IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACQUES RIVERA, 

 

Plaintiff, 

v. 

REYNALDO GUEVARA, et al., 

Defendants. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

 No. 12 C 4428 

 

 Hon. Joan B. Gottschall, 

 District Judge 

 Hon. Mary M. Rowland, 

 Magistrate Judge 

 

 JURY TRIAL DEMANDED 

 

 

PLAINTIFF’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ MOTION IN LIMINE NO. 4 TO BAR WITNESSES 

 

Plaintiff, JACQUES RIVERA, by his attorneys, respectfully submits this response in 

opposition to the Officer Defendants’ Motion In Limine No. 4 to bar witnesses (Doc. No. 398), 

stating as follows: 

Discussion 

1. Defendants seek to bar Jose Rodriguez, John DeLeon, Elizabeth Ekl, and Evelyn 

Diaz, arguing that they were not properly disclosed in this case. None of these witnesses should 

be excluded. Plaintiff discusses each in turn. 

2. Jose Rodriguez is the alternative perpetrator, who was identified by Felix 

Valentin, the victim, shortly after the crime and was arrested by Defendants on August 30, 1988. 

Both sides disclosed him as a witness at the start of this case, along with the address information 

from police files that was available to the parties. Ex. 1 (Defendants’ Joint Initial Rule 26(a)(1) 

Disclosures) at 2; Ex. 2 (Plaintiff’s Rule 26(a)(1) Disclosures) at 6. All parties have known all 

along that he might be a witness at trial, and all parties shared whatever information they were 

able to discover about his location during discovery. Defendants admit they spent time in 
2 

discovery looking for him. Doc. No. 398 at 1 n.1. On the final pretrial order, Plaintiff again 

provided his address at 911 Peters Street in Albert Lea, MN, which is the only address 

information that he possesses. See Doc. No. 377 at 74. Suffice it to say that the alternative 

perpetrator identified by the victim, who was initially pursued by the Defendants but then 

mysteriously disappeared from the case, is a potentially important witness at trial. There is 

nothing infirm at all about the disclosure of Rodriguez and there is no basis to exclude him as a 

witness. 

3. The gist of Defendants objection is that they cannot locate Mr. Rodriguez at the 

addresses known to the parties. Plaintiff does not currently know whether the addresses provided 

will yield a witness at trial. What Plaintiff does know, however, is that he cannot call a witness 

that he cannot locate. In the next two weeks, Plaintiff is going to try to locate Rodriguez so he 

can appear at trial. If Plaintiff obtains more current information about his location, he will 

promptly supplement his prior disclosures. But there is no reason to bar this witness. 

4. John DeLeon represented Plaintiff shortly after his arrest and sent a subpoena for 

investigative files to the Chicago Police Department, in which he asked for all of the police 

reports in the case. See Ex 3 (Subpoena for Records). As the Court is aware, Plaintiff contends 

that he and his defense attorneys did not receive all of the police reports in response to this 

subpoena. The reason Plaintiff listed DeLeon as a witness was because he needs to establish the 

foundation for this subpoena. Because the foundation is not genuinely in dispute, Plaintiff hopes 

and fully expects the parties will be able to resolve that concern by stipulation, without the need 

to call this witness, in which case Plaintiff would not call DeLeon to the stand. Plaintiff states the 
3 

he will withdraw DeLeon if Defendants agree to stipulate to this straightforward evidentiary 

point.1

5. Elizabeth Ekl formerly represented the individual Defendants in this lawsuit. Her 

testimony relates to the production of the Valentin investigative file in this civil lawsuit, which is 

an issue because the chain of custody for Valentin investigative files between 1988 and the 

present day is important to Plaintiff’s contention that Defendants suppressed material police 

reports that they did not turn over to prosecutors or Plaintiff’s criminal defense attorneys. The 

relevant background is as follows: 

 Before this lawsuit was filed, in 2011, Detective Wronkowski of the Chicago Police 

Department was asked to locate Valentin investigative files. See Ex. 5 (Wronkowski 

Dep.) at 59-60, 68-69. 

 Though Wronkowski ultimately produced a version of the Valentin investigative file at 

his deposition, see Ex. 6 (Valentin Investigation Street File), he could not say whether the 

version he produced was the same thing that he had found before the lawsuit was filed, 

Ex. 5 (Wronkowski Dep.) at 92. 

 At the start of discovery in this case, in September 2012, the Defendants jointly disclosed 

an investigative file pursuant to Rule 26(a)(1) and designated it as the “Chicago Police 

Department Area File” for the Valentin investigation. Ex. 1 at 5 (Defendants’ Joint Rule 

26(a)(1) Disclosures) (designating documents stamped CPD 1-53); see also Ex. 7, 

(Plaintiff’s Trial Exhibit No. 21). 

 Two years later, in the middle of discovery, the Defendants announced for the first time 

that the documents that they had produced as the Valentin investigative file in this case 

was not, in fact, the Valentin investigative file. Ex. 8 (City’s Response to Plaintiff’s Fifth 

Interrogatories) ¶ (d); Ex. 9 (Individual Defendants’ Response to Plaintiff’s Fifth 

Interrogatories). 

 Ms. Ekl explained in correspondence that the problem with the production of the 

homicide file was caused by mistakes on the part of the Defendants’ attorneys. Ex. 10 

(Correspondence). 

