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United States v. Jones

United States Court of Appeals, Seventh Circuit

May 9, 2018

United States of America, Plaintiff-Appellee,
Demarrel T. Jones, also known as Roosevelt Tucker, Defendant-Appellant.

          Argued February 22, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:16-cr-00179-PP-1 - Pamela Pepper, Judge

          Before Bauer, Easterbrook, and Rovner, Circuit Judges.

          Bauer, Circuit Judge.

         Demarrel 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.

         I. BACKGROUND

         On 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.

         At 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.

         A 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.

         The 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.

         The 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.

         Trial 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 follows:

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 than truthful.

         Defense 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 ...

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