### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17–2963

C ALVIN L INDSEY

, Plaintiff

‐ Appellant

,

v.

V INCE M ACIAS

, et al.

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:13

‐ cv

‐ 04069

— Manish S. Shah

, Judge

.

____________________

A RGUED S EPTEMBER 17, 2018

— D ECIDED O CTOBER 23, 2018

____________________

Before E ASTERBROOK

, K ANNE

, and B RENNAN

, Circuit

Judges

.

B RENNAN

, Circuit Judge

. After the State of Illinois dis

‐

missed criminal charges against plaintiff

‐ appellant Calvin

Lindsey for unlawful possession of a weapon, he filed this

civil action asserting claims for false arrest, excessive force,

false imprisonment, and malicious prosecution under 42

U.S.C. § 1983 and state law assault and battery. At trial, the

jury returned a unanimous defense verdict on all counts.2 No. 17

‐ 2963

On appeal, Lindsey seeks to vacate the judgment for two

reasons. First, he contends the district court erred in refusing

to modify its jury instruction on “possession” to stress that

“mere proximity” to a gun is insufficient. Second, he asserts

the district court abused its discretion by denying the jurors’

request for a copy of a potentially impeaching interrogatory

answer.

Neither of Lindsey’s arguments warrants reversal. Our

precedent rejects a requirement that a possession instruction

include language expressly disclaiming the sufficiency of

“mere proximity,” and Lindsey presents no persuasive reason

to reconsider those holdings or reach a different result here.

And the district court was well within its discretion in refus

‐ ing to send into the jury room a document not admitted into

evidence. Therefore, we affirm.

I. B ACKGROUND

A. Arrest on April 28, 2012 1

During the early morning hours of April 28, 2012, Lindsey

and three female friends were drinking beer and watching tel

‐

evision in a basement level apartment in Chicago. Suddenly,

four Chicago police officers kicked in the door, grabbed Lind

‐

sey from behind, threw him to the floor, and arrested him.

Never in his life had Lindsey used a gun, he never saw one on

April 28, 2012, and he never went into his sister

‐ in

‐ law’s first

floor bedroom that night.

1 While the facts summarized in this section are taken from the com

‐ peting witness testimony presented during trial, on appeal we must view

the facts “in the light most favorable to [the jury’s] verdict.” Matthews v.

Wisconsin Energy Corp., Inc.

, 642 F.3d 565, 567 (7th Cir. 2011).No. 17

‐ 2963 3

That is how Lindsey tells it. The defendant

‐ appellee police

officers paint a strikingly different picture.

According to them, Officers Macias and Perez received an

emergency call about a “male with a gun,” and all four offic

‐

ers arrived on scene at about 3:35 a.m. An unidentified man

standing on the porch directed the officers inside the build

‐ ing’s first floor apartment, stating only, “He’s in there.” Upon

entering, they encountered approximately ten people milling

about a party, and one attendee informed Officer Gentile,

“The man with the gun is in the back. He pointed it at my

face.”

When Officer Gentile looked up, a man saw him and fled

into the first floor bedroom, slamming the door behind him.

After announcing their presence and knocking, the officers

opened the bedroom door and saw Lindsey sitting on a mat

‐

tress next to one woman. Gentile found a gun on the bedroom

floor, about two feet in front of Lindsey. None of the four

officers ever saw the gun on Lindsey’s person. Officer Macias

arrested Lindsey and escorted him out.

B. Subsequent Litigation

Lindsey was charged with unlawful possession of a

weapon by a convicted felon. Three months later, after the

state court suppressed the gun evidence, prosecutors dis

‐

missed the criminal case. Lindsey then filed this lawsuit,

asserting violations of his constitutional rights and various

tort claims. The jury trial in this civil case lasted four days.

1. The district court rejects Lindsey’s modification to

jury instruction on “possession.”

