author: WILLIAMS, Circuit Judge.

text:
    Juan SUAREZ and Billie Suarez, Plaintiffs-Appellants, v. W.M. BARR & COMPANY, INC., Defendant-Appellee.
    No. 15-3602
    United States Court of Appeals, Seventh Circuit.
    Argued April 12, 2016
    Decided November 22, 2016

      Edmund James Scanlan, Attorney, Scanlan Law Group, Chicago, IL, for Plaintiffs-Appellants.
    Gerard W. Cook, Attorney, George J. Gasson, Attorney, O’Halloran, Kosoff, Ge-itner & Cook, LLC, Northbrook, IL, for Defendant-Appellee.
    Before WOOD, Chief Judge, and FLAUM and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge.

Juan Suarez used Goof Off, an extremely flammable product made by W.M. Barr, to remove paint from a basement floor. While doing so, a fire erupted in the basement and severely burned him. Juan and his wife sued Barr, alleging failure to warn and defective design under Illinois law. The Suarezes appeal the district judge’s grant of summary judgment -in Barr’s favor.

We conclude that the district judge appropriately rejected the Suarezes’ failure-to-warn claim. The warning label on the Goof Off can adequately identified the product’s principal hazards, as well as the precautionary measures to be taken while using the product. However, we reverse and remand the district judge’s rejection of the Suarezes’ design defect claims under both strict liability and negligence. The Suarezes have adequately shown that the fire may have been caused by static sparks created when Juan agitated Goof Off with a brush as the warning label instructed. So a genuine factual issue exists as to whether an ordinary consumer would expect a fire to erupt under these circumstances, whether this risk outweighs the benefits associated with Goof Off, and whether Barr should have known that agitating Goof Off could have created static sparks sufficient for ignition.

I. BACKGROUND

A. Fire Erupts While Using Barr’s Product

In April 2012, Juan Suarez (Juan) purchased a one-gallon can of Professional Strength Goof Off to help remove paint from the concrete basement floor of a building he owned. Goof Off is produced by Defendant W.M. Barr & Company, and is advertised as being effective at removing dried latex paint and other materials from various surfaces such as metal, glass, brick, wood, and concrete. The primary active ingredient in Goof Off is acetone, which is extremely flammable and evaporates quickly at room temperature. The can Juan purchased contained various warnings in both English and Spanish. For example, the side of the can stated,

DANGER! EXTREMELY FLAMMABLE. KEEP AWAY FROM HEAT, SPARKS, FLAME AND ALL OTHER SOURCES OF IGNITION. VAPORS MAY CAUSE FLASH FIRE OR IGNITE EXPLOSIVELY. Extinguish all flames and pilot lights and turn off all stoves, heaters, electric motors and all other sources of ignition during use and until all vapors are gone. USE ONLY WITH ADEQUATE VENTILATION TO PREVENT BUILDUP OF VAPORS. Do not use in areas where vapors can accumulate and concentrate such as basements, bathrooms and small enclosed areas. If using indoors, open all windows and doors and maintain cross ventilation of moving fresh air across the work area.... IF THE WORK AREA IS NOT WELL VENTILATED, DO NOT USE THIS PRODUCT.

(emphasis in original). The can also instructed users who wanted to remove stains from concrete to “[ajpply directly. Agitate with brush.”

Juan claims that before using the Goof Off, he read at least most of the warnings on the label and opened at least one window in the basement and two doors that separated the basement from the outside. It is unclear, however, whether he turned off the pilot lights connected to two water heaters and a furnace located in a utility room in a separate portion of the basement. Juan then poured some of the Goof Off onto paint patches on the basement floor, and after letting the product stand for a period of time, he spread it out initially with his foot and then with a kitchen broom. While Juan was using the broom, a fire erupted and severely burned his face, head, neck, and hands.

B. Legal Proceedings

Juan and his wife Billie sued Barr, alleging failure to warn and defective design (under both strict liability and negligence theories). The Suarezes argued that Goof Off is unreasonably dangerous, even when used in a foreseeable manner, and that Barr did not provide adequate warnings regarding Goof Offs dangers. They also claimed that the fire was caused by static sparks created while Juan was using the broom to spread the Goof Off, and retained two experts to bolster this theory. Benjamin Miller, an electrical engineer, opined that Juan’s broom was capable of producing a static charge when brushed against his body, clothing, or surroundings, and that such a charge could migrate to the floor and cause sparks. Steve Chasteen, a certified fire investigator, concluded that a static spark was the most probable ignition source, and that the fire likely was not caused by the heaters and the furnace in the utility room.

Barr moved in limine to exclude Miller and Chasteen from testifying at trial, and for summary judgment on all of the Sua-rezes’ claims. The district judge declined to rule on Barr’s motion in limine but granted its motion for summary judgment, concluding that: (i) Barr had complied with the requisite labeling requirements; (ii) Goof Off was not unreasonably dangerous because ordinary consumers would expect that exposing it to sparks or flames could cause a fire; and (iii) there was insufficient evidence concerning Goof Offs risks and benefits to the public, its conformity (or lack thereof) with industry standards, or any feasible alternatives. The Suarezes appeal this decision.

II. ANALYSIS

We review the district judge’s grant of summary judgment de novo and construe the facts in the light most favorable to the Suarezes as the non-moving party. Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A. Failure-To-Warn Claim Properly Rejected

Although the parties agree that Goof Off is a hazardous substance under the Federal Hazardous Substances Act and must therefore comply with the Act’s labeling requirements, we must nevertheless confirm that this agreement accurately reflects the law. The Act tells us that a “hazardous substance” includes “[a]ny substance or mixture of substances which ... is flammable or combustible ... during or as a proximate result of any customary or reasonably foreseeable handling or use,” as defined by the Consumer Product Safety Commission. 15 U.S.C. §§ 1261(f)(1)(A)-(B). Commission regulations currently instruct that a substance is “flammable” if its flashpoint—he., the lowest temperature at which a compound emits ignitable vapors—is between 20° and 100° Fahrenheit. 16 C.F.R. § 1500.3(c)(6)(ii). Goof Offs flashpoint is 0° Fahrenheit, well beyond the threshold for flammability. So Goof Off is a hazardous substance under the Act, and as such, it must be accompanied with a label that conspicuously displays “an affirmative statement of the principal hazard or hazards, such as ‘Flammable.’” 15 U.S.C. § 1261(p)(l)(E). The label must also identify “precautionary measures describing the action to be followed or avoided.” Id. § 1261(p)(l)(F).

Critically, the Act also preempts any' claim “based on a' state-law theory that the product’s label should have included particular warnings not required” by the Act and corresponding regulations. Mwesigwa v. DAP, Inc., 637 F.3d 884, 887 (8th Cir. 2011); see also Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir. 1998) (observing in passing that the Act preempted plaintiffs’ state law claim); accord Richards v. Home Depot, Inc., 456 F.3d 76, 78 (2d Cir. 2006); Comeaux v. Nat’l Tea Co., 81 F.3d 42, 44 (5th Cir. 1996) (per curiam); Moss v. Parks Corp., 985 F.2d 736, 739 (4th Cir. 1993).

1. Failure-to-Warn Claim Not Forfeited

The Suarezes argue that the Goof Off label violated the Act by failing to identify certain principal hazards and precautionary measures. Before addressing the substance of this argument, we begin with Barr’s contention that the Suarezes forfeited the issue. Specifically, Barr argues that the amended complaint “does not claim that the Goof Off label was in violation of the [Act] or its implementing regulations in any respect.” This, however, ignores the amended complaint’s reference to § 1261(p)(l)(F) where it states, “Defendant had an obligation to provide plaintiff, Juan Suarez, with adequate relevant information and data and warnings regarding the proper use and risks associated with the use of Goof Off.” Am. Compl. ¶ 16 (emphasis added). Although the amended complaint does not cite § 1261, it provided Barr with adequate notice of the Suarezes’ failure-to-warn claim, as evidenced by the content of Barr’s motion for summary judgment, in which it argued, among other things, that Goof Offs label adequately warned about the product’s flammability hazard. Cf. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (noting that Federal Rule of Civil Procedure 8 does not require a complaint to point to the exact statute that entitles a plaintiff to relief); Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 57 (2d Cir. 2012) (“The failure in a complaint to cite a statute, or to cite the correct one, in no way affects the merits of the claim. Factual allegations alone are what matters.” (citation omitted)).

