United States v. Bowman, Wesley ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4387
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WESLEY BOWMAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 898—Elaine E. Bucklo, Judge.
____________
ARGUED SEPTEMBER 3, 2003—DECIDED DECEMBER 23, 2003
____________
Before POSNER, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. On April 4, 2002, a jury convicted
Wesley Bowman of being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Bowman
urges us to grant him a new trial based on various errors he
claims prevented the jury from rendering a fair verdict.
Because we find no error in the proceedings below, we
affirm.
I. Background
On Thanksgiving Day in 2000, two Chicago police officers
stopped Bowman in an alley near his home after observing
him driving without headlights after dark. The officer who
2 No. 02-4387
approached Bowman in his vehicle asked him to produce his
license and proof of insurance. Bowman could not comply,
as his license had been revoked, and he was uninsured.
Bowman was arrested and searched in preparation for
transport to the police station. The search uncovered a
handgun in Bowman’s jacket pocket and three baggies of
marijuana in his pants pocket. The arresting officer’s
partner, who was out of the squad car and standing behind
Bowman and the arresting officer to secure the scene,
witnessed everything.
In opposition to this factual scenario, Bowman produced
three witnesses at trial, all family or friends, who testified
they too saw the arrest and no gun was recovered from
Bowman. Absent any physical evidence linking Bowman to
the gun, the parties readily admit the case swung on
witness credibility. The jury believed the police account over
Bowman’s witnesses and convicted Bowman on the sole
count of the indictment. Bowman unsuccessfully sought a
new trial, and this appeal followed. We will relate addi-
tional facts as necessary to address Bowman’s arguments
on appeal.
II. Analysis
Bowman bases his request for a new trial on four
grounds: (1) improper testimony by the government’s
fingerprint expert; (2) improper rebuttal testimony offered
by the government; (3) improper comments by the prosecu-
tors during the opening statement and closing and rebuttal
arguments; and (4) insufficient evidence to support the
jury’s verdict. None have merit.
A. Fingerprint expert
The government called Richard Canty, a senior finger-
print specialist with the Bureau of Alcohol, Tobacco, and
No. 02-4387 3
Firearms, to testify regarding the fingerprint tests he ran
on the gun recovered from Bowman. After asking prelimi-
nary questions regarding Canty’s extensive professional
training and experience in recovering and identifying latent
fingerprints and palm prints, the government moved to
admit Canty as an expert in the field of analysis and
comparison of fingerprints and palm prints. Bowman, by
counsel, stated he had no objection.
Canty then testified that he recovered a latent thumb-
print and palm print from the gun submitted to him for
testing, but that neither belonged to Bowman and neither
had been positively identified. The thumbprint was re-
covered from the gun slide and the palm print was found on
the gun handle, underneath the grips. The government then
asked Canty whether the location of the thumbprint was
consistent with someone making the gun “safe” (the arrest-
ing officer had previously testified that after he recovered
the gun from Bowman’s jacket pocket, the officer, without
gloves, made the gun “safe” by removing the magazine and
a bullet from the chamber). Bowman objected repeatedly to
the question and, after a sidebar, the trial judge allowed the
testimony. Following foundation questions clarifying that
Canty understood what was meant by making the gun
“safe,” he answered that the location of the unidentified
print could be consistent with such an action. Bowman then
subjected Canty to vigorous cross- examination.
Bowman argues that the trial court erred in allowing
Canty to answer the hypothetical. We review a trial court’s
evidentiary decisions for abuse of discretion and with great
deference. United States v. Aldaco, 201 F.3d 979, 985 (7th
Cir. 2000). “Accordingly, we will find reversible error only
if the district court’s decision is not within the range of
options from which one would expect a reasonable trial
judge to select.” Id. (quoting United States v. Van Dreel, 155
F.3d 902, 905 (7th Cir. 1998)).
4 No. 02-4387
Bowman cannot dispute that Canty testified as an expert
witness and that experts are allowed to testify in the form
of opinions. See Fed. R. Evid. 702 (“[a] witness qualified
as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opin-
ion . . . .”). The thrust of Bowman’s argument, though, is
that Canty, although qualified as an expert in fingerprint
identification, was not qualified as an expert in gun hand-
ling. Thus, Bowman contends, Canty’s testimony that the
placement of the thumbprint on the gun appeared consis-
tent with someone making the gun safe was outside his
realm of knowledge, not based on sufficient facts, unreli-
able, and therefore inadmissible. See Fed. R. Evid. 702
(allowing expert opinion testimony if “(1) the testimony is
based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to
the facts of the case.”). We fail to see the distinction.
