In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2571

United States of America,

Plaintiff-Appellee,

v.

Reginald Miles,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 107--Joan B. Gottschall, Judge.


Argued January 19, 2000--Decided March 29, 2000



  Before Bauer, Cudahy, and Evans, Circuit Judges.

  Bauer, Circuit Judge. A jury convicted Reginald
Miles of attempted armed bank robbery and using
a firearm during the commission of a violent
crime. The district court sentenced Miles to
mandatory life imprisonment for the attempted
bank robbery and a consecutive sentence of sixty
months in prison for carrying a gun during the
attempted robbery. On appeal, Miles challenges
two evidentiary rulings. We affirm.

I.   Background

  On February 9, 1998, Reginald Miles walked into
the Midland Federal Savings Bank in Chicago,
Illinois and approached one of the tellers. Miles
initially told the teller that he wanted to open
a new account, but then drew a gun and exclaimed
"this is a robbery, nobody move!" Miles pointed
his gun at bank security guard Keith Contant, who
was standing 25 to 35 feet away from him. Contant
responded by drawing his own gun and firing
several shots at Miles. Bank employees
immediately sought shelter from the gunfire
underneath counters and desks; one employee
activated an alarm. During this shoot-out, Miles
backed towards the bank’s exit and then fell to
the floor. When Contant saw Miles drop, he
concluded that one of his shots must have struck
Miles and stopped firing his gun. While Contant
went to see whether the bank employees were
injured, Miles got up and left the bank.

  Outside of the bank, several bystanders on the
sidewalk watched Miles exit the bank and limp
north on California Avenue. These witnesses
noticed that Miles was wearing a black coat, a
black knit cap, and carrying a gun. They also saw
that Miles had blood on his leg as he stumbled
towards an alley north of the bank. When he
reached the alley, Miles met a two-tone blue
station wagon driven by an African-American male.
Witnesses noticed that the station wagon had a
large dent in the rear and no license plates.
Miles went to the passenger side of the car and
got in the blue station wagon. The car then sped
away from the scene.

  A day or two after the attempted bank robbery,
Miles called his probation officer and said that
he could not keep an appointment for a drug test
because he had been shot./1 Miles told his
probation officer that he had been kidnapped in
a case of mistaken identity and was shot during
the kidnapping. The next day, Miles’ probation
officer saw a newspaper article about the
attempted bank robbery and called the FBI because
she suspected that Miles may have committed the
crime. She told the FBI where Miles lived and
provided the agents with his photograph.

  FBI agents went to Miles’ residence and spotted
a vehicle that matched the descriptions of the
getaway car provided by eyewitnesses. An
investigation revealed that the car was
registered to Miles. The FBI agents photographed
Miles’ automobile and showed the pictures to
witnesses who identified the car as the one they
had seen the day of the attempted robbery.

  When agents arrived at Miles’ residence to
arrest him, they found Miles on crutches
attempting to escape through the back door. A
search of Miles’ home turned up articles of
clothing that matched the descriptions of the
clothes worn by the bank robber. The agents also
discovered papers from Gary Methodist Hospital in
Gary, Indiana indicating that a person named
Richard Eagan received medical treatment for
gunshot wounds on February 9, 1998--the day of
the attempted robbery. The agents searched Miles’
station wagon and found blood on the seat covers
and seat cushions. The search of the car also
produced a black leather jacket with blood on it.
DNA analysis of the blood found in the car and on
the jacket confirmed that it was Miles’ blood.

  When FBI agents arrested him, Miles had gunshot
wounds in his lower extremities and a bullet
still lodged in his left leg just above his knee.
After his arrest, Miles was arraigned and held in
prison pending trial. Several weeks after his
arrest and incarceration, prison doctors removed
the bullet from Miles’ leg and preserved it as
evidence.

