IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACQUES RIVERA, )

) No. 12 CV 004428

Plaintiff, )

)

v. ) The Honorable Joan B. Gottschall

)

REYNALDO GUEVARA, et al., )

)

Defendants. )

DEFENDANT GUEVARA’S REPLY TO PLAINTIFF’S RESPONSE IN 

OPPOSITION TO GUEVARA’S MOTION IN LIMINE NO. 19 TO BAR AND/OR LIMIT

EVIDENCE OF GUEVARA’S INVOCATION OF FIFTH AMENDMENT RIGHTS

Defendant Reynaldo Guevara (―Guevara‖), by his attorneys, Leinenweber, Baroni & 

Daffada, LLC, replies to Plaintiff‘s response in opposition to Guevara‘s Motion In Limine No. 19 

(Doc. 471), and states:

Plaintiff acknowledges Guevara‘s constitutional right to invoke his Fifth Amendment 

privilege, but contends Guevara gained some tremendous advantage in doing so. Any perceived 

advantage is far outweighed by Plaintiff capitalizing on Guevara‘s invocation of his Fifth 

Amendment privilege. The Court should carefully balance Guevara‘s interest to not have an 

excessively costly consequence of asserting his constitutional rights and Plaintiff‘s entitlement to 

fairness. 

It is no secret that Plaintiff wishes to call Guevara to the witness stand to ask him a series 

of questions to create an illusion of improper conduct knowing full well that the questions will 

not be answered. Without constraint by the Court there are no bounds to the possibility of unfair 

prejudice to Guevara and his co-Defendants.

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I. An Adverse Inference Is Entirely Permissive And The Court Has Discretion To 

Control The Manner In Which Fifth Amendment Invocations Are Presented To The 

Jury.

Plaintiff‘s notion that he has an absolute right to call Guevara to the stand as a live 

witness for the purpose of having the jury hear him invoke his Fifth Amendment right (rather 

than simply being instructed via stipulation or jury instruction of this fact) is legally baseless. 

See Pl.‘s Resp. at 3, 5. There is no such right. The Seventh Circuit has expressly held that a civil 

rights plaintiff has no absolute right to call a defendant to the stand solely to invoke his Fifth 

Amendment privilege, and any adverse inference arising from the invocation of Fifth

Amendment is entirely ―permissive.‖ Evans v. City of Chicago, 513 F.3d 735, 740-1 (7th Cir.

2008).

Plaintiff also suggests that Guevara‘s reason for taking the Fifth is ―neither here nor 

there‖ and asserting some reason for taking the Fifth other than the tendency to incriminate 

himself is invalid. See Pl.‘s Resp. at 2-3. Court‘s in this district have held otherwise.

Most recently, in Ruiz-Cortez v. Lewellen, a Chicago Police Officer was found not liable 

for violating the plaintiff‘s constitutional rights based on allegations that the defendant fabricated 

evidence in relation to a drug conviction that sent the plaintiff to prison for eleven years. No. 11 

C 1420, 2017 WL 2080300, at *1 (N.D. Ill. May 15, 2017). At the trial, the defendant officer 

was called to testify and he invoked his Fifth Amendment right to not answer a series of 

questions. Id. at *10-11. 

In answering one of the questions, the defendant said, ―Mr. Smith, as I‘m – as I‘m 

currently in the process of challenging my federal case, I have been advised by my criminal 

lawyers to decline to answer any questions under my Fifth Amendment. Mr. Smith, I would love 

to testify in this—‖ at which point he was interrupted by the plaintiff‘s objection and did not 

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continue. Id. at *12. After the trial, the plaintiff filed a motion for a new trial and argued that 

these statements allowed the defendant to ―look into the camera like a boy scout and lament that 

a mere technicality foreclosed him from speaking.‖ Id. The court disagreed:

It is the case that  ̳[t]o be privileged by the Fifth Amendment to refuse to answer a 

question, the answer one would give if one did answer it (and answer it truthfully) 

must have some tendency to subject the person being asked the question to 

criminal liability...‘ However, this principle cannot be taken to imply that any 

other reason for taking the Fifth besides risk of criminal liability is illegitimate 

and therefore cannot be articulated to a jury. If that were the case, there would be 

no basis for a jury ever to decline making a negative inference from a witness‘s 

invocation. But, as we know, such a negative inference is permissive, not 

required...In particular, a witness out to be able to reveal a pending appeal since 

reticence to speak in the face of ongoing litigation is something a reasonable jury 

can balance against the tendency to incriminate oneself.

