United States v. Holt, Jakeffe ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4286
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAKEFFE HOLT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 840—James B. Moran, Judge.
____________
ARGUED NOVEMBER 8, 2006—DECIDED MAY 15, 2007
____________
Before CUDAHY, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Jakeffe Holt was convicted of
possession of a firearm by a felon pursuant to 18 U.S.C.
§ 922(g)(1) and 18 U.S.C. § 924(e), and is serving a sen-
tence of 200 months’ imprisonment. Holt argues that: (1)
the district court should have granted him a new trial
after excluding cross-examination of police officers re-
garding complaints and reprimands against them under
Federal Rule of Evidence 608(b); (2) he was denied due
process of law when the prosecution did not call certain
witnesses or offer evidence that an individual had
changed her story; and (3) the district court did not
make independent findings of fact or sufficiently explain
its reasons under 18 U.S.C. § 3553(a) for imposing a
2 No. 05-4286
sentence of 200 months’ imprisonment. Finding no error
below, we affirm.
I. BACKGROUND
On the night of July 12, 2004, Chicago Police Officers
Michael Connolly and Brendan Corcoran received a radio
broadcast directing them to the LeClaire Courts housing
project in Chicago, Illinois. They responded in uniform and
in a marked squad car. The officers spoke to a woman and
based upon that conversation they drove to the 4900 block
of West 44th Place. There, the officers saw Holt pushing
another man in a wheelchair, and Officer Connolly exited
the squad car and headed in Holt’s direction. Holt looked
at Connolly, removed a gun from his waistband, and fled
on foot.
The gun was a laser-sighted blue-steel pistol, and as
Officer Connolly chased Holt on foot, he observed the red
dot from the laser-sight moving along the ground next to
Holt. Officer Corcoran followed in the squad car, and
Officer William Seski arrived and chased on foot behind
Connolly. All of the officers observed the gun in Holt’s
right hand, and the red dot from the laser sight. As Officer
Connolly was closing in, Holt turned to face him and raised
the gun so that the laser-sight was pointed at Connolly’s
chest. Officer Connolly was within a matter of feet from
Holt at this time, and was running full speed. He crashed
into Holt, and Officers Seski and Corcoran, who by now
had exited his squad car, came to his aid. The officers
subdued Holt on the ground, and Officers Corcoran and
Seski handcuffed Holt after Officer Connolly recovered the
weapon. Officer Seski’s partner, Officer Jaime Rodriguez,
arrived during the struggle and observed the other offi-
cers subdue Holt and Officer Connolly recover the weapon.
The pistol was never fired.
No. 05-4286 3
Officer Connolly disarmed the weapon, which was fully
loaded with nine live rounds, one of which was in
the chamber. Holt was Mirandized and transported to a
nearby police station. He was placed in a room where he
was handcuffed to a bench and the officers completed
paperwork nearby. Without questioning or provocation,
Holt stated to Officer Connolly: “I should have killed your
pussy ass. I could have too. I should’ve shot you in the
face.” Other officers in the room heard this statement,
and Officer Connolly recorded the statement in his report.
Holt was retried after a mistrial resulting from a hung
jury. At the second trial, Officers Connolly, Corcoran,
Seski and Rodriguez testified for the government. Addi-
tionally, Jane Michalik, an evidence technician employed
by the Chicago Police Department, testified that finger-
prints could not be recovered from the gun or magazine
and explained why that might be the case. Defense coun-
sel attempted to enter the contents of the 911 call from the
complaining witness, Kimberly Nash. Nash had changed
her story since the time of the original incident, and
neither the prosecution nor the defense had called her
as a witness. The district court excluded the contents of
the call as inadmissible hearsay.
Defense counsel also attempted to cross-examine Officers
Connolly and Corcoran regarding complaints filed against
them and reprimands or other consequences resulting
from such complaints. The district court allowed defense
counsel to question the officers about the underlying
conduct alleged in the complaints, but did not allow
questioning regarding complaints or punishment, deter-
mining that such questioning was not permissible under
Federal Rule of Evidence 608(b) and additionally that it
would evoke hearsay. The defense called a witness who
testified that she saw the police hit Holt with a squad car,
and that Holt did not have a gun at the time. In rebuttal,
a physician who treated Holt that night testified for the
4 No. 05-4286
government that Holt had no injuries consistent with be-
ing hit by a car, and that he had not complained of such
an incident.
The jury convicted Holt, and the district court sentenced
him to 200 months’ imprisonment, which was sixty-two
months below the advisory Sentencing Guidelines range.
