The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Chicago Police Detectives Kenneth Boudreau's and John Halloran's motion in limine to bar evidence of ten other acts pursuant to Federal Rule of Evidence 404(b). For the following reasons, the Court, in its discretion, grants in part and denies in part Defendants' Rule 404(b) motion. Specifically, the Court grants Defendant Officers' motion as to other acts evidence concerning Curtis Milsap, Abel Quinones, Arnold Day, Enrique Valdez, Clayborn Smith, and Robert Wilson. The Court denies Defendant Officers' motion as to other acts evidence regarding Kilroy Watkins, and grants in part and denies in part Defendants' motion as to Tyrone Reyna, Oscar Gomez, and Derrick Flewellen. The parties must submit an agreed upon limiting jury instruction concerning this Rule 404(b) evidence by no later than September 6, 2011.
Plaintiff Harold Hill brought this lawsuit pursuant to 42 U.S.C. § 1983 against the City of Chicago, Chicago police officers, and a Cook County Assistant State's Attorney after his conviction for sexual assault and homicide was vacated based on post-conviction DNA evidence that excluded Hill from samples taken from the victim's fingernails. After the Court's ruling on summary judgment, the following claims remain in this lawsuit against Defendant Officers Boudreau and Halloran: (1) Hill's Fifth Amendment coerced confession claim; (2) Hill's Section 1983 conspiracy claim based on his coerced confession claim; and (3) Hill's failure to intervene claim based on his coerced confession claim.
Hill's case arises out of the October 14, 1990 sexual assault and murder of Kathy Morgan. On March 20, 1992, two Chicago police officers arrested Hill for possession of a stolen automobile and possession of a handgun, and then transported him to the Seventh District Police Station in Chicago. At the police station, Hill admitted to committing two armed robberies -- one in Chicago and one in Oak Lawn, Illinois. During the follow-up investigation of the Chicago armed robbery, Hill participated in a line-up at the Area 3 Station at 39th Street and California Avenue on March 21, 1992. Defendant Officers Boudreau and Halloran participated in conducting the line-up and questioned Hill about other crimes.
Approximately twenty-six hours after his arrest, Hill gave a court-reported statement implicating himself and two other men, Dan Young and Peter Williams, in the Morgan crimes. Hill, who was eighteen-years-old at the time, contends that Defendant Officers Boudreau and Halloran coerced his confession. Specifically, Hill testified at his deposition that Defendant Officers Boudreau and Halloran interrogated him in a closed interrogation room where he was handcuffed to a wall. He further testified that Defendant Officers started giving him details of the Morgan crimes, including showing him photographs and the victim's clothing. In addition, Hill testified that Defendant Officers put him in a car and took him to the crime scene, after which Defendant Boudreau asked him how he committed the Morgan crimes. After Defendants drove Hill back to the police station, they put him in the same interrogation room and handcuffed him to the wall. Hill testified that at that time, Defendant Officers said "You know you did it" and "You did this crime." Thereafter, Defendant Boudreau yelled and screamed at Hill and when Hill denied committing the murder, Officer Boudreau grabbed him. Hill admits that Defendant Halloran did not touch him, although Defendant Halloran remained in the interrogation room on and off during Hill's interrogation. At one point, Defendant Halloran left the room and then Defendant Boudreau continued yelling at Hill and hit him in the ribs with his fist, after which he left the room. When Defendants Halloran and Boudreau returned to the interrogation room, Defendant Boudreau continued to drill Hill about the Morgan murder. Again, Defendant Boudreau grabbed and yelled at Hill. Also, Hill testified that Defendant Boudreau slapped him, continued to tell him that he had committed the murder, and told him the details of the crime. Once again, Defendants took Hill to the scene of the crime at which time Defendant Boudreau slapped Hill and yelled at him. After Defendants and Hill returned to the police station, Defendant Boudreau came into the interrogation room to show Hill photographs of potential suspects. Hill testified that Defendant Boudreau pointed to photographs of Williams and Young. Thereafter, Hill implicated Williams and Young in the Morgan murders because he was scared that Defendant Boudreau would hit him. Hill further testified that he implicated Williams and Young because Defendant Boudreau continued to yell at him and applied psychological pressure. Hill claims that he also implicated himself in the Morgan murder due to Defendant Boudreau's physical and psychological abuse. Finally, Hill maintains that Defendant Boudreau told him what to say to the Cook County Assistant State's Attorney.
