ness’s potential bias must be permitted “even though
[defense counsel] cannot state to the court what facts
a reasonable cross-examination might develop.” Clark v.
O’Leary, 852 F.3d 999, 1007 (7th Cir. 1988) (quoting
Alford v. United States, 282 U.S. 687, 692 (1931)). At that
point, counsel proceeds at his own peril.
The second reason given was that the line of ques-
tioning was eliciting improper Rule 404(b) evidence. It
was not. That rule bars “[e]vidence of other crimes,
wrongs, or acts . . . to prove the character of a person in
order to show action in conformity therewith.” Fed. R.
Evid. 404(b). Questions about Simmons’s bias as it
relates to his gang allegiance and anticipated benefits
for testifying falsely do not implicate Rule 404(b)’s pro-
hibition. Here, the questions were not aimed at showing
that because Simmons is a gang member, he lies gen-
erally and he was doing so here. Instead, it was offered
to show why he was lying: that he was covering up for
the real robbers (perhaps Mook, George, the uniden-
tified man, or Big Bro) who were higher-ranking gang
members. Because the cross-examination questions
sought to show Simmons’s bias and not his bad
character in general, they did not implicate Rule 404(b).
See Young v. Rabideau, 821 F.2d 373, 378-79 & n. 3 (7th
Cir. 1987). Further, the danger inherent in such ques-
tions is correctly resolved under a Rule 403 analysis.
Harris, 587 F.3d at 867; United States v. Cooper, 591 F.3d 582,
589 (7th Cir. 2010). In this case, the questions were
relevant, sufficiently probative to explore possible bias,
Nos. 09-2337 & 09-2438 17
and the issue of unfair prejudice was minimal, at least
at the point where the court cut off the questioning. United
States v. Seals, 419 F.3d 600, 606 (7th Cir. 2005).
The third reason given was that the questions were
irrelevant. To the contrary, the questions were clearly
probative of Simmons’s bias. And as we have noted
before: “[b]ias is always relevant, and parties should be
granted reasonable latitude in cross-examining target
witnesses.” Manske, 186 F.3d at 777.
At the stage when the court cut off these questions, the
defense arguably had a good-faith basis to continue the
questions at issue; they were not improper under Rule
404(b); and they were relevant. Therefore, the judge
erred when she prevented the defense from ques-
tioning Simmons about his potential bias. But that
does not automatically entitle the defendants to a new
trial; rather, the error is subject to a harmless error analy-
sis. Van Arsdall, 475 U.S. at 684.
C.
Under the harmless error analysis, our inquiry is two-
fold. We first “assum[e] that the damaging potential of
the cross-examination [was] fully realized.” Van Arsdall,
475 U.S. at 684; accord Smith, 454 F.3d at 715; Cotto v.
Herbert, 331 F.3d 217, 256 (2d Cir. 2003). Then, we look
to whether “the error was harmless beyond a rea-
sonable doubt.” Van Arsdall, 475 U.S. at 684. Meaning: is
it “clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the
18 Nos. 09-2337 & 09-2438
error?” Neder v. United States, 527 U.S. 1, 18 (1999).
To determine this, we look at a host of factors in-
cluding the “importance of the witness’s testimony
in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of corroborating
or contradictory evidence and the overall strength of the
prosecution’s case.” Smith, 454 F.3d at 715.
i.
Here, given how hostile a witness Simmons was, it is
likely that had the judge allowed the questioning to
proceed, it would have backfired on counsel.2 But
2
While we label this limitation on cross-examination as
error, albeit harmless, the judge may have foreseen problems
that neither party raised and the judge did not recite. Simmons
was not a friendly witness and was not submissive on the
stand. He had already testified about any benefits he was
receiving from the government in exchange for his testimony.
Prodding questions about his false testimony in exchange
for benefits he would receive from the gang during his time
in prison, coupled with questions about George, Mook, and
Big Bro (questions Beck’s attorney purposely avoided), could
have caused Simmons to react and point out that Beck and
Thomas had absolutely no incentive to sit in court quietly
and take the rap for a higher-ranking gang member. The
obvious inference is that no one, not even a loyal gang
member, is going to sit still and expose themselves to 25 years
in prison for a crime they didn’t commit. In addition to
scuttling the theory of defense, probable demands for a
(continued...)
Nos. 09-2337 & 09-2438 19
for the sake of our analysis here “we assume that the
damaging potential of the cross-examination was
fully realized.” Van Arsdall, 475 U.S. at 684. It is unlikely
that counsel expected Simmons to break down on the
stand and admit that his perjury was part of an elaborate
scheme to frame the defendants. Only Perry Mason
enjoyed such moments.
Rather, the questioning was aimed at developing a
tenable story through Simmons that would lead the jury
to believe or have reasonable doubts about whether he
and Liggons were framing the defendants. Although this
story was unlikely, the thrust of it would explain for
the jury why the two witnesses would frame the defen-
dants: to cover up for higher-up gang members
who actually robbed the bank in return for continued
benefits from the gang, including protection and
monetary support. At the same time, it would provide
a plausible basis for why there were several inconsis-
tencies between the two testimonies: they were framing
Beck and Thomas. If this unlikely scenario had been
2
(...continued)
mistrial or a severance of defendants could have quickly
infected the trial procedure.