Holt’s Guideline range was 262-327 months based on an
Offense Level of 34 and a Criminal History Category of VI.
The district court classified Holt as an armed career
criminal under 18 U.S.C. § 924(e)(1), based partly upon a
prior conviction for a commercial burglary which qualified
as a “violent felony.” When asked if he had anything to
say that might help the judge make his sentencing deci-
sion, Holt only explained that, in his view, he had been
denied justice. The district court explained its sentencing
decision, stating that it “believe[d] that it happened the
way that the government’s witnesses testified it hap-
pened.” Tr. Oct. 28, 2005, p. 35. The court also noted Holt’s
extensive criminal record before imposing a below-guide-
lines sentence, explaining: “By the time you get out, you’re
going to be passed [sic] the age when people, generally
speaking, are involved in violent crimes. Hopefully in the
interim you’re going to refocus on what you want to do
when you get out of prison, because you will be approach-
ing about middle age, and change things around, because
you sure need to.” Id.II. ANALYSIS
Holt raises three issues on appeal: (1) whether he was
improperly denied a new trial after the district court
prohibited defense counsel from cross-examining officers
concerning reprimands or punishments imposed by their
employers; (2) whether he was denied due process of law
by the government’s failure to call certain witnesses or
present evidence that one individual had changed her
No. 05-4286 5
story; and (3) whether the district court made sufficient
findings of fact and adequately explained its reasons for
the sentence imposed under 18 U.S.C. § 3553(a).
A. Prior Conduct Under Federal Rule of Evidence 608(b)
Holt contends that the district court should have granted
him a new trial based on its alleged error under FED. R.
EVID. 608(b) in prohibiting cross-examination of officers
concerning prior discipline they had received. We review
the district court’s decision to limit the scope of cross-
examination for an abuse of discretion. United States v.
McClurge, 311 F.3d 866, 873 (7th Cir. 2002). If the Sixth
Amendment right to confrontation is directly implicated,
however, our review is de novo. Id. We review the denial
of a motion for a new trial for an abuse of discretion.
United States v. Childs, 447 F.3d 541, 544 (7th Cir. 2006).
Officer Connolly received a thirty-day suspension for
conduct that occurred in 2001 that did not involve Holt or
anyone else involved in this case. Based upon an unrelated
complaint, Officers Connolly and Corcoran were also
both reprimanded for neglect of duty. The government
moved to exclude all evidence and questioning regarding
the police department’s investigation, findings, and
discipline of the officer witnesses. In response to a motion
in limine, the district court ruled that on cross-examina-
tion, defense counsel could inquire into the underlying
conduct that led to the discipline but could not ask ques-
tions about complaints, investigations or discipline, and
that no extrinsic evidence would be heard on the matter.
At trial, the district court sustained the government’s
objection to such questioning.
Federal Rule of Evidence 404 excludes character evi-
dence as a general matter. Rule 608 deals more particu-
larly with evidence of a witness’s character or conduct.
6 No. 05-4286
Attacking a witness’s character for truthfulness through
opinion or reputation testimony is allowed by Rule 608(a).
See Beard v. Mitchell, 604 F.2d 485, 503 (7th Cir. 1979).
Thus, in this case, Holt could have put forth witnesses
who would testify either that in their personal opinions
Officers Connolly and Corcoran are not truthful people, or
that the officers have a reputation for untruthfulness. The
use of specific instances of conduct to show a witness’s
character for truthfulness is governed by Rule 608(b),
which states: “Specific instances of the conduct of a
witness, for the purpose of attacking or supporting the
witness’ character for truthfulness . . . may not be proved
by extrinsic evidence. They may, however, in the discretion
of the court, if probative of truthfulness or untruthfulness,
be inquired into on cross-examination of the witness . . .
concerning the witness’ character for truthfulness or
untruthfulness . . . .” FED. R. EVID. 608(b); see United
States v. McGee, 408 F.3d 966, 981-83 (7th Cir. 2005);
United States v. Wilson, 985 F.2d 348, 351-52 (7th Cir.
1993).
Under Rule 608(b), the district court properly allowed
Holt’s counsel to ask Officer Connolly whether he had
ever engaged in a particular course of conduct. The record
does not indicate whether Holt attempted to offer any
reports proving that Officer Connolly had been suspended,
but Rule 608(b) would obviously exclude such extrinsic
evidence in order to prove Connolly’s character for truth-
fulness. What we are now concerned with lies in between:
whether the district court could prohibit Holt’s counsel
from asking Connolly on cross-examination if he had
been suspended for his conduct.