Canty testified that in his thirty-seven years in law
enforcement and the military, he had the opportunity to
analyze prints on thousands of guns. He necessarily had to
handle all of them. He demonstrated his familiarity with
the model in question by showing the jury, without objec-
tion, how one would normally hold it and by discussing
the areas one would expect to find prints. He testified
well within his area of expertise when concluding that,
based on his undisputed recovery of a left thumbprint from
the right side of the gun slide, the print was deposited in
the process of someone making the gun safe. Bowman’s
argument otherwise borders on spuriousness, and the trial
judge acted reasonably in allowing the testimony.*
*
Bowman urges that allowing Canty to speculate about how
the thumbprint may have been left impermissibly bolstered the
officers’ testimony that the gun was removed from Bowman and
(continued...)
No. 02-4387 5
B. Rebuttal testimony
The arresting officer and his partner testified that after
they pulled Bowman over and discovered that he was driv-
ing without a license, insurance, or license plates and was
carrying a loaded gun and marijuana, the arresting officer
drove Bowman to the police station alone. The partner
followed, driving Bowman’s car to the police station for im-
poundment. Two defense witnesses testified later that both
police officers drove away in the squad car with Bowman,
implying that his car was left behind. On rebuttal, the
government called Steven Sorfleet, general superintendent
with the City of Chicago Department of Streets and Sanita-
tion, to testify about the procedure for impounding cars and
to explain documentation showing that Bowman’s car was
towed from the police station, not the alley where he was
pulled over.
Bowman claims the government called, and the court
improperly allowed, the rebuttal witness simply to reiterate
the facts of the government’s case in chief. There is no merit
to Bowman’s argument, and we summarily reject it. The
trial judge correctly determined that the testimony prof-
fered was proper rebuttal, as the trial transcript bears out.
*
(...continued)
made safe upon his arrest and that it created an impermissible
inference that the unidentified thumbprint belonged to the
arresting officer. Yet, we note that defense counsel went to great
lengths on cross-examination to ensure the jury understood that
the thumbprint was not identified and that the government
requested that Canty compare the prints to Bowman’s and no one
else’s. The government’s disinterest in whether the print belonged
to the arresting officer, made clear by Bowman’s counsel, arguably
supported Bowman’s overarching theory that the police planted
the gun. The jury was free to draw that conclusion. That they did
not does not warrant a new trial.
6 No. 02-4387
C. Prosecutorial misconduct
Bowman contends, for the first time on appeal, that the
prosecutors made improper comments during their opening
statement and closing and rebuttal arguments. Bowman’s
failure to raise this issue at trial relegates our review to
that of plain error, which requires Bowman to establish “not
only that the remarks denied him a fair trial, but also that
the outcome of the proceedings would have been different
absent the remarks.” United States v. Sandoval, 347 F.3d
627, 631 (7th Cir. 2003) (quoting United States v. Anderson,
303 F.3d 847, 854 (7th Cir. 2002), cert. denied, ___ U.S. ___,
123 S.Ct. 1604 (2003)). When evaluating whether the
government’s comments to the jury reached the level of
prosecutorial misconduct, we first examine whether the
remarks themselves were improper. Id. If improper, we
then evaluate the statements in the context of the entire
record and determine whether Bowman was deprived of a
fair trial. Id. In so doing, we consider:
(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 the 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.
Id. (quoting Anderson, 303 F.3d at 854). We note that “[a]s
a general matter, improper comments during closing argu-
ments rarely rise to the level of reversible error,” United
States v. Amerson, 185 F.3d 676, 685-86 (7th Cir. 1999)
(quoting United States v. Wilson, 985 F.2d 348, 353 (7th Cir.
1993)), and this case is no exception.
Bowman alleges that the prosecutor made numerous in-
appropriate propensity arguments during the opening
statement and closing argument by stating, for example,
that Bowman was a convicted felon; that he carried an
unregistered, loaded gun with a “bullet in the chamber;”
No. 02-4387 7
that he carried marijuana; and by listing the various traffic
violations discovered as a result of the police stop. Accord-
ing to Bowman, these comments improperly led the jury to
conclude that because he was guilty of past or other crimes,
he must be guilty of illegally possessing a firearm. We are
unconvinced. All of the statements made by the prosecutor
were either based on stipulated facts or facts that were
testified to, without objection, during trial. The prosecutor
used these facts for permissible purposes—for example, to
reiterate the narrative told by the police officers with
regard to the traffic stop. See Sandoval, 347 F.3d at 631(finding that the prosecutor’s statements during opening,
closing and sentencing accurately reflected witness testi-
mony and thus were supported by the evidence and not
improper). The prosecutor neither misrepresented the
witnesses’ testimony or the parties’ stipulations, nor asked
the jury to draw the inference that because Bowman had
admitted problems abiding by the law, he must be guilty of
the crime in question. The statements were therefore
proper.
