Cefalu v. Glenview et al

Filing 91

MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 4/17/14.(rbf, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROSALIA CEFALU

)
)
Plaintiff,
)
)
v.
)
)
JAMES ROCUSKIE AND JAMES HORN, )
)
Defendants.
)

No. 12 C 5995
Hon. Michael T. Mason

MEMORANDUM OPINION AND ORDER
Before the Court is plaintiff Rosalia Cefalu’s (“plaintiff” or “Cefalu”) post-trial
motion [86]. In this case, plaintiff brought a claim for false arrest against two police
officers, James Rocuskie and James Horn (“defendants”). The case was tried before a
jury on November 19 and 20, 2013. The jury found in favor of both defendants. For the
reasons set forth below, plaintiff’s post-trial motion is denied.
I.

BACKGROUND
Shortly after midnight, on April 15, 2011, Cefalu was a passenger in a black Jeep

traveling in the Village of Glenview, Illinois. At 12:03 am, Officer Rocuskie pulled up
behind the Jeep at a red light. After he noticed that the Jeep had expired license plates,
Officer Rocuskie initiated a traffic stop. Once the Jeep was pulled over, the driver of
the vehicle, Ron Allen (who was Cefalu’s boyfriend at the time) provided Officer
Rocuskie with two different vehicle registrations, both of which Officer Rocuskie noted
were unusual. When Officer Rocuskie called this information in, he was informed that
the vehicle was reported stolen. Officer Rocuskie then placed Allen under arrest and

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Officer Horn, who had arrived at the scene, placed Cefalu under arrest. Officer Horn
then transported Cefalu to the police station where she was detained. The Jeep was
towed to the police station and drugs were found in the trunk. Felony drug charges
were subsequently brought against both Cefalu and Allen. These charges were later
dropped against Cefalu. No charges were brought against either individual in
connection with the stolen vehicle, although the vehicle was returned to the dealership
in Iowa from which it had been stolen.
Cefalu initially filed a complaint against defendants alleging false arrest, unlawful
search and seizure, and malicious prosecution. Prior to trial, however, she dropped her
claims for unlawful search and seizure and malicious prosecution, and the sole issue for
the jury at trial was her false arrest claim. After deliberating for approximately 1.5 hours,
the jury reached a verdict in favor of both defendants.
Currently pending before the Court is plaintiff’s motion for a new trial. Plaintiff
argues that she is entitled to a new trial under Rules 59(a) and 60 of the Federal Rules
of Civil Procedure. We address each of plaintiff’s arguments below.
II.

Plaintiff’s Rule 59(a) Motion for A New Trial
Under Rule 59(a), in deciding whether to grant a new trial, we must determine