Id. 

Notably, the court had ruled prior to trial that the defendant and his attorney would be 

permitted to ―explain to the jury [the defendant‘s] other reasons for remaining silent.‖ See 

attached Order at 4-5; (Ex. A).

II. Limiting and Constraining Guevara’s Examination is Warranted.

Courts must be cautious to ―carefully balance the interests of the party claiming 

protection against self-incrimination and the adversary‘s entitlement to equitable treatment. 

Because the privilege is constitutionally based, the detriment to the party asserting it should be 

no more than is necessary to prevent unfair and unnecessary prejudice to the other side.‖ S.E.C. 

v. Graystone Nash, Inc., 25 F.3d 187, 192 (3d Cir. 1994). Carefully constraining Guevara‘s 

testimony balances the interests of the parties in that Plaintiff is allowed to call him to the stand

to invoke the Fifth Amendment, but the testimony is limited in order to avoid unfair prejudice to 

Guevara and the co-defendants.

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Under similar circumstances to this case, in Ruiz-Cortez v. Lewellen, Judge Leinenweber 

allowed the plaintiff to call the defendant to the stand, but to limit the risk of undue prejudice, he 

restricted plaintiff‘s examination to ―no more than the questions needed to establish the subject 

matter of the testimony.‖ Recognizing the significance of the prejudicial impact to defendant of

plaintiff testing the bounds of his order, Judge Leinenweber conditioned the adverse inference on 

plaintiff‘s questions not exceeding the scope of the relevant issues at trial. See attached Order at 

4-5; (Ex. A). This Court should do likewise.

Plaintiff relies on In Re High Fructose Syrup Antitrust Litig., 295 F.3d 651, 663 (7th Cir.) 

for his proposition that the only condition for invoking the Fifth Amendment is when ―the 

answer one would give if one did answer it, and answer it truthfully, must have some tendency to 

subject the person being asked the question to criminal liability.‖ Pl.‘s Resp. at 2-3. In RuizCortez v. Lewellen, Judge Leinenweber rejected that argument and explained that he did not read 

High Fructose to mean that potential liability is the only reason a defendant may have to invoke 

the Fifth. The court allowed the defendant and his attorney to explain to the jury his other 

reasons for remaining silent. See attached Order at 4-5; (Ex. A).

Plaintiff‘s suggestion that Guevara should not be permitted to offer any explanation for 

his invocation is also legally baseless. In fact, Plaintiff‘s contention is the exact opposite of the 

law. See Evans, 513 F.3d at 740 (permitting defendant officers who had invoked Fifth 

Amendment rights during deposition when under investigation to withdraw such invocation after

final termination of the investigation); Genova v. Kellogg, No. 12 C 3105, 2015 WL 3930351, at 

*5 (N.D. Ill. June 25, 2015) (refusing to apply an adverse inference because of defendant‘s 

―valid reason for invoking his Fifth Amendment rights (the criminal investigation surrounding 

the [subject of his testimony]‖); see also Martinez v. City of Fresno, Nos. 06 CV 00233, 06 CV 

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01851, 2010 WL 761109, at *3 (E.D. Cal. March 3, 2010) (no adverse inference from invocation 

of Fifth Amendment during pendency of criminal proceedings against defendant officer); Padilla 

v. City of Chicago, 932 F. Supp. 2d 907, 918-919 (N.D. Ill. 2013) (―Hence a defendant seeking 

to avoid the weight of a negative inference must advance something explaining a reason for his 

or her Fifth Amendment invocation other than guilty conduct associated with the civil action.‖).

