In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2381

LESHON YOUNG and

GLENDELL MAYS,

Plaintiffs-Appellants,

v.

JAMES GREEN MANAGEMENT,

INCORPORATED,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 01 C 159—G. Patrick Murphy, Chief Judge.

____________

ARGUED JANUARY 16, 2003—DECIDED MAY 5, 2003

____________

Before FLAUM, Chief Judge, and COFFEY and RIPPLE, Circuit

Judges.

RIPPLE, Circuit Judge. The plaintiffs, Leshon Young and

Glendell Mays, brought this action against their former

employer, James Green Management, Inc. (“Green”). They

alleged that they had been terminated on account of their

race in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seq. The jury returned verdicts in favor of Green. The plaintiffs then sought a new trial on

the ground that they had been prejudiced by several

evidentiary rulings. The district court denied the motion.
2 No. 02-2381

1 Mr. Young had heard that management was not pleased with

the amount of work that Mr. Mays was performing. See Trial

Tr. II at 218.

On appeal, the plaintiffs submit that the district court

committed reversible error in making several evidentiary

rulings. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I

BACKGROUND

A. Facts

Green is a real estate management firm that manages

several different apartment complexes in southern Illinois.

One such complex is the Chateau Apartments (“Chateau”).

On January 3, 2000, after speaking with Gary Olson, the

complex’s property manager, Leshon Young, an AfricanAmerican, began working at Chateau as a maintenance

worker. Two weeks after he began work, Mr. Young was

promoted to acting maintenance supervisor by Gerald

Clark, an upper-level manager. On or about February 1,

2000, Glendell Mays, also an African-American, began

working at Chateau as a painter. He also had been interviewed by Olson.

Sometime during the first week of February 2000, Olson

called Mr. Young into the office; he proceeded to tell Mr.

Young that he had been instructed by Gerald Clark to “get

rid of Glen [Mr. Mays] because he was black.” Trial Tr. II

at 217. Olson also told Mr. Young that he planned to tell

Mr. Mays about Clark’s statement. In reply, Mr. Young,

fearing that such a disclosure would cause Mr. Mays’ work

performance to suffer, asked Olson not to tell Mr. Mays.1

Mr. Young, citing earlier experience dealing with racial
No. 02-2381 3

discrimination, also indicated to Olson that he personally

would speak to Mr. Mays. See id. at 217. Despite Mr.

Young’s request, Olson promptly informed Mr. Mays that

he had been asked to fire Mr. Mays because he was black.

Mr. Mays asked Mr. Young whether it was true that

Green wanted to fire him because he was African-American, and Mr. Young responded, “that’s what I heard.” Id.

at 218. Mr. Mays testified that he did not take any action

at that time in response to Olson’s allegations because he

was uncertain whether to believe Olson. See id. at 169.

On February 11, 2000, Mr. Young’s promotion to acting

maintenance supervisor was confirmed, and he was

given a retroactive pay increase. That same day, Olson

faxed a letter to Green’s corporate headquarters stating that

he was resigning “effective immediately” because he had

been instructed by an unidentified Green supervisor (whom

Olson identified at trial as Gerald Clark) “to ‘hide out’ a

minority worker for the next week and [to] ‘get rid of

him’ on the first opportunity” because “ ‘James Green

doesn’t like blacks working for him. We already have Lee

and that is one too many.’ ” Plaintiffs’ Trial Ex.1. According

to Olson’s testimony at trial, the African-American individuals referenced in the letter were Mr. Young and

Mr. Mays.

Sometime during the evening of February 11, 2000, Olson

called Mr. Young. When Mr. Young informed Olson of his

pay increase, Olson told Mr. Young that he received the

raise because of the resignation letter that Olson had sent

to Green earlier that day. Olson faxed a copy of the letter

to Mr. Young the next day; Olson also informed Mr. Mays

of the letter’s content. In response to the allegations made

in Olson’s resignation letter, Mr. Young allegedly told

Mr. Mays that they needed to work extra hard to ensure

that they did not lose their jobs: “[L]ook, we need to work
4 No. 02-2381

as hard as we can . . . because we don’t need to give

them any reason to fire us. We don’t need—we can’t give

them any type of excuse [] for them to fire us.” Trial Tr. II

at 219.

As of March 1, 2000, Chateau had only three maintenance workers, two of whom were African-American (Mr.

