Ruiz-Cortez v. Chicago et al

Filing 368

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 5/15/2017:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

REFUGIO RUIZ-CORTEZ,
Plaintiff,
Case No. 11 C 1420
v.
Judge Harry D. Leinenweber
GLENN LEWELLEN,
Defendant.

MEMORANDUM OPINION AND ORDER
For

the

reasons

stated

herein,

Plaintiff

Refugio

Ruiz-

Cortez’s Motion for Judgment as a Matter of Law [ECF No. 357] is
granted in part and denied in part.

The Court grants the Motion

insofar as it finds that Defendant Glenn Lewellen’s (“Lewellen”)
criminal conviction establishes as a matter of law that Lewellen
withheld impeaching Brady materials.

It denies the Motion as to

the claim that Lewellen violated Plaintiff’s due process rights by
fabricating evidence.

Pursuant to Federal Rule of Civil Procedure

50(c)(1), the Court further rules that it conditionally denies a
new trial.
I.

BACKGROUND

Plaintiff Ruiz-Cortez’s week-long trial went against him when
the jury found former Chicago Police Officer Glenn Lewellen not
liable for violating Plaintiff’s constitutional rights. Lewellen

was

the

sole

remaining

Defendant

in

the

case

after

the

Court

granted summary judgment in favor of the other police officers and
the City of Chicago.

See generally, Ruiz-Cortez v. City of Chi.,

No. 11 C 1420, 2016 U.S. Dist. LEXIS 148063 (N.D. Ill. Oct. 26,
2016).

In

contrast,

the

Court

denied

Lewellen’s Motions for Summary Judgment.

both

Plaintiff’s

See, id. at *79.

and
The

case against Lewellen thus proceeded to trial.
On the eve of trial, the Court issued a written ruling on the
parties’ Motions in Limine.
In Limine Motions).

See, ECF No. 336 (Order Disposing of

With the exception of one ruling on the issue

of Plaintiff’s income taxes, the Court stood by its in limine
decisions and their reasoning as the proceeding unfolded.
At

trial,

Plaintiff

argued

that

process in at least one of two ways.

Lewellen

denied

him

due

First, Plaintiff contended

that Lewellen fabricated evidence during the course of Plaintiff’s
criminal prosecution.
exculpatory

Second, he alleged that Lewellen withheld

impeachment

evidence

Maryland, 373 U.S. 83 (1963).

in

violation

of

Brady

v.

Plaintiff asked to be compensated

for the eleven years he spent in prison following his conviction
for cocaine possession with intent to distribute, a conviction
obtained

as

a

result

of

Lewellen’s

conduct.

- 2 -

allegedly

unconstitutional

To claim damages, Plaintiff built a case in which Lewellen
was a dirty cop who “framed” Plaintiff.

The parties did not

dispute that about a decade after he testified to observing RuizCortez carrying a bag containing cocaine, Lewellen himself was
convicted of conspiracy to possess with intent to distribute.

The

parties also did not dispute that the jury at Lewellen’s criminal
trial was deadlocked on the charge containing the allegation that
Lewellen provided false testimony at Ruiz-Cortez’s trial in 1999.
Indeed, Plaintiff and Defendant stipulated to these facts, and the
Court instructed the jury that it should accept them as true.
See, ECF Nos. 349-353 (Trial Tr.) at 853:17-856:1 (taking judicial
notice that “Lewellen was not convicted of the racketeering count
containing

the

predicate

obstruction

of

justice

premised

upon

Lewellen’s alleged perjury during plaintiff’s 1999 criminal trial”
but that he “was convicted of felony conspiracy to possess with
intent [to] distribute cocaine on June 4th, 2013, and sentenced to
18 years”); ECF No. 348 (Jury Instructions) (instructing the jury
that “If I have taken judicial notice of certain facts, you must
accept those facts as proved”).
While the parties did not dispute Lewellen’s conviction, they
hotly contested the events leading to Plaintiff’s arrest. During
this trial (but not his criminal trial), Plaintiff admitted that
he

stored

the

cocaine

for

which
- 3 -

he

was

prosecuted

and

found

guilty.

Plaintiff

maintained,

because he was coerced.

however,

that

he

only

did

so

Plaintiff also maintained that he did not

carry a bag of cocaine from his apartment to the parking lot of
the building in the minutes before Lewellen and his partner came
to

Plaintiff’s

door

to

arrest

him.

According

to

Plaintiff,

Lewellen fabricated evidence – or lied – when he testified that he
saw Plaintiff carry the bag of cocaine. Plaintiff read to the jury
this allegedly false testimony when Lewellen invoked his Fifth
Amendment right not to answer questions in this case.
Plaintiff’s own testimony is the only evidence he presented
to the jury that he was coerced.
individual
family.

named

Carlos

Rodriguez

According to Plaintiff, an
or

“Changa”

threatened

his

See, Trial Tr. at 516:2-528:18 (testifying that after

Plaintiff told Carlos or Changa that he was “not going to help
[him] with anything,” Changa responded with “You know what, think
about you.

Actually, think about your family.

Think about me”).

Out of fear and a desire to protect his family, Plaintiff agreed
to keep Changa’s cocaine at his apartment, effectively turning the
place into a drug distribution station. See, id. at 525:4-526:2
(“They leave me with no other choice. They threatened me.
threatened my child.

They

They threatened my family.”); 527:13-529:5

(“I had to do it and not for me, but for her [Claudia, Plaintiff’s
then-pregnant girlfriend], for all the people I love.”).
- 4 -

Unsurprisingly,

Plaintiff

was

repeatedly

took the stand to tell this story.

impeached

when

he

See, Trial Tr. at 547:25-

550:4; 556:4-569:22; 571:11-574:9; 587:24-591:19 (impeachment with
the fact that Plaintiff lied during his criminal trial, telling
the judge and jurors then that he had no drugs in his apartment)
(“Q:

When you were testifying, you looked at a whole different

set of jurors in this very courthouse while you were testifying,
right?
(“Q:

A:

Yes.

Q:

And you lied to their faces?

A:

Yes.”)

You didn’t have to say anything to the judge either, just

like you didn’t have to say anything to the jury, correct?

A:

Yes.

Q:

You decided that you were going to open your mouth and

lie?

A:

Yes.”); 552:13-554:15 (impeachment with Plaintiff’s use

of

false

names);

597:1-607:10

(impeachment

with

Plaintiff’s

earlier complaints in the case, which did not allege that he was
coerced

into

holding

drugs);

618:18-624:4

(impeachment

with

Plaintiff’s deposition testimony); 629:12-644:14 (impeachment by
implausibility
time

and

that

again

Changa

after

importuned

Plaintiff

Plaintiff

repeatedly

to

turned

store
him

drugs
down);

650:19-655:7 (impeachment by contradiction Plaintiff’s story that
Changa threatened him) (“Q: After she’s [Claudia] been threatened
specifically, you’ve been threatened specifically, you have about
200 pounds of dope in your house, you go to work all day and just
leave your pregnant wife there alone during the day.
- 5 -

Is that what

your testimony is?
see.

A:

That’s where she would stay.

Q:

Ah, I

And not only would she stay there, in June and July of 1999,

she’d

watch

your

little

wouldn’t she? . . .

Q:

baby

nieces

and

nephews

there,

too,

So Claudia did continue to watch your

baby nieces and nephews when there’s 200 pounds of dope in your
house

after

they’ve

been

threatened,

right?

A:

Yes.”)

(“Q:

After the drugs were dropped off in those – in that couple-of-week
period, you do not go to the police?

A: No.”); 663:4-668:21

(impeachment

his

with

the

fact

that

after

arrest,

Plaintiff

floated the idea of giving the police information in exchange for
a deal) (“Q:

If you could have gotten a break, you would have

given the names of these people to the police, right?
cannot

say

yes,

and

I

cannot

say

no

. . .”);

A:

I

671:21-677:3

(impeachment with the fact that Plaintiff told law enforcement a
different story than that he was coerced into storing drugs when
they

came

to

question

prison) (“Q:

him

immediately

before

his

release

from

And you told them that Primo explained that you

would be paid to hide the cocaine and give the cocaine to people
that arrived at the house? . . .

A:

I don’t recall that very

well.”).
As
arrest,

to

the

events

Plaintiff

that

offered,

took
in

place

addition

immediately
to

his

testimony of one Lisette Venegas (“Venegas”).
- 6 -

own

before

his

words,

the

Venegas was the

drug courier who Plaintiff said actually carried the drugs from
Plaintiff’s

apartment

to

the

parking

lot.