Barr also faults the Suarezes for failing to raise the precautionary measures issue in response to Barr’s motion for summary judgment. But this criticism is based on a misunderstanding of the parties’ burdens at summary judgment. As the moving party, Barr had the burden to show that it was' entitled to judgment under established principles. In attacking the Suarezes’ failure-to-warn claim, Barr discussed only the label’s references to principal hazards, neglecting to mention precautionary measures. So Barr failed to meet its burden as to the latter issue. See, e.g., Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006) (“The party opposing summary judgment has no obligation to address grounds not raised in a motion for summary judgment.” (citation omitted)).

In any case, the district judge reached the issue, finding that the label contained “a list of precautionary measures that a user should take to prevent the harms associated with the product’s extreme flammability.” So we, too, can address the issue, despite the fact that the parties did not adequately brief, it at summary judgment. Cf. Health Sews. Mgmt. Corp. v. Hughes, 975 F.2d 1253, 1259 (7th Cir. 1992) (undertaking a “more substantive review” of an issue addressed by the district court due to the “failure of both parties to address relevant case law and controlling rules in their briefing of the case before the district court”).

2. Label Adequately Identified Principal Hazards and Precautionary Measures

The Suarezes attack the warning label on two grounds. First, they claim that the label should have included a warning about static sparks, such as “beware of static electricity that may be generated by synthetic clothing or other sources.” But as the text of the Act makes clear, a label need not identify every conceivable way in which a predicate condition for a. principal hazard can occur. Rather, the label only needs to identify the principal hazard itself—here, flammability. See, e.g., Mwesigwa, 637 F.3d at 888-89 (holding that “an additional warning indicating the magnified risk of flash Are” in certain circumstances was not required, since the label already identified flammability as the principal hazard to avoid); Moss, 985 F.2d at 742 (holding that a label contáining the warning “combustible” in large capitalized letters adequately identified the product’s principal hazard and did not need to warn against using the product near an open flame). Holding otherwise would not only ignore the plain meaning of the Act, but also result in excessively long warning labels that would unnecessarily burden companies and consumers alike.

Here, the label stated in bolded and capitalized letters, “Danger! Extremely flammable. Keep away from heat, sparks, flame and all other sources of ignition. Vapors may cause flash fire or ignite explosively.”- That, was enough to- satisfy § 1261(p)(l)(E),

Second, the Suarezes claim that the warning label did not adequately identify the requisite precautionary measures in violation of § 1261(p)(l)(F), since it instructed consumers to do the very thing that the Suarezes contend caused the fire—agitating Goof Off with a brush. A hazardous substance is misbranded under the Act “if its packaging or labeling fails to bear a label warning of ... precautionary measures describing the action to be followed or avoided.” Mwesigwa, 637 F.3d at 889 (emphasis added) (citation and internal quotation marks omitted). Here, however, there is no genuine dispute that the label identified multiple precautionary measures for consumers to take in order to avoid a fire:, “keep away from heat, sparks, flame and all other sources of ignition”; put out “all flames and pilot lights”; “turn off all stoves, heaters, electric motors, and all other sources of ignition”; “use only with adequate ventilation”; and “open all windows and doors,” to name a few. Compare with Mattis v. Carlon Elec. Prods., 295 F.3d 856, 862 (8th Cir. 2002) (holding that factual issue for jury existed as to compliance with the Act since label failed to note that inhalation of product’s vapors was harmful or to specify any precautionary measures regarding vapor inhalation); Milanese v. Rust-Oleum Corp., 244 F.3d 104, 112-13 (2d Cir. 2001) (vacating grant of summary judgment in defendant’s favor where plaintiff had alleged that label did not list any precautionary measures related to product’s principal hazard).

Moreover, the label’s brush-agitation language is better' described as a “direction for use” rather than as a “precautionary measure,” since agitation is not an action meant tó prevent something problematic from happening. Indeed, we understand the core of the Suarezes’ argument to be that Juan suffered significant harm while complying with Goof Offs instructions—in other words, while using Goof Off as Barr intended the product to be used. That relates to Goof Offs alleged design defect, which we address below.

B. Genuine Factual Dispute Regarding Alleged Defective Design Under Strict Liability

In order to establish strict products liability under Illinois law, a plaintiff must'prove: (i) the product had an unreasonably dangerous condition, (ii) the condition éxisted when the product left the manufacturer’s control, and (iii) the condition injured the plaintiff. Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 327 Ill.Dec. 1, 901 N.E.2d 329, 345 (2008). When the plaintiffs claim is based on an alleged design defect, the “unreasonably dangerous” element can be proved in one of two ways. The consumer-expectation test provides for liability if “the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” Lamkin v. Towner, 138 Ill.2d 510, 150 Ill.Dec. 562, 563 N,E.2d 449, 457 (1990). The risk-utility test asks if “on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs.” Id. “Where the two tests yield conflicting results, ... the risk-utility test ‘trumps,’ and the product is deemed not unreasonably dangerous (notwithstanding consumers’ expectations that the product would be safer).” Ferraro v. Hewlett-Packard Co., 721 F.3d 842, 848 (7th Cir. 2013) (citing Mikolajczyk, 327 Ill.Dec. 1, 901 N.E.2d at 352). The Suarezes invoke both tests here.

1., Consumer-Expectation Test Satisfied

The crux of the Suarezes’ consumer-expectations argument is that an ordinary consumer would not assume that agitating Goof Off with a brush—as the product’s label instructed—would cause the product’s vapors to ignite. In support, the Suarezes rely on the electrical engineer they retained, who opined that the broom Juan used could have caused a static spark if it had brushed against Juan’s body, clothing, or surroundings, and on the fire investigator they retained, who concluded that a static spark is the likeliest source of ignition. This was enough to create a genuine issue of material fact as to consumer expectations.

Barr attacks the Suarezes’ position on a number of grounds. First, it claims that the Suarezes forfeited their contention that Goof Off was defective because agitating it with a brush as instructed could result in a fire. We disagree. Generally, a party has forfeited an issue on appeal if it has failed to adequately present the issue to the district judge. E.g., Kunz v. DeFelice, 538 F.3d 667, 681 (7th Cir. 2008). The Suarezes allege in their amended complaint that Juan used Goof Off “as directed” and “in a foreseeable manner,” and the parties do not dispute that Juan “agitated” the Goof Off with a broom as the label directs. At summary judgment, the Suarezes repeatedly insisted that an ordinary consumer would not be aware that a static spark could ignite Goof Off vapors. Barr appears to believe that in pressing this point, the Suarezes were not concerned with consumer expectations about the source of sparks. But this ignores the fact that the Suarezes were not focused on sparks in an abstract sense— i.e., sparks that could be created by myriad objects or actions. Rather, as the parties’ summary-judgment and motion-m-⅞-mine briefing demonstrates, the Suarezes were concerned only with sparks caused by agitating Goof Off with a brush in accordance with the warning label. So the Suarezes adequately claimed that their design defect claim was premised on the idea that Juan had suffered harm from agitating Goof Off as directed.

Second, Barr argues that Juan failed to act like an ordinary consumer when he ignored the warning label’s instruction to extinguish all nearby pilot lights before applying Goof Off. To support its position, Barr points to a medical examination report indicating that Juan told medical treatment personnel that “[t]he pilot light in another room started, it then sparked and started the floor on Are.” But there is reason to doubt the accuracy of this treatment record. Juan appears to have a poor command of English, and the treatment record does not indicate whether Juan was speaking English, or whether the physical therapist or someone else was translating. Moreover, at his deposition, Juan did not recall making this statement, nor could he recall whether he had turned off the pilot lights on the furnace or the two water heaters. So there is a genuine factual dispute about the source of ignition.

