                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-2306
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                               v.

ROBERT C. SEYMOUR,
                                           Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
              for the Western District of Wisconsin.
           No. 05-CR-156-S-01—John C. Shabaz, Judge.
                        ____________
   ARGUED DECEMBER 13, 2006—DECIDED JANUARY 8, 2007
                        ____________


 Before POSNER, MANION, and EVANS, Circuit Judges.
  POSNER, Circuit Judge. A jury convicted the defendant
of being a felon in possession of a gun, and the judge
sentenced him to 120 months in prison. The only question
presented by the appeal is whether the judge violated
Rule 608(b) of the Federal Rules of Evidence by for-
bidding defense counsel, in cross-examining an officer
of the Madison police department who was the govern-
ment’s principal witness, to inquire about a report the
officer had made in another case.
  According to his testimony, he had pulled in behind a
car reported stolen, and out popped the front-seat passen-
2                                               No. 06-2306

ger and ran off. The driver—the defendant—then got out
and stood by the car. He was wearing a sweatshirt
with what the officer thought a suspicious bulge, perhaps
a gun in his waistband, and so the officer drew his own
gun and ordered the defendant to get back into the car.
Instead the defendant took off running. The officer gave
chase and caught up with the defendant and tackled him
and in the melee the sweatshirt came off. The chase contin-
ued and eventually the officer caught his quarry. As the
pair were walking back to the police car they passed the
sweatshirt lying on the ground and the officer picked it up
and underneath was a revolver. A friend of the defendant’s
girlfriend testified that she had seen a person run up to the
sweatshirt while it was lying on the ground after the
defendant had dropped it and place an object under it. The
car’s other occupants were never found.
  Rule 608(b) provides that “specific instances of the
conduct of a witness, for the purpose of attacking or
supporting the witness’ character for truthfulness, . . .
may . . . , in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-
examination.” Three weeks before he arrested the defen-
dant, the officer had had an encounter with a jaywalker
who was blocking traffic. The jaywalker had “made an
obscene gesture using his middle finger” and kept on
walking. The officer had grabbed him from behind and
“pushed him against the wall of the building” abutting
the sidewalk. The jaywalker’s “head struck the wall and
he suffered a concussion.” Our quotations are from the
report of the police department’s investigation of the
incident. The department concluded that the officer had
used excessive force, and suspended him for eight days
without pay.
No. 06-2306                                                  3

  The fact that the officer had used excessive force in
another case was a “specific instance . . . of the conduct of
a witness,” but it was not probative of his truthfulness.
Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1567
(7th Cir. 1990); United States v. Davis, 183 F.3d 231, 256-57
(3d Cir. 1999). What was, according to the defendant,
was the omission from the officer’s police report of any
reference to the use of force against the jaywalker. All that
his report had said was that the jaywalker was obstruct-
ing traffic (there was a lot of traffic because “it was just
after the completion of a Badger football home-game”) and
that when the officer driving the police car “gave [the
jaywalker] the horn,” the jaywalker “gave us the finger,
said ‘Fuck off,’ and still blocked traffic. He was stopped,
cuffed [a word in parentheses after cuffed is illegible], ID’d,
and put into the back of our squad [car], where we then
transported him to [another illegible word], subsequently
citing and releasing him. He was heavily intoxicated but
not incapacitated.” No mention of slamming him against
a wall and causing a concussion. The defendant argues
that the omission was misleading and therefore tantamount
to a lie and so was probative of the truthfulness of the
officer’s testimony against him.
  The district judge didn’t see how the police report related
to the officer’s truthfulness. The judge said “there is
nothing in this determination [he is referring to the report
of the police investigation that resulted in the eight-day
suspension] which would suggest anything about dis-
honesty or deceit or perjury or any like issues . . . . This is
excessive force in which the officer was punished for it
and he also failed to fill out his dance card. He left off a
few items.” That is not correct. An omission can be as
dishonest as an outright lie. The test is whether what is
omitted is something the intended reader would have
4                                                 No. 06-2306

expected to see included if it had occurred and so infers
from its not being mentioned that it did not occur. Midwest
Commerce Banking Co. v. Elkhart City Centre, 4 F.3d 521, 524
(7th Cir. 1993), and cases cited there. By this test, the
omission from the officer’s report of his use of force against
a jaywalker, causing a concussion, was material be-
cause the Madison police department expects—indeed
requires—the officer’s report of an arrest to mention any
use of force. “It is the responsibility of any officer who uses
physical force . . . to complete an original or supplementary
report on the incident involved, and to specifically note
the circumstances necessitating and manner of such
use . . . [of] physical force (e.g., striking, punching, pushing
or restraining any person).” Madison Police Dep’t Policy
No. 6-200 (n.d.). For should the force used be excessive
(or even just contended to be excessive), the police de-
partment could be in legal trouble, e.g., City of Canton v.
Harris, 489 U.S. 378 (1989) (plurality opinion); Brown v.
Shaner, 172 F.3d 927, 931 (6th Cir. 1999), as well as
suffer adverse publicity; a prosecution might be spoiled;
other untoward consequences might ensue. So the officer
was being dishonest in omitting mention of his use of
force, even though he was not punished for that. The
government’s argument that the omission was a mere
“oversight,” an “administrative error,” is not persuasive.
  The judge went on to say, however, that in any event
the use of the report in cross-examination would “confuse
the jury and it’s more prejudicial than probative under
[Rule] 403, and that’s the reason the Court is not allow-
ing this to go to the jury.” Rule 608(b) is explicit that
the determination of whether to allow specific instances
of conduct to be used to challenge a witness’s reputation
for truthfulness is committed to the discretion of the
No. 06-2306                                                   5

district judge, and Rule 403 establishes the standard for
the exercise of the judge’s discretion in evidentiary mat-
ters, which of course includes cross-examination. A jury
would be more likely to give weight to the fact that the
officer testifying against the defendant had recently used
excessive force against a minor lawbreaker than to the
fact that the officer’s report had failed to mention the use of
force. Yet the use of excessive force was irrelevant because
there was no suggestion that the officer had used excessive
force against the defendant.
  The most compelling reason for keeping the incident
from the jury, however, is that it had no probative value
at all, because the officer’s credibility was not in issue. The
defendant did not deny that the officer had found a gun
under his sweatshirt or contend that the officer had
planted the gun there; his argument and evidence were
that someone else had planted it. He did not contest
the officer’s testimony that officer and defendant returned
to the site of the sweatshirt only about 90 seconds after
the defendant had shed it, or argue that his divestment
of the sweatshirt or the discovery and seizure of the gun
constituted, or were the fruit of, an illegal search or seizure.
There can be no doubt that the officer was entitled, upon
seeing the defendant get out of a car that had been re-
ported stolen, to approach him to ask questions—indeed a
police officer doesn’t need even bare suspicion simply to
approach a person and ask a question of him, Florida v.
Royer, 460 U.S. 491, 497 (1983); United States v. Childs, 277
F.3d 947, 950 (7th Cir. 2002) (en banc)—and to chase him
when he ran away at the officer’s approach and to seek to
subdue him when he resisted being stopped, and then
search him, including his clothes, including the abandoned
sweatshirt. It could not have made a difference to a ra-
6                                              No. 06-2306

tional jury’s verdict that the officer had behaved untruth-
fully on another occasion.
                                                AFFIRMED.

A true Copy:
       Teste:

                         _____________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-8-07