With

inconsistencies, Venegas corroborated this story.

some

She testified

that she took the bag of cocaine from Plaintiff, carried it to her
car,

and

however,

put
a

the

man

–

bag

in

whom

the

she

trunk.

at

Before

Plaintiff’s

she

trial

could

leave,

identified

as

Lewellen – stopped her, took the bag of drugs, and let her go.
See, Trial Tr. at 188:1-191:9.
length

during

Venegas, too, was impeached at

cross-examination.

See,

id.

at

197:3-201:22

(impeachment with the fact that Venegas lied to the Government
about her dealings with Lewellen’s co-conspirator); 233:5-244:13
(highlighting
Venegas’s

the

inconsistencies

testimonies

about

between

what

happened

Plaintiff’s
on

the

day

and
of

Plaintiff’s arrest); 248:13-253:13 (drawing doubt to the testimony
that

Lewellen

stopped

Venegas

as

she

was

leaving

Plaintiff’s

apartment).
Finally, Plaintiff read to the jury the testimony of a Saul
Rodriguez (“Rodriguez”).

See, Trial Tr. 59:10-118:5.

Rodriguez

was Lewellen’s co-conspirator, and he testified against Lewellen
at the latter’s criminal trial pursuant to a deal he had with the
Government.

At this trial, Rodriguez invoked his Fifth Amendment

right against self-incrimination and refused to testify, leaving
Plaintiff

to

read

in

his

testimony
- 7 -

as

offered

at

Lewellen’s

criminal

trial.

In

that

testimony,

Rodriguez

recounted

the

various bad acts that Rodriguez said he and Lewellen committed
together, e.g., robberies of drug dealers, planting of cocaine.
Rebuttal

of

Rodriguez’s

testimony

in

the

form

of

his

cross-

examination from the criminal trial was also read to the jury.
See, id. at 118:22-146:7.
As relevant to Ruiz-Cortez’s arrest, Rodriguez testified that
he told Lewellen that he was sending a courier to pick up cocaine
“from one of Changa’s supplier’s worker[s],” or Venegas to pick up
drugs from Ruiz-Cortez, as it turned out.
95:16-18.

See, Trial Tr. at

Rodriguez also provided a tip that led law enforcement

to begin surveilling Ruiz-Cortez’s apartment. Rodriguez expected
that if Lewellen or other officers seized money or drugs as a
result of the information he provided, he would get paid as a
confidential informant and Venegas, a woman Lewellen knew from
before, would be let go.

For his part in the conspiracy and other

crimes, Rodriguez is now serving a term of imprisonment of 40
years.

See, United States v. Rodriguez, 09-CR-332, ECF No. 1534

(N.D. Ill. May 6, 2015).
In sum then, Plaintiff’s strategy at trial was to convince
the

jury

that

Plaintiff

also

fabricated

he

stored

sought

evidence

and

drugs

to
hid

only

convince
the
- 8 -

fact

to
the

protect
jury

that

he

his

that
was

family.
Lewellen

committing

illicit acts with Rodriguez.

Predictably, the defense strategy

was to poke holes in this story, especially Plaintiff’s claim that
he

was

coerced

into,

and

not

paid

for,

holding

drugs.

It

accomplished this by impeaching Plaintiff and his witnesses and by
putting on the testimonies of various law enforcement personnel
involved in Ruiz-Cortez’s arrest, questioning, and prosecution.
At the close of the parties’ evidence, the Court gave a set
of jury instructions.

Among other things, the Court told the jury

what is and is not evidence and instructed it to decide the case
on the evidence presented alone.

See, ECF No. 348.

Given that

both Rodriguez and Lewellen invoked the Fifth Amendment, the Court
also instructed the jury on the inference it may draw from such
silence. Id.

The jury then returned a verdict against Plaintiff,

finding Defendant Lewellen not liable.
Unhappy with the verdict, Plaintiff filed this Motion for
Judgment as a Matter of Law or, in the Alternative, a New Trial.
For the reasons stated below, the Court grants the Motion in part
and denies it in part.
II.

ANALYSIS

Plaintiff argues that he is entitled to judgment as a matter
of

law

because

he

introduced

“substantial,

[and]

unrebutted”

testimony establishing both Lewellen’s fabrication of evidence and
his withholding of Brady materials. Alternatively, he says that
- 9 -

the Court committed errors in its evidentiary rulings that justify
a new trial.

The Court takes these arguments seriatim below.
A.

Judgment as a Matter of Law

In considering Plaintiff’s Rule 50 Motion for Judgment as a
Matter

of

favorable

Law,
to

the

Court

Lewellen

as

views
the

the

facts

nonmovant

in

and

the

asks

light

most

whether

the

evidence presented, combined with all reasonable inferences drawn
therefrom, is sufficient to support the verdict he won. See, FED.
R. CIV. P. 50(a)(1); Erickson v. Wis. Dep’t of Corr., 469 F.3d 600,
601

(7th

Cir.

2006).

Only

if

it

finds

that

the

evidence

is

legally insufficient may the Court direct judgment for Plaintiff.
The Court’s inquiry requires it to review the record as a
whole while keeping in mind two important principles.

See, Reeves

v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000); Harvey
v. Office of Banks & Real Estate, 377 F.3d 698, 707 (7th Cir.
2004).

First, in reviewing the record, the Court “must disregard

all evidence favorable to the moving party that the jury is not
required to believe.”

Reeves, 530 U.S. at 151. Second, it “should

give credence to . . . evidence supporting the moving party that
is uncontradicted and unimpeached, at least to the extent that
that evidence comes from disinterested witnesses.”
quotation marks omitted).

- 10 -

Id. (internal

The

Court

criminal

concludes

conviction

that

for

all

evidence

conspiracy

to

besides

possess

and

Lewellen’s
distribute

cocaine is evidence that “the jury is not required to believe.”
Lewellen’s

criminal

“uncontradicted

conviction,

and

on

unimpeached”

the

other

evidence.

hand,

is

Accordingly,

Plaintiff’s Motion for Judgment as a Matter of Law on his claim
that

Lewellen

violated

evidence

must

be

withheld

impeaching

his

due

denied.
Brady

process

However,
evidence,

rights

his

by

claim

insofar

fabricating

that
that

as

Lewellen
evidence

consists of Lewellen’s participation in the narcotics conspiracy,
is granted.
1.
Plaintiff
events

on

the

Fabrication of Inculpatory Evidence

insists
day

of

that

Lewellen

Plaintiff’s

must

have

arrest

lied

because

about

the

Plaintiff’s

testimony, and those of Venegas and Rodriguez, established what
actually happened that day.

The Court disagrees.

As shown by the verdict, the jury did not believe Plaintiff
and his witnesses.

The record is replete with evidence supporting

the jury’s decision to do so.

Jurors saw how both Plaintiff and

Venegas were repeatedly impeached during their cross examination.
They

observed

general

the

credibility

defense
into

not

only

question

specific accounts as to what happened.
- 11 -

calling
but

also

these

witnesses’

impugning

their

In particular, the defense

highlighted

the

multiple

instances

Venegas’s stories diverged.

in

which

Plaintiff’s

and

For example, while Plaintiff made

much of the fact that he did not arrive home until late afternoon
(to

cast

doubt

on

Lewellen’s

timeline

of

events),

Venegas

testified that she arrived at Plaintiff’s apartment and saw him
during in the morning, possibly before noon.
at 531:7-8 with 225:10-227:16.

Compare, Trial Tr.

Once Venegas arrived (at whatever

time), Plaintiff said that she went into his apartment, spent 1520 minutes there bagging the drugs herself, and left with the bag
unaccompanied
657:23.

In

by

Plaintiff.

contrast,

See,

Venegas

id.

at

said

532:2-533:4,

that

she

never

655:14entered

Plaintiff’s apartment, that Plaintiff had already bagged the drugs
for

her

when

she

arrived,

and

that

he

handed

her

the

bag

of

cocaine directly from the doorway of his apartment. See, id. at
237:20-244:13.

Venegas

further

contradicted

Plaintiff

on

his

assertion that Lewellen could not have seen him handling a bag of
cocaine, testifying that Plaintiff stood in the doorway when he
handed her the bag of drugs and could be seen from the outside
doing so.