Along these lines, Plaintiff‘s assertion that live testimony is required so ―[t]he jury . . . 

will be able to evaluate [Guevara‘s] demeanor when answering questions, which is part of what 

trials are about‖ is hollow and factually baseless. See Pl.‘s Resp. at 4. Plaintiff knows that 

Guevara will be providing no substantive testimony whatsoever. There is absolutely no need to 

observe the witness at all because, in effect, he will not be testifying and will be considered an 

―unavailable‖ witness under the Federal Rules of Evidence. See Thompson v. City of Chicago, 

722 F.3d at 975 n.4. The sole purpose for calling him as a witness is to attempt to maximize the 

effect of his invocation, parade him in front of the jury and seek to have the jury place undue 

significance on his invocation. This is exactly the type of thing that the Courts have said should 

not be permitted and provides a further reason to constrain Guevara‘s examination.

Plaintiff argues that the rules of evidence prevent his counsel from asking questions that 

have no evidentiary foundation and that those principles prevent questions that have no basis in 

the record. Plaintiff simply asserts that standard rules of trial should apply and defendants can 

object to any questions that may have no evidentiary foundation.

However, here, Plaintiff‘s counsel has advance knowledge that any substantive questions 

presented to Guevara will not be answered; thus, it cannot be disputed that any probative value 

will be derived entirely from the questions put by counsel. Plaintiff suggests that the jury will be 

able to evaluate Guevara‘s demeanor, ―which is a big part of what trials are about.‖ There is no 

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way, under the circumstances, that standard trial rules should apply, because they would unfairly 

prejudice Guevara. Even if Defendants object to an improper question by Plaintiff‘s counsel, 

and the Court sustains the objection, the question and implications thereof have already been 

heard by the jury. As is said, you cannot un-ring a bell.

Jurors will inevitably give evidentiary weight to questions that may not have been proper 

and that are misleading and prejudicial. Without the Court‘s constraint or admonishment, 

Plaintiff‘s counsel is free, knowing that the privilege will be invoked, to pose those improper 

questions safe from any contradiction no matter what the actual facts are and over Defendants‘ 

objections. Plaintiff suggests that Guevara simply trust that all his questions will have a basis in 

the record.

As noted in Guevara‘s Motion In Limine, during the deposition of Guevara, questions 

were asked of Guevara regarding his alleged conduct (and knowledge of the alleged conduct of 

others) for which Plaintiff has never produced any actual evidence in this case. Therefore, it is 

reasonable to expect this could continue to be the case. Consistent with the analysis above, 

Plaintiff‘s counsel should be required to submit, in writing, the exact questions that they propose 

asking Guevara so that this Court and Guevara‘s counsel can consider the propriety of such 

questions and evaluate the independent evidentiary bases for such questions prior to such 

questions being stated before the jury. This process would avoid the likelihood of the jury 

hearing highly improper and highly prejudicial questions (that cannot be taken back) when the 

Court sustains an objection and also save trial time on extended argument on evidentiary and 

foundation issues during Guevara‘s examination. 

Plaintiff argues that if Guevara agreed to submit his questions of Mr. Rivera in advance 

of trial for Plaintiff‘s review and objections, that this might be a fairer proposal. This 

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comparison is fundamentally different. Plaintiff is missing the point as he can testify without 

possibly incriminating himself. Plaintiff further expresses concern over revealing his exam and 

spelling out his chain of inferences and theory of the case. These concerns are a pretext. The 

inferences and Plaintiff‘s theory of the case are not a secret. Moreover, this can easily be 

addressed by submitting his questions in advance to the Court to determine propriety and scope 

of the examination of Guevara, without Guevara‘s counsel‘s review.

The Court‘s constraint is necessary to avoid Plaintiff‘s counsel from asking questions of 

Guevara, proper or improper, that create false impressions that a fact exists when it does not. 