Third, Barr faults Juan for using the Goof Off in his basement, despite the label’s warning to not use Goof Off “in areas where vapors can accumulate and concentrate such as basements.” Cf. Taylor v. Gerry’s Ridgewood, Inc., 141 Ill.App.3d 780, 95 Ill.Dec. 895, 490 N.E.2d 987, 992 (1986) (“Where a warning has been communicated, a manufacturer is entitled to assume that the user will read and follow the furnished instructions.”); accord Haddix v. Playtex Family Prods. Corp., 138 F.3d 681, 686 (7th Cir. 1998). However, a genuine factual issue exists as to whether Juan’s basement qualifies as such an area. For one, it is unclear whether Juan’s basement was poorly ventilated, since he claims that before using the Goof Off, he opened not only a window in the basement but also two doors that separated the basement from the outside. In addition, we do not know how long Juan waited between applying Goof Off on the floor and spreading it with his foot and broom. If this duration was short—as Juan said it was during one point in his deposition—it may be irrelevant that the product was used in his basement (and not another, better-ventilated space).

Finally, Barr maintains that the Sua-rezes have not supplied sufficient evidence indicating that static electricity actually ignited the Goof Off vapors. Recognizing that the Suarezes’ causation theory relies on the opinions of the Suarezes’ electrical engineering and fire investigation experts, Barr attacks the methodologies employed by both individuals under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Barr criticizes Miller, the electrical engineer, for not “testing] the broom’s propensity to produce or discharge an electric charge in the circumstances presénted in [Juan]’s basement.” According to Barr, Miller should have used or agitated Goof Off with a broom; “measure[d] the amount of electric charge, if any, produced by agitation of Goof Off on a grounded concrete floor”; and determined “what quantity of static electricity, if any, would be required to ignite Goof Off vapors.” Barr also attacks the methodology used by Chasteen, the fire investigator, on the ground that it faded to comport with the National Fire Protection Association’s guide for fire and explosion investigation in several vital ways.

Barr presented these arguments to the district judge via two motions in limine. But the judge declined to rule on' the motions, concluding that they were rendered moot by his decision to grant Barr’s motion for summary judgment. Since we have concluded that the grant of summary judgment was improper, we need not resolve the issue now, though the district judge will likely have to consider the parties’ Daubert arguments on remand. Cf. United States v. Funds in the Amount of One Hundred Thousand One Hundred & Twenty Dollars ($100,120), 730 F.3d 711, 721 n.13 (7th Cir. 2013) (reversing grant of summary judgment, and remanding with recommendation that district judge consider. Rule 102/Daubert arguments that were raised but not resolved at summary judgment).

2. Risk-Utility Test Satisfied

When applying the risk-utility test, Illinois courts consider a numbers of factors, including: .(i). the prpduct’s utility to the public, (ii) the likelihood and probability of foreseeable injury to consumers, (iii) any instructions and warnings accompanying the product, (iv) the nature and strength of consumer expectations, (v) the manufacturer’s ability to eliminate unsafe characteristics without excessively affecting usefulness or price, (vi) the availability and feasibility of alternate designs, and (vii) conformity with any applicable industry standards and governmental regulations. Jablonski v. Ford Motor Co., 353 Ill.Dec. 327, 955 N.E.2d 1138, 1154 (2011); Mikolajczyk, 327 Ill.Dec. 1, 901 N.E.2d at 352.

The Suarezes have adequately shown that Goof Off does not pass muster under the risk-utility test. As discussed above, the testimony from the Suarezes’ experts indicates that using Goof Off in accordance with its warning label poses a serious risk of injury to consumers. And this risk very possibly exceeds the product’s utility to the public—particularly given the fact that there exists a water-based version of Goof Off that is not flammable and that has been marketed as a paint remover.

The district judge found there to be an absence of “any affirmative evidence” that water-based Goof Off was a feasible alternative to acetone-based Goof Off for removing paint. We conclude, however, that the Suarezes have adequately shown that a genuine factual dispute exists as to whether water-based Goof- Off is a cost-effective, practical, and technologically feasible alternative that would have prevented Juan’s accident. Blue v. Envtl. Eng’g, Inc., 215 Ill.2d 78, 293 Ill.Dec. 630, 828 N.E.2d 1128, 1142-43 (2005).

Water-based Goof Off was. clearly cost-effective, since it was being manufactured and distributed widely. Indeed, Dennis Shireman, Barr’s senior director of research and development, testified that water-based Goof Off is neither extremely flammable nor flammable under “ordinary circumstances,” is generally intended for consumer use, is generally available in various sizes, and had been marketed as an effective remover of tough spots and stains.

The Suarezes also produced enough evidence suggesting that water-based Goof Off was a practical. and technologically feasible alternative. One of Barr’s experts, Steven Arndt, testified that water-based Goof Off was one of several products that Barr marketed for spot removal and would be “appropriate” to use to remove paint. Moreover, it appears that Timothy Whe-lan, Barr’s former senior brand manager for Goof Off, also testified that water-based Goof Off can serve as a paint remover, though he noted that the acetone-based version removes latex-based paint at a faster rate. In addition, Shireman testified that Barr sells non-flammable paint strippers (though he did not expressly identify water-based Goof Off by name), and that he was unaware if Barr had indicated to consumers when it would be appropriate to use acetone-based Goof Off rather than the water-based version.

In sum, we find that the Suarezes have marshalled enough facts indicating that the risk-utility test weighs in their favor to survive summary judgment. See, e.g., Malen v. MTD Prods., Inc., 628 F.3d 296, 308 (7th Cir. 2010) (concluding that a jury could find that the design was defective where the alternative was. the defendant’s very own design, was conceived before the product that caused the plaintiffs injuries was built, and was incorporated into later product models); Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420, 261 Ill.Dec. 744, 764 N.E.2d 35, 45-46 (2002) (finding that evidence supported the jury’s verdict in favor of the plaintiffs estate where the defendant made a different product that was designed to prevent the harm at issue at the cost of several cents per unit).

C. Genuine Factual Dispute Regarding Alleged Defective Design Under Negligence

A product liability claim based on negligent design requires a plaintiff to satisfy the quintessential common law negligence framework of duty, breach, causation, and damages. Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 309 Ill.Dec. 383, 864 N.E.2d 249, 263 (2007). As with strict liability, a negligent design claim requires proof of an unreasonably dangerous condition, but with the added ingredient of fault on the defendant’s part. Id., 309 Ill.Dec. 383, 864 N.E.2d at 263-64. Fault can exist when the defendant “knew or should have known of the risk posed by the product design at the time of manufacture.” Id., 309 Ill.Dec. 383, 864 N.E.2d at 264.

We conclude that a genuine factual issue exists as to whether Goof Off was negligently designed. As explained above, the Suarezes have identified an unreasonably dangerous condition—the possibility that Goof Off can ignite during the brush-agitation process. They have also provided sufficient evidence that Barr failed to adequately test its product, insofar as Barr’s senior director of research and development acknowledged that he was unaware of any testing or internal discussions within Barr regarding static electricity being able to ignite Goof Off. In addition, the fact that the risk-utility test may favor the Suarezes also supports a finding that Barr’s conduct was unreasonable. See Jablonski, 353 Ill.Dec. 327, 955 N.E.2d at 1154-55 (observing that the Illinois Supreme Court and numerous commentators have concluded that “risk-utility balancing remains operative in determining whether a defendant’s conduct is reasonable in a negligent-design case”).

Barr faults the Suarezes for not alleging in their amended complaint that Barr had failed to test whether Goof Off vapors could be ignited by static electricity. We disagree. As a threshold matter, a complaint need not contain every fact necessary to survive a motion for summary judgment. See Bennett v. Schmidt, 153 F.3d 516, 519 (7th Cir. 1998) (“Litigants are entitled to discovery before being put to their proof, and treating the allegations of the complaint as a statement of the party’s proof leads to windy complaints and defeats the function of Rule 8.”); cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (observing that a complaint need only include “a short and plain statement of the claim” and not “detailed factual allegations” (citation and internal quotation marks omitted)).

