UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACQUES RIVERA, )

)

Plaintiff, )

) Case No. 12-CV-04428

v. )

) Judge Joan B. Gottschall

REYNALDO GUEVARA et al., )

)

Defendants. )

RULINGS ON DEFENDANT GUEVARA’S MOTION IN LIMINE NO. 19 TO BAR 

AND/OR LIMIT EVIDENCE OF GUEVARA’S INVOCATION OF FIFTH 

AMENDMENT RIGHTS AND THE CITY’S MOTION IN LIMINE NO. 10 TO ADMIT 

THE DEPOSITIONS OF EDWARD MINGEY AND BAR ANY EVIDENCE OR 

ARGUMENT THAT HE INVOKED HIS FIFTH AMENDMENT RIGHT TO SILENCE

Two motions in limine before the court raise related issues. Defendant Reynaldo 

Guevara (“Guevara”) moves to bar any reference to his invocations of his Fifth Amendment right 

not to be compelled to be a witness against himself, and defendant Edward Mingey (“Mingey”) 

moves to preclude the same sort of evidence and admit his prior deposition testimony at which 

he answered questions about the investigation of the murder of Felix Valentin (“Valentin”), the 

subject of this this suit. As the court explained at summary judgment,

In a criminal case, the jury cannot draw an adverse inference from 

the defendant’s invocation of his Fifth Amendment right not to be 

compelled to be a witness against himself. Griffin v. California,

380 U.S. 609 (1965). The rule against adverse inferences does not 

hold in a civil case, however. The Supreme Court held in Baxter v. 

Palmigiano, 425 U.S. 308, 318 (1976), that “the Fifth Amendment 

does not forbid adverse inferences against parties to civil actions 

when they refuse to testify in response to probative evidence 

offered against them . . . .” See also Hillman v. City of Chicago,

834 F.3d 787, 792 (7th Cir. 2016) (collecting Seventh Circuit 

authority to the same effect). The Seventh Circuit has “interpreted 

Baxter to mean that the negative inference against a witness who 

invokes the Fifth Amendment in a civil case is permissive, not 

required.” Evans v. City of Chicago, 513 F.3d 735, 741 (7th Cir. 

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2008) (citing Daniels v. Pipefitters’ Ass’n Local Union No. 597,

983 F.2d 800, 802 (7th Cir. 1993)). Here permissive means that 

“[s]ilence is a relevant factor to be considered in light of the 

proffered evidence, but the direct inference of guilt from silence is 

forbidden.” LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 

(7th Cir. 1995); accord id. at 391–92; National Acceptance Co. of 

Am. v. Bathalter, 705 F.2d 924, 930–32 (7th Cir. 1983); see also 

Lefkowitz v. Cunningham, 431 U.S. 801, 808 n.5 (1977).

Slip Op. at 40–41, ECF No. 373 (N.D. Ill. May 11, 2018).

Guevara’s Motion in Limine No. 19

Guevara makes an argument in his motion in limine that he did not make at summary 

judgment. He says that he “he believes there is an ongoing criminal investigation surrounding 

the subject of his testimony.” Guevara MIL No. 19 at 3, ECF No. 412. He therefore asserts that 

his invocation of his Fifth Amendment rights at his deposition is unrelated to his guilty conduct 

in the investigation and prosecution of plaintiff for the murder of Felix Valentin. See id. at 2–3.

But in the Seventh Circuit case Guevara cites, the witness ceased to rely on his Fifth

Amendment privilege after the criminal investigation concluded. See Evans v. City of Chicago,

513 F.3d 735, 740 (7th Cir. 2008). The district court cases Guevara cites turned at least in part 

on the unsettled nature of the rule at summary judgment, and each involved a situation in which 

the witness invoked the Fifth Amendment privilege when all parties agreed that the witness was 

the subject of an active criminal investigation. See Genova v. Kellogg, No. 12-CV-3105, 2015 

WL 3930351, at *5 (N.D. Ill. June 25, 2015); Padilla v. City of Chicago, 932 F. Supp. 2d 907, 

919 (N.D. Ill. 2013). As plaintiff points out in his response, Guevara has offered no evidence 

that he is or was the subject of an active criminal investigation related to the Valentin 

investigation (or to anything else), so the court need not decide whether it agrees with the 

reasoning of cases like Genova. The court acknowledges counsel’s bare Rule 11 representation 

in Guevara’s motion in limine, but the argument is undeveloped, even in his reply. Nonetheless, 

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despite Rivera raising the issue in his response, Guevara’s reply does not explain what basis he 

has for believing that he is or could be the subject of a criminal investigation. Without

something more concrete, Guevara has not laid an arguable predicate for a finding that he is the 

subject of a criminal investigation. “The party attempting to invoke the privilege bears the 

burden of establishing its foundation.” Shakman v. Democratic Org. of Cook Cty., 920 F. Supp.

2d 881, 888 (N.D. Ill. 2013) (citing United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th 

Cir. 1976)) (other citations omitted). Guevara has not discharged his burden here.