To resolve this issue, the district court turned to the
Advisory Committee Notes to Rule 608(b): “[T]he extrinsic
evidence prohibition of Rule 608(b) bars any reference to
the consequences that a witness might have suffered as a
result of an alleged bad act. For example, Rule 608(b)
prohibits counsel from mentioning that a witness was
No. 05-4286 7
suspended or disciplined for the conduct that is the sub-
ject of impeachment, when that conduct is offered only to
prove the character of the witness.” FED. R. EVID. 608(b)
advisory note to 2003 Amendments (citing United States v.
Davis, 183 F.3d 231, 257 n.12 (3d Cir. 1999)). This lan-
guage, however, appears to be in tension with our recent
opinion in United States v. Dawson, 434 F.3d 956 (7th Cir.
2006). In Dawson, we focused on the scope of Rule 608(b),
noting that it only prohibits the use of extrinsic evi-
dence, not lines of questioning. Id. at 958; see also United
States v. Redditt, 381 F.3d 597, 602 (7th Cir. 2004). The
exclusion of extrinsic evidence does not mandate the
prohibition of questions regarding the punishment im-
posed on a witness for a given course of conduct. Dawson,
434 F.3d at 958.1
However, we further explained in Dawson that “[t]his
is not to suggest that every question a lawyer might
want to ask about a third party’s opinion of the credibility
of a witness would be proper cross-examination. . . . The
trial judge has a responsibility not to allow cross-examina-
tion to get out of hand, confuse the jury, and prolong the
trial unnecessarily. . . . The important point is that the
decision whether to allow a witness to be cross-examined
about a judicial determination [in that case] finding him
not to be credible is confided to the discretion of the trial
judge . . . .” Id. at 958. Rule 608(b) leaves the trial judge
with broad discretion to limit such questioning, stating
only that prior instances of conduct “may” be inquired of
“in the discretion of the court, if probative of truthfulness
1
We questioned in Dawson whether our conclusion that third-
party credibility determinations may be inquired of on cross-
examination under Rule 608(b) was dependent upon the facts
of that case, wherein the third-party was a judge and the
determination was part of official court proceedings. Dawson, 434
F.3d at 958.
8 No. 05-4286
or untruthfulness.” FED. R. EVID. 608(b); see United States
v. Seymour, 472 F.3d 969, 971 (7th Cir. 2007); United
States v. Werbrouck, 589 F.2d 273, 278 (7th Cir. 1978).
In this case, as to Officer Connolly’s prior suspension,
the district court thought questioning was limited not
only by Rule 608, but also because such questioning
would interject hearsay into the proceedings. That is,
asking Officer Connolly whether the police department had
punished him would introduce the opinion of members of
the police department. If Holt wanted to use the opinions
of members of the police department to undermine Officer
Connolly’s credibility, he could have used Rule 608(a) and
called a member of the department to testify directly
about his opinion or the reputation of Officer Connolly.
United States v. Tedder, 403 F.3d 836, 839 (7th Cir. 2005).
Holt did not do so, and it was within the district court’s
discretion to exclude this line of questioning. As to
Officers Connolly and Corcoran’s former reprimands for
neglect of duty, the district court simply found that this
evidence was not even relevant under Rules 401 and 402
because it did not bear on their characters for truthful-
ness. See Seymour, 472 F.3d at 971. The district court
did not abuse its discretion in excluding either lines of
questioning.
B. Government Witnesses and Due Process
Holt next argues that the government’s failure to
introduce evidence of the complaining witness’s inconsis-
tent statements and Officers Connolly and Corcoran’s
alleged prior misconduct was so fundamentally unfair as
to deny Holt due process of law.
The officers had been directed to the LeClaire Courts
housing project as a result of a 911 call placed by Kimberly
Nash reporting that a man had pulled a gun on her
No. 05-4286 9
daughter. Nash subsequently changed her story and
claimed that she had not seen the gun. Some of Nash’s
conflicting statements were admitted into evidence in
Holt’s first trial because the government offered the
contents of the 911 call into evidence to give the officers’
actions context. Believing that this evidence confused the
jury in the first trial, the government decided not to enter
the contents of the 911 tapes in the second trial, and
Nash’s statements, which were never offered for the
truth of the matter asserted, were thus excluded in the
second trial. Holt did not attempt to call Nash as a wit-
ness.2
Brady v. Maryland requires prosecutors to disclose
material exculpatory statements to defendants. 373 U.S.
83 (1963). Holt cites Napue v. Illinois in support of his
argument that the prosecutors in this case were re-
quired not only to disclose such evidence (as they did), but
also to present such evidence at trial. 360 U.S. 264 (1959).