Evidence about why the Defendants produced a version of the Valentin investigative file at the 

start of this litigation and then announced two years later that, after many depositions had been 

                                                             1

 With respect to DeLeon’s disclosure, Defendants are correct that he does not appear on any 

Rule 26(a)(1) disclosure. However, Defendants spoke with him during discovery, and Defendants 

disclosed a letter from him during discovery disclaiming any memory of the case, see Ex. 4 (Letter from 

De Leon), which is the reason his deposition was not taken. 
4 

taken, the file they had produced was not in fact the Valentin investigative file, is relevant and 

admissible because the parties will dispute at trial what was in the Valentin investigative file and 

when. Plaintiff listed Ekl as a witness because she is the person who establishes that the file 

originally produced as the Valentin homicide file in this case was in fact not that file. 

 Because these facts are genuinely not in dispute, Plaintiff again hopes and fully expects 

that the parties could resolve the issue by way of a stipulation. Alternatively, perhaps the parties 

could agree to admit the letters making the representations at issue. In either case, Plaintiff would 

not need to call Ekl to the stand, which would be Plaintiff’s preference. The only reason Ms. Ekl 

would need to testify is if the Defendants flat out refuse to cooperate with introducing this 

evidence in any other form.2

6. Evelyn Diaz was disclosed by Plaintiff in his very first Rule 26(a)(1) Disclosures, 

on September 18, 2012, as a 404(b) witness with knowledge of Defendant Guevara’s nearly 

identical eyewitness identification misconduct in the case of another criminal defendant, Luis 

Serrano. Ex. 2 (Plaintiff’s Rule 26(a)(1) Disclosures). Defendant Guevara created a police report 

indicating that she was a witness and identified Serrano, but she testified that the report was 

totally false, and that she was pressured by Guevara to make an identification but refused to do 

so. See Plaintiff’s Response to the Individual Defendants’ Motion In Limine No. 18. 

7. Defendants correctly assert that Judge Rowland ordered Plaintiff during discovery 

to narrow his list of 404(b) witnesses prepared to testify about Defendants’ bad acts to no more 

than 10 witnesses. See Doc. No. 76. In response to that order, Plaintiff identified a list of ten 

                                                             2

 Alternatively, the Defendants could allow Plaintiff to call a record keeper on this brief point. 

Though Ms. Ekl did not appear on any Rule 26(a)(1) disclosure, Plaintiff all along has put the Defendants 

on notice that he intends to call record keepers at trial who can testify about the file production in this 

case. Moreover, the Defendants have been on notice since 2014 that this was an issue for trial, because 

Plaintiff served interrogatories on the subject. See Exs. 8 & 9. 
5 

404(b) witnesses, and did so on January 30, 2014. Since then, at least one of those ten witnesses 

has died, and some are unable to come to trial. Plaintiff has therefore added Evelyn Diaz to her 

404(b) witness list for trial. Even including her, that leaves just seven possible 404(b) witnesses 

on Plaintiff’s list, out of a possible ten, after Plaintiff's narrowing. See Doc. No. 377, listing Sam 

Perez, Wilfred Rosario, Robert Ruiz, Sal Ortiz, Evelyn Diaz, Robert Machine, (pg. 75) and 

William Dorsch (pg. 73). 

8. As set out in Plaintiff’s motion regarding 404(b) evidence, Plaintiff intends to call 

a limited number of these witnesses at trial. There is no prejudice to Defendants from Plaintiff’s 

inclusion of Evelyn Diaz on his witness list. Evelyn Diaz is well known to the parties in this 

case, as she was deposed in the previous case involving Defendant Guevara to go to trial, Juan 

Johnson v. Guevara, City of Chicago, et al., No 5 C 1042 (N.D. Ill.). Indeed her deposition was 

taken in that case by the Sotos Law Firm, counsel for almost all of the Defendants in this case 

(and Defendant Guevara’s counsel at the time). And in the case of other 404(b) witnesses who 

were deposed in the Johnson case, the parties in this case have agreed to rely on their earlier 

depositions rather than depose them again. Simply put, there is no prejudice to Defendants in 

allowing Plaintiff to call Evelyn Diaz as one of his limited 404(b) witnesses. She was disclosed 

and Defendants are well aware what her testimony will entail. 

9. In sum, Plaintiff has properly disclosed and should be allowed to call Jose 

Rodriguez, Evelyn Diaz, John DeLeon, and Elizabeth Ekl at trial. The latter two will not need to 

be called if Defendants enter the stipulations outlined above. 

Respectfully Submitted, 

 JACQUES RIVERA 

By: /s/ Jon Loevy 

 One of Plaintiff’s Attorneys 
6 

Arthur Loevy Locke E. Bowman 

Jon Loevy David Shapiro 

Russell Ainsworth Alexa Van Brunt 

Anand Swaminathan RODERICK MACARTHUR JUSTICE CENTER 

Steven Art Northwestern University School of Law 

Rachel Brady 375 E. Chicago Avenue 

Sean Starr Chicago, Illinois 60611 

LOEVY & LOEVY (312) 503-0844 

311 N. Aberdeen St., Third Floor 

Chicago, IL 60607 

(312) 243-5900 J. Samuel Tenenbaum 

 BLUHM LEGAL CLINIC 

Northwestern University School of Law 

375 E. Chicago Avenue 

Chicago, Illinois 60611 

(312) 503-8576 

 
7 

CERTIFICATE OF SERVICE 

 I, Jon Loevy, an attorney, hereby certify that on May 21, 2018, I filed the foregoing 

Response to Defendants’ Motion In Limine via the Court’s CM/ECF system and thereby served a 

copy on all counsel of record. 

 

 /s/ Jon Loevy 

 One of Plaintiff’s Attorneys