That said, Guevara’s approach to this issue appears to at odds with the cases on the 

proper scope of the Fifth Amendment privilege and a trial judge’s duty to assure that it is being 

properly used. See Hoffman v. United States, 341 U.S. 479, 486–87 (1951). In his reply,

Guevara cites a case reasoning that because the adverse inference when a witness invokes the 

Fifth Amendment in a civil case is permissive, rather than mandatory, the jury must be allowed to 

entertain the possibility that he has invoked his Fifth Amendment rights due to the existence of a

criminal investigation, rather than because the answer would tend to incriminate him. See RuizCortez v. Lewellen, No. 11 C 1420, 2017 WL 2080300, at *12 (N.D. Ill. May 15, 2017). The

Supreme Court has spoken in terms of the answer’s tendency to incriminate when describing the 

Fifth Amendment privilege’s proper scope. A witness invoking the privilege, the Court has held, 

“may not be required to answer a question if there is some rational basis for believing that it will 

incriminate him, at least without at that time being assured that neither it nor its fruits may be 

used against him in a subsequent criminal proceeding.” Minnesota v. Murphy, 465 U.S. 420, 429 

(1984) (quotation and emphasis omitted); see also United States v. Chapman, 765 F.3d 720, 730 

(7th Cir. 2014) (citing United States v. Longstreet, 567 F.3d 911, 922 (7th Cir. 2009)); In Re

High Fructose Syrup Antitrust Litig., 295 F.3d 651, 663 (7th Cir. 2002) (collecting additional

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cases). Hence, if a witness testifies, as in Ruiz-Cortez, 2017 WL 2080300, at *11, that he is 

invoking his Fifth Amendment privilege on the advice of counsel due to a pending investigation, 

the attorney must have had a sufficient basis for giving that advice, and the attorney’s inquiry 

would involve the same question of whether a rational basis exists to believe the answer would 

tend to incriminate the witness. See Evans, 513 F.3d at 743–44, 747 (emphasizing lawyers’ role, 

and potential testimony about, the basis for advising witnesses to invoke the Fifth Amendment 

privilege).

Nor does the court grant Guevara’s request to allow him to testify by stipulation or jury 

instruction. Permitting a witness invoking the Fifth Amendment privilege to avoid coming to the 

stand is appropriate in criminal cases like the ones Guevara cites. See, e.g., United States v. 

Mabrook, 301 F.3d 503, 507 (7th Cir. 2002). But in this civil action, excusing Guevara from

testifying would lead to the reversible error that occurred in Hillman v. City of Chicago, 834 F.3d 

787, 792–93 (7th Cir. 2016); see also Slip Op. at 44, ECF No. 373 (making this point). In 

Hillman, the Seventh Circuit held that a new trial was required because the trial court granted a 

motion in limine “wholly excus[ing]” two witnesses “from testifying based on blanket assertions 

of their Fifth Amendment privilege against self-incrimination.” 834 F.3d at 793 (citations

omitted). Rivera has a right to let the jury hear Guevara (presuming he does) invoke the Fifth

Amendment on the stand. As Hillman recognizes, stipulations do not equate to live testimony.

See also Jimenez v. City of Chicago, No. 09 C 8081, 2012 WL 2863259, at *20–22 (N.D. Ill. July 

11, 2012).

Worrying that Rivera’s counsel will manufacture adverse inferences by asking questions

for which there is no independent evidentiary basis at trial, Guevara suggests that plaintiff be 

required to submit a list of questions in advance. That seems counterproductive. After reviewing 

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Guevara’s deposition at summary judgment, the court is convinced that the parties have a good 

idea of what Guevara will be asked. Guevara argues that fronting the questions will simplify his

testimony by eliminating potentially lengthy objections at trial. If the conduct of this litigation 

so far is any guide, the more likely outcome will be double litigation of the objections, once 

before trial and again at the trial where defendants will argue that the pretrial ruling should be 

reconsidered in light of the tesitmony at trial.

City’s Motion in Limine No. 10

The City raises a related issue in its tenth motion in limine, ECF No. 390. During 

discovery in this case, Mingey answered questions at two depositions about the Valentin 

investigation. As more fully discussed in this court’s order entered May 16, 2018, ECF No. 427

at 1, Mingey later invoked his Fifth Amendment privilege in answer to questions about the 

Valentin investigation at a third deposition taken, in April 2018, during discovery in another civil 

case. The City anticipates that Mingey will invoke his Fifth Amendment privilege if called at 

trial, and so it moves to admit his deposition testimony and preclude evidence or argument that 

Mingey remained silent. ECF No. 390 at 1. 

Rivera cites Harris v. City of Chicago, 266 F.3d 750, 754 (7th Cir. 2001), but that case 

involved Rule 403 balancing in the reverse situation. In Harris, the defendant invoked his Fifth

Amendment privilege during discovery, waived that right shortly before trial, and tried to prevent 

the jury from hearing about this invocation of the privilege during discovery. See id. The Harris

court explained that whether the jury should hear about defendant’s reliance on the Fifth

Amendment depended on the timing of the defendant’s use and abandonment of the privilege. 

