United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Defendant, Steven G. Zamiar, moves for a new trial  pursuant to Federal Rule of Criminal Procedure 33, asserting that the Court denied Zamiar a fair trial by restricting the evidence, by allowing improper argument by the prosecution in closing, and erroneously instructing the jury on the elements of the offense. For the reasons stated herein, the Court denies the motion.
On December 12, 2013, the grand jury returned a two count indictment charging Steven G. Zamiar with violations of 18 U.S.C. § 242 in two unrelated incidents. This Court granted the defendant's motion to sever the two counts and the government elected to proceed to trial on Count II first. Count II of the indictment charges that Zamiar violated James Snyder's civil rights by striking him repeatedly with a metal police baton, or an asp, in the head and back during a chase. The jury returned a verdict of guilty on Count II following the trial that began December 15, 2014.
The incident in question occurred in the early hours of November 24, 2011, while Zamiar was the Deputy Chief of the Midlothian Police Department. James Snyder was at Durbin's Bar in Midlothian, Illinois, on the evening of November 23, 2011, with his girlfriend. Zamiar was conducting surveillance of Durbin's from across the street when a large crowd of people gathered. Zamiar called to fellow Midlothian Police that there was a fight at Durbin's. Zamiar then drove over to Durbin's, parked his car, and walked through the parking lot of a donut shop adjacent to Durbin's. Zamiar was dressed in plain clothes, when he approached Snyder in the donut shop parking lot he did not show his badge or otherwise identify himself as a police officer. Snyder turned and ran when Zamiar drew his baton. As Snyder ran, Zamiar struck him several times with the baton.
Federal Rule of Criminal Procedure 33 provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). We "approach such motions with great caution and are wary of second-guessing the determinations of both judge and jury." United States v. Westmoreland, 712 F.3d 1066, 1072 (7th Cir. 2013) (quoting United States v. McGee, 408 F.3d 966, 979 (7th Cir. 2005)). "The court should grant a motion for a new trial only if the evidence preponderate[s] heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.'" United States v. Swan, 486 F.3d 260, 266 (7th Cir. 2007) (quoting United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989)).
Zamiar moves for a new trial on three major bases: first, that the Court's pre-trial and trial rulings denied Zamiar his Fifth and Sixth Amendment right to present his defense; second, that Zamiar was denied a fair trial by the prosecutor's improper statements in closing argument; and, third, that the Court committed plain error in the jury instructions by failing to charge that willfulness is an element of the offense or to define that special term. The Court will address each argument in turn.
1. Fifth and Sixth Amendment Right to Present a Defense
Zamiar argues that the Court's rulings regarding three witnesses restricted his ability to present his defense to such a degree as to deny him a fair trial. Zamiar first asserts that he should have been allowed to question James Snyder regarding his gambling activities in the days following his alleged beating by Zamiar. The Court granted the government's motion to exclude evidence of Snyder gambling, but ruled that defense counsel could elicit testimony from Snyder that he was not "bedridden" and was not seeking medical attention the day after the alleged beating. Defense counsel moved for reconsideration of the Court's ruling prior to commencing the cross-examination of Snyder. Defense counsel argued that the government had elicited testimony from Snyder that he had gone home from the police station to cook Thanksgiving dinner for his family. It is defense counsel's position that this testimony suggested good character and thus opened the door to defense being able to inquire whether he went to a casino. Zamiar argues that, by denying him the opportunity to ask leading questions to specifically delve into Snyder's visit to the casino in the days following the incident, the Court denied him a fair trial.
The Court however allowed defense counsel some latitude, permitting inquiry into Snyder's other activities, and if Snyder offered that he had gone to a casino further inquiry would be allowed. Snyder did not offer testimony that he had visited a casino, but the Court permitted defense counsel to attempt to refresh his recollection of his whereabouts with the records from the Horseshoe Casino. Snyder still stated that he did not recall where else he went Thanksgiving weekend before seeking medical attention. (Dkt. 87, Trial Tr. at 210). Defense counsel elicited from Snyder indicating that he did not seek medical attention until several days after the incident, which clearly contradicted his testimony that he was in extreme pain. Contrary to Zamiar's assertion, gambling is not indicative of witness credibility. Zamiar was attempting to use Snyder's supposed trip to the casino to show bad character, not to show that he must not have been as severely injured as he claimed since defense counsel was able to make that point. The point that Snyder was not so severely injured as to seek immediate medical attention, but instead waited several days, is not bolstered by what Snyder was specifically doing in the interim. Accordingly, this Court finds that if there was any error in the Court's restriction of his testimony, it was harmless and Zamiar suffered no prejudice by its exclusion. United States v. Mokol, 646 F.3d 479, 486 (7th Cir. 2011).
Next, Zamiar argues that the Court restricted the cross-examination of Sergeant Edmund Olmos by prohibiting the defense from establishing that he knew Snyder because he had previously arrested him. While the Court granted the government's motion in limine excluding proof of Snyder's prior misdemeanor conviction, that ruling did not bar testimony of Snyder's arrest. Once Sgt. Olmos referred to Snyder as "Jimmy, " defense counsel sought to inquire as to the nature of the relationship. Zamiar contends that the Court was too restrictive by only allowing him to ask "do you know him from prior interactions?" and that he should have been allowed to bring out whether Olmos had arrested Snyder.
Contrary to Zamiar's argument, the Court properly excluded inquiry into Snyder's prior arrests. Under Federal Rule of Evidence 609(b), prior bad acts are only admissible if such acts are "probative of truthfulness or untruthfulness." The Court allowed defense counsel to inquire whether Olmos and Snyder were friends and whether they had prior interactions. Olmos' testimony that he and Snyder were not friends, but had had prior interactions, does not lead to the conclusion that the Court's exclusion of the prior arrests lead to a "sanitized and inaccurate picture of the defendant's accuser". It is more likely that the jury would conclude from the permitted testimony that Snyder was well known to police. Whether Olmos had arrested Snyder on previous occasions was simply not relevant or probative of ...