whether “the verdict is against the weight of the evidence, ...or if for other reasons, the
trial was not fair to the moving party.” Willis v. Lepine, 687 F.3d 826, 836 (7th Cir.
2012). Plaintiff argues that she is entitled to a new trial under Rule 59(a) because: 1)
the Court erred in not properly instructing the jury; 2) the Court erred in allowing Officer
Rocuskie to testify about certain topics; 3) the Court erred in prohibiting plaintiff from
using newspaper articles at trial; 4) evidentiary rulings made during the trial amount to
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cumulative error; and 5) the jury’s verdict is against the manifest weight of the evidence.
Before we begin our analysis, we note that although Rule 59(a) permits the Court
to grant a new trial, as a practical matter, “a new trial should be granted ‘only when the
record shows that the jury's verdict resulted in a miscarriage of justice or where the
verdict, on the record, cries out to be overturned or shocks [the Court's] conscience.’”
Warfield v. City of Chicago, 679 F. Supp. 2d 876, 882 (N.D. Ill. 2010) (quoting Davis v.
Wisconsin Department of Corrections, 445 F.3d 971, 979 (7th Cir. 2006)). Indeed,
“[g]ranting a new trial is not something to be done lightly.” Rasic v. City of Northlake,
No. 08 C 104, 2010 WL 3365918, at *6 (N.D. Ill. Aug. 24, 2010). Where a jury has
reached a verdict, that verdict “will be set aside as contrary to the manifest weight of the
evidence only if ‘no rational jury’ could have rendered the verdict.” Moore ex rel. Estate
of Grady v. Tuelja, 546 F.3d 423, 427 (7th Cir. 2008) (citing King v. Harrington, 447 F.3d
531, 534 (7th Cir. 2006)).
In addition, “[t]he party seeking a new trial based on alleged legal errors ‘bears a
heavy burden.’” Rasic, 2010 WL 3365918, at *6 (quoting Alverio v. Sam's Warehouse
Club, Inc., 253 F.3d 933, 939 (7th Cir. 2001)). “The party first must show an abuse of
discretion in the Court's rulings, which alone is a steep hill to climb.” Id. She must then
“show that any alleged errors were substantial enough to deny [her] a fair trial, which
requires proof that a significant chance exists that they affected the outcome of the
trial.” Rasic, 2010 WL 3365918, at *6 (internal quotations omitted).
A. The Court Did Not Err In Denying Plaintiff’s Request for Additional Jury
Instructions
Plaintiff first argues that this Court erred by refusing to include two jury
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instructions she proposed on the issue of probable cause. She asked the Court to
include an instruction outlining a “particularity requirement” for probable cause. She
also asked the Court to include an instruction describing the elements for possession of
a stolen vehicle under the Illinois criminal code.
“On a motion for a new trial based on improper instructions to the jury, we ask
whether the instructions, when considered in their entirety and not in isolation, were
sufficient to inform the jury of the applicable law.” Alcala v. Emhart Indus. Inc., 495 F.3d
360, 363 (7th Cir. 2007). To receive a new trial on this ground, the movant must
demonstrate “both that the instructions did not adequately state the law and that the
error was prejudicial to [her] because the jury was likely to be confused or misled.” U.S.
v. White, 443 F.3d 582, 587-88 (7th Cir. 2006) (citing Boyd v. Illinois State Police, 384
F.3d 888, 894 (7th Cir. 2004)). When assessing whether prejudice has resulted, the
Court must consider the instructions as a whole, along with all the evidence and
arguments in the case, and then decide whether the jury was misinformed about the
applicable law. Id.
1. Jury Instruction on the Particularity Requirement For Probable Cause
In her proposed jury instructions, plaintiff submitted the following instruction
(“Plaintiff’s Proposed No. 6") to the Court, outlining a particularity requirement for
probable cause:
Where the standard is probable cause, a seizure or arrest of the person must be
supported by probable cause particularized with respect to that person, and this
requirement cannot be undercut or avoided simply by showing that there exists
probable cause to seize or arrest another person who is nearby. A person’s
mere proximity to others independently suspected of criminal activity does not,
without more, give rise to probable cause to seize or arrest that person.
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This proposed instruction was in addition to Plaintiff’s Proposed No. 5, which was the
standard probable cause instruction that the parties had agreed to (taken nearly
verbatim from the Seventh Circuit Pattern Jury Instruction 7.06), and which this Court
adopted. Plaintiff’s Proposed No. 5 stated (in relevant part):
There is probable cause for an arrest if at the moment the arrest was made, a
prudent person would have believed that Plaintiff had committed a crime. In
making this decision, you should consider what Defendants knew and what
reasonably trustworthy information Defendants had received.
It is not necessary that Defendants had probable cause to arrest Plaintiff for drug
possession, so long as Defendant had probable cause to arrest her for some
criminal offense.
Probable cause requires more than just a suspicion. But it does not need to be
based on evidence that would be sufficient to support a conviction, or even a
showing that Defendant’s belief was probably right. The fact that the charges