  At trial, government ballistics expert Steven
Casper testified that the bullet recovered from
Miles’ leg was fired from bank security guard
Contant’s gun. Casper stated that the "general
rifling characteristics" left on a spent bullet
show the make and model of gun that fired the
bullet. Because these "general rifling
characteristics" can only identify the make and
model of gun that fired the bullet, they will be
the same for hundreds of firearms. However,
Casper explained that in addition to acquiring
"general rifling characteristics," every gun
imprints its own unique pattern of scratch marks
or "striations" on each bullet that is fired from
that particular gun. By analyzing these unique
fingerprint-like "striations" on the bullet taken
from Miles’ leg, and comparing them to striations
on test bullets fired from Contant’s gun, Casper
determined that the bullet from Miles’ leg had
been fired from the bank security guard’s gun.

  Miles testified in his own defense and denied
being the man who attempted to rob the bank.
According to Miles, on the day of the robbery he
and a friend had driven to Gary, Indiana to look
for jobs. They stopped at a store so Miles’
friend could buy cigarettes and Miles waited in
the parking lot. Miles said that while he was in
the parking lot, two strange men approached him
and kidnapped him at gunpoint in "a case of
mistaken identity." Miles tried to convince the
kidnappers that he was not the man they were
looking for, and even showed them his state
identification to prove it. The kidnappers told
Miles they planned to kill him anyway. Miles
testified that during a scuffle in the back seat,
he managed to kick the car door open and escape.
The kidnappers, however, shot Miles from point
blank range and then drove away.

  Miles claimed that after the kidnappers left,
he crawled down the street bleeding until a car
stopped to pick him up. Miles testified that this
car had plastic seat covers and that its driver
took him to Gary Methodist Hospital in exchange
for five dollars. When he arrived at the
hospital, Miles used the false name Richard Eagan
because he feared that his probation officer
might learn that he had left Illinois without
permission. Miles said that he received treatment
for his gunshot wounds, but doctors were unable
to remove the bullet from his left leg.

  After doctors released him from the hospital,
Miles said that he took a taxi from Gary, Indiana
to his home in Chicago. Miles testified that
shortly after he arrived home, he decided to go
back to the hospital and asked a friend to drive
him. Miles entered the passenger side of his
station wagon to return to the hospital, but the
car did not start, so he abandoned the trip.
According to Miles’ testimony, this is how his
blood got on the seats and cushions of his car.
Finally, Miles called the government’s ballistics
expert a "liar" and denied that the bullet in his
leg was fired from Contant’s gun.

  The jury did not believe Miles’ story; they
convicted him of attempted armed bank robbery in
violation of 18 U.S.C. sec. 2113(a) and (d). The
jury also found him guilty of using a firearm
during the commission of a violent crime in
violation of 18 U.S.C. sec. 924(c)(1). Because
Miles had at least three prior convictions for
violent crime, the district court sentenced him
to mandatory life imprisonment for the attempted
armed bank robbery under 18 U.S.C. sec. 3559(c).
The district court also imposed a consecutive
sixty-month sentence for using a firearm during
the commission of a violent crime. Miles filed a
timely notice of appeal and now challenges two of
the district court’s evidentiary rulings.

II.   Analysis

  Like all evidentiary challenges, we review the
district court’s rulings in this case for abuse
of discretion. "The district court’s decision
must strike us as fundamentally wrong for an
abuse of discretion to occur." Anderson v. United
Parcel Serv., 915 F.2d 313, 315 (7th Cir. 1990).
  The first evidentiary ruling about which Miles
complains relates to the government’s ballistics
expert, Steven Casper. While Casper was comparing
the bullet from Miles’ leg to the test bullets
fired from Contant’s gun, he kept handwritten
notes to record his findings. The government
provided Miles’ lawyer with a copy of these
notes, but this copy was illegible because it had
been faxed and photocopied. In addition to his
handwritten notes, Casper also prepared a brief
final report, documenting his conclusion that the
bullet from Miles’ leg had been fired by
Contant’s gun. Unlike Casper’s notes which were
handwritten and illegible, his final report was
typed and Miles’ lawyer had a legible copy.

