                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3859
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                     Maurice Jones

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                  for the Northern District of Iowa - Cedar Rapids
                                   ____________

                              Submitted: June 11, 2013
                               Filed: August 26, 2013
                                   ____________

Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.
                        ____________

BENTON, Circuit Judge.

       A jury convicted Maurice Jones of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals, asserting that the
district court1 erred in restricting his cross-examination of a witness and denying his

      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
motion for a new trial (based on an alleged compromise verdict). Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.

                                           I.

       Police responded to a report of “shots fired.” They saw 10 to 20 people on the
porch of a house. Under a weight bench on the porch, an officer found a pistol. The
person nearest the bench was detained but released. No one was charged that night
with possessing the gun. No fingerprints were recovered from it. Jones was on the
porch.

      Three days later, an officer interviewed Jones. The officer knew him from
MAD DADS, an organization that mentors youth and gets guns off the street. Jones
claimed a man named Gino gave him the gun that night after fleeing from gunfire.
Jones said he put the gun under the weight bench. He then left town for a funeral and
did not return. Before and at trial, Jones said he made up the Gino story to protect the
person initially detained.

       At trial, a cellmate — Scott Elkins — testified that Jones confessed he
possessed the gun. The government showed a jail surveillance video (without audio)
of Jones talking with Elkins and acting out the scene on the porch. Jones testified
that the video was taken while they were discussing his stepson’s murder and that
Elkins read his legal papers to fabricate the confession. On cross-examination,
Jones’s counsel asked Elkins about his three fraud convictions, his motive to get a
sentence reduction to see his family, the unlikelihood of Jones confessing to a known
informant two weeks before trial, and his access to Jones’s legal papers.

      Jones was not allowed to introduce a federal magistrate judge’s credibility
finding from Elkins’s detention hearing. Six days earlier, Elkins had testified as an
informant against another cellmate, James Youngbear, who was subsequently

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acquitted. Jones was not permitted to question Elkins about the timing of the
Youngbear acquittal in order to show Elkins’s immediate need for another defendant
to testify against.

     The jury convicted Jones of possessing the gun, but not the ammunition in it.
He was sentenced to 235 months’ imprisonment.

                                           II.

      Jones argues that the district court abused its discretion in restricting the cross-
examination of Elkins. “A trial court’s decision to limit cross-examination will not
be reversed unless there has been a clear abuse of discretion and a showing of
prejudice to the defendant.” United States v. Oaks, 606 F.3d 530, 540 (8th Cir.
2010). Jones claims that the court should have allowed (1) further cross-examination
about Elkins’s motivation for testifying, and (2) evidence of the magistrate judge’s
finding about his credibility. He invokes the Confrontation Clause. “A
Confrontation Clause violation is shown when a defendant demonstrates a reasonable
jury might have received a significantly different impression of a witness’s credibility
had counsel been allowed to pursue the proposed line of cross-examination.” Id.
Confrontation Clause violations are subject to harmless-error review. Delaware v.
Van Arsdall, 475 U.S. 673, 684 (1986). Whether an error is “harmless beyond a
reasonable doubt” requires considering “the importance of the witness’ testimony in
the prosecution’s case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case.” Id.

                                           A.

      Jones wanted to question Elkins about the timing of the Youngbear acquittal
to show that his motive for testifying was a sentence reduction. The court ruled that

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the testimony was not relevant, and risked undue prejudice under Rule 403, because
an acquittal “doesn’t make Mr. Elkins a liar. It doesn’t go to his credibility.”

       In the Oaks case, an officer testified that “tall shrubs or trees” obstructed his
view of an object being thrown into a lake. Oaks, 606 F.3d at 540. The defendant
sought to impeach him “by pointing out he had not mentioned shrubbery in his earlier
description.” Id. On re-direct, the officer reviewed his written statement that the
object was thrown in the direction of “weeds” and “vegetation.” Id. The court denied
the defendant’s request to re-cross the officer “more extensively on these points.” Id.
This court held that “further cross-examination would have been cumulative.” Id.
(“Counsel’s additional questions would not have added to the testimony or detracted
from [the officer’s] credibility.”), citing United States v. Beck, 557 F.3d 619, 621 (8th
Cir. 2009) (holding the proposed testimony was duplicative and had little impact on
the case); see United States v. Wipf, 397 F.3d 677, 683 (8th Cir. 2005) (holding a
restriction on the cross-examination was permissible, in part, because the court had
granted leeway to cross-examine the witness and impeach his credibility); see also
United States v. Polk, 715 F.3d 238, 251 (8th Cir. 2013) (holding that because of
extensive cross-examination, further questioning would not “have provided the jury
with a significantly different view of [the defendant] or his credibility”).

       Here, the district court allowed Jones (repeatedly) to cross-examine Elkins
about his desire for a sentence reduction, and his need to testify against others. Jones
asserts the district court mistakenly assumed he offered the evidence to show that
because Youngbear was acquitted, Elkins must have lied (as some of the court’s
statements intimate). Rather, Jones argues on appeal, he offered the evidence to show
Elkins must be lying because he needed to testify against someone to receive a
sentence reduction once Youngbear was acquitted. The district court also ruled that
the questioning was irrelevant. Regardless, the jury would not have received a
significantly different impression of Elkins’s credibility had the testimony been
allowed. See Oaks, 606 F.3d at 540. Even if the district court abused its discretion,


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any error was harmless beyond a reasonable doubt because additional evidence would
have been cumulative.