against Rosalia Cefalu of drug possession were later dismissed does not by itself
mean that there was no probable cause at the time of her arrest.
At the instructions conference during trial, we denied plaintiff’s request to include the
particularity requirement in Plaintiff’s Proposed No. 6 because, as the Court explained, it
could confuse the jury.
Plaintiff now argues that the Court erred in denying her request to include the
particularity requirement. Plaintiff argues that the Court’s failure to include the
instruction caused the jury to be confused about whether they could find there was
probable cause to arrest Cefalu based on the actions of Allen, the driver of the vehicle.
We disagree. The jury instructions, as they were given, clearly explained that in order
to find for defendants, the jury needed to find that defendants had probable cause to
arrest plaintiff. It was never suggested that probable cause to arrest Allen would also
give the defendants probable cause to arrest Cefalu. The probable cause standard was
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articulated clearly and adequately (in accordance with the Seventh Circuit’s patterned
instructions) in Plaintiff’s Proposed No. 5 and there was no need for an additional
instruction. Indeed, as we explained at trial, we find that including the particularity
requirement would do more to confuse the jury because Allen was not a party to the
case and the jury was not evaluating whether there was probable cause to arrest him.
Therefore, we are not persuaded by plaintiff’s argument that the Court’s failure to
include this instruction is grounds for a new trial.
2. Jury Instruction Regarding the Illinois Criminal Statute on Possession of
a Stolen Vehicle
Throughout the trial, Cefalu argued that the Illinois statute on possession of a
stolen vehicle (or criminal trespass to a stolen vehicle) includes an element of
knowledge. Plaintiff’s counsel argued that there was no evidence that plaintiff knew the
car was stolen. According to plaintiff’s counsel, because defendants had no evidence of
Cefalu’s knowledge, they could not have had probable cause to arrest her. In order to
demonstrate this theory of her case, plaintiff asked the Court to include the following
instruction (Plaintiff’s Proposed Instruction 6A”): “A person commits the offense of
possession of a stolen vehicle when that person possesses a vehicle when not entitled
to possession of the vehicle and when knowing it to have been stolen.” During the
instructions conference, plaintiff’s counsel argued that this instruction was necessary
because “the jury needs to be told that knowledge is an essential element of the
potential charge of possession of a stolen motor vehicle.” The Court disagreed and
found that the knowledge element was relevant to the ultimate guilt or innocence of
plaintiff, not whether defendants had probable cause to arrest her. For this reason, we
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held that the language in this instruction should not be put in front of the jury. We stated
that we would allow plaintiff’s counsel to tell the jury during closing argument that
plaintiff lacked knowledge that the car was stolen, but we would not include this in the
jury instructions.
After the jury had deliberated for a short time, they asked two questions of the
Court: 1) “What is the Illinois statute, if any, concerning occupants of a stolen vehicle?”;
and 2) “What component of the U.S. Constitution does plaintiff claim to have had
violated by the defendants? What is the relevant text?” After reviewing the questions,
the Court conferred with the parties, and plaintiff’s counsel argued again that Plaintiff’s
Proposed Instruction 6A was necessary to answer the first of the jury’s two questions.
The Court maintained that this was not an appropriate instruction, and responded to the
jury’s question with a note stating, “Members of the jury, you are to rely on the
instructions that the Court has previously given you.”
Plaintiff now argues that it was prejudicial for the Court to refuse to instruct the
jury that knowledge is a requisite for the underlying Illinois criminal violation of
possessing a motor vehicle. Plaintiff asserts that the prejudice is evidenced by the
jury’s question and that the jury was clearly confused. Plaintiff further argues that it was
imperative for the jurors to have this instruction because they would have concluded,
based on plaintiff’s testimony, that she did not know the Jeep was stolen and therefore,
there was no probable cause to arrest her.
Plaintiff’s argument misstates the law. In order to establish probable cause, it is
not necessary for an officer to establish every element of a crime. Matthews v. City of
East St. Louis, 675 F.3d 703, 706-07 (7th Cir. 2012) (“the sufficiency of the evidence for
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a determination of probable cause need not be enough to support a conviction or even
enough to show that the officer’s belief is more likely true than false.”). “The
Constitution permits them to initiate the criminal process and leave the sifting of
competing claims and inferences to detectives, prosecutors, judges and juries in the
criminal prosecution.” Therkield v. City of Chicago, 11-cv-5079, 2013 WL 3944185, at
*5 (N.D. Ill. July 31, 2013) (disregarding plaintiff’s argument that the officers failed to
obtain some evidence that the accused had the required mental state prior to arresting