In addition, the Suarezes clearly discussed the senior director’s testimony in their opposition to Barr’s' motion for summary judgment. And the district judge, in granting Barr’s motion for summary judgment, concluded that the Suarezes had not shown thát Barr had failed to test its product. In doing so, he did not limit his finding to any particular type of testing. So we can reach the issue, despite the fact that the parties may not have thoroughly briefed the issue at summary judgment. See Hughes, 975 F.2d at 1259.

III. CONCLUSION

The judgment of the district court is Affirmed in part and Reversed in part, and the case is Remanded for proceedings consistent with this opinion.

      . It is unclear whether the Suarezes are alleging that spark occurred as the result of the broom rubbing against Goof Off itself, or against something else (such as Juan’s clothing or shoes). But we need not address the issue further, since the resolution of the Sua-rezes’ appeal does not turn on it.

      . In fact, Goof Off is "extremely flammable,” since its flashpoint is below 20° Fahrenheit. See 16 C.F.R. § 1500.3(c)(6)(i).


source: Caselaw Access Project

author: MANION, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael FLOURNOY, Defendant-Appellant.
    No. 14-2325
    United States Court of Appeals, Seventh Circuit.
    Argued September 15, 2016
    Decided November 23, 2016

      John G. McKenzie, Attorney, Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.
    Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
    Before FLAUM, MANION, and HAMILTON, Circuit Judges.
   MANION, Circuit Judge.

Following a jury trial, Michael Flournoy was convicted of one count of conspiring to possess cocaine and one count of attempting to possess cocaine. Flournoy appeals, claiming he is entitled to a new trial because the prosecutor made inappropriate comments • during closing argument and because the government presented testimony from a cooperating witness that conflicted with that witness’s plea agreement. Flournoy also claims that the district court erred in adding several discretionary conditions to the terms of his supervised release without explanation. We affirm Flournoy’s conviction, but remand for re-sentencing.

I.

In July 2012, the defendant, Michael Flournoy, met Jose Sanabria. During their first meeting, Flournoy discussed hiring Sanabria to do some construction work, but later Flournoy expressed interest in buying cocaine and heroin and offered to pay Jose a finder’s fee if he found a source. A couple of days later, Jose told Flournoy that his brother, Cesar Sanabria, could help him get cocaine.

On July 27, 2012, Jose met with Flour-noy and Flournoy showed Jose the money ($186,000) he inténded to use to purchase the drugs. A few days later, on July 30, 2012, Jose told Flournoy that the supplier was ready and they agreed to meet at Cesar’s apartment. There the three counted the buy money and Flournoy put it in the trunk of his silver Honda. Flournoy, Jose, and Cesar, along with Cesar’s girlfriend, Jovita, drove from Chicago to Rockford for the planned cocaine deal. Unfortunately for them, they did not know that the supplier was an undercover officer.

That undercover officer, Bob Juanez, had started talking with Cesar about a week earlier about supplying cocaine. In a recorded conversation, Cesar and Agent Juanez discussed Cesar selling marijuana to Agent Juanez and Agent Juanez selling cocaine to Cesar. Following several more recorded calls, Cesar agreed to buy six kilograms of cocaine from Agent Juanez.

Returning to July 30, 2012: Cesar and Jovita drove to Rockford, Illinois, in a Chevrolet Tahoe. Flournoy and Jose followed in Flournoy’s silver Honda. According to Cesar, the money was in the trunk of the Honda. Agent Juanez met Cesar at a Mobil gas station and then they drove to a Holiday Inn, followed by Flournoy and Jose.

At the Holiday Inn, Cesar briefly spoke with Agent Juanez inside the agent’s pickup truck. Cesar then exited the truck and got in Flournoy’s Honda before returning to the pickup truck. At that point, Agent Juanez called his partner, Detective Barrios, who was posing as his wife, and she drove by the pickup truck and showed Cesar an ice cooler containing what appeared to be cocaine.

In the meantime, ATF Special Agent John Richardson and Winnebago County Sheriffs Deputy Kyle Boomer were watching the drug deal go down from inside a surveillance van. Special Agent Richardson testified that he saw Flournoy go to the trunk of the silver Honda, get out a black bag and put green-wrapped bundles in the bag and then place the black bag in the back seat of the Honda. After this everyone relocated to a Wal-Mart parking lot. At this point, Flournoy exited the Honda with the black bag containing the buy money and dumped the money into the undercover agent’s pickup truck. Agent Juanez then pretended to call his' wife to instruct her to bring over the cocaine, but that was really the arrest signal. Officers then arrested Flournoy, Cesar, and Jose.

The government charged Flournoy, Cesar, and Jose with conspiring to possess with intent to distribute six kilograms of cocaine and attempting to possess cocaine, in violation of 21 U.S.C. '§ 846. That same day, from jail, Flournoy called his wife and told her to move a jack from their garage into the alley for a scrap salvager to remove. FBI agents went to the Flournoys’ home and found in the alley a drug press—a piece of hydraulic equipment used tó package drugs. A DEA chemist tested the filter of the press and obtained positive results for the presence of both heroin and cocaine!

Cesar and Jose eventually both pleaded guilty to the charges. Jose testified at Flournoy’s trial-, but Cesar did not. During trial, Jose testified as laid out above. Of significance for this appeal, Jose testified that Flournoy had moved the black bag with the buy money from the Honda trunk to the inside of the car. However, Jose’s plea agreement stated “[t]he defendant pulled out bundles of cash from the trunk of the Honda,. put the cash into a duffle bag, and returned the bag to the trunk.” During the Rule 11 colloquy, the prosecutor quoted that statement from the plea agreement and Jose, under oath, stated it was correct, Cesar’s plea agreement similarly identified Jose as the individual who had retrieved the money from the trunk of the Honda. While the government had provided the plea agreements to Flournoy’s attorney, the attorney did not cross-examine Jose on this inconsistency during Flournoy’s trial.

During closing argument, Flournoy’s attorney repeatedly commented upon the government’s ‘ failure to call - certain witnesses. For instance, his attorney - argued: “Yet you sit here today never having heard a peep from Deputy Boomer, Deputy Boomer not coming in to tell you anything regarding this investigation or to support and corroborate what Agent Richardson said. Just gone. Not brought in.” He continued: “You have to see and ask whether or not that witness is somebody that should be brought in, somebody that you should hear from to support.” Later his attorney stressed this point again, stating: “The government had the job to present you with all of the relevant evidence, and they failed to do that. The[y] failed to do that from bringing forth officers that were leading the investigation.”

In its closing argument, the prosecutor responded by stating: “Now, the government has the burden, but ladies and gentlemen, the defense can call witnesses too, if they want.” Flournoy’s attorney objected, stating that “a defendant has an absolute right not to testify or present evidence.” Following arguments outside the jury’s presence, the district court overruled the objection. After the jury returned, the district court read the following instruction to the jury, “A defendant has an absolute right not to testify or present evidence. You may not consider in any way the fact that the defendant did not testify or present evidence. You should not even discuss it in your deliberations.”

The prosecutor then returned to its closing argument, stating:

As I indicated, the burden is on the United States. We accept that burden. The defense has no, no obligation to present testimony in any form. However, they do have the same subpoena powers as the United States, and if they wanted to subpoena in and to have testify surveillance agents, telephone records person, or anybody else, they could have done that if they had wanted to, if théy had thought it would have been appropriate or helpful. Granted, they don’t have the burden to do so, but they do have the power to do so.

Without objection, the prosecutor also stated:

Ladies and gentlemen, you’re here as a jury because we don’t try people based upon hiding the ball. We try people based upon the facts. Not what ifs, not maybes, not could-have-beens. The United States would not bring a case based upon that because it wouldn’t work. We bring cases built upon facts, facts adduced by testimony and by witnesses and by exhibits, and that’s what you need to focus on.