At the jury instruction conference, Lindsey’s attorneys

objected to the district court’s proposed instruction regarding4 No. 17

‐ 2963

“possession,” which was based on Seventh Circuit Pattern

Criminal Jury Instruction 4.13 and read in relevant part:

A person possesses an object if he has the ability

and intention to exercise direction or control

over the object, either directly or through others.

A person may possess an object even if he is not

in physical contact with it and even if he does

not own it.

Worried this pattern instruction might lead jurors to incor

‐ rectly conflate physical proximity to a gun with constructive

possession, Lindsey’s attorneys asked the district court to add

the following language: “The mere proximity to the contra

‐

band is not enough to establish possession.”

The district court denied Lindsey’s request, explaining

that the first sentence of the instruction already emphasized

the requirement that a person have the ability and intention

to exercise control over the object, so the jury would not think

that “mere proximity” would be sufficient. Moreover, the

district court preferred defining what constitutes possession,

rather than what does not. Lindsey’s attorneys were permit

‐

ted to make this “mere proximity” point during their closing

argument, which they did.

2. The district court denies the jury’s request for Of

‐ ficer Gentile’s interrogatory answer.

During trial, Lindsey’s attorneys cross

‐ examined Officer

Gentile on his pre

‐ trial answer to an interrogatory asking him

to identify potential witnesses:

[T]he women who were with Plaintiff Lindsey

in the room where Plaintiff Lindsey was placed

under arrest, whose names he does not know,No. 17

‐ 2963 5

may have knowledge of the events leading up

to Plaintiff Lindsey being placed under arrest.

On the witness stand, however, Officer Gentile adamantly

denied that multiple women had been in the bedroom,

instead testifying that the reference to “women” in his inter

‐

rogatory answer was a typographical error. The interrogatory

answer was never moved or admitted into evidence, as Lind

‐ sey’s counsel simply incorporated its substance into their

cross

‐ examination.

Later, during deliberations, the jury sent the district court

the following note:

May we see or have access to Gentile’s interrog

‐

ative [sic] response where he states/refers to

‘women,’ ‘their,’ & ‘names,’ (indicating plurals).

If not, may we get clarification as to which room

he is referring to?

Lindsey’s counsel offered a copy of Gentile’s interrogatory

answer to send back, while defense counsel staunchly

objected that the document was not in evidence.

The district court expressed concern that sending the

interrogatory answer to the jury might “unnecessarily high

‐ light one piece of evidence over another piece of evidence” or

“cause deliberations to go down a road where they ask for

more things that I can’t give them, like testimony.” So, the

district court instructed the jury, “The answer to your request

is that you must rely on your collective recollection of the

evidence and testimony at the trial.” While maintaining their

objection to the district court’s decision, Lindsey’s attorneys

did not object to the “wordsmithing” of the response.6 No. 17

‐ 2963

The jury returned a unanimous verdict in favor of the

defendants on all of Lindsey’s claims, and the district court

entered judgment accordingly.

II. A NALYSIS

A. Jury Instruction on Possession

First, Lindsey argues the district court erred in rejecting

his proffered jury instruction language, emphasizing “mere

proximity” to a gun is insufficient to establish constructive

possession.

We review de novo whether a jury instruction accurately

summarizes the law, but afford district courts “substantial

discretion” in formulating a particular instruction’s wording.

United States v. Edwards

, 869 F.3d 490, 496 (7th Cir. 2017). As

long as the instruction is legally accurate, we reverse only if

the wording misled the jury in a way that prejudiced the

appellant. United States v. McKnight

, 665 F.3d 786, 791 (7th Cir.

2011). A party is entitled to a specific jury instruction on his

theory of the case if (1) the instruction is a correct statement

of the law, (2) there is evidence supporting the theory, (3) that

theory is not already part of the charge, and (4) a failure to

provide the instruction would deny a fair trial. United States

v. Maldonado

, 893 F.3d 480, 487 (7th Cir. 2018).