Bowman also alleges that the prosecutor improperly
inferred that he had “personal knowledge” of the case by
characterizing it as “extremely important”and the circum-
stances leading up to the events of Bowman’s arrest as a
“recipe for disaster.” Neither statement can be fairly
recognized as an attempt to make the jury think the pros-
ecutor knew damaging information about Bowman outside
of the evidence presented. A prosecutor is entitled to
impress upon a jury the seriousness of the crime charged.
United States v. Zylstra, 713 F.2d 1332, 1340 (7th Cir.
1983). In context, the prosecutor’s statement regarding the
importance of the case was meant to convey no more than
that. The “recipe for disaster” comment, which came in the
closing argument following the prosecutor’s accurate
summary of the facts as testified to by the police officers, is
not the type of overt injection of a prosecutor’s personal
8 No. 02-4387
knowledge condemned by this Court. Compare, Anderson,
303 F.3d at 856 (finding a prosecutor’s comment on rebuttal
that he knew from personal experience that the investigator
in question was a very nice guy and would not try to
intimidate a witness to be “a classic case of injecting facts
within the personal knowledge of the prosecutor into a case,
and [ ] blatantly improper.”). And, heard in context, it
seems unlikely that the jury would have gathered the
meaning from the statement that Bowman assigns.
Finally, Bowman makes much of the prosecutor’s com-
ments in rebuttal about the credibility of the defense
witnesses. As both parties acknowledge, this entire case
swung on witness credibility—either the jury would believe
the police officers or the defense witnesses in reaching their
verdict. The prosecutor’s comments, which were based, for
example, on testimony regarding the defense witnesses’
relationship to Bowman, were proper. See Sandoval, 347
F.3d at 632 (stating that a prosecutor is entitled to ask the
jury to weigh the credibility of the witnesses); United States
v. Holt, 817 F.2d 1264, 1275-76 n.10 (7th Cir. 1987) (finding
that a prosecutor may comment on the possible interest a
witness may have in testifying where such a comment is
supported by evidence in the record, even to the point of
calling witnesses “liars”).
Even if we found that any of the government’s comments
challenged by Bowman were improper, that error did not
deprive Bowman of a fair trial. Specifically, we note that
defense counsel emphasized to the jury repeatedly during
his opening statement and at the beginning of his closing
argument that the arguments were just that—arguments
and not evidence. That message was properly repeated
by the judge through the jury instructions. Also, defense
counsel’s opening and closing responded to the prosecutor’s
comments stressing, for example, that the jury was to eval-
uate Bowman with a “clean slate” even though he admitted
to being a convicted felon and by attacking the police
No. 02-4387 9
officers’ credibility. Finally, based on our review of the rec-
ord, there was sufficient evidence to convict Bowman (which
we discuss in more detail below), and we cannot say that,
absent the alleged prosecutorial misconduct in remarks to
the jury, the case would have been decided differently.
D. Sufficiency of evidence
Bowman bases his insufficient evidence theory on the er-
rors discussed and dismissed above, arguing in conclusory
fashion that but for the evidence and argument allowed as
a result of those prejudicial errors the jury would have had
to acquit. As we have already determined that no prejudi-
cial errors were committed, the argument fails.
In addition, Bowman alleges that since his witnesses
directly contradicted the government’s, the jury had insuf-
ficient evidence to convict. Although Bowman acknowledges
that an appellate court will not review witness credibility or
reweigh the evidence, it appears this is what he is request-
ing us to do. We will not. See United States v. Pulido, 69
F.3d 192, 205 (7th Cir. 1995) (stating that in reviewing a
jury verdict for sufficiency of evidence, “we will not reweigh
the evidence or judge the credibility of witnesses. That is
the role of the jury, not an appellate court.” (citation
omitted)).
Bowman also states, without elaboration, that the evi-
dence against him was not overwhelming and thus insuffi-
cient to support a conviction. We review such claims in the
light most favorable to the government and will overturn a
conviction “only if no rational trier of fact could have found
[Bowman] guilty beyond a reasonable doubt.” United States
v. Hodges, 315 F.3d 794, 799 (7th Cir.) cert. denied ___ U.S.
___, 123 S. Ct. 1943 (2003) (citation omitted). It is clear
from the record that the police officers testified consistently
that the gun in question was recovered from Bowman. The
officers’ testimony was supported by the contemporaneous
10 No. 02-4387
paperwork generated in the course of Bowman’s arrest.
There was sufficient evidence to convict Bowman, and the
jury’s determination stands.
III. Conclusion
For the foregoing reasons, we AFFIRM the decision of the
trial court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-23-03