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. )

ORDER

The court rules as follows on the proposed jury instructions filed June 1, 2108, ECF No. 

543. See also Proposed Instructions, ECF Nos. 443-1, 443-2, 649, 650. After modifying the jury 

instructions, the parties must file a final draft of the proposed jury instructions. The jury 

instructions should not be numbered. A courtesy copy in Word and hard copy form must be 

delivered to chambers. Refused instructions must be removed. There should be no blank 

instructions.

Defendants’ proposed instruction no. 10 on the imputation of adverse inferences from 

defendants Guevara and Mingey are refused. Baxter v. Palmigiano, 425 U.S. 308 (1976), broke 

new ground when it held that an adverse inference can be drawn when a witness invokes her 

Fifth Amendment privilege in a civil proceeding, but it is a first-party case. The question of 

third-party imputation did not arise in Baxter. See id. at 318–20. 

The four factors listed in LiButti v. United States are used to decide whether the Fifth 

Amendment invocation is admissible, not what inferences should be drawn. See 107 F.3d 110, 

124 (2d Cir. 1997) (reviewing admissibility de novo and leaving weight of evidence and Rule 

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403 balancing in district court’s discretion). No party argues that the jury should be instructed 

on the LiButti factors. At trial, defendants objected to some of the questions put to Guevara and 

Mingey, and the court ruled. Defendants never raised the imputation issue at the motion in 

limine stage. Furthermore, the district court cases defendants cite can be distinguished. State 

Farm Mut. Auto. Ins. Co. v. Abrams is an admissibility case, and the opinion contains dicta on 

whether an adverse inference can be drawn against a party based on a third party’s invocation of 

the Fifth Amendment privilege. No. 96 C 6365, 2000 WL 574466, at *5–7 (N.D. Ill. May 11, 

2000). Judge Pallmeyer’s discussion of the Fifth Amendment issue concludes, “the court can 

decide this summary judgment motion without relying on Fifth Amendment adverse inferences.” 

Id. at *7. The district court in Emerson v. Wembley USA Inc. weighed the LiButti factors and 

found that drawing far-reaching adverse inferences from a single witness’s invocation of the 

Fifth Amendment would be inappropriate as a matter of admissibility. 433 F. Supp. 2d 1200, 

1210–14 (D. Colo. 2006). Here, defendants made several foundation objections to questions put 

to defendants Guevara and Mingey, some of which the court sustained. But in Emerson, the 

plaintiff tried to use the Fifth Amendment adverse inference to bootstrap, through questioning, 

inferences for which there was no other foundation. Id. at 1214. At trial, defendants raised 

objections and the court ruled on whether a foundation existed for questions to Guevara and 

Gawrys.

By agreement, instruction no. 14 will be given as revised. The instruction should not list 

witnesses who have been impeached. This is for argument. 

For the reasons given in the accompanying order, instructions nos. 19 and 20 on missing 

evidence and spoliation are refused. The court bases its ruling on the arguments of the parties in 

open court on June 26, 2108. 

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The court proposes describing the demonstrative exhibits as “charts, maps, timelines, and 

summaries” (instruction no. 22, bracketed material). The parties must confer about the proposal 

and propose a description in the final draft.

The count of officer defendants must be updated in instruction nos. 23 and 28. The list of 

officer defendants must be updated throughout the instructions to reflect the voluntary dismissals 

at trial.

The parties’ proposed personal involvement in § 1983 cases (proposed instruction no. 25) 

are inadequate for the reasons stated in open court. The parties must submit an agreed 

instruction by tomorrow morning.

Regarding the elements of a Brady claim in instruction no. 29, the dispute over separate 

instruction for defendants Sparks and Zacharias has been mooted by their dismissal. The court 

ruled on the defendants’ proposed instruction on the elements of plaintiff’s Brady claim at the 

May 24, 2018, instruction conference. With the exception of the second element, defendants’ 

resubmission of substantially the same proposed instruction, ECF No. 650 at 2, is refused.

Defendants’ requests for a definition of reasonable diligence exceeding the language of 

the Seventh Circuit Pattern Jury instruction is refused. Instructing the jury on portions of Boss v.

Pierce, 263 F.3d 734, 740 (7th Cir. 2001) will more likely confuse the jury than assist them in 

defining a relatively straightforward term about which the jury has heard a great deal of 

testimony and argument. Compare Defs.’ Proposed Instructions at 38, ECF No. 433-2, with Pl.’s 

Proposed Instructions at 38, ECF No. 433-1.