Napue stands for the proposition that prosecutors may
not suborn perjury, not that prosecutors must present
evidence exculpatory to a defendant in their case-in-chief.
Id. at 270. Our legal system remains an adversary one,
and prosecutors are not required to make a defendant’s
case for him. We note that Napue predates Brady, and if
the Supreme Court wished to impose such a broad obliga-
tion on criminal prosecutors, they could have done so at
that time. The government’s failure to offer the conflicting
statements of Nash and the disciplinary records of the
police officers involved did not deny Holt due process of
law.
2
Holt’s due process argument appears to be an ineffective
assistance of counsel argument in disguise. We note, however,
that he has preserved that argument for collateral review.
10 No. 05-4286
C. Sentencing
Holt’s final argument is that the district court did not
adequately consider the sentencing factors in 18 U.S.C.
§ 3553(a) or make sufficient findings of fact to allow
meaningful review by this court. He also seems to confuse
this issue with that of proper calculation of the advisory
sentencing guidelines range. As Holt has not pointed
to any particular claimed error in the calculation of either
his offense level or his criminal history category, we limit
our review to the application of the § 3553(a) factors.
The district court determined that Holt had an Offense
Level of thirty-four and a Criminal History Category of VI.
This yielded a guideline range of 262 to 327 months. Holt’s
sentence was also subject to a mandatory minimum term
of 180 months. 18 U.S.C. § 924(e). The district court
stated: “Mr. Holt, you can tell me anything you wish that
you think would be helpful to me in the decision I have
to make.” Tr. Oct. 28, 2005, p. 34. Holt replied only with
general statements of injustice and reiterated the per-
ceived unfairness of excluding Officer Connolly’s dis-
ciplinary record. Id.The district court sentenced Holt to 200 months’
imprisonment—sixty-two months below the guidelines
range. The district court explained its sentence, stating:
“I heard the evidence at the trial, and I did believe that it
happened the way that the government’s witnesses
testified it happened.” Id. at p. 35. The court noted Holt’s
extensive criminal record and explained that the only
reason it was giving him a below-guidelines sentence was
because of his age. The court reasoned that by the time
Holt is released he will have “passed the age when people,
generally speaking, are involved in violent crimes.” Id. The
court concluded: “Hopefully in the interim you’re going to
refocus on what you want to do when you get out of prison,
because you will be approaching about middle age, and
change things around, because you sure need to.” Id.No. 05-4286 11
Post-Booker a district court must engage in a two-part
sentencing procedure: (1) properly calculate the guidelines
sentence; and (2) consider the sentencing factors set forth
in 18 U.S.C. § 3553(a) to arrive at a reasonable sentence.
United States v. Dean, 414 F.3d 725, 727 (7th Cir. 2005).
Holt’s argument concerns the second part of this pro-
cedure. The district court must give the defendant “an
opportunity to draw the judge’s attention to any factor
listed in section 3553(a) that might warrant a sentence
different from the guidelines sentence.” United States v.
Wallace, 458 F.3d 606, 609 (7th Cir. 2006) (quoting Dean,
414 F.3d at 730). Application of § 3553(a) is mandatory,
but this does not require the sentencing court to pick
apart the factors in minute detail—particularly where, as
here, the defendant has given the court scant mitigating
evidence to work with. Wallace, 458 F.3d at 609; United
States v. Cunningham, 429 F.3d 673, 678-79 (7th Cir.
2005); Dean, 414 F.3d at 729; see United States v. Booker,
543 U.S. 220, 259-60 (2005). If the district court departs
from the guidelines range, it must explain its reasons;
and, the farther it departs, the more compelling its
justification must be. Dean, 414 F.3d at 729. However,
explicit findings of fact are required only if contested facts
are material to the judge’s decision. Id. at 730 (citing
United States v. Ahmad, 2 F.3d 245, 247 (7th Cir. 1993)).
We are satisfied that the district court has met all of its
obligations in imposing Holt’s sentence. The only mitigat-
ing factor that the court could find was Holt’s age, which
diminished the need to deter Holt from future crimes. The
court found this persuasive enough to impose a sentence
sixty-two months below the guidelines range, and only
twenty months above the statutory minimum, despite
the strength of the government’s case and Holt’s exten-
sive criminal background. It is hard to imagine how much
more generous the district court could have been.
12 No. 05-4286
The district court adequately explained its consideration
of the § 3553(a) factors to withstand Holt’s challenge.
III. CONCLUSION
For the forgoing reasons, the conviction and sentence
of Jakeffe Holt are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-15-07