United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. LEINENWEBER, JUDGE.
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.
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
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.
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
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”).
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.
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
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
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
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.
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).
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.
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.
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.
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.
Judgment as a Matter of Law
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.
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).
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
Fabrication of Inculpatory Evidence
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.
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
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.
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.
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.
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