See, id. at 234:7-235:6.

Plainly,

neither

Plaintiff

nor

Venegas

offered

“uncontradicted” or “unimpeached” testimony, and the jury was not
required to believe them.

See, Sheehan v. Donlen Corp., 173 F.3d

1039, 1045 (7th Cir. 1999) (holding that when the problems with a
- 12 -

party’s
rational

version

what

happened

might

jury

of

were

have

disbelieved”

“serious

that

enough,”

party);

“a

Myvett

v.

Heerdt, No. 12 CV 09464, 2017 U.S. Dist. LEXIS 2628, at *45-46
(N.D.

Ill.

Jan.

9,

2017)

(“[T]he

defense

witnesses,

and

the

defendants in particular, were thoroughly and repeatedly impeached
with

prior

reports,

inconsistent

prior

the

and

from

their

responses.

. . .

[T]he

and

were

that

the

jury

events

the

officers

version

altogether.”).

Any

such
of

discovery

omissions

testimony,

inconsistencies
rejected

statements

favorable

could

evidence

Plaintiff’s claim must be disregarded.

have

reasonably

provided
they

at

trial

provided

to

See, Reeves, 530 U.S. at

151.
As for Rodriguez, he was not present at the scene and so did
not

provide

any

happened

before

testified

that

testimony
he

he

to

arrested

expected

contradict

what

Plaintiff.

that

Lewellen

Lewellen

Although
would

let

said

Rodriguez
Venegas

go

because he knew her to be Rodriguez’s courier, the jury was not
required to believe that this was indeed what happened.

None of

what

between

Rodriguez

Venegas

and

said

Lewellen

about
was

the

anticipated

necessary

to

interaction
convict

Lewellen

of

conspiracy to distribute cocaine, the only charge on which he was
found guilty.

Since things outside that conviction are subject to

various contradictory accounts, the jury was entitled to draw its
- 13 -

own

conclusion

deliberately

let

on

such

Venegas

matters,
go

and

including

then

lied

whether
about

it

Lewellen
at

Ruiz-

Cortez’s trial.
Not only was the jury not required to believe Rodriguez, it
had reasonable grounds to disbelieve him.

First, as a convicted

murderer who testified pursuant to a deal with the Government,
Rodriguez was neither a disinterested party nor somebody without
credibility issues.

Second, Rodriguez’s prior testimony, read in

at this trial, was contradicted and impeached when it was given.
Third, the testimony had to be read in because Rodriguez refused
to testify, choosing instead to invoke his Fifth Amendment rights,
and the jury may reasonably make an adverse inference from his
silence.

See, United States SEC v. Lyttle, 538 F.3d 601, 604 (7th

Cir. 2008); Hillmann v. City of Chi., 834 F.3d 787, 793 (7th Cir.
2016) (collecting cases).

In short, the jury was at liberty to

discount Rodriguez’s testimony.
Perhaps

realizing

the

credibility

issues

presented

by

his

witnesses and himself, Plaintiff here seeks to bolster his account
of what happened by invoking the authority of the United States.
“The United States,” wrote Plaintiff, “after deploying its vast
investigative resources, concluded that Ms. Venegas, not Mr. Ruiz,
had the cocaine in the parking lot.”
“the

United

States

.

.

.

ECF No. 357 at 15.

charge[d]
- 14 -

Lewellen

with

As such,

obstructing

justice for arresting Mr. Ruiz.” Id.

But the United States did

not manage to convict Lewellen on this count, a fact known to the
jury in this trial.

The jury thus knew that Lewellen’s criminal

trial yielded no answer to the question of who carried the cocaine
in the parking lot.

As such, it was entitled to judge the facts

for itself.

Simply because it came to a different conclusion than

the

prosecutors

federal

overturn its verdict.
F.3d

922,

equipped

925
to

(7th

judge

who

charged

Lewellen

is

no

reason

to

See, Massey v. Blue Cross-Blue Shield, 226
Cir.

the

2000)
facts,

(“[T]he
weigh

jury
the

is

the

evidence,

body

best

determine

credibility, and use its common sense to arrive at a reasoned
decision.”) (internal quotation and alteration marks omitted).
Plaintiff also made much of the fact that Lewellen was the
only witness who testified at Ruiz-Cortez’s criminal trial that he
saw him with a bag of cocaine in the apartment parking lot.

But

uncorroborated testimony is not necessarily false testimony.

The

jury might rationally have disbelieved Lewellen (that Plaintiff
carried a bag of cocaine) and believed Plaintiff (that he did
not), but it chose to believe Lewellen and disbelieve Plaintiff.
The Court cannot say that this was unreasonable as a matter of
law.

See, Massey, 226 F.3d at 924 (“Especially after a jury has

evaluated a case, we bear in mind that the question is not whether
the

jury

believed

the

right

people,
- 15 -

but

only

whether

it

was

presented with a legally sufficient amount of evidence from which
it could reasonably derive its verdict.”); Sheehan, 173 F.3d at
1043-44
believed

(finding
[one

that

party’s

when

“the

story],

jury

but

it

might
did

rationally

believe

[the

have
other

party],” “[t]here was a reasonable basis in the record for that
verdict” in favor of the party whom the jury believed) (internal
quotation and alteration marks omitted).
Put differently, since even a dirty cop may sometimes tell
the truth, the jury may reasonably have believed that Lewellen
told the truth as to what happened in the parking lot that day.
The issue boils down to one of credibility, something on which the
Court “will not second-guess a jury.”

See, Harvey, 377 F.3d at

712 (“In reviewing a Rule 50 motion, we will not second-guess a
jury on credibility issues.”); Payne v. Milwaukee Cty., 146 F.3d
430,

433

(7th

Cir.

1998)

(“When

a

case

turns

on

credibility,

neither side is entitled to judgment as a matter of law unless
objective evidence shows that it would be unreasonable to believe
a

critical

witness

for

one

side.”)

the

jury

(internal

quotation

marks

omitted).
Alternatively,

may

simply

have

thought

that

Plaintiff, who carried the burden of proof, did not show that
Lewellen lied.

After all, Lewellen’s testimony was contradicted

only by Plaintiff’s own impeached account and that of somebody
- 16 -

equally compromised (Venegas).

Plaintiff and Venegas were even

impeached by each other’s versions of events.
testimonies

may

Lewellen lied.

have

left

jurors

unable

to

Their conflicting
discern

whether

In such a case, a no-liability verdict was proper.

Put differently, just as the jury was free to believe one side
over another in the face of conflicting or inconsistent testimony,
see, Thomas v. Cook Cty. Sheriff’s Dep’t., 604 F.3d 293, 302 (7th
Cir.

2009),

it

may

have

disbelieved

both

sides

and

so

found

against the party who bears the burden of proof.
It is true that Lewellen stood by his Fifth Amendment right
to remain silent in this case.

However, as a negative inference

from such silence is permitted but not required, see, Evans v.
City of Chi., 513 F.3d 735, 741 (7th Cir. 2008), the jury was
entitled to

treat

that

silence

how

they

wished.

Furthermore,

while Lewellen did not testify, he did call various individuals
involved with law enforcement to testify on his behalf.

These

individuals opined that Lewellen and his partner’s surveillance
and apprehension of Plaintiff were within the operating procedures
of the Chicago Police Department and so provided general support
for Lewellen’s testimony as to what happened.

As such, the jury

had an affirmative basis for believing Lewellen.
Although Plaintiff does not bring up the issue, the Court is
aware

that

when

the

Government

moved

- 17 -

to

vacate

Ruiz-Cortez’s

sentence and release him from prison, it was of the opinion that
“no reasonable fact-finder would have found the defendant guilty.”
See,

United

States

May 31, 2010).

v.

Ruiz,

99-CR-493,

ECF

No.

50

(N.D.

Ill.

However, even if the Government was correct in

that assessment, its opinion is not dispositive for the current
motion.
no

If, for instance, Lewellen is as believable as not, then

reasonable

fact-finder

would

convict

Plaintiff

(because

the

Government cannot show that Lewellen’s testimony proved beyond a
reasonable doubt that Ruiz-Cortez was guilty), but no reasonable
fact-finder

would

find

for

Plaintiff

on

his

fabrication

claim

either (because Plaintiff cannot carry his burden to show by a
preponderance
words,

since

of

the

“the

evidence

that

differences

Lewellen

between

lied).

civil

In

and

other

criminal

litigation all favor the criminal defendant,” Am. Family Mut. Ins.
Co. v. Savickas, 193 Ill. 2d 378, 385 (2000), Ruiz-Cortez may
escape a guilty verdict in the criminal trial and yet not be able
to prove that Lewellen lied about the evidence that would have
been used to convict him.