Young and Mr. Mays) and one of whom was white. There

was also a white property manager, Magdaline Oates. On

March 6, 2000, the entire crew was terminated, including

the plaintiffs. Loren Brown, Green’s General Manager,

testified that he believed the overall appearance of Chateau

had steadily declined over the last few weeks and that

the crew members had lost interest in their jobs. Brown

noticed that trash was not being picked up and work orders were piling up. Brown also observed that Mr. Mays

was not painting the apartments in the correct manner; his

work was careless and sloppy. Brown spoke to Gerald Clark

and Magdaline Oates about his concerns; and, on one

occasion, he actually drove Oates around the complex to

point out the deficiencies in the crew’s work. At some point,

it also came to Brown’s attention that Mr. Young was

spending too much time sitting behind his desk in the

office when he should have been in the field performing

work orders. See Trial Tr. IV at 11. Brown blamed the

entire crew for the “trashy” appearance of the complex; he

sensed that the entire crew did not take pride in their work

and that a change was needed. Id. at 14. He determined

that he “needed a new crew.” Id. at 13. On Brown’s direction, Gerald Clark fired the entire Chateau crew, including

Mr. Young and Mr. Mays, on March 6, 2000.

The plaintiffs believed that they were terminated because of their race. In their view, Green’s explanation for

their termination was not credible because they had worked

“twice as hard” once they learned from Olson that Green’s
No. 02-2381 5

management wanted to terminate Mr. Mays because he

was African-American. Trial Tr. II at 169.

Following the plaintiffs’ termination, Green retained four

different individuals as subcontractors to maintain Chateau.

These individuals, all white, were fired after two weeks

of work because they failed to meet management’s expectations.

After Olson terminated his employment with Green,

he moved into Chateau to care for a disabled woman,

Rebecca Luebbert, with whom he later became romantically involved. Olson testified that, when he was leaving

the apartment one day, he encountered Loren Brown, who

related that the company had received an EEOC letter

and that Olson’s resignation letter had created a problem.

Olson further testified that he agreed to provide Green with

a letter retracting his accusations of discrimination in

exchange for a letter of recommendation and the forgiveness of $800 in back rent. Olson, in fact, did provide

Green with a letter of retraction. However, Loren Brown

testified that he never made such an agreement with Olson

and that the meeting concerned only Olson’s interest in

getting a letter of recommendation.

At trial, Gerald Clark testified that he never instructed

Olson to “hide out” or terminate Mr. Mays because of his

race. He denied having any conversation with Olson in

which he expressed the racist sentiments attributed to

him in Olson’s resignation letter. According to Clark’s

testimony, Olson fabricated the entire conversation. Also

at trial, Rebecca Luebbert testified that, shortly after Olson’s resignation, he approached Mr. Young while he was

painting an apartment at Chateau and told him that

he should “just take [his] time” completing the work and

“let them fire [him].” Trial Tr. III at 174-75. Luebbert further testified that Olson gave his pager number to Mr.
6 No. 02-2381

Young and instructed him to contact Olson if Green fired

Mr. Young. See id. at 175. Finally, Luebbert testified that

Olson had told her that, in return for helping plaintiffs

win their lawsuit against Green, he would share in their

award. See id. at 178.

B. District Court Proceedings

Following the jury verdicts in favor of Green, the plaintiffs moved for a new trial on the ground that certain

evidentiary rulings by the district court constituted reversible error. In particular, plaintiffs claimed that the district court erred by: (1) excluding Gary Olson’s resignation letter from evidence except for the limited purpose

of explaining why a subsequent letter of retraction was

written; (2) excluding the EEOC determinations of discrimination from evidence; and (3) allowing Green’s counsel to elicit details regarding Gary Olson’s prior convictions

and bad acts and to read from the deposition testimony

of an unrelated civil case involving Rebecca Luebbert

during cross-examination. The district court denied plaintiffs’ motion. The court determined that Olson’s resignation

letter was properly excluded as inadmissible hearsay

because the relevant statements were written after Olson

resigned and, therefore, the statements were not admissions by Green because Olson no longer was Green’s

employee. The court further determined that the EEOC

determinations were properly excluded because they were

unreliable and untrustworthy. Finally, the court determined that plaintiffs’ counsel “opened the door” to the

entire line of questioning relating to Gary Olson’s convictions and his involvement with Rebecca Luebbert’s unrelated civil case and, therefore, Green’s counsel “was properly allowed to explore these issues during his crossexamination.” R.40 at 2.
No. 02-2381 7