Following deliberations, a jury convicted Flournoy on all counts. The district court then sentenced him to 204 months’ imprisonment, followed by concurrent terms of five years’ supervised release. In addition to the mandatory conditions of supervised release, the district court imposed several additional discretionary conditions of release. Flournoy filed a motion for a new trial, arguing the evidence was insufficient to support his conviction, that the government’s closing argument was improper, and that the government knowingly used perjured testimony. The district court denied the motion for a new trial. Flournoy appeals.

II.

A. Motion for a New Trial

On appeal, Flournoy argues that the district court erred in denying his motion for a new trial under Federal Rule of Criminal Procedure 33. That rule provides that a trial court “may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). This court reviews a district court’s denial of a motion for a new trial under Rule 33 for an abuse of discretion. United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989).

In support of his argument that he is entitled to a new 'trial, Flournoy asserts first that prosecutorial misconduct deprived him of his due process rights to a fair trial. When considering allegations of prosecutorial misconduct, this court first determines whether the prosecutor’s conduct was improper, and, if so, we must evaluate the conduct “in light of the entire record” to determine if it deprived the defendant of a fair trial. United States v. Smith, 674 F.3d 722, 728 (7th Cir. 2012).

Flournoy’s claim of prosecutorial misconduct focuses on two comments made by the government during closing argument. First, he maintains the prosecutor engaged in misconduct by highlighting that Flour-noy could call witnesses to testify. Flour-noy argues that this line of argument wrongly shifted the burden of proof to Flournoy.

This argument is misplaced. “[A]s long as it is clear to jurors that the government carries the burden of proof, the prosecutor may tell the jury that a defendant has the power to subpoena witnesses.” United States v. Miller, 276 F.3d 370, 374-75 (7th Cir. 2002). In this case, the prosecutor explicitly stated twice that the government bore the burden of proving Flournoy’s guilt. The prosecutor also stressed that “defense has no, no obligation to present testimony in any form.” Further, in the midst of the government’s closing argument, the district court interjected and instructed the jury: “A defendant has an absolute right not to testify or present evidence. You may not consider in any way the fact that the defendant did not testify or present evidence. You should not even discuss it in your deliberations.” “We presume that juries follow instructions.” Id. at 375. Further, “[i]n a case like this where the defendant himself has broached the subject of missing witnesses by asking the jury to in a sense penalize the government for its failure to produce the agents, the prosecutor’s argument in response clearly was proper.” United States v. King, 150 F.3d 644, 649 (7th Cir. 1998). Given the totality of these circumstances, we conclude that the district court did not abuse its discretion in allowing the prosecutor’s argument.

Flournoy also claims the prosecutor engaged in misconduct by improperly vouching for its witnesses by stating:

[W]e don’t try people-based upon hiding the ball. We try people based upon the facts. Not what ifs, not maybes, not could have beeris. The United States would not bring a case based upon that because it wouldn’t work. We bring cases built upon facts, facts adduced by testimony and by witnesses and by exhibits, and that’s what you need to focus on.

Flournoy did not object to this argument, so his claim, of prosecutorial misconduct is reviewed for plain error. Id. at 869-70. To establish plain' error, Flour-noy must show the improper vouching was “obvious, affected the defendant’s substantial rights to such an extent that he would not otherwise have been convicted, and seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Alexander, 741 F.3d 866, 869 (7th Cir. 2014). As we explained in Alexander, “[t]hat is a lengthy way of saying that we will not grant [the defendant] a new trial unless there was an error so egregious that the district judge should have stepped in even though no objection was made.” Id. at 870 (footnote omitted).

“We have recognized two types of impermissible vouching: ‘a prosecutor may not express her personal belief in the truthfulness of a witness, and a prosecutor may not imply that facts not before the jury lend a witness credibility.’” United States v. Wolfe, 701 F.3d 1206, 1212 (7th Cir. 2012) (quoting United States v. Alviar, 573 F.3d 526, 542 (7th Cir. 2009)). Flournoy does not explain exactly how the prosecutor’s comments constitute improper vouching, but he seems to be saying that the prosecutor’s comment concern facts not presented to the jury. Arguably, the government’s comments could be viewed as vouching for facts not presented to the jury—that the government had a practice of only prosecuting cases where sufficient evidence exists. But here the prosecutor immediately followed the comments by stressing -that the “facts [are] adduced by testimony and by witnesses and by exhibits, and that’s what you need to focus on.” Thus, in context, the prosecutor’s argument is more properly viewed as a comment .on the facts the government presented at trial. At most, then, the prosecutor’s argument edges toward borderline inappropriate, but surely not one “so egregious that the district judge should have stepped in even though no objection was made.” Alexander, 741 F.3d at 870; see also id. at 871 (“[T]he fact that the line is so fine ... emphasizes the heed for a timely objection.”). Accordingly, there was no plain error in the prosecutor’s closing argument.

Finally, Flournoy claims he is entitled to a new trial because Jose’s testimony conflicted with the facts to which Jose admitted earlier in pleading guilty. Specifically, at Flournoy’s trial Jose testified that on the night of the drug deal Flournoy went to the trunk of the Honda and removed a bag containing the buy money, placing the bag inside the car. Conversely, Jose’s plea agreement stated that Jose removed the money from the trunk of the car. Cesar’s plea agreement likewise identified Jose as the individual responsible for moving the buy money from the trunk into the back of the Honda. And in pleading guilty, Jose and Cesar admitted to the conduct set forth in the plea agreement.

Initially we note that on appeal Flournoy does not claim that Jose testified falsely at his trial; rather, Flournoy argues that the government violated his due process rights by presenting inconsistent theories of guilt at his trial and in the cases presented against his co-defendants, Jose and Cesar, who pleaded guilty. While this court has noted that the circuits are split on whether such conduct violates the Due Process Clause, this court has not yet taken a position on the issue. United States v. Presbitero, 569 F.3d 691, 702 (7th Cir. 2009). See also Bradshaw v. Stumpf, 545 U.S. 175, 190, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (Thomas, J., concurring) ("This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories.”). We need not do so today either because, even if this theory were viable, Flournoy would not be entitled to a new trial.

A defendant is entitled to a new trial only if there is a reasonable possibility that the trial error had a prejudicial effect on the jury’s verdict. United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996). There is no such possibility in this case. First, there is no indication that Jose’s testimony at Flournoy’s trial was false, as opposed to the language in the plea agreements. That was the government’s position below when it explained the discrepancy to the district court: the prosecutor explained that it had drafted Flournoy’s plea agreement first, believing he would be the one to plead guilty, and then used that plea agreement as a template for Jose and Cesar’s plea agreements. However, in doing so, the government failed to change the language to identify Flournoy as the individual who moved the drugs from the trunk to the back of the car. At best, then, the conflict could be used to impeach Jose’s testimony. Flournoy’s attorney, however, did not impeach Jose on this basis even though the government had provided Jose and Cesar’s plea agreements. It is unclear whether that was a strategic decision (his attorney did not want to highlight Jose and the other agent’s testimony), or whether his attorney did not notice the discrepancy. But either way, it does not translate into a Due Process violation. Further, there is no possibility that impeaching Jose based on his prior guilty plea would have a prejudicial effect on the jury’s verdict. At trial, Agent Richardson testified that while conducting surveillance, he saw Flournoy get out of his car, look around, go to the trunk, look around again, open the trunk, and then put some green-wrapped bundles into the black bag. And it is undisputed that Flour-noy is the individual who dumped the buy money from the black bag into Agent Jua-nez’s pickup truck. The other evidence presented was also overwhelming. Beyond the testimony of his co-conspirators that clearly identified Flournoy as the buyer, other evidence established that: Flournoy was the person who drove the. car that had nearly $200,000 in cash; when Agent Jua-nez wanted to see the money, it was Flour-noy who took the money from the car and brought it to Agent Juanez’s truck; and after his arrest, Flournoy called his wife instructing her to move the drug press (which tested positive for cocaine and heroin residue) from their garage to the alley. Given the totality of the evidence, there is no reasonable possibility that there was a prejudicial effect on the jury’s verdict. Accordingly, the district court did not abuse its discretion in denying Flournoy a new trial.