This is what happened here, and the law

does not compel a different result.
To

summarize,

nothing

that

Plaintiff

said

obligated

a

reasonable jury to believe that his version about what happened is
true and, by inference, Lewellen’s false.
been shown to be unreasonable, stands.
- 18 -

The verdict, not having

See, Erickson, 469 F.3d at

601 (“We will overturn the verdict only if no reasonable jury
could have found in [the nonmovant’s] favor.”). Judgment on the
fabrication claim is denied.
2.

Withholding of Brady Evidence

Plaintiff is on firmer ground when he argues that Lewellen
“withheld evidence of his participation in a narcotics conspiracy
from Plaintiff” during his criminal prosecution and so violated
his Brady rights.

ECF No. 357 at 2.

The parties agreed that

Lewellen was convicted of conspiracy to possess and distribute
cocaine.

They must also agree that Lewellen did not reveal his

involvement in such a conspiracy to Ruiz-Cortez at any time before
Ruiz-Cortez’s criminal trial in 1999.
is

whether

the

nondisclosure

of

The only remaining question

this

involvement

is

a

Brady

violation.
To show a violation of Brady, Plaintiff must establish that
materially favorable evidence was suppressed.
v.

Kuba,

486

F.3d

1010,

1014-15

(7th

Cir.

See, e.g., Harris
2007)

(listing

the

elements of a Brady violation).

In this case, it is undisputed

that

eyewitness

Lewellen

provided

convict Ruiz-Cortez.

the

key

testimony

needed

to

Without this crucial, believable testimony,

Ruiz-Cortez would have had a reasonable probability of walking
free, either because the Government probably would have lost at
trial or because it would have chosen to drop the prosecution
- 19 -

altogether.

Moreover, had the prosecution or defense known that

Lewellen was involved in a drug conspiracy, Lewellen likely could
not have provided believable testimony. His credibility would have
been shot, and his testimony severely undermined by impeachment.
But neither the prosecution nor the defense knew (or reasonably
could have known) of Lewellen’s illicit acts since he did not tell
them.
Ergo,

all

the

elements

of

a

Brady

violation

are

met.

Defendant Chicago Police Officer Lewellen suppressed information
by failing to disclose his participation in a criminal conspiracy.
See, Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008)
(“While most commonly viewed as a prosecutor’s duty to disclose to
the defense, the duty [under Brady] extends to the police and
requires

that

they

similarly

turn

over

exculpatory/impeaching

evidence to the prosecutor, thereby triggering the prosecutor’s
disclosure

obligation.”).

By

engaging

in

such

suppression,

he

denied the defense favorable evidence – evidence that would have
allowed for impeachment of his credibility.

See, Harris, 486 F.3d

at 1016 (“To be favorable, evidence must be either exculpatory or
impeaching.”); United States v. Silva, 71 F.3d 667, 670 (7th Cir.
1995) (“[S]uppression of evidence relevant only for impeachment
purposes can still give rise to a Brady violation. . . .”).

- 20 -

Not only was it favorable and suppressed, the impeachment
evidence was also material since, had it been known, there is a
reasonable probability that “the result of the proceeding would
have been different.”

Kyles v. Whitley, 514 U.S. 419, 434-35

(1995) (internal quotation marks omitted); Pa. v. Ritchie, 480
U.S. 39, 57 (1987) (“[E]vidence is material only if there is a
reasonable probability that, had the evidence been disclosed to
the

defense,

the

result

of

the

proceeding

would

have

been

different. A ‘reasonable probability’ is a probability sufficient
to

undermine

confidence

in

the

outcome.”)

(internal

alteration

marks omitted); Bielanski v. Cty. of Kane, 550 F.3d 632, 643-44
(7th Cir. 2008).
different

outcome

In this case, a reasonable probability of a
(no

conviction)

exists

regardless

of

whether

Ruiz-Cortez actually possessed cocaine. This is due to the fact
that

Government’s

testimony.

case

depended

almost

entirely

on

Lewellen’s

See, United States v. Bagley, 473 U.S. 667, 689 (1985)

(“If the testimony that might have been impeached is weak and also
cumulative, corroborative, or tangential, the failure to disclose
the impeachment evidence could conceivably be held harmless.

But

when the testimony is the start and finish of the prosecution’s
case

.

.

.

quite

a

different

conclusion

must

necessarily

be

drawn.”); United States v. Wilson, 481 F.3d 475, 480-81 (2007)
(citing Conley v. United States, 415 F.3d 183, 189-91 (1st Cir.
- 21 -

2005), with approval for holding that “impeachment evidence [is]
material

because

witness

provided

the

only

credible

evidence

against defendant”).
A dirty cop may sometimes tell the truth, but the Government
could

not

count

believable

on

incriminating

escape conviction.
and

him

being

believed

testimony,

for

even

it.

a

And

guilty

without

person

may

Lewellen’s credibility therefore was crucial,

suppression

of

evidence

that

would

credibility into question violates Brady.

have

called

that

The Supreme Court said

as much in Giglio v. United States, 405 U.S. 150, 153-55 (1972).
In

Giglio,

conspirator,
the

one

the

Taliento,

defendant.

Government’s

Court

As

case

the

encountered
provided

Court

depended

a

case

essential

described

almost

where

the

testimony

entirely

a

against

situation,
on

co-

“the

Taliento’s

testimony” and “without it there could have been no indictment and
no evidence to carry the case to the jury.”
154.

As such, Taliento’s credibility was “an important issue in

the case.” Id. at 154-55.
was

Giglio, 405 U.S. at

entitled

to

know”

The Court therefore held that “the jury
evidence

that

credibility into question. Id. at 155.
it was entitled to know violates Brady.

would

have

called

his

Keeping from the jury what
See, id. at 154-55; Ienco

v. Angarone, 291 F.Supp.2d 755, 762 (N.D. Ill. 2003) (“[W]hen the
reliability of a given witness may well be determinative of guilt
- 22 -

or

innocence,

nondisclosure

of

evidence

affecting

credibility

falls within the Brady rule.”), aff’d, 429 F.3d 680 (7th Cir.
2005).

Cf., Silva, 71 F.3d at 671 (finding no Brady violation

when the suppressed evidence was the “sordid past” of an informant
since the informant’s “credibility was not at issue in this trial,
and thus evidence to impeach him would have been irrelevant”).
This

Court

thus

finds

as

a

matter

of

law

that

Lewellen

violated Plaintiff’s due process rights by failing to disclose
Brady materials.

The Court is aware that it previously denied

Plaintiff summary judgment on the same Brady claim.

This may seem

peculiar since “the standard for granting summary judgment mirrors
the standard for judgment as a matter of law.”
at

150.

But

the

Court

had

its

reasons

for

Reeves, 530 U.S.
denying

summary

judgment, despite acknowledging that Lewellen’s conviction was “a
matter of no genuine dispute.”

As it explained:

What may be treated as a matter of no genuine dispute is
Lewellen’s criminal conviction for conspiring with
Rodriguez. But the one case that Plaintiff cites to go
from there to this Court granting him summary judgment
actually features a denial of both the plaintiff’s and
the defendants’ motions for summary judgment.
See,
Thompson v. City of Chi., No. 07 C 1130, 2009 U.S. Dist.
LEXIS 20348, at *7 (N.D. Ill. Mar. 12, 2009). Given the
disposition of the opinion, the Court is frankly puzzled
as to why Plaintiff cited it in his own Motion for
Summary Judgment. Plaintiff’s Motion is denied.

- 23 -

Ruiz-Cortez, 2016 U.S. Dist. LEXIS 148063 at *44.

The Court thus

denied Plaintiff summary judgment because of the complete lack of
authority offered to justify granting it.
The Court also denied the summary judgment motion because
Plaintiff

overreached

there,

as

he

again

does

here.

While

Lewellen’s conviction is a given fact, not all of the things that
Plaintiff, relying on Rodriguez’s testimony, said Lewellen did are
things that the jury was required to believe him to have done (and
then hid, thus violating Brady).