In his brief, Lindsey highlights our decision in United

States v. Brown

, 724 F.3d 801 (7th Cir. 2013), which included

the statement that “[m]ere proximity to the item at the time of

seizure is not enough” to establish possession. Id. at 804. That

is a correct statement of law, and one that has been well

‐

established for quite some time. See, e.g.

, United States v.

Chairez

, 33 F.3d 823, 825 (7th Cir. 1994); United States v. Gates

,No. 17

‐ 2963 7

491 F.2d 720, 721–22 (7th Cir. 1974). 2 But it does not follow

that express language along the lines that “mere proximity to

contraband is insufficient to establish constructive posses

‐

sion” must appear in every jury instruction on possession.

We confronted a similar argument in United States v. Rice

,

995 F.2d 719 (7th Cir. 1993). There, the defendant was con

‐

victed of unlawful possession of a weapon and asserted the

district court erred by failing to instruct the jury that “mere

presence in the vicinity of a firearm, or mere knowledge of its

physical location, does not constitute possession under the

statute.” Id. at 725. In affirming the defendant’s conviction, we

concluded that the jury instruction given “adequately cov

‐

ered” the defense’s theory of no possession because it

explained to the jury that constructive possession requires the

“power and intention at a given time, to exercise dominion or

control” over an object. Id. at 724–25.

Here, the district court’s instruction already included sim

‐

ilar language, informing the jury that constructive possession

requires that a person have “the ability and intention to exer

‐

cise direction or control over the object.” This explained to the

jury that more than physical proximity is required for posses

‐

sion. While Lindsey’s proffered language was also a correct

statement of law, as we noted in Rice

, “district courts are not

required to give alternative explanations of every term

2 While the parties’ briefs focus on federal case law regarding posses

‐

sion, the relevant inquiry at trial was whether the defendants had proba

‐

ble cause to arrest Lindsey for unlawful possession under Illinois law,

namely 720 I LL

. C OMP

. S TAT

. 5/24

‐ 1.1 (2012). Regardless, Illinois follows

the same rule. See, e.g.

, People v. Deleon

, 33 N.E.3d 900, 905 (Ill. App. Ct.

2015) (holding that a defendant’s “mere proximity to the gun in the car

did not establish his possession of the gun”).8 No. 17

‐ 2963

defined in the instructions.” 995 F.2d at 725. Given the district

court’s instruction and counsel’s closing argument stressing

the insufficiency of Lindsey’s physical proximity to the gun,

Lindsey’s theory of the case was adequately presented to the

jury. Id. at 726.

We have reached the same result in previous cases on this

issue. See, e.g.

, United States v. Hendricks

, 319 F.3d 993, 1006

(7th Cir. 2003) (holding instruction on unlawful possession of

a weapon sufficient despite lack of “mere presence” lan

‐ guage); United States v. Saunders

, 973 F.2d 1354, 1360–61 (7th

Cir. 1992) (affirming cocaine possession conviction despite

district court’s rejection of a “mere proximity” instruction);

United States v. Durades

, 929 F.2d 1160, 1168 (7th Cir. 1991);

(same). 3 Lindsey presents no persuasive reason why we

should reconsider those holdings.

This was a civil trial, not a criminal prosecution for unlaw

‐

ful possession of a weapon. While Illinois law on possession

was relevant to the defendants’ affirmative defenses, 4 the jury

was not tasked with finding whether Lindsey actually pos

‐

sessed the gun. Instead, the jury needed to assess whether

probable cause existed to arrest Lindsey for unlawful posses

‐

sion, which required that the officers have “reasonably trust

‐ worthy information [that is] sufficient to warrant a prudent

person” to believe that Lindsey had committed a crime.

3 Illinois courts also have rejected the argument that a possession in

‐

struction must disclaim the sufficiency of “mere proximity” or “mere pres

‐

ence.” See, e.g.