We recognize the reality and demands of a trial like this.
Yet perhaps given a few more minutes at sidebar, or more
discussion out of the presence of the jury, to reflect on this
line of questioning would have disclosed the possible prob-
lems that could arise. Such a record on review could have
enabled us to avoid the analysis of why the curtailed ques-
tioning was harmless error.
20 Nos. 09-2337 & 09-2438
effectively presented on cross-examination, the govern-
ment’s case could have been undermined. See United
States v. Cavender, 228 F.3d 792, 799 (7th Cir. 2000) (evi-
dence that the key government witness was lying would
make the case fall apart).
ii.
The next question is, of course, whether Liggons’s
credibility is also affected by what we assume is the
effect of Simmons’s cross-examination. The two are
closely linked through both their roles in the robbery
and their shared history. That is the situation that con-
fronted the Supreme Court in Olden v. Kentucky, 488
U.S. 227 (1988). There, the testimony that was affected by
a Confrontation Clause violation was corroborated by
someone who would also be affected by the questions
the defense counsel hoped to ask. Id. at 233. In cases
like Olden the reliability of both witnesses is affected
by the limitations placed on the cross-examination.
Thus, under Van Arsdall we would presume that both
defendants’ testimony would be undermined.
But that is not the situation here. Two things keep us
from finding that Liggons’s credibility would also be
affected. First, on cross-examination Liggons main-
tained the same critical story as Simmons. With the ex-
ception of references to Mook and the unidentified
man, the discrepancies between the two were insignificant
and the normal consequence of two people recounting
many details about the same story a year later. Second,
Liggons testified before Simmons. Yet, the defense
Nos. 09-2337 & 09-2438 21
did not go into this line of questioning during Liggons’s
testimony. If the entire defense hung on this argument,
then it would naturally have come across in the ques-
tioning of both cooperating witnesses. But there was
nothing until the sidebar that pointed to this theory of
the defense. Whether this silence was a tactical decision
doesn’t matter: the disbelief assumed in Simmons’s
testimony does not spread to Liggons without at least
some suggestion that he too was framing the defendants.
The defendants have not pointed to anything Liggons
said or did indicating that persons other than he and
Simmons robbed the bank.3
iii.
Assuming the full extent of the cross-examination
was realized and Simmons’s testimony was not
believable, we must look at the remaining evidence
and determine whether “it [is] clear beyond a rea-
sonable doubt that a rational jury would have found
the defendant guilty absent the error.” Neder, 527 U.S. at
18. The government “bears the burden of showing that
a violation of the Confrontation Clause was harmless
beyond a reasonable doubt.” United States v. Castelan,
219 F.3d 690, 696 (7th Cir. 2000); United States v. Williams,
559 F.3d 607, 611 (7th Cir. 2009). And it is focused on
what remaining evidence at trial convinces us beyond
a reasonable doubt that a rational jury would have
3
At trial, in fact, the defense took the position that Liggons
had no first-hand personal knowledge of the robbery. That
fact is belied by the physical evidence placing him there.
22 Nos. 09-2337 & 09-2438
found the defendants guilty. Castelan, 219 F.3d at 696;
United States v. McGowan, 590 F.3d 446, 456 n.1 (7th Cir.
2009) (looking to “the strength of the remaining evidence
against the defendants” (emphasis in the original)). It is
not for the government to show that Simmons was other-
wise believable, but that with the residual evidence in
this case a reasonable jury would still convict. Chapman
v. California, 386 U.S. 18, 24 (1967).
Here, the government has met its burden. Liggons’s
testimony was duplicative of Simmons’s and the other
physical evidence establishes that Beck and Thomas
were the robbers. This evidence included the prison
calls between Beck and Simmons; Thomas’s prints
found on the bag of kitchen gloves in the getaway
vehicle; the photos in the car of Liggons and Simmons
with the guns in that same getaway vehicle; and the
testimony of Beck’s girlfriend that five men stayed at
her house the night before the robbery. Coupled with
the testimony of Liggons, this is strong evidence of
guilt. United States v. Jackson, 540 F.3d 578, 593 (7th Cir.
2008) (finding harmless error where the evidence of
guilt “was overwhelming”); Lanier v. United States, 220
F.3d 833, 839 (7th Cir. 2000). The strength of this evi-
dence also convinces us that the unfair prejudice that
attached to Beck from having his probation officer
testify was harmless.
V.
Beck also appeals his sentence; he argues that the
district court failed to address his argument that his
Nos. 09-2337 & 09-2438 23
career offender status overstated his criminal history.
The judge acknowledged Beck’s argument and stated
she was not persuaded. There is no basis to suggest that
she did not properly calculate his guideline range.
Further, Beck’s guideline range was 360 months to life,
and he received a sentence of 324 months. Given the
nature of his offense and his status as a career offender,
there is nothing unreasonable about his sentence.
VI.
While we find that the district court erred by allowing
Beck’s probation officer to testify that she was a proba-
tion officer and by not allowing the defense attorneys
to further question Simmons about his potential bias,
we are confident beyond a reasonable doubt that
the error was harmless. Further, there was no error in
Beck’s sentencing or the sentence imposed. Accordingly,
the judgments of the district court are A FFIRMED.
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