Plaintiff insists that Rodriguez

must be believed because his testimony was “unrebutted.”
is simply not true.

But this

Rodriguez did not testify at this trial and

so was not cross examined live in front of the jury.

However, his

testimony, as offered during Lewellen’s trial and read into the
record here, was subject to cross examination at the time it was
offered.

The jury heard that cross examination.

It knew that

Rodriguez’s testimony was rebutted; it was not required to believe
him.

See, Reeves, 530 U.S. at 150-51.
The

fact

uncontradicted.

of

Lewellen’s

conviction

is

unrebutted

and

But Lewellen has been convicted of one thing:

conspiracy to possess with the intent to distribute 5 kilograms or
more of cocaine in violation of 21 U.S.C. § 846.

See, United

States v. Lewellen, 09-CR-332-2, ECF No. 1345 (N.D. Ill. June 5,
2013).

Many of the acts that Plaintiff insisted that Lewellen did
- 24 -

and covered up are unrelated to this conviction.

For instance,

relying

on

that

robbed

two

Rodriguez’s
different

No. 357 at 6-12.

testimony,

drug

Plaintiff

dealers

of

have

cocaine

conspired

without

Lewellen’s

their

money.

Lewellen
See,

ECF

But robberies of money are not predicate acts to

a conspiracy to distribute cocaine.
well

said

with

robbing

conviction

Put differently, Lewellen may

Rodriguez
anybody

for

the

to

of

possess

their

former

and

money.

does

not

other

bad

distribute
As

establish

such,
as

a

matter of law that he did the latter.
The

same

reasoning

applies

to

acts

allegedly

committed by Lewellen, including those that are punishable under
21

U.S.C.

§ 846

if

proved.

For

example,

Plaintiff

(parroting

Rodriguez) said that Lewellen paid Rodriguez for his work as a
confidential informant by giving him cocaine.

He also said that

Lewellen threw cocaine onto the balcony of somebody with whom he
was angry so that the person would get arrested.

While both of

these things may be considered acts of cocaine distribution, the
criminal jury may have found that Lewellen did both, only one, or
neither one (because it believed he did something else). Because
Plaintiff

did

not

introduce

evidence

to

establish

what

the

criminal jury found that Lewellen did, he left the jury in this
trial

free

to

decide

the

issue.

By

its

verdict,

the

jury

indicated that it did not believe that Lewellen did any of the bad
- 25 -

acts (and then withheld the fact that he did them from RuizCortez).

Absent

evidence

like

a

special

jury

verdict

from

Lewellen’s criminal trial being introduced into the record, the
Court

does

not

know

what

the

predicate

acts

were

for

which

Lewellen was found guilty and so cannot contradict the jury.
To

put

things

a

determinacy problem.
Lewellen

of

different

way,

Plaintiff

here

faces

a

The prosecution, through Rodriguez, accused

having

done

many

bad

things;

the

criminal

jury

returned a verdict convicting Lewellen of one crime; Plaintiff
failed to show which of those bad acts led to the conviction of
the crime; as such, he has not established as a matter of law that
Lewellen did any of those acts.

He was entitled to convince the

jury in this case that Lewellen did all of them, but he failed to
persuade it that Lewellen did even one.
As a matter of law, therefore, Lewellen only did the things
that

were

necessary

to

his

criminal

conviction.

That

is,

he

conspired to possess with intent to distribute 5 kilograms or more
of

cocaine.

The

situation

is

like

that

found

in

collateral

estoppel cases, where only the issues necessarily decided in an
earlier

trial

are

estopped

trial.

See,

Am.

Family,

from
193

being

Ill.

2d

religitated
at

387-88

in

a

later

(listing

the

elements of collateral estoppel); Sims v. Thompson, No. 79 C 0458,
1983 U.S. Dist. LEXIS 11292, at *4-8 (N.D. Ill. Nov. 29, 1983)
- 26 -

(giving

estoppel

effect

to

the

defendant

prison

guards’

prior

criminal conviction when the defendants were later sued in a civil
lawsuit

because

the

issues

in

the

later

case

–

whether

the

defendants conspired to attack the plaintiff – were necessarily
decided at the criminal trial); Cty. of Cook v. Lynch, 560 F.Supp.
136, 138-40 (N.D. Ill. 1982) (similar). Accordingly, the Court
concludes

that

Lewellen

violated

Plaintiff’s

Brady

rights

by

failing to inform him that he conspired to possess with intent to
distribute 5 kilograms or more of cocaine.

He did not, as a

matter of law, commit a Brady violation by failing to disclose
other information.
For these reasons, the Court grants Plaintiff judgment as a
matter of law to the extent that the nondisclosure of Lewellen’s
criminal

conviction

violated

Brady.

Nothing

outside

conviction, however, is established as a matter of law.

that

Because

the Court finds Lewellen liable, albeit on circumscribed grounds,
it orders a new trial on the issue of damages.
B.

New Trial

As an alternative to judgment as a matter of law, Plaintiff
requests a new trial.

Because Rule 50(c) requires a district

court to rule conditionally on the motion for a new trial in the
event that its decision granting judgment as a matter of law is

- 27 -

vacated

or

reversed,

see,

FED. R. CIV. P.

50(c)(1),

the

Court

examines whether a new trial is appropriate in this case.
The Court “has great discretion in determining whether to
grant a new trial.”
1989).

Valbert v. Pass, 866 F.2d 237, 239 (7th Cir.

A new trial is appropriate where the verdict was against

the weight of the evidence or the trial was otherwise unfair to
the moving party.

See, e.g., Clarett v. Roberts, 657 F.3d 664,

674 (7th Cir. 2011).

A trial is unfair if “improperly admitted

evidence had a substantial influence over the jury, and the result
reached was inconsistent with substantial justice.” Christmas v.
City

of

Chi.,

682

F.3d

quotation marks omitted).
the

improperly

632,

639-40

(7th

Cir.

2012)

(internal

In other words, to warrant a new trial,

admitted

evidence

must

have

“affect[ed]

a

substantial right of the party” or had a significant chance of
swaying the jury’s verdict.

See, FED R. EVID. 103(a); Barber v.

City of Chi., 725 F.3d 702, 715 (7th Cir. 2013).
In exercising its discretion to grant or deny a new trial,
the Court may weigh the evidence, assess the credibility of the
witnesses,

and

judge

presented at trial.
(7th Cir. 2011).

the

comparative

strength

of

the

facts

See, Mejia v. Cook Cty., 650 F.3d 631, 633

Because the Court may perform this independent

assessment of the evidence – something it cannot do in the context
of a Rule 50 motion – it can more easily grant a new trial than it
- 28 -

can judgment as a matter of law.

See, id. at 634 (explaining that

“a motion for a new trial may be granted even if a motion for
judgment as a matter of law must be denied”).
Despite this lower standard, the Court conditionally denies a
new trial here.

The only reason that the Court would grant a new

trial is the same reason that it granted judgment as a matter of
law:

the verdict for Lewellen was against the weight of the

evidence.

If the Court is wrong on the decision to grant judgment

as a matter of law, however, then it would agree with the jury’s
verdict.

There was no unfairness in this trial and thus no reason

to order a new trial.
Plaintiff

argues

otherwise,

identifying

rulings that he said resulted in unfairness.

four

evidentiary

These are:

(1) the

manner of Lewellen’s testimony and his Fifth Amendment invocation;
(2) an allegedly improper comment by Lewellen’s counsel during
closing argument; (3) the admission of certain pieces of evidence
used to impeach Plaintiff; and (4) the “exploitat[ion] [of] the
grant of summary judgment in favor of the City of Chicago.”

The

Court dives into these arguments below despite agreeing with the
defense that Plaintiff sparsely supported his claims.
Plaintiff

cited

few

authorities

and

misstated

Even though

holdings,

arguments are not so lacking as to be considered waived.

- 29 -

his

However,

having done the dive, the Court finds little merit in Plaintiff’s
claimed errors, either individually or collectively.
1.

Lewellen’s Testimony and Fifth Amendment Invocation

The

parties

knew

that

Lewellen

would

invoke

his

Fifth

Amendment right to refuse to answer questions during trial, as he
did

at

his

dramatize
witness

deposition.

the

“so

Nonetheless,

moment,”

the

jury

Plaintiff
could

seeking

wanted

to

call

him

take

the

watch

decline to answer a series of questions.”
Evans, 513 F.3d at 740.

