CUDAHY, Circuit Judge.
Appellant Michael Lee Mokol, Jr., appeals from his conviction for two counts of being a felon in possession of a firearm. He raises four trial procedure issues, three of which pertain to evidence and one of which pertains to jury instructions. We do not credit Mokol's arguments, and accordingly we affirm the judgment of the district court.
Michael Mokol was charged with four counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), in connection with two residential burglaries in early May of 2008. He was acquitted of the two charges stemming from the first burglary. He was convicted of possessing the gun stolen in the second burglary, and of possessing a magazine containing ammunition that was in his car when he was arrested. On appeal, he raises several issues related to trial procedure. We reproduce only those facts relevant to his arguments on appeal, as related by the witnesses at trial.
Louis Batides testified that in April of 2008 he separated temporarily from his wife and moved to the Deluxe Inn in Merrillville, Indiana. He brought with him a silver Smith & Wesson 9mm model 5903 handgun. While staying at the Deluxe Inn, he conversed with an unknown person who knew Michael Mokol. Batides had attended Merrillville High School with Mokol, and the unknown intermediary offered to put them back in touch. Within a few days, Mokol called Batides and arranged to visit him at the Deluxe Inn. When Mokol arrived, Batides showed him his silver Smith & Wesson. Mokol liked the gun, and asked whether Batides wanted to sell it. Batides answered no.
Batides and Mokol arranged to meet over drinks several days later, on May 6. Mokol arrived at the bar at 11:30 in the evening and chatted with Batides, but then received a phone call and left abruptly. When Batides returned to his hotel room, he discovered that it had been burglarized. The door had been forced open and the silver Smith & Wesson handgun was missing. Batides tried to reach Mokol to tell him what had happened while they had been out, but Mokol never returned these calls.
Robert Flavin testified that in early May of 2008, Mokol came to him with a plan to steal a gun from a room in the Deluxe Inn. Mokol proposed that he would meet with
Ryan Geary, twenty years old at the time of his testimony, testified that he was dating Michelle Arnold, Michael Mokol's daughter, at the time of the relevant events. According to Geary, Mokol proposed that Geary help Flavin break into a room at the Deluxe Inn. Geary agreed. His testimony generally corroborated Flavin's account of the Deluxe Inn break-in.
A crack cocaine user named Marco Ottomanelli testified that in early May of 2008, Mokol gave him a "silver spray like" 9-millimeter Smith & Wesson, which he traded for crack cocaine that he and Mokol used together.
Detective Jeffrey Snemis testified that he was present at the scene when fellow police officers pulled Mokol's car over in mid-May. Mokol was driving with a woman named Lori Miller. A handgun magazine was lying on the floorboard of Mokol's car.
The foregoing testimony encompasses the essential facts underlying Mokol's conviction of being a felon in possession of a firearm, and none of it is challenged on appeal. Mokol's appellate arguments relate instead to the testimony of his then-girlfriend Lori Miller and his daughter Michelle Arnold.
Lori Miller testified that at the time of the relevant events she was dating Mokol and was working as a dancer at a strip club (she could not remember the name of the club). She testified that Mokol had several guns, and that Mokol had her carry a silver handgun in her purse because he was not allowed to carry it. And of particular relevance to this appeal, she stated that Mokol told her that "[i]f anybody tells on [me, about the burglaries or firearms], they would end up in the ground."
Michelle Arnold, twenty years old at the time of her testimony, testified as a Government witness. Two parts of her testimony are contested on appeal. First, she testified to an incident that occurred in the parking lot of the Rising Sun nude dancing club, when Lori Miller was working inside. Michelle testified that, when she arrived at the Rising Sun, her father "got in the car and pulled a gun, and said, `How much you got?' And I said, `Just fifty.' And he put [the gun] back. It wasn't meant to be a threat or scare, it was a joke." Michelle stated that the gun Mokol used in this prank was black and silver.
The jury never heard the second significant portion of Michelle Arnold's testimony: because of objections, the judge excused the jury and allowed defense counsel to make a proffer while he considered the testimony's admissibility. At that time, Michelle testified to an incident in the parking lot of the Lake County jail, where she had gone to visit her father after he was arrested on the present charges. She testified that when she returned to her car from the jail, she found some cocaine in the car's interior door handle. It occurred to her that perhaps the police were setting her up to secure her cooperation against her father. Her testimony was, in relevant part:
At the end of a lengthy proffer, the district court determined to preclude defense counsel from cross-examining Michelle about this incident. The judge stated that it was irrelevant, and that in the alternative it should be excluded under Federal Rule of Evidence 403 because it would tend to confuse the jury.
Finally, when charging the jury, the district court instructed the jury, over Mokol's objection, with this court's pattern jury instruction with respect to constructive possession (of the gun and magazine). Mokol voiced the concern that this instruction would allow the jury to improperly convict Mokol on the basis of the physical possession of the gun by others.