                                          B.

       Jones tried to introduce evidence that a federal magistrate judge found that
Elkins lacked credibility. The district court excluded the evidence as hearsay,
irrelevant, and cumulative.

      Jones frames two separate issues: (1) whether he could ask Elkins a question
about the judge’s credibility finding; and (2) whether the finding itself should have
been admitted under a hearsay exception.

      This court has stated, “A majority of our sister circuits to consider the issue
have held ‘that judicial findings of facts are hearsay, inadmissible to prove the truth
of the findings unless a specific hearsay exception exists.’” United States v.
Jeanpierre, 636 F.3d 416, 423 (8th Cir. 2011), quoting United States v. Sine, 493
F.3d 1021, 1036 (9th Cir. 2007); see also United States v. Jones, 29 F.3d 1549, 1554
(11th Cir. 1994); Nipper v. Snipes, 7 F.3d 415, 417 (4th Cir. 1993). But this court
has “not decide[d] whether judicial credibility determinations are inadmissible
hearsay.” Jeanpierre, 636 F.3d at 424.

        Jones cites other Circuits for the proposition that a judge’s finding about
witness credibility is admissible under the hearsay exceptions in Rules 803(8)(C) —
now Rule 803(8)(A)(iii) and 803(6). In United States v. Cedeno, 644 F.3d 79 (2d Cir.
2011), the Second Circuit held that the defendant could ask a question about the prior
court’s credibility finding. Cedeno, 644 F.3d at 83 & n.3. But because the
government did not raise the “question in earlier briefing,” that court did “not discuss
. . . further” “the question of whether past judicial credibility determinations are
inadmissible hearsay.” Id. at 83 n.3. In United States v. Dawson, 434 F.3d 956 (7th


                                          -5-
Cir. 2006), the Seventh Circuit did not address the hearsay issue. Rather, it stated that
questions “about a third party’s opinion of the credibility of a witness” are “outside
the scope of Rule 608(b),” which proscribes extrinsic evidence to undermine a
witness’s veracity. Dawson, 434 F.3d at 959. The Seventh Circuit did conclude that
“whether to allow a witness to be cross-examined about a judicial determination
finding him not to be credible is confided to the discretion of the trial judge.” Id.

      This court need not decide on this record what a witness can be asked, or the
scope of the hearsay exception. Elkins never testified at the previous hearing.
Rather, the federal magistrate judge found a proffer by Elkins’s counsel to be
“incredible.” This case does not present a credibility finding about sworn testimony.

       Even if the district court erred in not allowing the question to Elkins or the
evidence of the judge’s finding, this court finds any error harmless beyond a
reasonable doubt. Jones examined Elkins at length about his lack of credibility.
Additional evidence would have been cumulative. The district court did not err in
refusing to admit any evidence about the magistrate judge’s finding.

                                          III.

       Jones contends that the district court abused its discretion in denying a new
trial. He claims the jury reached a compromise verdict — “against the weight of the
evidence” — by convicting him of possessing the gun, but not the ammunition in it.
This court reviews “the denial of a motion for a new trial for a clear and manifest
abuse of discretion.” United States v. Lacey, 219 F.3d 779, 784 (8th Cir. 2000). The
“overarching consideration must be whether the record, viewed in its entirety, clearly
demonstrates the compromise nature of the verdict.” Boesing v. Spiess, 540 F.3d
886, 889 (8th Cir. 2008) (citation omitted).

     Evidence included Jones’s (disavowed) confession that he possessed the gun,
two witnesses’ testimony about his presence on the porch, police testimony, a video

                                          -6-
of Jones describing the events to Elkins, and Elkins’s testimony. Cf. United States
v. Johnson, 474 F.3d 1044, 1050 (8th Cir. 2007) (“Given the evidence of Johnson’s
well-known occupancy of the bedroom, the presence of his identification card and a
cable bill bearing his name in the bedroom closet, testimony regarding the location
of the shoebox containing the firearm, and Johnson’s close proximity to the firearm
at the time of the search, we conclude the evidence was sufficient to sustain
Johnson’s conviction for being a felon in possession of a firearm.”). Jones complains
Elkins presented the only direct evidence of guilt. But the same “standard applies
even when the conviction rests entirely on circumstantial evidence.” Cf. United
States v. Ramirez, 362 F.3d 521, 524 (8th Cir. 2004) (discussing the standard for
“reviewing the sufficiency of the evidence”). Jones essentially disagrees with the
jury’s credibility determinations. Such determinations “are virtually unreviewable on
appeal.” United States v. Perez, 663 F.3d 387, 391 (8th Cir. 2011).

       As the district court noted, the jury might not have believed the government
proved beyond a reasonable doubt that Jones knew the gun was loaded. See Ramirez,
362 F.3d at 524 (“[W]e consider the evidence in the light most favorable to the
verdict rendered and accept all reasonable inferences which tend to support the jury
verdict.”). The jury may have relied on Jones’s confession, which did not mention
the ammunition or that the gun was loaded. Because the record does not clearly
demonstrate a compromise verdict, the district court did not clearly abuse its
discretion in denying a new trial.

                                    *******

      The judgment of the district court is affirmed.
                     ______________________________




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