him). In other words, “probable cause...does not require the police to act as a judge or
jury to determine whether a person’s conduct satisfies all of the essential elements of a
particular statute.” Wells v. City of Chicago, 896 F. Supp. 2d 725, 735 (N.D. Ill. 2012)
(citing Stokes v. Bd of Educ., 599 F.3d 617, 622-23 (7th Cir. 2010); see also Therkield,
2013 WL 3944185, at *5 (“the law does not require that a police officer conduct an
incredibly detailed investigation at the probable cause stage”); Matthews, 675 F.3d at
706-07 (“once probable cause has been established, officials have no constitutional
obligation to conduct further investigation in the hopes of uncovering potentially
exculpatory evidence”). “Rather, probable cause involves the exercise of judgment.”
Wells, 896 F. Supp. 2d at 735.
Here, the jury found that the facts and circumstances at the time of the arrest
were enough to justify defendants’ belief that Cefalu was committing or had already
committed a crime. There was no need for an instruction that she needed to have
knowledge that the vehicle was stolen. Nothing required the defendant officers to make
a determination at the time of the traffic stop as to whether Cefelu knew that the car was
stolen. Even if they had asked her, they were not required to take her word for it.
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Neither Cefalu nor her boyfriend in the driver’s seat had a viable explanation for why the
vehicle may be reported as stolen or why the registration documents were not typical of
Secretary of State documents. The officers had verified information that the car was
stolen. Under these circumstances, they did not necessarily have to prove, on the side
of the road during the traffic stop, that plaintiff knew the vehicle was stolen in order to
arrest her. Counsel was permitted to make his argument to the jury that knowledge is
an essential element for these crimes and that Cefalu did not know the vehicle was
stolen. We stand by our previous holding that including the instruction that knowledge
was required would cause potential confusion. For these reasons, we do not believe
the Court’s refusal to instruct the jury on the knowledge requirement was error.
B. The Court Did Not Err In Excluding The Newspaper Articles From Evidence
Next, plaintiff argues that the Court erred in prohibiting her from using local
newspaper articles about her arrest at trial. In a motion in limine, defendants moved to
exclude testimony about the articles. In response to that motion, plaintiff argued that
the articles were relevant to the damages she claims to have suffered as a result of the
false arrest. In our ruling on the issue, we held that plaintiff would be permitted to refer
to the newspaper articles with proper foundation. At the pretrial conference, the Court
also addressed this issue. At that time, the Court reiterated that plaintiff would be
permitted to refer to the articles, but the Court held that it would be “very prejudicial” to
actually show the articles to the jury. The Court also noted during the pretrial
conference that if the parties wanted to revisit the issue at trial, they were welcome to
do so.
At trial, plaintiff did refer to the newspaper articles in her testimony. She
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discussed in detail the impact these publications in the local paper had on her and her
mother. Plaintiff’s counsel also mentioned these articles during his opening statements.
Plaintiff never sought to introduce the articles into evidence, nor did her counsel request
a sidebar at trial to revisit the issue. Because the jury was made aware of the existence
of the articles and the effect they had on plaintiff, we do not find that the Court’s refusal
to allow the jury to actually see the articles warrants a new trial.
C. The Court Did Not Err In Allowing Officer Rocuskie To Testify Regarding
Legal Conclusions
Plaintiff next argues that the Court erred by allowing Officer Rocuskie to testify
about whether there was probable cause to arrest Cefalu for possession of a stolen
vehicle or criminal trespass to a stolen vehicle. She argues that this was an
impermissible legal conclusion, which could lead the jury to place too much weight on
that testimony or could otherwise confuse the jury.
At the outset, we note that counsel for plaintiff never made this objection during
Officer Rocuskie’s testimony regarding probable cause. Plaintiff’s counsel never argued
at trial that Officer Rocuskie’s testimony amounted to impermissible legal conclusions.
As a result, the issue is waived. Christmas v. City of Chicago, 682 F.3d 632, 640 (7th
Cir. 2012) (“By failing to object, plaintiffs may not raise the issue for the first time in a
motion for a new trial or on appeal”); Spina v. Forest Preserve Dist. of Cook County,
207 F. Supp. 2d 764, 770 (N.D. Ill. 2002) (a party cannot raise an objection in a posttrial motion that it did not raise at trial).
However, even if plaintiff had made the appropriate objection during trial, we do
not believe that Officer Rocuskie’s testimony warrants a new trial here. The only issue
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for the jury to decide in this case was whether defendants had probable cause to arrest
Cefalu. Officers have probable cause to make an arrest if, at the moment the arrest
was made, “the facts and circumstances within their knowledge and of which they had