, People v. Freeman

, 609 N.E.2d 713, 719 (Ill. App. Ct. 1992);

People v. Stamps

, 438 N.E.2d 1282, 1297 (Ill. App. Ct. 1982).

4 Probable cause to arrest is an absolute defense to any § 1983 claim

for wrongful arrest, false imprisonment, or malicious prosecution. See

Mustafa v. City of Chicago

, 442 F.3d 544, 547 (7th Cir. 2006).No. 17

‐ 2963 9

Adams v. Williams

, 407 U.S. 143, 148 (1972). The district court’s

legally accurate instruction gave the jury the correct law

needed to make this assessment. Further exposition on the

legal intricacies of constructive possession was unnecessary

for purposes of this case.

B. Response to the Jury’s Request for Officer Gentile’s

Interrogatory Answer

We review a district court’s response to a jury question

during deliberations for abuse of discretion, considering

“(1) whether the instructions as a whole fairly and adequately

treat the issues; (2) whether the supplemental instruction is a

correct statement of the law; and (3) whether the district court

answered the jury ʹ s questions specifically.” Morgan v. City of

Chicago

, 822 F.3d 317, 342 (7th Cir. 2016).

Lindsey claims the district court abused its discretion by

refusing to provide the jurors with a copy of Officer Gentile’s

interrogatory answer when they asked to see it. Lindsey

believes the answer was relevant to the jurors’ assessment of

Gentile’s credibility as a witness. But the document was never

moved or admitted into evidence. In fact, the district court

could have abused its discretion had it sent a document not in

evidence to the jury room. See Baugh ex rel. Baugh v. Cuprum

S.A. de C.V.

, 730 F.3d 701, 705 (7th Cir. 2013) (“The general rule

is that materials not admitted into evidence simply should not

be sent to the jury for use in its deliberations.”).

To support his position, Lindsey points to this court’s

statement in United States v. Sims

, 329 F.3d 937 (7th Cir. 2003),

that a district court “has an obligation to dispel any confusion

quickly and with concrete accuracy” in responding to jury

questions. Id. at 943. Lindsey contends the district court failed10 No. 17

‐ 2963

that obligation because it did not resolve the jury’s “clearly

indicated confusion” regarding Officer Gentile’s testimony.

Lindsey’s argument takes the statement in Sims out of

context. The district court’s obligation is to dispel jury confu

‐

sion on the requirements of the law

. In Sims

, for example, the

jury’s confusion surrounded “the proper standard of intent

for conspiracy to commit mail fraud.” Id. By contrast, it is not

the province of a trial judge to resolve jurors’ confusion

regarding the evidence, or (even worse) to reach beyond the

domain of the record to give jurors additional information

pertaining to witnesses’ respective credibility.

In this case, providing the jury with the information it

requested would have required the district court either to

summarize the questions and answers from the cross exami

‐

nation of Officer Gentile, or transmit to a deliberating jury the

text of a document not in evidence. The district court

expressed understandable concern that either choice might

improperly highlight certain evidence or encourage the jury

to request other materials more difficult to provide. Such con

‐

cerns are legitimate. See, e.g.

, United States v. Guy

, 924 F.2d 702,

708 (7th Cir. 1991) (recognizing concern about highlighting

certain testimony by sending partial transcripts to jury room);

United States v. Howard

, 80 F.3d 1194, 1201–02 (7th Cir. 1996)

(same).

When the district court initially charged the jurors, it

informed them that trial transcripts would not be available

and they “must rely on [their] collective memory of the testi

‐ mony.” The court’s decision to adhere to that approach

throughout deliberations was well within its discretion. See

United States v. White

, 582 F.3d 787, 805 (7th Cir. 2009) (no er

‐

ror in refusing jury request for trial transcript of a policeNo. 17

‐ 2963 11

officer’s testimony). We find no fault in the district court’s

refusal to provide the jury with a document not in evidence.

A FFIRMED

.