As noted, the jury returned a guilty verdict with respect to the possession of Batides's gun and an ammunition magazine. The judge imposed a sentence of 262 months of incarceration followed by five years of supervised release. Mokol timely appealed, and presents the following issues for our consideration:
We first address the admissibility of Lori Miller's testimony that Mokol stated that anyone who informed on him would "end up in the ground." This testimony fits comfortably within the widely recognized principle that a defendant's attempts to intimidate potential witnesses are probative of his consciousness of guilt. See, e.g., United States v. Johnson, 624 F.3d 815, 820-21 (7th Cir.2010); United States v. Calabrese, 572 F.3d 362, 368 (7th Cir.2009); United States v. Miller, 276 F.3d 370, 373 (7th Cir.2002); United States v. Balzano, 916 F.2d 1273, 1281 (7th Cir. 1990). Rule 404(b), restricting bad acts evidence, will ordinarily not keep such evidence from the jury. See Miller, 276 F.3d at 373-74; United States v. DeAngelo, 13 F.3d 1228, 1232 (8th Cir.1994) ("[A]s direct evidence of the crime charged, the evidence
Further, the district court did not abuse its discretion in treating this evidence as more probative than prejudicial within the meaning of Rule 403. The court entertained a lengthy sidebar in advance of Miller's testimony, and ultimately credited the Government's argument that it showed Mokol's consciousness of guilt. This determination was well within the court's considerable discretion.
We disagree with Mokol that the district court erred or abused its discretion by admitting Michelle Arnold's testimony that Mokol had jokingly pointed a handgun at her in the parking lot of the Rising Sun strip club. Since this was understood and apparently intended as a joke, it is not clear why its import must be seriously analyzed. Michelle's description of the gun Mokol brandished was similar (although not identical)
Since Michelle's testimony arguably served as direct evidence of Mokol's possession of the gun stolen from Batides, it was probative of the Government's felon-in-possession case. In any event, the Government did not highlight the significance of the incident, and Michelle herself downplayed it by testifying that she was not scared. There was therefore no error under
We review de novo the question whether the district court improperly restricted Mokol's cross-examination of Michelle Arnold as to her discovery of drugs in her car,
Exposing bias is a "core concern" of the Sixth Amendment confrontation clause. Nevertheless, a district court may restrict cross-examination into such issues so long as the defense still has an adequate opportunity to explore the witness's motives and biases. See Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) ("[A] trial court may... impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecution witness, to take account of such factors as `harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that [would be] repetitive or only marginally relevant....'") (citation omitted); United States v. Martin, 287 F.3d 609, 620 (7th Cir.2002) ("`So long as cross-examination elicits adequate information to allow a jury to assess a witness's credibility, motives, or possible bias, the Sixth Amendment is not compromised.'") (quoting United States v. Scott, 145 F.3d 878, 888 (7th Cir.1998)). Although the court foreclosed defense counsel from questioning Michelle Arnold about the incident in which she found drugs in her car after visiting her father in jail, the court did not generally prevent Mokol from probing into possible pro-Government bias, or fear of prosecution, on Michelle's part. Defense counsel extensively cross-examined her. Counsel elicited testimony, for example, that tended to show that her father had interfered with her relationship with her fiancé Ryan Geary, including by introducing him to drugs and simultaneously encouraging her to leave him because he was a drug user. Counsel also elicited testimony about Michelle's cooperation with the Government in advance of trial.
Moreover, Mokol's theory of Michelle Arnold's pro-Government bias was not very compelling. This is not a case where the court foreclosed a line of cross-examination without knowing where it would lead. The court gave defense counsel the opportunity to probe the issue outside the jury's presence.
The court properly determined that Mokol's proposed line of questioning had a tendency to confuse that outweighed its probative value under Rule 403.
Finally, the district court did not err or abuse its discretion in giving the jury a constructive possession instruction. Indeed, it was proper for the court to do so, because the Government's case included evidence that would support a conclusion that Mokol was a felon in possession through constructive possession: two examples are the handgun Lori Miller testified to carrying in her purse at Mokol's behest, and the handgun magazine on the driver's side floorboard of Mokol's car at the time of his arrest. And constructive possession was a permissible theory on which to convict Mokol for being a felon in possession of a gun. See, e.g., United States v. Lloyd, 71 F.3d 1256, 1268 (7th Cir.1995).
We decline Mokol's invitation to hold that the Seventh Circuit Pattern Criminal Federal Jury Instruction for constructive possession misleads juries into convicting defendants on a conspiracy theory of liability. These two respective forms of liability have different elements, which the pattern jury instructions reflect.
For the foregoing reasons, we AFFIRM the judgment of the district court.