  During the prosecution’s case, Miles’ attorney
thoroughly cross-examined Casper about his notes
and his final report. Defense counsel established
that Casper’s final report contained only one
sentence which summarily concluded that Contant’s
gun fired the bullet taken from Miles’ leg. As
for Casper’s notes, Miles’ lawyer got Casper to
admit that his notes contained some recorded
measurements of groove impressions on the test
bullets that were not identical to those on the
bullet taken from Miles’ leg./2

  While he was testifying for the prosecution,
Casper had his original (and quite legible) notes
in his possession on the witness stand; however,
neither Casper nor the government volunteered to
give those original notes to Miles’ lawyer, nor
were they requested by the lawyer. After he
finished testifying, Casper left the jurisdiction
and took his original notes with him. Miles’
attorney did not issue a subpoena to acquire
Casper’s original notes nor did he ask to re-call
Casper to the stand.

  During the defense case, Miles’ attorney sought
to admit into evidence Casper’s final report and
the copy of illegible handwritten notes which
showed the measurement discrepancies between the
bullet from Miles’ leg and the test bullets.
Miles wanted to show the jury Casper’s final
report because he believed that the report’s
brevity and conclusory nature would undermine its
reliability in the jury’s mind. Similarly,
defense counsel asked to let the jury view
Casper’s handwritten notes so they could see the
documented discrepancies between the groove
impression measurements on the test bullets and
those on the bullet from Miles’ leg.
  The district court denied Miles’ requests and
excluded both documents. Judge Gottschall refused
to admit the notes since they were illegible and
because they were cumulative as Casper had
previously testified to the discrepancies in
groove measurements. Judge Gottschall did,
however, permit the defense to illustrate those
measurement discrepancies by using a written
chart during closing argument. The district court
excluded Casper’s final report because it was
based on Casper’s handwritten notes which were
not admitted into evidence. Judge Gottschall also
reasoned that since Casper was not there to
explain any after-the-fact discrepancies the
defense might point out, it would be unfair to
admit the report.

  Although the trial court never expressly
mentioned the precise basis for excluding these
two documents from evidence, a full and fair
reading of the record illustrates that the
documents were precluded under Rule 403 of the
Federal Rules of Evidence. Rule 403 provides
that:

Although relevant, evidence may be excluded if
its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.

Fed. R. Evid. 403. "Our decisions have emphasized
that most relevant evidence is, by its very
nature, prejudicial, and that evidence must be
unfairly prejudicial to be excluded." United
States v. Pulido, 69 F.3d 192, 201 (7th Cir.
1995). Evidence is unfairly prejudicial "if it
will induce the jury to decide the case on an
improper basis . . . rather than on the evidence
presented." Id. A district judge’s discretionary
exclusion or "admission of evidence under Rule
403 of the Federal Rules of Evidence is entitled
to special deference." United States v. Bradley,
145 F.3d 889, 892 (7th Cir. 1998).

  We find the district judge’s exclusion of these
documents to be well within the bounds of her
discretion. As the district court pointed out,
Casper testified at length concerning the
contents of both documents during direct and
cross-examination. Thus, the facts in both of
these documents were already a part of the record
through Casper’s testimony. Introducing the
underlying documents would have served no purpose
other than to repeat the testimony given by
Casper. Since these documents "add[ed] very
little to the probative force of the other
evidence in the case," Judge Gottschall properly
exercised her discretion when she excluded them
as cumulative. See United States v. Kizeart, 102
F.3d 320, 325 (7th Cir. 1996); United States v.
Williams, 81 F.3d 1434, 1443 (7th Cir. 1996).

  Miles’ second evidentiary argument pertains to
a ruling that limited the scope of his cross-
examination of security guard Keith Contant. When
Chicago Police arrived to the scene of the
attempted robbery, they interviewed Contant and
learned that he had not registered his gun with
the City of Chicago pursuant to a local
ordinance. The City subsequently filed a
complaint against Contant for violating the gun
registration ordinance and Contant received a
one-month suspended sentence for the violation.
Anticipating that Miles may try to use this
information to impeach Contant’s credibility at
trial, the government filed a pre-trial motion in
limine seeking to preclude Miles from cross-
examining Contant about the ordinance violation.
Judge Gottschall granted the government’s motion
and Miles now claims that the ruling was a
mistake because the ordinance violation
constituted proper impeachment material under
Rule 608(b) of the Federal Rules of Evidence.