II

DISCUSSION

A. Standard of Review

The evidentiary rulings of the district court are given

special deference; we shall not reverse such rulings unless the district court abused its discretion. See United

States v. Lea, 249 F.3d 632, 641 (7th Cir. 2001). Under this

standard, “we will not find error unless the court’s decision is based on an erroneous conclusion of law or the

record contains no evidence on which the court rationally

could have based its decision or the supposed facts which

the court found are clearly erroneous.” Van Stan v. Fancy

Colours & Co., 125 F.3d 563, 570 (7th Cir. 1997). Furthermore,

even where an error is demonstrated to exist, “[a] jury

verdict will stand if the trial court’s evidentiary ruling

was harmless error.” Groom v. Days Inn of America, Inc.,

62 F.3d 204, 208 (7th Cir. 1995). “A harmful error results

only if the error had a ‘substantial and injurious effect

or influence’ on the jury’s verdict.” Id. (quoting United

States v. Hanson, 994 F.2d 403, 407 (7th Cir. 1993)); see also

Williams v. Pharmacia, 137 F.3d 944, 951 (7th Cir. 1998);

Lemons v. Skidmore, 985 F.2d 354, 359 (7th Cir. 1993);

Datamatic Servs., Inc. v. United States, 909 F.2d 1029, 1033

(7th Cir. 1990).

B. Exclusion of Gary Olson’s Letter of Resignation

Plaintiffs first submit that the district court committed

reversible error when it limited the admissibility of Gary

Olson’s February 11, 2000, resignation letter to explaining

why a subsequent letter of retraction was written. Plaintiffs contend that the resignation letter should have been

admitted as non-hearsay under Federal Rule of Evidence
8 No. 02-2381

801(d)(2)(D) as an admission by the agent of a party-opponent.

The disputed resignation letter, which Gary Olson addressed and sent to Green’s owner, James Green, provided:

I hereby tender my resignation from your company

effective immediately. My resignation is based on the

following events that transpired during my employment.

Approximately 1 1⁄2-2 weeks ago, I was informed by

your supervisor to “hide out” a minority worker for the

next week and “get rid of him” on the first opportunity.

I questioned your supervisor for the reasoning behind

this thought process. He informed me “James Green

doesn’t like blacks working for him. We already have

Lee and that is one too many.” He continued stating,

“Lee would never be maintenance supervisor because

of his skin color and that Mr. Green would not approve

of a black supervisor at the Chateau Town Home

complex.” I find this repugnant and a gross violation of

State and Federal laws. I refuse to act upon the supervisor’s demands and will leave that decision to one of

your other managers. I find it very disturbing that all

of the minority workers I hired are only granted an

$8.00 per hour wage while our only Caucasian worker

be paid $8.50 per hour whom has less experience and

is being trained by Lee to do the electrical work. The

pay inequities and rent concessions and other benefits

given to certain property managers and ordinary

maintenance workers reinforce my belief that a serious

reevaluation of your management staff is in order.

My resignation is due to the illegal acts that have

been asked of me to perform. If you have any questions, please contact my attorney, Mr. Bob Perica @ 462-

1700.
No. 02-2381 9

2 Generally, there is no requirement that the agent have specific authority to make a statement on the subject. However,

we have recognized that, in the context of employment discrimination cases, “the declarant must be involved in the

decisionmaking process affecting the employment action involved.” Aliotta v. Nat’l R.R. Passenger Corp., 315 F.3d 756, 762

(7th Cir. 2003). That exception does not apply here because

Olson had authority to terminate the plaintiffs.

Plaintiffs’ Trial Ex.1. Plaintiffs sought to admit this letter

to prove that Green had discriminated against the plaintiffs on account of their race. Because the letter is an out-ofcourt statement and was “offered in evidence to prove

the truth of the matter asserted,” it constitutes hearsay

and, therefore, is inadmissible unless an exception to the

hearsay rule applies. Fed. R. Evid. 801(c).

Rule 801(d)(2)(D) provides that a statement is not hearsay if “[t]he statement is offered against a party and is . . .

a statement by the party’s agent or servant concerning

a matter within the scope of the agency or employment,

made during the existence of the relationship.” Fed. R. Evid.