The court has reviewed the parties’ proposed conspiracy instructions (instruction no. 32 

in the June 1, 2018, draft) submitted June 26, 2018, ECF Nos. 649 at 2; ECF No. 650 at 5. The 

court rejected the parties’ first versions of this instruction because the first element was too 

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confusing. Defendants’ proposal filed June 26, 2018, does not solve that problem. See ECF No. 

650 at 5. On the other hand, plaintiff’s preference for the word “agreement” leads to language 

likely to confuse the jury. What it means to “join[ ] an agreement” is far from clear. ECF No. 

659 at 2. Defendants’ proposed version defines a conspiracy as an agreement and then uses the 

term “conspiracy” throughout the instruction. The court prefers defendants’ prefatory 

paragraphs, which were used in the Fields litigation, and plaintiff’s recitation of the elements and 

following definitions, ECF No. 649 at 2, substituting the word “conspiracy” for “agreement.” 

Consistent with these rulings, the parties’ competing versions of instruction no. 32 are refused in 

part and given in part.

Regarding proposed instruction no. 34 on Monell liability, the parties are at issue on the 

second element defining the alleged policies of the City. Plaintiff wishes to define policies as 

“(a) conceal[ing] material exculpatory and/or impeachment evidence, or (b) . . . fabricat[ing] 

false evidence, or (c) depriv[ing] individuals of their liberty without probable cause.” ECF No. 

543 at 35. At summary judgment, the court dismissed on causation grounds plaintiff’s claims 

that defendants engaged in suggestive lineup procedures. The last policy can be read as 

encompassing that claim, and it also seems conclusory. For those reasons, it will be eliminated. 

This ruling accords with plaintiff’s proposal filed in the afternoon on June 26, 2018, see ECF No. 

652 ¶¶ 3–4. The court therefore accepts plaintiff's proposed changes to instruction no. 34. As 

modified, instruction no. 34 will be given.

On the “commences or continues” element of plaintiff’s malicious prosecution claim 

(instruction no. 38), the Seventh Circuit’s interpretation of Illinois law in Colbert v. City of 

Chicago, 851 F.3d 649, 655 (7th Cir. 2017) controls because the Illinois Supreme Court has not 

made a contrary decision since Colbert, though the parties tell the court that the issue is being 

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briefed in the Illinois Supreme Court. See Scadron v. City of Des Plaines, 734 F. Supp. 1437, 

1452 (N.D. Ill. 1990) (quoting Owens–Ill., Inc. v. Aetna Cas. & Surety Co., 597 F. Supp. 1515, 

1520 (D.D.C. 1984)) (emphasis omitted). 

A grand jury indicted plaintiff Jacques Rivera. Accordingly, the panel in Colbert agreed 

that Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996), accurately stated Illinois law: 

“the chain of causation is broken by an indictment, absent an allegation of pressure or influence 

exerted by the police officers, or knowing misstatements by the officers to the prosecutor.” 

Colbert, 851 F.3d at 655 (majority opinion) (citation omitted); id. at 665 (Hamilton, J., 

concurring in part and dissenting part). Applying Colbert and Reed, the court will instruct the 

jury that the defendant must have knowingly made false statements to the prosecutor which 

caused the prosecutor to proceed with the prosecution. See Colbert, 851 F.3d at 655 (quoting 

Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 902 (7th Cir. 2001)).

Finally, defendants’ proposed instructions nos. 53 (based on Seventh Circuit Civil Pattern 

Jury Instruction No. 2.14), 54 (other acts of defendant Guevara), and 55 (regarding police 

regulations), will be given. ECF No. 650 at 7–9 (no objection noted1

). But the jury heard 

testimony from multiple experts on the relationship between the State’s Attorney’s Office and 

police officers. The court sees no need to instruct the jury separately on that relationship under 

Brady, and neither the comments to Seventh Circuit Pattern Jury Instruction 7.14 nor the cases 

cited require a separate instruction on the prosecutor’s duty to instruct the jury. Again, the court 

will adhere to Pattern Jury Instruction No. 7.14 without selectively quoting from Brady case law. 

 1 As to defendants’ proposed instruction no. 54, plaintiff cryptically states that his objection is “reserved and 

pending.” The court cannot tell what this means.

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Defendants’ proposed instruction no. 56 is refused.

Date: June 26, 2018 /s/

Joan B. Gottschall

United States District Judge

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