reasonably trustworthy information are sufficient to warrant a prudent person in
believing that the suspect had committed an offense.” Miles v. McNamara, No. 13 C
2395, 2014 WL 94884, at *3 (N.D. Ill. Mar. 11, 2014). Therefore, it was appropriate for
Officer Rocuskie to testify regarding the facts and circumstances that led to his belief
that Cefalu was committing an offense, and the nature of that offense. As a defendant
in the case, he is entitled to tell his side of the story. His statement that he believed he
had probable cause to arrest her is not reversible error.
In fact, it was plaintiff’s counsel that led Officer Rocuskie through this testimony
regarding whether he had probable cause to make the arrest. Plaintiff’s counsel then
asked Officer Rocuskie what evidence he had possessed at the scene of the traffic stop
that led him to believe he had probable cause to arrest Cefalu. Plaintiff’s counsel asked
Officer Rocuskie whether he understood that probable cause was the central issue in
the case. He also asked Officer Rocuskie whether he also understood that “just
because [Officer Rocuskie] says there was probable cause, it doesn’t necessarily make
it true.” During this line of questioning, the Court instructed the jury that they would be
the ultimate judge as to whether there was probable cause to arrest Cefalu. The jury
was also given the jury instructions outlining the appropriate standard for probable
cause, and it is well-settled that “the jury is presumed to follow the Court’s instructions
on the law.” Graham v. Dolan, No. 08 C 889, 2012 WL 1144662, at *4 (N.D. Ill. Apr. 5,
2012). We find that there was no risk of confusion here because it was clear to the jury
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that they would be deciding the issue of probable cause in light of all the facts and
evidence presented during the trial.
Plaintiff relies on Ochana v. Flores, 347 F.3d 266, 272 (7th Cir. 2003), for the
proposition that the Seventh Circuit has held that “is error to allow evidence of the
defendant police officer’s subjective belief that they had probable cause.” (Pl’s Reply at
8.) But that is not what the Seventh Circuit held in Ochana. In that case (which was
disposed of on defendants’ motion for summary judgment), the District Court had stated
that “the officer’s subjective belief that they had probable cause is ‘central’ to [the]
case.” The Seventh Circuit held that this was a misstatement of the law because “it is
well-established that an arresting officer’s personal knowledge of facts sufficient to
constitute probable cause is significant, but an arresting officer’s subjective beliefs are
not relevant.” Id. The Court explained that this is because “the determination whether a
sufficient legal basis existed for an arrest is an objective one,” and therefore, the
“subjective belief of the officers... is not ‘central’.” Id. Here, plaintiff’s counsel asked
Officer Rocuskie about his subjective beliefs and, without objecting, allowed him to
testify on direct examination regarding his belief that he had probable cause. Under
these circumstances, Officer Rocuskie’s testimony regarding his subjective belief that
he had probable cause does not warrant a new trial.
We also disagree with plaintiff’s argument that the Court erred in allowing Officer
Rocuskie to testify about the Cook County State’s Attorney’s office policy regarding out
of state complainants. At trial, Officer Rocuskie testified that the vehicle had been
stolen from an Iowa car dealership, and the State Attorney’s office generally does not
prosecute this type of crime because it is difficult to get an out of state witness to travel
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to Illinois to testify. Again, we find that there was nothing improper about this testimony.
Officer Rocuskie was testifying as to his belief in light of his experience as a police
officer. Over plaintiff’s counsel’s objection, the Court instructed Officer Rocuskie to
answer based on his experience. Plaintiff also had the opportunity to question Officer
Rocuskie regarding his knowledge of this policy. Therefore, this testimony does not
warrant a new trial.
D. There Was No Cumulative Prejudicial Error Here
Contrary to plaintiff’s assertion, we do not find that there were so many
erroneous evidentiary rulings, improper statements by defense counsel, and lack of
instruction of applicable law such that cumulative prejudice occurred. To prevail on a
cumulative effect argument, “plaintiff must show: 1) that multiple errors occurred at trial;
and 2) those errors, in the context of the entire trial, were so severe as to have rendered
[the] trial fundamentally unfair.” Christmas, 682 F.3d at 643. “If there are no errors or a
single error, there can be no cumulative error.” United States v. Allen, 269 F.3d 842,
847 (7th Cir. 2001). For the reasons we have already stated in response to plaintiff’s
arguments above, we do not find that there was any error here. Therefore, plaintiff has
not met the standard for cumulative effect.
E. The Jury’s Verdict Was Not Against the Manifest Weight of the Evidence
Next, plaintiff argues that the jury’s verdict was against the manifest weight of the
evidence. “A court will set aside a verdict as contrary to the manifest weight of the
evidence only if no rational jury could have rendered the verdict.” Whitehead v. Bond,
680 F.3d 919, 928 (7th Cir. 2012). A court cannot grant a new trial “just because it