  Under Rule 608(b), "a witness’s specific
instances of conduct may only be raised on cross-
examination if they are probative of truthfulness
or untruthfulness," United States v. Manske, 186
F.3d 770, 774 (7th Cir. 1999), and if the
probative value of the evidence outweighs any
unfairly prejudicial effect. United States v.
Saunders, 166 F.3d 907, 920 (7th Cir. 1999). The
purpose behind the Rule "is to allow a party to
attempt to cast doubt on a witness’s reliability
for telling the truth." Varhol v. National R.R.
Passenger Corp., 909 F.2d 1557, 1567 (7th Cir.
1990) (en banc). Some instances of conduct
plainly relate to a witness’s truthfulness or
untruthfulness. For example, we observed in
Varhol that "[a]cts involving fraud or deceit"
clearly cast doubt on a witness’s truthfulness.
Id. In contrast, other behavior may be obviously
criminal, but not inherently connected to a
witness’s honesty or dishonesty. Thus, in Varhol
we pointed out that crimes such as "murder,
assault, [and] battery" may be probative of
violence, but they do not normally bear on a
witness’s reliability for telling the truth. Id.

  In United States v. Manske, we had to decide
whether Rule 608(b) allowed cross-examination
concerning a witness’s threats of violence which
were intended to influence the truthfulness of
other people’s testimony against him. 186 F.3d at
774. In determining whether this conduct was
probative of truthfulness or untruthfulness, we
adopted the view that "’behavior seeking personal
advantage by taking from others in violation of
their rights reflects on veracity.’" Id. (quoting
Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence, 154 (2d ed. 1994)). We also
observed that while "the specific instance of
conduct may not facially appear relevant to
truthfulness, closer inspection [may] reveal that
it bears on that issue." Manske, 186 F.3d at 775.
Thus, applying this flexible approach and
considering all of the facts surrounding the
proffered evidence, we held that "threatening to
cause physical harm to a person who proposes to
testify against you is . . . probative of
truthfulness." Id.

  In this case, Miles insists that the district
court should have allowed him to cross-examine
Contant about his failure to register his gun
with the City because this act is probative of
Contant’s untruthfulness. We disagree with Miles
and conclude that Judge Gottschall correctly
refused to let Miles cross-examine Contant about
his failure to register his gun.

  Although Contant’s conduct did violate a City
ordinance, the failure to register his gun does
not necessarily implicate fraud, deceit, or
dishonesty. There is nothing in the record to
suggest that Contant had any deceptive intent.
The undisputed facts show that Contant had
purchased the gun nine years earlier as part of
his official police equipment while he was
employed as a police officer for the City of
Bridgeview, Illinois. When questioned by Chicago
Police on the day of the robbery attempt, Contant
had in his possession a valid Illinois Firearm
Owners Identification card. Contant also produced
a valid gun registration card issued by the
Illinois Department of Regulation which
authorized him to carry his gun as an employee of
the bank. These facts strongly indicate that
Contant’s failure to register his gun with the
City was an oversight rather than a deceitful act
which would bear on his truthfulness. We
therefore find that Judge Gottschall did not
abuse her discretion when she prohibited Miles
from questioning Contant about his failure to
register his gun with the City.

III.   Conclusion

  For the foregoing reasons, we affirm   the
decisions of the district court.



/1 Miles was on probation for an armed bank robbery.
If intended as a rehabilitative tool, the
probation was a marked failure.

/2 Casper went on to explain, however, that these
differing measurements were of the gun’s "general
rifling characteristics" rather than the far more
detailed "striations" which are unique to a
particular firearm. Casper said that these minor
differences in "general rifling characteristics"
are to be expected and did not alter his
conclusion that Contant’s gun had fired the
bullet recovered from Miles’ leg.