801(d)(2)(D). There is no doubt that Rule 801(d)(2)(D)

embodies a broader exception to the hearsay rule than

many pre-Rule decisions had permitted. See Nekolny v.

Painter, 653 F.2d 1164, 1171-72 (7th Cir. 1981) (citing Fed. R.

Evid. 801(d)(2)(D) Advisory Committee Notes). The Rule

simply requires that the statement be made by an individual who is an agent, that the statement be made during

the period of the agency, and that the matter be within

the subject matter of the agency. See id.2

The district court determined that the letter was not

admissible under this provision. We cannot say that, in

light of the totality of the circumstances, this ruling was
10 No. 02-2381

3 Cf. Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 97 (3d

Cir. 1999) (holding that employee’s statement was not admissible

under Rule 801(d)(2)(D) in absence of evidence that employee

was speaking for employer on matter within scope of agency

or employment).

an abuse of discretion. Olson’s assertions regarding discrimination were not made during the existence of his

employment relationship with Green. Olson’s letter of

resignation is not admissible under Rule 801(d)(2)(D)

because the justification for the rule simply is not present

in this situation.

We agree that there is a fundamental deficiency here

that does not permit the admission of the statement. Olson

was not speaking as an employee on behalf of Green when

he resigned from his employment and accused Green

of racial discrimination; to the contrary, in a very overt

manner, Olson was acting not only independently of

Green but also as its adversary.3

 Because Olson’s out-ofcourt statement was made in the context of terminating

his employment (and placing himself in an adversarial

relationship with Green), the justification for Rule

801(d)(2)(D) does not exist because Olson no longer was

“inhibited by [his] relationship with the principal from

making erroneous or underhanded comments which could

harm the principal.” Hernandez Escalante v. Municipality of

Cayey, 967 F. Supp. 47, 51 (D.P.R. 1997).

We also believe that, even if the district court had abused

its discretion by refusing to admit the evidence, any error

would have been harmless because “it did not have substantial and injurious effect or influence in determining

the jury’s verdict.” Williams, 137 F.3d at 951 (inner quotations omitted). Olson testified fully at trial to all of the
No. 02-2381 11

4 The following exchange took place between the plaintiffs’

attorney and Olson on direct-examination:

Q: Would you describe for the jury the conversation with

Gerald Clark and tell us where it took place?

A: Sure. If I recall we were in the office and Gerald Clark

came in and noticed that Glen was around the area. And

he asked who that was. And I said, that’s the new guy

Glen Mays. And he goes, let me talk to you. He didn’t

want to say this in front of the secretary because she was

relatively new too. And so we went outside by his truck

and that’s when he stated to me that, listen, Gary, you

know, we have older folks out here in Green Meadows

and we don’t like the impression that we’re hiring these

people. We want to keep this a clean place. And these

older folks get scared of these black people coming in.

And that kind of struck me odd because there’s black

people living there. But, anyway, he said, I want you to

hide’em and get rid of ‘em. And that just took me back.

And I told him, I said, I can’t do that. I can’t get involved

in anything like that. I’m not going to be liable and come

to this point where they’re sitting. I’m not going to do

that. So I went inside and thought about that all day

what I was going to do, so.

Q: Let me ask you one more, was there any comment made

about Leshon during that same conversation?

A: About Leshon?

Q: Yeah about one too many?

A: Yeah. Yeah. I believe I said that, that there was just one

too many out here and we don’t need another one.

Q: And that one too many he was referring to who?

(continued...)

matters contained in the letter of resignation, see Trial Tr. II

at 47-50,4

 and there is no reason to believe that the jury
12 No. 02-2381

4 (...continued)

A: I’m sure—it was my impression he was referring to

Leshon.

Trial Tr. II at 47-48.

* * * *

Q: Then what did you do after that as far as what was said

to you? Did you fire Glen?

A: No. I wouldn’t do it. I’m not going to participate in that.

Q: What did you end up doing instead?

A: Well, I resigned.

Id. at 50.

would have given greater weight to Olson’s unsworn outof-court statement than to his sworn testimony in court.

C. Exclusion of EEOC Determinations of Discrimination

The plaintiffs next submit that the district court committed reversible error when it excluded from evidence the

EEOC determinations of discrimination. In their view,

the determinations were admissible under Federal Rule

of Evidence 803(8)(C), the public records and reports exception to the hearsay rule. Green takes the view, however, that the district court properly excluded these determinations from evidence because they were “unreliable,

untrustworthy and their probative value was substantially

outweighed by their prejudicial effect.” Appellee’s Br. at 13.