Over the next few days in March 1992, Chicago police detectives obtained written confessions from both Young and Williams. Despite Williams' confession, it was later confirmed that Williams was incarcerated at the Cook County Jail on the day of Morgan's homicide.
In September 1994, Hill and his co-defendant Dan Young were tried simultaneously -- but to separate juries -- for Morgan's sexual assault and homicide. The State introduced Hill's and Young's confessions as evidence against them during trial. In addition, both Hill and Young testified at trial maintaining their innocence and asserting that law enforcement coerced them into giving their confessions. In September 1994, the juries convicted Hill and Young for Morgan's sexual assault and homicide. Over a decade later, the results of DNA testing resulted in the trial court vacating Hill's and Young's convictions and the State dropping the charges against them.
"Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In limine rulings avoid delay and allow the parties the opportunity to prepare themselves and witnesses for the introduction or exclusion of the applicable evidence. See Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999); United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989). Trial courts have broad discretion in ruling on evidentiary issues before trial. See United States v. Chambers, 642 F.3d 588, 594 (7th Cir. 2011); Cefalu v. Village of Elk Grove, 211 F.3d 416, 426 (7th Cir. 2000). Regardless of the Court's initial ruling on a motion in limine, the Court may adjust its ruling during the course of trial. See Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 565 (7th Cir. 2006). The Court will only grant a motion in limine when the evidence is clearly inadmissible for any purpose. See Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997); Thakore v. Universal Mach. Co. of Pottstown, Inc., 670 F.Supp.2d 705, 714 (N.D. Ill. 2009). The moving party bears the burden of establishing that the evidence is not admissible for any purpose. See Mason v. City of Chicago, 631 F.Supp.2d 1052, 1056 (N.D. Ill. 2009).
"Rule 404(b) provides that evidence of other acts is inadmissible 'to prove the character of a person in order to show action in conformity therewith' but may be admissible for other purposes, such as proof of motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident." United States v. Hicks, 635 F.3d 1063, 1069 (7th Cir. 2011) (citation omitted). When determining whether evidence is properly admitted under Rule 404(b), the Court considers whether: (1) the evidence is directed toward establishing a matter at issue other than the defendant's propensity to commit the conduct in question, (2) the evidence shows that the other act is similar and close enough in time to be relevant to the matter at issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice pursuant to Federal Rule of Evidence 403. See id.; see also Duran v. Town of Cicero, Ill., ___ F.3d ___, 2011 WL 3444353, at *10 (7th Cir. Aug. 9, 2011). Under the second factor, the question of "how similar is similar enough" depends on the theory that makes the evidence admissible, and courts reach this decision on a case-by-case basis. See United States v. Foster, ___ F.3d ___, 2011 WL 2909455, at *6 (7th Cir. July 21, 2011) (quoting United States v. Torres, 977 F.2d 321, 326 (7th Cir. 1992)). Also, "Rule 404(b) involves a discretionary decision for which the trial judge is best suited because of 'his familiarity with the case and ability to gauge the likely impact of the evidence in the context of the entire proceeding.'" Okai v. Verfuth, 275 F.3d 606, 611 (7th Cir. 2001) (quotation omitted). ANALYSIS
I. Matters Other Than Propensity
Hill first argues that the manner in which Defendant Officers interacted and interrogated other murder suspects is relevant to establish Defendant Officers' modus operandi, especially because Defendant Officers claim that they followed specific police protocols for securing confessions from suspects and that these protocols did not involve coercion. See United States v. Robinson, 161 F.3d 463, 467 (7th Cir. 1998) ("Evidence of modus operandi is evidence that shows a defendant's distinctive method of operation."). Defendant Officers, however, maintain that they do not intend to assert that they followed the usual practice and protocol in investigating Hill nor do they intend to discuss any other investigations other than Hill's investigation and interrogation. Meanwhile, although prior bad acts may be used to show that a defendant has a modus