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believes the jury got it wrong.” Id. “Even when evidence is contradictory, it’s the jury’s
job - not the district court’s job or the job of a panel of appellate judges - to figure out
who’s telling the truth.” Id. “We will not supplant the jury’s reasonable and factually
supported verdict with our own judgment.” Id.
The main issue for the jury to decide here was whether defendants had probable
cause to arrest plaintiff. As plaintiff correctly points out, the defendants had probable
cause “if, at the moment the arrest was made, the facts and circumstances within the
officers' knowledge and of which they had reasonably trustworthy information were
sufficient to warrant a prudent person in believing that an offense has been committed.”
Griffin v. City of Chicago, 406 F. Supp. 2d 938, 944 (7th Cir. 2005); Cooper v. City of
Chicago, No. 12-cv-5104, 2013 WL 6406198, at *2 (N.D. Ill. Dec. 5, 2013). “In
evaluating whether it was reasonable to believe a crime was being or had been
committed, we consider the situation as it would have appeared to the officer at the time
of the arrest.” Griffin, 406 F. Supp. 2d at 944-45.
Here, we do not believe the jury’s verdict was against the manifest weight of the
evidence. Cefalu was in the vehicle at the time that it was stopped for expired license
plates. At the time of the stop, Officer Rocuskie was notified that the vehicle was
reported stolen. Neither Allen nor Cefalu offered any explanation for why the car was
reported stolen. The registration documents that Allen did provide to Officer Rocuskie
were not typical of Secretary of State documents (one was handwritten), one actually
stated another individual’s name, and when Officer Rocuskie first called in the
registration, there was nothing on file. As Officer Rocuskie explained, he chose to bring
both individuals in to the station for questioning in order to sort out who was responsible
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for the stolen vehicle. We believe the jury acted reasonably in finding that defendants’
actions with respect to Cefalu were justified.
Plaintiff argues that Cefalu was not engaged in criminal activity at the time of her
arrest. But the issue is not whether she was in fact committing a crime; rather, the issue
is whether the officers reasonably found there was probable cause to believe she was
committing a crime in light of the facts they were aware of at the time of the arrest. See,
e.g., Miles, 2014 WL 948884, at *3 (“Probable cause is evaluated not on the facts as an
omniscient observer would perceive them but on the facts as they would have appeared
to a reasonable person in the position of the arresting officer - seeing what he saw,
hearing what he heard.”). The issue of whether there was probable cause is one best
left for the jury. Id. at *4. Based on the evidence presented at the trial, the jury found
that defendants acted reasonably. We do not believe the jury’s finding here is against
the manifest weight of the evidence, and plaintiff’s motion for a new trial on these
grounds is denied.
II. Plaintiff’s Rule 60(b) Motion For New Trial
Finally, plaintiff argues that she is entitled to a new trial under Rule 60(b)(3).
That rule provides that a court may grant relief from a final judgment, order or
proceeding in the case of “fraud..., misrepresentation or misconduct by an opposing
party.” To obtain relief under this provision, “a party must show that she has a
meritorious claim that she was prevented from fully and fairly presenting at trial as a
result of the adverse party’s fraud, misrepresentation or misconduct.” Willis, 687 F.3d at
833 (citing Wickens v. Shell Oil Co., 620 F.3d 747, 758 (7th Cir. 2010)).
Here, plaintiff argues that defense counsel misrepresented the law during her
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closing argument. In particular, plaintiff contends that defense counsel told the jury that
because plaintiff was a passenger in a stolen vehicle, she was (at minimum) engaged in
criminal trespass to a vehicle. Plaintiff argues that defense counsel’s statement is not
true, in light of the District Court’s statement in Griffin v. City of Chicago that “[a]lthough
a police bulletin can give an officer probable cause for arrest, it does not give him carte
blanche to arrest a passenger of a stolen vehicle if the officer has no reason to suspect
that the passenger knows that he lacks permission to be in the vehicle.” 406 F. Supp.
2d at 945.
We do not believe that defense counsel’s comments here warrant a new trial.
The Seventh Circuit has repeatedly noted that “improper comments during closing
argument rarely rise to the level of reversible error.” Willis, 687 F.3d at 834 (“A new trial
is warranted only if allegedly improper closing remarks depart from the evidence
presented at trial and result in substantial prejudice to the opposing party”); Christmas,
682 F.3d at 642-43. The jury was instructed a number of times that they should not
consider what they heard in closing arguments as evidence. Therefore, any confusion
that may have been caused here was alleviated with the Court’s curative instruction.
See, e.g., Christmas, 682 F.3d at 641-42 (defense counsel’s allegedly improper
comments during closing did not present grounds for new trial where, among other
things, the Court instructed the jury that closing arguments were not to be considered
evidence); see also Willis, 687 F.3d at 834 (same). We do not believe that substantial
prejudice to plaintiff resulted from defense counsel’s comments and there is no need for
a new trial on these grounds.

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IV.

CONCLUSION
For the reasons set forth above, plaintiff’s post-trial motion is denied.

ENTERED:

__________________________
MICHAEL T. MASON
United States Magistrate Judge
Dated: April 17, 2014

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