As a general proposition, administrative findings regarding claims of discrimination may be admitted under Rule

803(8)(C). See Chandler v. Roudebush, 425 U.S. 840, 864 n.39

(1976); Halloway v. Milwaukee County, 180 F.3d 820, 827 n.9

(7th Cir. 1999); Tulloss v. Near N. Montessori Sch., Inc.,
No. 02-2381 13

776 F.2d 150, 153 (7th Cir. 1985). The text of Rule 803(8)(C)

provides that such findings are admissible “unless the

sources of information or other circumstances indicate

lack of trustworthiness.” Fed. R. Evid. 803(8)(C). However,

“the district court retains significant discretion as to whether such material ought to be admitted.” Halloway, 180 F.3d

at 827 n.9; see also Fed. R. Evid. 803(8)(C) Advisory Committee Notes (suggesting criteria to consider on the issue

of admissibility, but noting that no exhaustive list is possible). In addition, a district court “must always determine

whether the prejudicial effect of admitting such unreliable

information may outweigh its probative value and thereby

render it inadmissible under Fed. R. Evid. 403.” Tulloss,

776 F.2d at 153.

In this case, the EEOC made determinations that both Mr.

Young and Mr. Mays were discriminated against on the

basis of their race. See Plaintiffs’ Trial Ex.3, 20. Green filed

a motion in limine to exclude the EEOC determinations,

as well as the investigatory files. Prior to trial, the district court ruled that it would not admit the EEOC determinations of discrimination. See Trial Tr. II at 5. As to the

EEOC files, the district court stated that it would “look

at the matters in the file on an individual basis.” Id. Following the parties’ presentation of evidence, but before closing arguments, the district court repeated its ruling

that the EEOC determinations would not be admitted;

at this point, the court also ruled that the EEOC files

would not be admitted. See Trial Tr. IV at 74. The court

explained:

[T]he court in the exercise of its discretion did not admit the determination, and I think that the performance of the EEOC here in open court is ample evidence

as to the general unreliability of these files in general.

It would not assist the jury at all. The jury has heard
14 No. 02-2381

5 The plaintiffs do not challenge the district court’s decision

to exclude the EEOC files; their argument is based solely on the

exclusion of the determinations of discrimination. It was appropriate, however, for the district court to consider the state

of the file and other surrounding circumstances such as the

testimony of EEOC officials in determining whether to admit

the findings of the Commission.

evidence from everyone involved themselves . . . . I did

not admit the entire EEOC file for the same reason.

Id.

5

The district court’s reference to “the performance of the

EEOC in open court” was premised on the testimony of

Gerleen Smith, an investigator with the EEOC, who testified incorrectly regarding the number of Green employees. See Trial Tr. II at 149-57. This error in Smith’s testimony was significant because it would have subjected

Green to the higher damages cap in 42 U.S.C. § 1981a(b)

(3)(B). On cross-examination, Smith could not account

for the discrepancy. See id. at 157.

Apart from Olson’s resignation letter, plaintiffs have

pointed to no evidentiary material available to the EEOC

that was not otherwise available to the jury during trial.

We already have determined that this letter was correctly

excluded from evidence and that, in any event, the plaintiffs were not prejudiced by its exclusion because Olson

testified fully at trial to all matters contained in the letter.

In addition, the district court made explicit findings that

the EEOC determinations were unreliable and not trustworthy. Under these circumstances, we cannot say that

the district court abused its discretion by refusing to admit the determinations. See Tulloss, 776 F.2d at 154 (holding that the district court did not abuse its discretion in
No. 02-2381 15

refusing to consider EEOC determination where it was “not

contended that the evidentiary material available to the

EEOC was not also available to the district court”); see also

Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th

Cir. 1984) (“Because substantial evidence was presented

to the jury on all matters summarized in the report, there

is little probative value in the EEOC’s conclusory statements regarding the same evidence.”).