operandi, see Treece v. Hochstetler, 213 F.3d 360, 363 (7th Cir. 2000), any such evidence is usually offered to prove identity. See Robinson, 161 F.3d at 467; see also United States v. Rollins, 301 F.3d 511, 518 n.3 (7th Cir. 2002); United States v. Moore, 115 F.3d 1348, 1354 n.3 (7th Cir. 1997); United States v. Hudson, 884 F.2d 1016, 1021 (7th Cir. 1989); Newsome v. James, No. 96 C 7680, 2000 WL 1047822, at *1 (N.D. Ill. July 27, 2000). In the present lawsuit, identity is not at issue because Defendant Officers do not assert the defense that Hill has mistaken them for other officers. See Okai, 275 F.3d at 613. Moreover, Hill gives no other cogent reason why the Court should allow this evidence under his modus operandi theory. See United States v. Connelly, 874 F.2d 412, 417 n.7 (7th Cir. 1989) ("Rule 404(b) does not specifically enumerate 'modus operandi' proof as an exception for similar act evidence but this court has approved the introduction of modus operandi evidence under the 'identity' exception to Rule 404(b)"). Indeed, Hill's modus operandi argument appears to be a disguised propensity argument. Finally, even if Hill's modus operandi theory were applicable, the factual background of many of the other bad acts do not meet the high degree of similarity required to prove modus operandi -- as discussed in detail below. See Foster, ___ F.3d ___, 2011 WL 2909455, at *7; see also U.S. v. Rollins, 301 F.3d 511, 519 (7th Cir. 2002) ("modus operandi evidence must 'bear a singular strong resemblance to the pattern of the offense charged'") (citation omitted); Treece, 213 F.3d at 363 ("[i]f defined broadly enough, modus operandi evidence becomes nothing more than the character evidence that Rule 404(b) prohibits") (citation omitted).
Next, Hill maintains that the Rule 404(b) evidence is relevant and admissible to show intent because he is seeking punitive damages against Defendant Officers Halloran and Boudreau. See Jannotta v. Subway Sandwich Shops, Inc., 125 F.3d 503, 517 (7th Cir. 1997) (other bad acts evidence admissible to show defendant's intent with respect to punitive damages in relation to fraudulent scheme); see also Edwards v. Thomas, 31 F.Supp.2d 1069, 1074 n.8 (N.D. Ill. 1999) (plaintiff's request "for punitive damages would appear to make the issue of Officers' intent to do harm relevant on that claim"). The Supreme Court cautions, however, that tangential other bad acts evidence which is independent from the acts upon which liability is premised cannot form the basis for punitive damages. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422-23, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) ("A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business."); see also Philip Morris USA v. Williams, 549 U.S. 346, 356-57, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007) (jury cannot punish defendants for the harm caused by others). Hence, Hill's intent argument is tenuous at best, especially because evidence of Defendant Officers' other acts cannot be used against them in determining any punitive damages awards. See Philip Morris, 549 U.S. at 356-57.
Hill also maintains that the other bad acts evidence goes to Defendant Officers' preparation and plan. See Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir. 1993) (police officers' previous interrogation methods "admissible for other purposes, including intent, opportunity, preparation, and plan"). In Wilson, the Seventh Circuit concluded that the trial court erred in excluding other bad acts evidence that police officers had interrogated another suspect using an electroshock device to extract a confession approximately nine days before the same police officers allegedly interrogated the plaintiff in the same manner. See id. Under Wilson, the other bad acts evidence may go to Defendant Officers' plan and preparation to coerce Hill's confession. Hill must still, however, meet the other mandates of Rule 404(b). The Court thus turns to the specific instances of other bad acts to determine whether the acts are similar enough in the context of Defendant Officers' preparation and plan, whether the acts are close enough in time, and whether the evidence's probative value is substantially outweighed by unfair prejudice under Rule 403.
II. Specific Instances of Other Bad Acts Evidence
Defendant Officers move in limine to exclude other bad acts evidence under Rule 404(b) concerning the following ten individuals: (1) Kilroy Watkins; (2) Curtis Milsap; (3) Tyrone Reyna; (4) Oscar Gomez; (5) Abel Quinones; (6) Arnold Day; (7) Enrique Valdez; ...