B. Supervised Release

Flournoy also argues on appeal that the district court erred in sentencing him to a fíve-year term of supervised release that included discretionary conditions of release, because the district court did not explain its rationale for imposing those terms. This court has held that it is reversible error for a district court to impose discretionary conditions of supervised release without considering the sentencing factors set forth in 18 U.S.C. § 8583(d) and 18 U.S.C. § 3553(a), and without stating the reasons for selecting the specific conditions imposed. United States v. Thompson, 777 F.3d 368, 377-78 (7th Cir. 2015). The government concedes the error and that remand for resentencing is appropriate. That was our holding in Thompson (which was not yet decided at the time of Flournoy’s sentencing). Accordingly, we remand for resentencing.

III.

A jury heard extensive evidence establishing that Flournoy conspired with Cesar and Jose Sanabria to possess six kilograms of cocaine with the intent to distribute, and attempted to possess with intent to distribute the cocaine. While in pleading guilty, Jose indicated that he—and not Flour-noy—had removed the buy money from the trunk of the Honda, there was no evidence that Jose lied during his testimony at Flournoy’s trial. Nor is there a reasonable probability that the discrepancy affected the jury verdict. The prosecutor’s comments during closing argument also were not improper. To the extent one may have been borderline impermissible vouching, it did not impact the outcome of the trial. Accordingly, the district court did not abuse its discretion in denying Flournoy’s motion for .a new trial and we AFFIRM Flournoy’s conyiction. However, the district court did not articulate its reasons for imposing discretionary conditions of supervised release. Therefore, we REMAND for resentencing.

      . The government notes that at all other times during the proceedings against Flournoy, it took the position that Flournoy—and not Jose—had removed the buy money from the trunk, pointing to the criminal complaint, the government’s response to the defendant’s motion to suppress, and the government’s post-evidentiary hearing memorandum regarding the defendant’s motion to suppress. ■


author: WOOD, District Judge.

text:
    Anthony RODRIGUEZ, Petitioner-Appellant, v. Greg GOSSETT, Warden, Respondent-Appellee.
    No. 13-1877
    United States Court of Appeals, Seventh Circuit.
    Argued February 9, 2015
    Decided November 23, 2016

      Barry Levenstam, Attorney, Jenner & Block LLP, Chicago, IL, for Petitioner-Appellant.
    Eric M. Levin, Attorney, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appel-lee.
    Before ROVNER and SYKES, Circuit Judges, and WOOD, District Judge.

       Hon. Andrea R. Wood of the Northern District of Illinois sitting by designation.

   WOOD, District Judge.

Anthony Rodriguez was convicted of two counts of predatory criminal sexual assault of a child following a jury trial in the State of Illinois in 1997. Rodriguez has petitioned for a writ of habeas corpus, contending that he was deprived of effective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and now appeals the district court’s denial of his petition. Because we conclude that the Illinois Appellate Court did not unreasonably apply the Strickland standard, we affirm the district court’s denial of Rodriguez’s habeas petition.

I.

In late 1997, following a jury trial in the Circuit Court of Randolph County, Illinois, Rodriguez was convicted of two counts of predatory criminal sexual assault of a child and sentenced to 60 years in prison. The charges stemmed from an allegation by K.O., an 11-year-old girl, that Rodriguez had sexually assaulted her on two occasions. At the time of the incidents, K.O. and her mother, D.O., lived with Rodriguez in a home in Chester, Illinois.

At the trial, K.O. testified that D.O. left her in Rodriguez’s care from early on Friday, May 9, 1997 until Monday, May 12, 1997 while D.O. attended a wedding in Chicago. K.O. further testified that, on the evening of May 9, she went to sleep in D.O.’s bed. She later woke up to find that Rodriguez had gotten into bed with her. Rodriguez then anally penetrated K.O. with his penis. Afterwards, Rodriguez got out of bed and K.O. felt a liquid substance by her underwear. The next evening, May 10, K.O. slept in her own bed. According to K.O., Rodriguez once, again got into bed with her, pulled down, the bed covers and KO.’s underwear, and anally penetrated her with his penis. As before, K.O. felt a liquid substance. When D.O. returned home on May 12, K.O. did not immediately tell her what had happened. Instead, K.O. waited about five days because Rodriguez “was always by [her]” and she never had a chance to be alone with D.O. K.O. testified that she was afraid of Rodriguez. Eventually, however, when K.O. was at the store where D.O. worked, K.O. told D.O. what had happened while D.O. was away.

D.O. also testified at trial. She testified that she left K.O. in Rodriguez’s, care early on the morning of Friday, May 9, and that she returned on Monday, May 12. On the night of May 11, while she was away, D.O. spoke to Rodriguez and asked him what he was doing. Rodriguez responded that he had been “up all night doing laundry.” According to D.O., however, they had both done laundry before she left and they usually did laundry only once or twice per week. D.O. further testified that on May 20,1997, K.O. told her what Rodriguez had done over the May 9 weekend. Like K.O., D.O. testified that K.O. had not had any opportunity to tell D.O. about the assaults before May 20 because Rodriguez “was always around.” After K.O. told D.O. about the assaults on May 20, D.O. contacted the police and took K.O. to the hospital. She also testified that K.O, had attempted suicide in 1993 or 1994 because she was “broke, apart” when D.O.’s fiancé was sent to prison.

The State also presented testimony from Jim Nesler, an investigator with the Illinois Department of Children and Family Services. Nesler testified that he interviewed K.O. on May 21,1997 and that K.O. recounted to him the same two alleged incidents of abuse about which she testified at trial. Nesler further testified that he conducted an interview with Rodriguez on May 21, 1997, at which time Rodriguez acknowledged that he looked after K.O. during the weekend in question but denied that he had any inappropriate contact with her.

The State’s final witness was Dr. Deanna St. Germain, a physician trained in the medical examination of children alleged to haye been sexually abused. Dr. St. Ger-main examined K.O. on July 28, 1997. She observed several injuries to K.O.’s rectal area that, as she explained at trial, are not typically found on children who have not been abused. Based'on the types of injuries she observed, Dr. St. Germain opined that K.O. “suffered some type of an abnormal penetrating injury to her anus.” On cross-examination, Dr. St. Germain testified that K.O. had a history of having been sexually abused around the age of two, but she “was not aware of what the sexual abuse was.” Dr. St. Germain admitted that, assuming there was anal penetration at some point prior to the alleged sexual abuse on May 9 or 10, 1997, she would not be able to separate injuries sustained on those dates from the previous sexual abuse. Dr. St. Germain further explained, “[w]hen I do my examination, I am going to make an opinion of the physical findings and not of who did it when.” After Dr. St. Germain finished her testimony, the State rested its case.

Rodriguez testified in his own defense and denied having sexually assaulted K.O. In addition, Rodriguez testified that he had personally observed K.O. tell lies in the past. Rodriguez also called as a defense witness Timothy James Lochhead, an administrative assistant in charge of discipline at KO.’s grade school. Lochhead testified that, “like other children, [K.O.] has fabricated things from time to time, such as she didn’t want to take a test or she didn’t want to do this or that. Maybe her arm hurt or she had a stomach ache or was tired, those types of things.” On cross-examination, Lochhead conceded that “[i]t is not unusual” for children to engage in such fabrications, but he believed that K.O. “was quite frequent with her fabrications.”

Finally, after the' defense rested, the State introduced into evidence a certified copy of Rodriguez’s prior conviction for theft. The jury was instructed that the prior conviction could be considered only for purposes of impeaching Rodriguez’s veracity when testifying and not as proof of guilt.

Central to the present appeal, but not presented by either side during the trial, are two reports from the Illinois State Police’s Division of Forensic Services analyzing four semen stains on a blanket from K.O.’s bed and comparing them to blood standards taken from Rodriguez and K.O. The first report concluded that no comparisons were possible due to the limited amounts of DNA found in the samples. The second report was issued on October 28, 1997, one day before Rodriguez’s trial began. That report analyzed 12 samples taken from the four semen stains and concluded that-eleven of the samples could not have come ‘from Rodriguez, several reflected that they came from K.O. and several others were from a third, unknown donor. Neither Rodriguez nor K.O. could be excluded as having contributed to the mixture of DNA profiles detected in the twelfth -sample; however, the report notes that this' sample could have come from “approximately 1 in 2 Caucasians, 1 in 4 Blacks, and 1 in 2 Hispanics....” Additionally, an unidentified profile was present in this mixture.