“maximize
Lewellen
oath

and

and

as

then

See, ECF No. 336 at 4;

See, ECF No. 336 at 5; Evans,

The Court allowed Plaintiff to call Lewellen,

who was incarcerated in Florida, to the stand via video link.
Court

further

a

The Court exercised its discretion in

granting that request only in part.
513 F.3d at 740.

to

allowed

Plaintiff

to

ask

Lewellen

a

number

The
of

questions, each of which Lewellen was to answer or assert the
Fifth.

However, both parties knew that Lewellen would decline to

answer all questions.

The Court therefore restricted Plaintiff’s

questions to “no more than [is] needed to establish the subject
matter of the testimony” and directed that the parties thereafter
proceed by stipulation that Lewellen would remain silent as to
similar questions.

See, ECF No. 336 at 5.

in

ruling,

its

in

limine

this

manner

- 30 -

of

As the Court explained
presentation

of

the

testimony balanced Plaintiff’s interest in effectively presenting
his case against the risk of undue prejudice to Lewellen. See, id.
In accordance with the Court’s ruling, Plaintiff was able to
ask Lewellen questions regarding whether he fabricated evidence
against

Ruiz-Cortez,

protected

Rodriguez

engaged in specific criminal acts.

from

prosecution,

and

See, Trial Tr. 453:2-455:7.

Lewellen stood by his Fifth Amendment invocation. Id.

The Court

then explained to the jury that both sides agreed that “[t]he
Defendant, Lewellen, is asserting the Fifth Amendment in response
to all questions that are relevant to the plaintiff’s case.

If

asked any such additional questions, were we to ask Mr. Lewellen,
he would similarly assert his – the Fifth Amendment.”
455:11-23.
to the jury:

Id. at

As part of its jury instructions, the Court also said
“You have heard testimony in this case from persons

asserting their Fifth Amendment rights.

You may, but are not

required to, infer from the witness’s assertion of their Fifth
Amendment privilege that the witness’s testimony in response to
those questions would have been adverse to them.”

ECF No. 348.

Plaintiff now charges that this manner of presentation to the
jury “was in contradiction of the rulings of the Seventh Circuit.”
ECF No. 357 at 22.
rulings

of

the

Despite this bold statement leaning on “the

Seventh

Seventh Circuit ruling.

Circuit,”

Plaintiff

cited

not

a

single

Instead, he directed the Court to one
- 31 -

statement by Judge Sykes during an oral argument and a district
court decision.

The Court read the opinions produced in both

cases and found nothing in them that disallowed what it did here.
In Thompson v. City of Chi., 722 F.3d 963 (7th Cir. 2013),
the Seventh Circuit did not touch on the presentation of a Fifth
Amendment invocation.

It did say that the district court “retains

considerable latitude even with admittedly relevant evidence” and
only “abuses its discretion if it so limits the evidence that the
litigant

is

effectively

case.” Id. at 971.

prevented

from

presenting

his

or

her

As noted, the Court considered Plaintiff’s

ability to present his case effectively in ruling on how Lewellen
was to testify.
Lewellen

to

the

This was why the Court allowed Plaintiff to call
stand,

necessary questions.

put

him

under

oath,

and

ask

him

the

The Court also considered the prejudicial

effect of dramatizing the inquiry and so proceeded by stipulation
after the initial questions. Plaintiff has pointed to nothing to
indicate that this ruling was abusive, other than that the jury
returned a verdict against him.

But an adverse verdict by itself

cannot show error – a party loses at the end of every trial after
all.
Likewise, the second case that Plaintiff cited, Jimenez v.
City of Chi., 877 F.Supp.2d 649, 671-72 (N.D. Ill. 2012), offered
no support to his position.

In Jimenez, the district court found
- 32 -

that it did not commit an abuse of discretion by calling a witness
to the stand instead of letting him stipulate that he would assert
his

Fifth

because

Amendment

it

is

not

privilege
an

abuse

if
of

called.

Id.

discretion

to

However,
opt

just

against

a

stipulation does not imply that it is abuse to proceed (partly) by
stipulation.

Indeed, the Jimenez court made just this point in

the context of jury instructions, stating “[t]he fact that the
Court

has

given

instructions

similar

to

the

ones

defendants

requested here in a previous case does not mean that the Court
committed a legal error requiring a new trial by not doing so in
the present case.”

Id. at 665.

Furthermore, the Seventh Circuit has found that proceeding by
stipulation alone is not an abuse of discretion in at least some
circumstances.

See,

Evans,

513

F.3d

at

740-41

(“The

judge

instructed the jurors that they could draw an adverse inference as
to liability based on [the defendant] Dignan’s assertion of the
Fifth Amendment to questions about the case.

There is no reason

to think that the jurors ignored the instructions. . . . The
jury’s

verdict

indicates

that

it

declined

to

draw

a

negative

inference from Dignan’s assertion of his Fifth Amendment rights.
Given this state of affairs, we find no error in how Judge Coar
decided to [present Dignan’s Fifth Amendment assertion to the jury
by

stipulation

alone].”).

A

stipulation

- 33 -

thus

is

not

per

se

unreasonable, and Plaintiff has not given the Court any reason to
think that it was unreasonable in this case.
Just

as

the

Court

finds

no

error

in

the

presentation

of

Lewellen’s testimony, it finds nothing particularly improper in
the preamble to Lewellen’s assertion of the Fifth Amendment. After
Lewellen was called to the stand and put under oath, he said, “Mr.
Smith, as I’m – as I’m currently in the process of challenging my
federal

case,

I

have

been

advised

by

my

criminal

lawyers

decline to answer any questions under my Fifth Amendment.

to
Mr.

Smith, I would love to testify in this –” at which point he was
interrupted by Plaintiff’s objection and did not continue.
Trial Tr. at 453:12-16.

See,

The Court then instructed Lewellen to

“[a]nswer the question and do not go on and explain your answer.
Just take – either answer the question or decline to answer, sir.”
Id. at 453:25-454:2.
my

previous

thereafter.

Defendant then dutifully stated, “I stand by

statement

and

take

the

Fifth”

to

every

question

See, id. at 454:3-455:6.

Plaintiff complains that what Lewellen said allowed him to
“look[] into the camera like a boy scout and lament[] that a mere
technicality foreclosed him from speaking.”

ECF No. 357 at 22.

Of course, Lewellen never said that a mere technicality kept him
from answering.

Instead, he stated that he “decline[d] to answer

any questions” on the advice of his criminal lawyers. This is
- 34 -

clearly proper.

See, Evans, 513 F.3d at 740 n.4 (stating that a

witness’s invocation of the Fifth Amendment may consist of the
“mundane”

statement,

“On

the

advice

of

counsel,

I

decline

to

answer.”).
Plaintiff
“mundane”

is

unhappy

statement,

with

however.

the

words

First,

he

surrounding

takes

issue

that

with

the

proffered “I’m currently in the process of challenging my federal
case.”

His argument as to why this is inappropriate boils down to

nothing

more

argument

than

that

what

the

Lewellen’s

Fifth

possibility

of

excuses.”

he

Court

said

in

his

rejected.

Amendment

motion
Plaintiff

invocation

sanctions

without

No.

at

According

365

2-3.

limine

–

an

contends

that

“indicate

must

criminal

ECF

in

the

providing
to

alternate

Plaintiff,

the

statement that Lewellen was in the middle of an appeal is an
“alternate excuse” and therefore impermissible.

The Court cannot

agree

Fifth

with

such

a

the

narrow

case

view

of

a

proper

Amendment

invocation.
It

is

that

“[t]o

be

privileged

by

the

Fifth

Amendment to refuse to answer a question, the answer one would
give if one did answer it (and answer it truthfully) must have
some tendency to subject the person being asked the question to
criminal liability.”
Litig.,

295

F.3d

651,

In re High Fructose Corn Syrup Antitrust
663-64

(7th

- 35 -

Cir.

2002).

However,

this

principle

reason

for

liability

is

illegitimate and therefore cannot be articulated to a jury.

If

taking

cannot

the

be

Fifth

taken

to

besides

imply
risk

that
of

any

other

criminal

that were the case, there would be no basis for a jury ever to
decline making a negative inference from a witness’s invocation.
But, as we know, such a negative inference is permissive, not
required.

Evans, 513 F.3d at 741.

