February 22, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 2:16-cr-00179-PP-1 - Pamela
Bauer, Easterbrook, and Rovner, Circuit Judges.
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 (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 prosecutor's rebuttal and a
violation of his Sixth Amendment right by precluding the
judicial evaluation of Officer Milone's testimony in
Brantley. The district court denied the motion and
he now appeals on the same grounds.
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.
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.
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.
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 testimony 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.
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.
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 the
country. The prosecutor rebutted, amongst other comments, as
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 Milwaukee 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 committed 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. Ye s, we both saw him throw it over
the fence. Ye s, we had on our body cameras but they were
absolutely defective." Why not that extra mile? I think
it strains credulity and common sense in this case to believe
that the Officers (sic) came in here and were anything less
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
defendant 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 ...