The sperm samples came up at trial for the first time during closing arguments. Approximately halfway through the State’s closing argument, the prosecutor - referenced D.O.!s testimony that, during a phone call -with Rodriguez on May 11, he told her that he had been up all night doing laundry. The prosecutor then asked rhetorically: “Why would you wash clothes on a Sunday like that if you had washed them all night [sic]? It is a good reason [sic] to get rid of the evidence that way.”

After the prosecutor concluded his closing argument and before defense counsel began his closing argument, the following exchange occurred in the presence of the jury:

DEFENSE COUNSEL: Your Honor, one thing, and I am sure the [sic] counsel did not do this intentionally, but : I would strongly object to his argument about washing the clothes, getting rid of the evidence. There was no evidence whatsoever as to the reason for washing those clothes and getting rid of evidence. In fact, counsel knows that there was sperm on various items that was not presented.
PROSECUTOR: Objection, Your Honor. [Defense counsel] is testifying.
DEFENSE COUNSEL: Your Honor, he opened the door.
THE COURT: If you want to make an argument, make it to the jury.
DEFENSE COUNSEL: That—you know, I—
THE COURT: I already informed the jury that anything said by either attorney in final argument [that] is not bdsed on the evidence or the testimony, you are to disregard. •• With that said, go ahead, [defense counsel].

Defense counsel then delivered his closing argument, in which he made no further mention of the sperm samples, DNA reports, or prosecutor’s argument about Rodriguez staying up all night to do laundry.

The trial judge repeatedly instructed the jury that they were to consider only the evidence presented at trial and disregard any attorney comments during opening statements or closing arguments that were not based on that evidence. Before opening statements, the trial judge further explained to the jury that “opening statement is not "evidence,” and that “[t]he evidence will be the testimony you hear from the witness stand and any-exhibits that are admitted into evidence.” The trial judge returned to the subject before closing arguments, this time specifically instructing the jury that:

Final argument is not evidence. You have heard the evidence, the testimony from the witnesses and the exhibits that are admitted into evidence. You are not to consider any statement made by either attorney that is not backed up by the evidence you heard here in the courtroom.

As noted above, the trial judge reminded the jury of this instruction after defense counsel mentioned the sperm evidence. And again, during jury instructions, the court reminded the jury, “[i]t [was] [their] duty to determine the facts, and to determine them only from the evidence in this case,” and that “[t]he evidence which [they] should consider consists only of the testimony of the witnesses and the exhibits which the Court has received.” The judge then delivered the standard pattern instruction on opening statements and closing argument, which reads as follows:

Opening statements are made by the attorneys to acquaint you with the facts they expect to prove. Closing arguments are made by the attorneys to discuss the facts and circumstances in the case and should be confined to the evidence and to reasonable inferences to be drawn from the evidence. Neither opening statement nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded.

The jury reached its verdict quickly: it retired to deliberate at 3:07 p.m. and at 3:55 p.m. returned a verdict finding Rodriguez guilty of two counts of predatory criminal sexual assault of a child. The trial judge subsequently sentenced Rodriguez to serve consecutive prison terms of 40 years and 20 years.

II.

On direct appeal, Rodriguez argued, among other things, that he was denied effective assistance of counsel due to his trial counsel “mistakenly divulging highly damaging information”—specifically, the comment about evidence of sperm being found on “various items”—that the jury otherwise would not have heard.

The Illinois Appellate Court evaluated Rodriguez’s ineffective assistance of counsel claim under Strickland. The appellate court first found that counsel’s impetuous comment regarding the sperm samples amounted to deficient performance, because “without explanation it permit[ted] an inference that more physical evidence supporting [Rodriguez’s] guilt exist[ed]” than what the jury heard. The appellate court nevertheless denied relief, concluding that Rodriguez had not been prejudiced because there was no reasonable probability that the result of his trial would have been different absent the comment. According to the appellate court, “the evidence of [Rodriguez’s]' guilt was not close,” as KO.’s testimony regarding the sexual assault was “corroborated]” and “bolstered” by the testimony of Nes-ler, who “testified that his May 21, 1997, interview with [K.O.] reflected the same account described by her trial testimony,” and the testimony of Dr. St. Germain, who “confirmed that her examination of [K.O.] revealed that she suffered an abnormal penetrating injury to her anus” consistent with KO.’s allegations. The appellate court further found that any harm caused by defense counsel’s comment was mitigated by the trial judge’s response to the remark. As the appellate court explained, “immediately after defense counsel’s remark, the [trial] court reiterated that the jury was instructed to disregard closing-argument comments not based on the evidence presented.” Thus, “a different outcome absent counsel’s comments is not a reasonable probability.” The Illinois Appellate Court thus affirmed Rodriguez’s convictions.

Rodriguez subsequently filed a petition for leave to appeal with the Illinois Supreme Court, raising the same ineffective assistance of counsel claim, which was denied. Then, on December 10, 2001, Rodriguez, through appointed counsel, filed a petition for postconviction relief. Among other issues, the petition asserted that trial counsel was ineffective for referencing the unpresented sperm evidence before the jury and that Rodriguez suffered prejudice as a result. On April 16, 2002, the circuit court denied Rodriguez’s postcon-viction petition without opinion. On October 1, 2003, Rodriguez, through appointed counsel, filed his opening brief appealing the circuit court’s denial of his postconviction petition, but the brief did not raise the issué of whether defense counsel was ineffective for referencing the unpresented sperm evidence in the presence of the jury.

Rodriguez’s pro se federal habeas petition presented seven separate claims, including that his trial counsel was ineffective for divulging the sperm evidence to the jury. The district court denied relief on all claims. The district court denied relief on the basis of trial counsel’s reference to the sperm sample evidence, holding that this claim did not meet the standards set by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2254(d)(1). The district court also denied a number of Rodriguez’s claims as procedurally defaulted because they were not presented in state court; the procedurally-defaulted claims included assertions that counsel was ineffective for “[flailing generally to investigate the case properly” and “[suppressing evidence from the jury.” The district court granted a certificate of appealability for Rodriguez’s claim regarding his trial counsel’s reference to the sperm evidence; however, it did not grant a certificate of appealability as to any of the procedurally-defaulted claims.

III.

We review the district court’s decision to deny Rodriguez’s habeas petition de novo, subject to the limitations of the AEDPA. Pole v. Randolph, 570 F.3d 922, 934-35 (7th Cir. 2009). We assume the state court’s factual determinations are correct unless the petitioner rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Julian v. Bartley, 495 F.3d 487, 492 (7th Cir. 2007).

Under the AEDPA, we may grant Rodriguez’s habeas petition only if (1) the state court’s adjudication of his claim was either contrary to,' or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) the state court’s decision was based on an unreasonable determination of the facts given the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision contradicts clearly established law if it applies a legal standard inconsistent with governing Supreme Court precedent or contradicts the Supreme Court’s treatment of a materially identical set of facts. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Goodman v. Bertrand, 467 F.3d 1022, 1026 (7th Cir. 2006). A state court unreasonably applies Supreme Court precedent if it identifies the correct legal rule but applies it in a way that is objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003); Gilbert v. Merchant, 488 F.3d 780, 790 (7th Cir. 2007).