Again, a review of Guevara‘s deposition reveals that Plaintiff‘s intended questions put greater 

emphasis on the questions than the answer and repeatedly delve into areas on which Plaintiff has 

absolutely no supporting evidence whatsoever. This is not only highly prejudicial, it is also 

legally inappropriate insofar as a party‘s invocation cannot be the sole substantiation on any 

evidentiary issue at trial. See Baxter v. Palmigiano, 425 U.S. 308, 313 (adverse inference 

permissible only if other supporting evidence admitted); Lefkowitz v. Turley, 414 U.S. 70, 

77(1973); Garrity v. New Jersey, 385 U.S. 493 (1967); LaSalle Bank Lakeview v. Seguban, 54 

F.3d 387 (7th Cir. 1995).

Allowing adverse inferences from potential improper questions furthers the likelihood 

that a jury would consider any potential improper questions evidence despite Defendant‘s 

objections.

WHEREFORE, for the reasons set forth above, Defendant Guevara respectfully requests 

the Court enter and Order In Limine that:

(1) constrains Guevara‘s examination to no more than the questions needed to establish 

the subject matter of the testimony and prevent questions that have no basis in the 

record;

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(2) conditions an adverse inference on Plaintiff not asking Guevara questions outside of 

the scope of the relevant issues as established by the Court; and

(3) allowing Guevara‘s attorney to explain to the jury his reasons for taking the Fifth.

DATED: May 23, 2018. Respectfully submitted,

Defendant Reynaldo Guevara

BY: /s/ Thomas More Leinenweber

Thomas More Leinenweber

Thomas M. Leinenweber

James V. Daffada

Kevin E. Zibolski

Leinenweber Baroni & Daffada LLC

120 N. LaSalle St., Ste. 2000

Chicago, Illinois 60602

(866) 786-3705

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CERTIFICATE OF SERVICE

I hereby certify under penalty of perjury pursuant to 28 U.S.C.A. § 1746 that on May 23, 

2018, I electronically filed the foregoing Officer Defendants’ Reply Brief in Support of Their 

Motion in Limine No. 9 To Bar Reference to Felix Valentin’s Medical Condition On 

September 10, 1988 with the Clerk of the Court using the CM/ECF system which will send 

notification of such filing to the following CM/ECF participants below.

Attorneys for Plaintiff Attorneys for City of Chicago

Arthur R. Loevy Eileen E. Rosen

Jonathan I. Loevy Stacy A. Benjamin

Elizabeth N. Mazur Catherine M. Barber

Russel Ainsworth Theresa B. Carney

Michael I. Kanovitz Rock Fusco & Connelly, LLC

Steven E. Art 321 N. Clark Street, Suite 2200

Anad Swaminathan Chicago, IL 60654

Rachel Brady (312)494-1000

Sean C. Starr (312)494-1001(Fax)

311 N. Aberdeen erosen@rfclaw.com

Chicago, IL 60607 sbenjamin@rfclaw.com

(312)243-5900 cbarber@rfclaw.com

(312)243-5902(Fax) tcarney@rfclaw.com

loevylaw@loevy.com

jon@loevy.com

Elizabethm@loevy.com

russell@loevy.com Attorneys for Reynaldo Guevara

mike@loevy.com Thomas M. Leinenweber

steve@loevy.com James V. Daffada

annad@loevy.com Kevin E. Zibolski

Brady@loevy.com Leinenweber Baroni & Daffada, LLC

sean@loevy.com 120 N. LaSalle Street, Suite 200

(312)663-3003

J. Samuel Tenenbaum thomas@ilesq.com

Bluhm Legal Clinic jim@ilesq.com

375 East Chicago Avenue kevin@ilesq.com

Bluhm Legal Clinic

375 East Chicago Avenue

Chicago, IL 60611

(312)503-4808

s-tenenbaul@law.northwestern.edu

Locke E. Bowman, III

Alexa Van Brunt

Roderick MacArthur Justice Center

Northwestern University School of Law

375 East Chicago Avenue

Chicago, IL 60611

(312)503-0844

(312)503-1272 (fax)

l-bowman@law.northwestern.edu /s/Jeffrey N. Given

a-vanbrunt@law.northwestern.edu JEFFREY N. GIVEN, Attorney No. 6184989 

One of the Attorneys for Individual Defendants

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