D. Cross-examination of Gary Olson

Finally, the plaintiffs submit that the district court committed reversible error by allowing Green’s counsel to

cross-examine Gary Olson on collateral matters that were

irrelevant and prejudicial. In particular, the plaintiffs contend that the district court erred when it allowed Green’s

counsel to cross-examine Olson regarding details of prior

convictions and bad acts and to read from Olson’s deposition testimony in an unrelated civil case involving

Rebecca Luebbert. The district court denied plaintiffs’ motion for a new trial on these grounds. It stated that “[p]laintiffs’ counsel opened the door to the entire line of questioning relating to Gary Olson’s convictions and his involvement in Rebecca Luebbert’s case,” and “[t]hus Defendant’s

counsel was properly allowed to explore these issues during cross-examination.” R.40 at 2.

On cross-examination, Olson admitted that he was

convicted of automobile theft in 1993 and that he was

convicted of three counts of aggravated battery in 2001.

See Trial Tr. II at 63-65. The plaintiffs do not contend

seriously that it was improper for Green’s counsel to bring

out the existence of Olson’s four prior felony convictions,

nor could they do so successfully under Federal Rule of
16 No. 02-2381

6 Rule 609(a) provides in relevant part:

For the purpose of attacking the credibility of a witness, 

(1) evidence that a witness other than an accused has been

convicted of a crime shall be admitted, subject to Rule 403,

if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness

was convicted . . .; and

(2) evidence that any witness has been convicted of a crime

shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

Fed. R. Evid. 609(a).

Moreover, the plaintiffs are not in a position to complain about

the admission of these convictions because their counsel had

inquired into Olson’s criminal background on direct-examination

and Olson was less than forthcoming:

Q: Okay. Now let me ask you a question. You were convicted of, is it two felonies or one?

A: I was—

Q: Aggravated battery I know is one.

A: Aggravated battery.

Trial Tr. II at 55. By not disclosing that he had three additional

felony convictions, Olson left the jury with the false impression that he had only one conviction for aggravated battery.

Under these circumstances, Green’s counsel certainly was entitled to cross-examine Olson about the existence of prior

convictions.

Evidence 609.6

The plaintiffs do contend, however, that the district court

erred by permitting Green’s counsel to cross-examine Olson

regarding certain details of his convictions. As a general

rule, we have held that “all that is needed to serve the

purpose of challenging the witness’s veracity is the elicitation of the crime charged, the date, and the disposition”
No. 02-2381 17

and that “it is error to elicit any further information for

impeachment purposes.” Gora v. Costa, 971 F.2d 1325, 1330

(7th Cir. 1992). In this case, Green’s counsel was permitted

to elicit additional information from Olson regarding his

convictions; nevertheless, under the circumstances here, we

cannot say that the district court abused its discretion in

permitting counsel this latitude.

The district court permitted Green’s counsel to elicit

from Olson that Luebbert was the victim in two of the

aggravated batteries. See Trial Tr. II at 74. This disclosure

was prompted by Olson’s testimony on direct-examination

regarding the nature of his relationship with Luebbert.

Olson testified that, in March of 2000, he had moved into

Luebbert’s apartment and that he “was helping her out so

she would get better.” Id. at 57. Under these circumstances,

it was within the district court’s discretion to permit

Green’s counsel to elicit on cross-examination that the

aggravated batteries occurred while he was living with

Luebbert and allegedly caring for her needs.

The district court also permitted Green’s counsel to elicit

minor details regarding Olson’s 1993 conviction for stealing an automobile. Specifically, on re-cross, Green’s counsel asked Olson whether he had told the judge at the

criminal proceeding that he had stolen the vehicle and how

old he was at that time. See Trial Tr. II at 137-38. These

questions were designed to rebut Olson’s testimony during

re-direct that he did not steal the vehicle and that the incident did not result in a conviction:

Q: [W]ould you describe to the jury how you were

charged with theft back in 1993, even though I

don’t believe it has anything to do with this case

but since it’s in here.

A: Yes, I sure will. I pled guilty to an SIS which is a

suspended imposition sentence. I was a tow truck
18 No. 02-2381

7 As a general proposition, “[c]ross examination as to a specific

instance relating to the character for untruthfulness of the particular witness being examined . . . should be phrased in terms

of the underlying event itself. Thus where the specific act is

probative of untruthfulness of the witness being cross-examined,

the question should not inquire about rumors, reports, arrests

or indictments but rather about the underlying specific event

of misconduct itself.” Michael H. Graham, Handbook of Federal Evidence § 608.4 (5th ed. 2001). We note in passing that the

plaintiffs make no argument with respect to the form of this

question. Nor did the plaintiffs make any such objection in

the district court. We therefore need not address this issue.

driver and I picked up a car that belonged to another person. The person pertaining [sic] to be

the owner was not the actual owner. I took the

vehicle and parked it. And the owner found out

about it and I was charged with—

Q: And is it your understanding, even today that’s not

a conviction?