In particular, a witness ought to be able to reveal a pending
appeal since reticence to speak in the face of ongoing litigation
is something a reasonable jury can balance against the tendency to
incriminate oneself.

See, In re High Fructose Corn Syrup, 295

F.3d at 664 (finding that when the witnesses “had exhausted their
appellate remedies,” refusal to answer questions was explainable
only by the risk of criminal liability); Padilla v. City of Chi.,
932 F.Supp.2d 907, 919 (N.D. Ill. 2013) (“[A] defendant seeking to
avoid the weight of a negative inference must advance something
explaining

a

reason

for

his

or

her

Fifth

Amendment

invocation

other than guilty conduct associated with the civil action.”).

In

sum, Lewellen may say just what he did – that he was invoking his
Fifth Amendment rights because he had an appeal pending.

The

Court may do what it did – instruct the jury that it may infer
from Lewellen’s silence that his truthful answers would have been

- 36 -

adverse to him and thereby put jurors on notice of the tendency to
liability.

There is no error thus far.

As to the added “I would love to testify,” this was a brief
statement said just once.

The Court is not convinced that what

Lewellen said allowed him to “look like a boy scout” and so escape
liability.

Lewellen testified from prison; the jury knew that he

has been sentenced to an incarceration term of 18 years for the
crime that he committed; it heard an abundance of testimony on his
supposed criminal activities.

Plaintiff’s hyperbole aside, the

probability that the jury found Lewellen not liable because of the
few words he said when invoking his Fifth Amendment privilege is
negligible.

If the statement was error, it was harmless error.

See, Jones v. Lincoln Elec. Co., 188 F.3d 709, 725 (7th Cir. 1999)
(“An error is considered to be harmless if it did not contribute
to the verdict in a meaningful manner.”).
2.
Related

to

Defense Counsel’s Closing Statement
his

objections

regarding

Lewellen’s

Fifth

Amendment invocation, Plaintiff also accuses defense counsel of
improperly vouching for his client.
statement

that

defense

counsel

made

According to Plaintiff, a
during

closing

argument

“insinuated . . . that the jury should trust him that Lewellen
asserted the Fifth Amendment for reasons other than the tendency

- 37 -

to

incriminate.”

See,

ECF

No.

357

at

24.

The

objected-to

statement that counsel made during closing argument is this:
This case is incredibly important to the parties. It’s
also incredibly important to the attorneys.
It’s also
incredibly important for what it represents in our
society at large because I stand here not just on behalf
of a client.
I stand here as an officer of the court.
And I have a solemn oath to uphold the integrity of our
judicial system. I take that –
Trial Tr. at 877:25-878:6.
overruled

his

Plaintiff then objected, and the Court

objection.

Defense

counsel

continued

without

further objection to say, “And I take my job very, very seriously.
You may have noticed that.

If I have offended any of you by being

overzealous, I apologize.

I’m a very passionate person, and I

take – I take this very, very seriously.”

Id. at 878:12-15.

The Seventh Circuit has “repeatedly stated that comments made
by attorneys during closing arguments rarely rise to the level of
reversible error.”

See, e.g., Willis v. Lepine, 687 F.3d 826, 834

(7th Cir. 2012); Pickett v. Sheridan Health Care Ctr., 610 F.3d
434, 445 (7th Cir. 2010); Valbert, 866 F.2d at 241.
comment
errors.

in

this

case

is

not

one

of

those

rarefied

Counsel’s
reversible

Indeed, the Court is not convinced that there was error

at all.
Counsel’s statement on its face did not bolster Lewellen’s
credibility in any way.

Counsel was perhaps vouching for his own

“overzealousness” and “passion,” explaining to the jury that he is
- 38 -

“an

officer

of

seriously.”

the

court”

who

takes

his

job

“very,

very

But this is far from “insinuat[ing] to the jury that

they should trust” Lewellen because counsel trusted Lewellen or
that they should trust counsel that Lewellen was asserting his
Fifth Amendment privilege for reasons unrelated to the risk of
criminal liability.

ECF No. 357 at 24.

Counsel himself did not

mention Lewellen; he did not hint at Lewellen’s trustworthiness;
he

did

not

say

he

trusted

Lewellen;

client’s Fifth Amendment invocation.

he

did

not

refer

to

his

Plaintiff’s imputed meaning

to what counsel said thus stretches the words beyond their natural
significance.

The Court did not think that counsel’s comments

were improper when he said them, and it does not think so now.
Furthermore, even if what counsel said was not based on the
evidence before the jury, the Court twice instructed jurors not to
treat counsel’s statements as evidence.

Before the parties stood

up to deliver their closing arguments, the Court said to the jury:
“What I said about opening statements is also true for closing
arguments.

It’s the attorney’s opportunity to argue to you, tell

you how you ought to interpret the evidence and how you ought to
decide the case, but what the attorneys say is not evidence.”
Trial Tr. 856:12-20.
same thing again.

In its jury instructions, the Court said the

See, 907:3-908:18.

- 39 -

Juries

are

presumed

to

follow

their

instructions.

See,

Jones, 188 F.3d at 732 (“[C]ourts must presume that juries heed
limiting

instructions

that

considered evidence.”).

closing

arguments

are

not

to

be

While the presumption may be overcome,

see, Barber, 725 F.3d at 716-17, Plaintiff has given the Court no
reason to think that happened here.

Instead, Plaintiff points

(again) only to the fact that he lost.

This is not enough.

See,

Smith v. Hunt, 707 F.3d 803, 812 (7th Cir. 2013) (“As proof that
the jury could not follow the instructions given, Smith offers
nothing other than the fact that it decided against him.

We do

not think that is enough.”).
Finally, counsel’s brief comments, unrepeated anywhere else,
cannot have caused the kind of harm that justifies a new trial.
As

the

Seventh

statements

Circuit

made

during

explained,
closing

“[t]o

warrant

argument

a

new

must

be

trial,
plainly

unwarranted and clearly injurious to constitute reversible error.”
Jones,

188

F.3d

at

730

(7th

Cir.

1999).

This

standard

is

difficult to meet when followed by instructions like the kind the
Court gave here.

See, Valbert, 866 F.2d at 241 (“[A]n instruction

to the jury stating that the arguments of counsel are not evidence
can mitigate the harm potentially caused by improper statements
made by counsel during closing argument.”); Willis, 687 F.3d at
834

(finding

that

“the

judge’s

instruction

- 40 -

to

the

jury

that

statements made by the attorneys are not evidence was sufficient
to remedy any harm that may have been caused by defense counsel”).
It is even more difficult when “the comment is merely a brief and
unrepeated part of a lengthy argument.”

Valbert, 866 F.2d at 241;

see also, Christmas, 682 F.3d at 641 (affirming a denial of a new
trial when the asserted basis for relief was an “isolated comment
[] made during the course of a weeklong trial and was adequately
addressed by the district court through a curative instruction”).
Here, the objected-to portion of counsel’s comments was a mere
five

sentences

delivered

as

part

spanned 22 pages when transcribed.

of

a

closing

argument

See, Trial Tr. 877-899.

that
Under

such circumstances, the Court finds neither error nor harm in the
comment.
3.

Admission of Certain Evidence

Plaintiff further claims errors with three of the Court’s
evidentiary rulings:

the admissions of Plaintiff’s aliases, his

tax payments, and the Mendez report.
The complaint of error regarding Plaintiff’s use of aliases
is without merit.

While there are limits on how a party may

confront

with

a

witness

the

witness’s

use

of

false

names

and

thereby impeach his honesty, see, Thompson, 722 F.3d at 976-78,
those limits were strictly observed here.

Plaintiff was asked

about his use of one alias; he answered two questions on the
- 41 -

subject matter; he was allowed to say that he used the alias on
“more than one occasion” without revealing any details about those
occasions.

See, Trial Tr. 552:13-554:15.

This is far from the

situation that the Seventh Circuit found improper in Thompson.
There,

the

“odd

and

elaborate”

method

of

questioning

Thompson

about his use of aliases on 12 different “important event[s] in
[his] life” transparently conveyed to the jury that he had been
arrested 12 times.

Thompson thus was unduly prejudiced by the

revelation of his arrest record; no such prejudice occurred here.
Next,

Plaintiff

takes

issue

with

the

Court’s

ultimate

decision to allow questions into Plaintiff’s lack of tax payments.
Plaintiff had said during his deposition that he did not pay taxes
and, when prompted, agreed that the reason was because his income
fell below the filing threshold.
to making much more money.

