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Ruiz-Cortez v. Lewellen

United States District Court, N.D. Illinois, Eastern Division

May 15, 2017

REFUGIO RUIZ-CORTEZ, Plaintiff,
v.
GLENN LEWELLEN, Defendant.

          MEMORANDUM OPINION AND ORDER

          HARRY D. LEINENWEBER, JUDGE.

         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 both Plaintiff's and Lewellen's Motions for Summary Judgment. See, Id. at *79. 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. See, ECF No. 336 (Order Disposing of In Limine Motions). 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 Lewellen denied him due process in at least one of two ways. First, Plaintiff contended that Lewellen fabricated evidence during the course of Plaintiff's criminal prosecution. Second, he alleged that Lewellen withheld exculpatory impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). 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 allegedly unconstitutional conduct.

         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 Ruiz-Cortez 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 he was prosecuted and found guilty. Plaintiff maintained, however, that he only did so because he was coerced. 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. According to Plaintiff, an individual named Carlos Rodriguez or “Changa” threatened his family. 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. They threatened my child. 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.”).

         Unsurprisingly, Plaintiff was repeatedly impeached when he took the stand to tell this story. 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? A: Yes. Q: And you lied to their faces? A: Yes.”) (“Q: 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 that Changa importuned Plaintiff to store drugs time and again after Plaintiff repeatedly turned him 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. Is that what your testimony is? A: That's where she would stay. Q: Ah, I see. And not only would she stay there, in June and July of 1999, she'd watch your little baby nieces and nephews there, too, wouldn't she? . . . Q: 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 with the fact that after his 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? A: I cannot say yes, and I cannot say no . . .”); 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 him immediately before his release from prison) (“Q: 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 to the events that took place immediately before his arrest, Plaintiff offered, in addition to his own words, the testimony of one Lisette Venegas (“Venegas”). Venegas was the drug courier who Plaintiff said actually carried the drugs from Plaintiff's apartment to the parking lot. With some inconsistencies, Venegas corroborated this story. She testified that she took the bag of cocaine from Plaintiff, carried it to her car, and put the bag in the trunk. Before she could leave, however, a man - whom she at Plaintiff's trial identified as Lewellen - stopped her, took the bag of drugs, and let her go. See, Trial Tr. at 188:1-191:9. Venegas, too, was impeached at length during 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 the inconsistencies between Plaintiff's and Venegas's testimonies about what happened on the day 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 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. See, Trial Tr. at 95:16-18. 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 he stored drugs only to protect his family. Plaintiff also sought to convince the jury that Lewellen fabricated evidence and hid the fact that he was 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 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 Law, the Court views the facts in the light most favorable to Lewellen as the nonmovant and asks 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.” Id. (internal quotation marks omitted).

         The Court concludes that all evidence besides Lewellen's criminal conviction for conspiracy to possess and distribute cocaine is evidence that “the jury is not required to believe.” Lewellen's criminal conviction, on the other hand, is “uncontradicted and unimpeached” evidence. Accordingly, Plaintiff's Motion for Judgment as a Matter of Law on his claim that Lewellen violated his due process rights by fabricating evidence must be denied. However, his claim that Lewellen withheld impeaching Brady evidence, insofar as that evidence consists of Lewellen's participation in the narcotics conspiracy, is granted.

         1. Fabrication of Inculpatory Evidence

         Plaintiff insists that Lewellen must have lied about the events on the day of Plaintiff's arrest because 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 the defense not only calling these witnesses' general credibility into question but also impugning their specific accounts as to what happened. In particular, the defense highlighted the multiple instances in which Plaintiff's and Venegas's stories diverged. 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. Compare, Trial Tr. at 531:7-8 with 225:10-227:16. Once Venegas arrived (at whatever time), Plaintiff said that she went into his apartment, spent 15-20 minutes there bagging the drugs herself, and left with the bag unaccompanied by Plaintiff. See, Id. at 532:2-533:4, 655:14-657:23. In contrast, Venegas said that she never entered 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 party's version of what happened were “serious enough, ” “a rational jury might have disbelieved” that party); 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 inconsistent statements and omissions from their reports, prior testimony, and discovery responses. . . . [T]he inconsistencies were such that the jury could have reasonably rejected the version of events the officers provided at trial altogether.”). Any favorable evidence they provided to Plaintiff's claim must be disregarded. See, Reeves, 530 U.S. at 151.

         As for Rodriguez, he was not present at the scene and so did not provide any testimony to contradict what Lewellen said happened before he arrested Plaintiff. Although Rodriguez testified that he expected that Lewellen would let 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 Rodriguez said about the anticipated interaction between Venegas and Lewellen was necessary to 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 own conclusion on such matters, including whether Lewellen deliberately let Venegas go and then lied about it 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.” ECF No. 357 at 15. As such, “the United States . . . charge[d] Lewellen with 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 federal prosecutors who charged Lewellen is no reason to overturn its verdict. See, Massey v. Blue Cross-Blue ...


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