A: It is not a conviction in.

Q: In Missouri?

A: It is not a conviction.

Id. at 130. Given Olson’s testimony on re-direct, the district court acted within its discretion when it permitted

Green’s counsel to inquire further into Olson’s conviction.

The district court also allowed Green’s counsel to ask

Olson whether his former employer, a law firm, had

accused him of stealing documents. See Trial Tr. II at 63.7

Federal Rule of Evidence 608(b), which governs the admissibility of specific instances of conduct for purposes of

impeachment, provides in relevant part:
No. 02-2381 19

Specific instances of the conduct of a witness, for the

purpose of attacking or supporting the witness’ credibility, other than conviction of a crime as provided in

rule 609, may not be proved by extrinsic evidence.

They may, however, in the discretion of the district

court, if probative of truthfulness or untruthfulness,

be inquired into on cross-examination of the witness

(1) concerning the witness’ character for truthfulness

or untruthfulness.

Fed. R. Evid. 608(b).

Stealing is probative of untruthfulness; therefore, the

district court acted within the bounds of its discretion in

allowing counsel to inquire on cross-examination with

respect to this incident.

Moreover, plaintiffs’ counsel opened the door to this line

of questioning. On direct-examination, plaintiffs’ counsel

asked whether Olson left his employment with the law

firm because he had “some kind of problem” with the

firm. Trial Tr. II at 39. When Olson replied “yes,” plaintiffs’

counsel asked: “And can you briefly tell the jury what you

were being accused of?” Id. Olson testified that he was

accused of taking a client’s documents and turning them

over to opposing counsel. See id. at 39-40. In discussing the

situation, Olson attempted to portray his conduct in a

charitable light. Green merely followed up on this line of

questioning on cross-examination. Even if Green’s counsel

could not otherwise have inquired about the incident, the

district court was within its discretion in permitting the

testimony because plaintiffs’ counsel initiated the subject. See United States v. Anifowoshe, 307 F.3d 643, 649 (7th

Cir. 2002) (“This circuit has held on numerous occasions

that when a party questions a witness on a subject, even

though that subject may not be strictly relevant to the

case, the party cannot complain on appeal if the opposing
20 No. 02-2381

party subsequently introduces evidence on the same

subject.”) (internal quotations omitted).

Plaintiffs’ final contention is that the district court erred

when it permitted Green’s counsel to use extrinsic evidence to impeach Olson on a collateral matter. On crossexamination, Green’s counsel asked Olson whether he

blamed Luebbert for certain problems in his life. See Trial

Tr. II at 125. When Olson responded that he did not,

Green’s counsel impeached Olson with testimony from

an unrelated civil action filed by Luebbert, in which Olson testified that he was angry with Luebbert, that he

blamed her for his problems and that he wanted to make

her suffer. See id. at 126.

“[A] witness may not be impeached on a collateral matter by use of extrinsic evidence of prior inconsistent statements.” United States v. Roulette, 75 F.3d 418, 423 (8th

Cir. 1996); see also United States v. Senn, 129 F.3d 886, 894

(7th Cir. 1997) (“[E]xtrinsic evidence may not be used to

prove impeachment on a collateral matter.”). “A matter is

collateral if it ‘could not have been introduced into evidence for any purpose other than contradiction.’ ” United

States v. Williamson, 202 F.3d 974, 979 (7th Cir. 2000) (quoting

United States v. Jarrett, 705 F.2d 198, 207 (7th Cir. 1983)).

Whether Olson blamed Luebbert for certain problems

in his life was a collateral matter and, therefore, Green’s

counsel should not have been permitted to use extrinsic

evidence to impeach Olson on this point. Nevertheless,

we are convinced that the error was harmless because “it

did not have substantial and injurious effect or influence

in determining the jury’s verdict.” Williams, 137 F.3d at

951 (internal quotations omitted).
No. 02-2381 21

Conclusion

For the foregoing reasons, we affirm the judgment of

the district court.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-5-03