Rodriguez seeks habeas relief due to the purported ineffective assistance of his counsel. In Strickland, the Supreme Court established a two-part test for adjudicating ineffective assistance of counsel claims that requires a petitioner to show (1) that counsel’s performance was defi-dent, and (2) that the deficiency prejudiced his defense. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). To establish deficiency, the petitioner must show that “counsel’s representation ‘fell below an objective standard of reasonableness.’” Id. at 521, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). To demonstrate prejudice, the petitioner “ ‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. at 534, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052),

In the present case, the Illinois Appellate Court found that trial counsel’s impetuous reference to the unpresented sperm evidence demonstrated that his performance was constitutionally deficient and thus the first requirement of the Strickland test was met. The State has not challenged that finding. Thus, in reviewing Rodriguez’s habeas petition, we consider only the question of whether the Illinois Appellate Court unreasonably applied Strickland in concluding that he suffered no prejudice.

On this point, Rodriguez has a high hurdle to clear. An “unreasonable application” under the AEDPA is one that is “not only erroneous, but objectively unreasonable.” Yarborough, 540 U.S. at 5, 124 S.Ct. 1. In other words, it must be “‘something like lying well outside the boundaries of permissible differences of opinion.’ ” Jackson v. Frank, 348 F.3d 658, 662 (7th Cir. 2003) (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)). A habeas petitioner “must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Furthermore, “because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).

Under this highly-deferential standard of review, we cannot find that the Illinois Appellate Court erred in concluding that Rodriguez failed to establish a reasonable probability, that,, but for his counsel’s unprofessional errors, the result of his proceeding would have been different. As recognized by that court, the jury heard testimony from K.O. describing how Rodriguez twice got into bed with her and placed his penis in her anus. The State corroborated this testimony with Nesler’s testimony regarding the victim’s prior consistent statements, as well as Dr. St. Ger-main’s testimony regarding injuries to K.O.’s anus. Rodriguez nonetheless attacks the strength of the State’s case, describing it as resting on “a troubled child’s testimony and a medical report detailing that there had been an injury to her anus at some unknown point in her life.” This argument at its core presents a credibility challenge. But the jury was able to observe the demeanors of both K.O. and Rodriguez while they testified—and also was entitled to draw negative conclusions concerning Rodriguez’s credibility based on his theft conviction—in deciding which version of events to believe. Given the sum total of the evidence against him, the Illinois Appellate Court was not unreasonable to find that Rodriguez would have been convicted notwithstanding his counsel’s outburst.

This conclusion is further supported by the several limiting instructions given by the trial judge. The trial judge instructed the jury before closing arguments that it should not consider in its deliberations any statement made by either attorney that was not supported by the evidence. The trial judge then reminded the jury of this instruction after defense counsel made-reference to the sperm evidence that had not been admitted, and repeated the admonition twice during jury instructions. The multiple warnings to the jury not to consider any statement by the attorneys that was riot supported by record evidence bolster our view that' the Illinois Appellate Court was not unreasonable in finding that counsel’s reference to the sperm evidence did not prejudice Rodriguez. After all, “[w]e normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an overwhelming probability that the jury will be unable to follow the court’s instructions ... and a strong likelihood that the effect of the evidence would be devastating to the defendant.” Greer v. Miller, 483 U.S. 756, 766 n.8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (internal quotation marks omitted).

Rodriguez contends that his trial counsel’s improper reference to the sperm evidence is precisely the type of occurrence that should be excepted from the general rule discussed in Greer, and he cites various cases in which we evinced skepticism that limiting instructions were sufficient to ameliorate prejudicial evidence or statements. But the isolated and indirect nature of Rodriguez’s counsel’s blunder, taken together with the trial judge’s curative instructions, distinguishes this case from those upon which Rodriguez relies.

For example, in Maus v. Baker, 747 F.3d 926 (7th Cir. 2014), we reversed a jury verdict against an imprisoned plaintiff in a case under 42 U.S.C. § 1983, where the district court forced the plaintiff to appear in front of the jury in shackles and his prisoner uniform while the defendants were allowed to wear their law enforcement uniforms. Id. at 926-27. Notably, the trial judge in Maus did not give a limiting instruction; we nonetheless acknowledged that a limiting instruction might not have been enough under those circumstances to remedy the potential for prejudice. Id. at 928 (citing Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)). In United States v. Ciesiolka, 614 F.3d 347 (7th Cir. 2010), we reversed the conviction of a criminal defendant where we found that a single pro forma limiting instruction might not have been sufficient to ameliorate the prejudice from evidence of other’bad acts that the government used to prove iritent—specifically, over 100 images of child pornography belonging to the defendant, as well as testimony of a woman who had sex with the defendant when she was 15 years old. Id. at 358. In United States v. Vance, 764 F.3d 667 (7th Cir. 2014), we expressed the view that “there are grounds for skepticism about [the] efficacy [of limiting instructions] in preventing juries” from making improper inferences. Id. at 671. But the appellant in Vance did not challenge the limiting instructions given by the trial judge and the objectionable evidence adduced in that case—evidence of the criminal defendant’s participation in three restaurant robberies to establish his identity in a subsequent bank robbery—was directly presented to the jury and had the potential" to be extremely prejudicial". Id. at 669. Finally, in Hawkins v. Mitchell, 756 F.3d 983 (7th Cir. 2014), we ordered a retrial on petitioner’s excessive force and willful-and-wanton battery claims where -defense counsel made comments in their closing statement that “overwhelmingly misled” the jury, thus creating substantial prejudice and “the court did not intervene specifically with regard to those [statements].” Id.

In Maus, Ctestolka, and Vance, we acknowledged that some subject matter presented to the jury may be too self-evidently prejudicial for a limiting instruction to cure; in Hawkins, we concluded that misleading arguments to the jury should have been cured with a specific limiting instruction. Neither of those situations is before us here. In contrast with the inflammatory evidence addressed in Maus, Ciesiolka, and Vance, Rodriguez’s counsel’s reference to the unadmitted sperm evidence was brief in nature—a few words during an objection to the State’s closing argument. Furthermore, it was ambiguous—as the Illinois Appellate Court noted, the statement permitted an inference that there was physical evidence supporting Rodriguez’s guilt but did not mandate such an inference. Counsel’s brief allusion to evidence that the jury had not otherwise seen or heard did not create an overwhelming probability that the jury would disobey the trial court’s instructions; and trial counsel’s statement, referring to evidence of unclear origin and import, is not of the sort that would irremediably prejudice the jury. See Greer, 483 U.S. at 766 n.8, 107 S.Ct. 3102. Furthermore, here, unlike in Hawkins, the curative instruction was repeated multiple times after defense counsel misspoke. Thus, we must presume that the jury followed the trial court’s instruction while deliberating.

Finally, Rodriguez makes various arguments to the effect that the DNA reports associated with the sperm samples were actually exculpatory in nature, and thus, once his counsel divulged their existence to the jury, he provided ineffective assistance by not seeking to intx-oduce them into evidence. However, Rodriguez did not raise that argument before the district court and thus it has been waived. See Estremera v. United States, 442 F.3d 580, 587 (7th Cir. 2006). (“It is well settled that ‘arguments not raised in the district court are waived on appeal.’ ”) (quoting Belom v. Nat’l Futures Ass’n, 284 F.3d 795, 799 (7th Cir. 2002)). Furthermore, the district court found that Rodriguez’s claims that his trial lawyer was ineffective for “[flailing generally to investigate the case properly” and “[suppressing evidence from the jury” were procedurally defaulted. The district court did not issue a certifícate of appeala-bility from those findings, and Rodriguez did not appeal that decision. Accordingly, to the extent those claims may be construed as raising the issue of whether Rodriguez’s trial counsel was ineffective by failing to introduce into evidence purportedly exculpatory DNA reports, that issue has not been properly raised before us.

IV.

In light of the evidence against Rodriguez and the trial judge’s curative instructions, it was not unreasonable for the Illinois Appellate Court to conclude that Rodriguez had not shown that he was prejudiced by his counsel’s errant remark in front of the jury. Accordingly, we AFFIRM the denial of Rodriguez’s habeas petition.

      . The Illinois Appellate Court nonetheless vacated Rodriguez’s sentences because the trial court entered them under the mistaken belief that consecutive sentences were mandatory. On remand, the trial court reimposed consecutive sentences totaling 60 years of imprisonment. Those sentences were affirmed in a subsequent direct appeal.