See id. If the defendant effectively used the privilege to deny the plaintiff discovery and then 

changed his tune at trial, the defendant should not be permitted to “have it both ways.” Id. at 754

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(quoting McGahee v. Massey, 667 F.2d 1357, 1362 (11th Cir. 1982)). Here, in contrast, Mingey 

answered questions during discovery and first invoked his Fifth Amendment privilege a little 

more than a month before trial. Harris does not, therefore, speak directly to the situation 

presented here.

In the situation presented here, where the defendant has recently invoked his Fifth

Amendment privilege after earlier testifying to a partial lack of recollection, the plaintiff may 

have some fact discovery from the witness, contrasting Harris, but the later Fifth Amendment 

invocation is nevertheless highly probative. The City seems to forget that, as already explained,

Mingey’s later invocation has independent probative value in a civil case, as even the only case 

the City cites shows. The City relies on oral rulings on motions in limine of Judge Leinenweber 

at a hearing held October 2, 2017, in LaPorta v. City of Chicago, 14-CV-9665 (N.D. Ill.). See Tr. 

of Hr’g, ECF No. 390-1. As far as the court can tell from the transcript excerpt made a part of 

the record here, Judge Leinenweber allowed presentation of prior deposition testimony for a 

witness who later invoked his Fifth Amendment privilege because the plaintiff “had every 

motivation and opportunity to cross-examine [the officer] at his 2012 deposition” at which he 

apparently did not invoke his Fifth Amendment privilege. Id. at19:13–15. Judge Leinenweber 

nevertheless rejected the defendants’ arguments that telling the jury about the officer’s later 

invocation of the Fifth Amendment was irrelevant and unduly prejudicial, concluding that the 

Fifth Amendment invocation was “extraordinarily relevant testimony.” Id. at 19:25.

For essentially the same reasons, the same conclusion obtains here: Mingey’s decision to 

invoke the Fifth Amendment is highly relevant. Indeed, because the jury may draw a negative 

inference from Mingey’s invocation of the privilege, it potentially undermines his prior 

deposition testimony. See Fed. R. Evid. 613(b). In addition to Judge Leinenweber’s decision, 

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Hillman, supra, confirms that Mingey’s Fifth Amendment invocation is probative enough to 

warrant a new trial if the jury does not hear it.

Against this highly probative evidence, the City contends in a single sentence that it will 

be unduly prejudiced because the jury will unfairly impute Mingey’s invocation of the Fifth

Amendment at trial to the City. ECF No. 390 at 2. This argument is undeveloped. See id. The 

City does not explain why the court’s instructions on Monell1 liability would be insufficient to 

cure any potential prejudice. See ECF No. 390 at 2. After all, the law presumes that the jury will 

follow the court’s instructions. E.g., Thomas v. Cook Cty. Sheriff's Dep’t, 604 F.3d 293, 298 (7th 

Cir. 2010).

Nonetheless, Mingey’s two depositions taken in this case at which he answered questions

without invoking his Fifth Amendment privilege will be admissible at trial for the truth of the

matters asserted in his answers. The parties agree that Mingey’s invocation of his Fifth 

Amendment rights renders him unavailable for purposes of triggering the exceptions to hearsay 

for unavailable witnesses. See Fed. R. Evid. 804(a)(1); United States v. Shalash, No. 11 CR 

0627, 2013 WL 4820927, at *8 (N.D. Ill. Sept. 10, 2013). His deposition testimony therefore 

falls under the hearsay exception for prior testimony. Fed. R. Evid. 804(b)(1). The City argues 

that Mingey’s deposition testimony is all the jury should hear, but as already explained, his 

anticipated invocation of the Fifth Amendment privilege will also be highly probative. So, if 

Mingey invokes his Fifth Amendment privilege when called at trial, the jury will hear his live 

testimony and his prior deposition testimony about the Valentin investigation, and the jury will 

be instructed that it can consider Mingey’s deposition testimony for the truth of the matters 

asserted.

1 Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658 (1978).

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Rivera argues that the City will confuse and prejudice the jury by cherry picking excerpts 

from Mingey’s depositions. See Fed. R. Evid. 403. After reviewing the materials Rivera cites, 

the Court believes that Rivera’s opportunity to place Mingey’s deposition testimony in context 

on redirect will sufficiently address Rivera’s concerns.

* * *

For the reasons stated and subject to the foregoing rulings, Guevara’s Motion in Limine 

No. 19, ECF No. 412, and the City’s Motion in Limine No. 10, ECF No. 390, are denied.

Plaintiff may call Guevara and Mingey and elicit relevant testimony, for which a proper 

foundation is laid, invoking their Fifth Amendment privilege. If Mingey invokes his Fifth

Amendment privilege, he will be considered unavailable under Rule 804(a), and provided the 

requirements of Rule 804(b)(1) are met, his prior deposition testimony will be admissible.

Date: May 29, 2018 /s/

Joan B. Gottschall

United States District Judge

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