At trial, however, he testified

The filing thresholds and missing tax

payments therefore became relevant to impeach Plaintiff’s trial
testimony that he was earning good wages and therefore had no
incentive to store drugs for money. Because Plaintiff opened the
door to the issue with his trial testimony, the Court reversed its
earlier in limine decision and admitted evidence related to the
taxes and income filing thresholds.
Altering an in limine ruling is within the sound discretion
of the Court.

See, Luce v. United States, 469 U.S. 38, 41-42
- 42 -

(1984) (“[T]he district judge is free, in the exercise of sound
judicial

discretion,

to

alter

a

previous

in

limine

ruling.”);

Farfaras v. Citizens Bank & Tr., 433 F.3d 558, 565 (7th Cir.
2006); Betts v. City of Chi., 784 F.Supp.2d 1020, 1023 (N.D. Ill.
2011) (“Rulings on motions in limine are preliminary; the district
court

may

adjust

a

motion

in

limine

during

trial.”) (internal quotation marks omitted).

the

course

of

a

The Court did not

abuse its discretion by adjusting its earlier in limine decision,
and the ultimate ruling admitting the evidence was the correct
one.

The evidence became especially relevant due to the length

and specificity of Plaintiff’s testimony regarding how much money
he was making, how little his expenses were, and how financially
comfortable

he

felt.

See,

Trial

Tr.

at

511:15-512:20; 580:7-583:25; 618:14-624:4 (“Q:

506:10-11;

508:6-8;

Now, you testified

quite extensively yesterday about how you were making such good
money

during

the

Yes.”); 855:7-16.

time

period

before

your

arrest,

right?

A:

Given the probative value of the evidence, the

risk of undue prejudice to Plaintiff (if any) did not warrant
excluding

the

evidence.

See,

FED. R. EVID. 401-403; see

also,

Thompson, 722 F.3d at 971 (“The district court has wide discretion
in admitting and excluding evidence. . . .”).
Third,

Plaintiff

argues

that

a

statement

he

made

to

law

enforcement that was memorialized in a report (the Mendez report)
- 43 -

should not have been admitted to impeach his account of coercion.
This really is the identical argument that he made in his motion
in limine.

See, ECF No. 336 at 7-8.

The Court there explained

that the document was admissible under Rule 803(5) of the Federal
Rules of Evidence to refresh Officer Mendez’s recollection as a
witness,

and

the

underlying

statements,

consisting

of

what

Plaintiff said to law enforcement, were admissible as admissions
of the party opponent under Rule 801. Id. at 8.

It said the same

thing at trial when Plaintiff renewed his objection.
Tr. at 745:14-746:9.
defense

was

careful

See, Trial

As to the actual use of the report, the
to

refresh

Mendez’s

recollection

with

the

document prior to his offering testimony, and the Court allowed
the

testimony

but

declined

pursuant to Rule 803(5).

to

admit

the

report

as

an

exhibit

See, id. at 752:10-763:2; FED. R. EVID.

803(5) (“If admitted, the record may be read into evidence but may
be received as an exhibit only if offered by an adverse party.”).
The Court thus finds for the third time that the evidence is
admissible.
In

sum,

Plaintiff

has

not

identified

any

error

with

the

Court’s evidentiary rulings.
4.

Grant of Summary Judgment to the City of Chicago

Plaintiff’s last argument for a new trial is brief to the
point of vagueness.

Plaintiff appears to argue that the grant of
- 44 -

summary

judgment

to

the

City

of

Chicago

somehow

hampered

ability to present his case against Lewellen at trial.

his

But he

says this without citing to any place in the trial transcript
showing where a piece of evidence that he wished to admit was
excluded or admitted when he wished it excluded.
has

no

way

to

determine

the

supposed

error,

The Court thus

whether

Plaintiff

preserved his right to contest it, or the effect of the error on
Plaintiff’s substantial right.
What Plaintiff did say in the short paragraphs he devoted to
the argument was no more illuminating.

He claims that after the

Court dismissed the Monell claim against the City, he “could not
describe how the City’s policies led to the abuse of innocent
citizens such as himself.”

ECF No. 357 at 26-27.

The Court

dismissed the Monell claim because Plaintiff failed to make out a
City

policy

that

caused

his

constitutional

harm.

See,

Ruiz-

Cortez, 2016 U.S. Dist. LEXIS 148063 at *64-79. Plaintiff is not
here contesting that decision.

Ergo, it stands to reason that

since he could not pinpoint a City policy that led to his harm, he
cannot describe how such a nonexistent policy “led to the abuse of
innocent

citizens

such

as

himself.”

inevitability, not error.

- 45 -

This

is

tautological

5.

Cumulative Prejudicial Error

Lastly, the Court considers whether the asserted errors, even
if

harmless

on

their

own,

justifying a new trial.

cumulatively

resulted

in

prejudice

See, Barber, 725 F.3d at 715. As to the

evidentiary objections discussed above, the Court summarily finds
no

cumulative

threshold

prejudice:

showing

Christmas,

682

cumulative

effect

trial”)

that

F.3d

(emphasis

Plaintiff

there

at

643

requires
added)

was

has

more

(stating

that

than
that

“multiple

(internal

not

made
one

error.

prejudice
errors

quotation

even

the
See,

from

occurred

marks

a
at

omitted);

United States v. Conner, 583 F.3d 1011, 1027 (7th Cir. 2009) (“In
order for the cumulative effect doctrine to apply, the plaintiff
must first show that more than one error occurred.”).
There is a more general issue, however.

Plaintiff appears to

argue that it was “jury nullification” for the defense to have
engaged in the “diversionary” tactic of poking holes in his story
that he stored drugs to protect his family.
1-3.

See, ECF No. 357 at

Plaintiff goes so far as to say that “[t]he jury in this

case was not deciding whether Ruiz was coerced into taking the
drugs into his apartment.” Id. at 16.

He thus seems to assert

that any evidence introduced tending to cast doubt on the coercion
story was irrelevant and therefore admitted in error.

- 46 -

The argument is baffling.
Plaintiff

was

coerced

into

While it is true that whether

holding

drugs

is

irrelevant

to

the

question of whether Lewellen violated Plaintiff’s Brady rights,
Plaintiff chose to make his coercion a central theme of the trial.
Having

put

evidence

the

issue

tending

to

make

probable is irrelevant.
In

other

“whether

words,

Ruiz

was

into

play,
the

he

cannot

alleged

now

complain
more

or

less

were

coercion

that

deciding

See, FED. R. EVID. 401.
the

jurors

coerced

into

in

this

taking

case
the

drugs

into

his

apartment” precisely because Ruiz-Cortez asked them to do so.

He

pleaded

in

for

the

jury

to

consider

his

lack

of

culpability

assessing Lewellen’s liability and deciding on a damages award.
The Court suspects that the size of that award is the reason
coercion

became

an

issue

at

trial,

even

though

Plaintiff’s

attorneys knew that they did not have to litigate the point.

In

any

it

case,

given

Plaintiff’s

freely

chosen

trial

strategy,

cannot be error for the defense to introduce evidence tending to
lessen the success of that strategy.

See, FED. R. EVID. 401-402;

see also, Walden v. City of Chi., 846 F.Supp.2d 963, 973 (N.D.
Ill. 2012).
In looking forward to the new trial on damages, the Court is
of the view that evidence shedding light on whether Plaintiff was
coerced into storing drugs is relevant for determining the amount
- 47 -

of

damages.

Plaintiff’s

whole

strategy

seems

an

implicit

admission of that fact, and he may have admitted so in his latest
brief,

writing

that

“[a]t

best

Defendants’

argument

[casting

aspersion on the coercion theory] was related to damages.” ECF
No. 357 at 3.

Nonetheless, if there is a dispute now between the

parties on the issue, then they should brief it before the new
trial begins.
III.
For

the

reasons

stated

CONCLUSION
herein,

the

Court

grants

in

part

Plaintiff Ruiz-Cortez’s Motion for Judgment as a Matter of Law
[ECF No. 357] and orders a new trial on the issue of damages.
Pursuant to FED. R. CIV. P. 50(c)(1), the Court rules that in case
this

judgment

is

later

vacated

or

reversed,

it

conditionally

denies the Motion for a New Trial.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: May 15, 2017

- 48 -