UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ALBERTO OCHOA,

Plaintiffs,

v.

JOSE LOPEZ, EUGENE SCHLEDER,

ADRIAN GARCIA, and CITY OF 

CHICAGO,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

No. 20 CV 2977

Magistrate Judge Young B. Kim

November 7, 2022

MEMORANDUM OPINION and ORDER

Before the court is Defendants Jose Lopez, Eugene Schleder, and Adrian 

Garcia’s motion to compel1 non-party witness Arturo Simon to answer questions on 

certain topics related to the murder of Marilu Socha and attempted murder of 

Joseph Maldonado, and to extend the time to complete Simon’s deposition. For the 

following reasons the motion is granted in part and denied in part:

Background

The court’s opinion addressing Defendants’ motion to dismiss details the 

background and procedural history of this civil rights lawsuit. (R. 39.) Relevant to 

the current motion, Plaintiff alleges that he was unjustly convicted of Socha’s 

murder because Defendants coerced confessions, fabricated evidence, and withheld 

exculpatory evidence, among other things. (R. 1, Compl.) Socha’s murder occurred 

1 Defendant City of Chicago does not join in the current motion. For the sake of 

simplicity, the court refers to the moving defendants as “Defendants” in this 

opinion.

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 1 of 15 PageID #:1656
2

in December 2002 as Maldonado was standing outside a house with Socha when a 

car drove by and shots were fired at them, killing Socha. (Id. ¶ 21.) Maldonado did 

not get a good look at the car’s occupants but thought there were three or four 

Latino men in the car who yelled, “King Love,” signifying an affiliation with the 

Latin Kings street gang. (Id. ¶ 22.)

In connection with this drive-by shooting, Chicago police officers arrested two 

primarily Spanish-speaking teenage suspects, Simon and Arturo Bentazos, both of 

whom were Latin Kings members. (Id. ¶¶ 18, 27, 31.) They denied involvement in, 

or knowledge of, the shooting. (Id. ¶ 30.) After 15 hours of interrogation, and 

without a certified interpreter or Miranda warnings, Simon and Bentazos claimed 

Plaintiff was responsible for the shooting. (Id. ¶¶ 36, 38.) Eduardo Torres, also a 

Latin Kings member, was later arrested and admitted he was in the car but denied

being involved in the shooting. (Id. ¶¶ 18, 49.) During subsequent criminal 

proceedings, prosecutors claimed Plaintiff was the shooter and Simon was the 

lookout in the front passenger seat of the car. (R. 105, Defs.’ Mot. at 2.)

The State of Illinois tried Simon twice for his role in the drive-by shooting, 

with the first trial resulting in a hung jury and the second in convictions for murder 

and attempted murder. (Id.) Simon did not testify at either trial. (Id.) However,

his attorneys argued at trial that Simon was in the car but did not plan or 

participate in the shooting. (Id.) In July 2007 Simon signed an affidavit attesting 

that Plaintiff was innocent and not present when the shooting took place and that 

he implicated Plaintiff because police officers beat him and told him he would only 

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 2 of 15 PageID #:1657
3

be used as a witness and would be released after signing his statement. (Id. at 3 & 

Ex. F.)

As a result of his convictions, Simon is serving consecutive 45- and 10-year 

sentences. (Id. at 2.) He appealed his convictions, and they were affirmed in 

December 2007. (R. 112, Simon’s Resp. at 1.) He then filed post-conviction 

petitions in 2008, 2015, and 2019, asserting that he was not present at the shooting 

and that he had an alibi—he was at his ex-girlfriend Fabiola Hernandez’s house 

speaking by phone with his current girlfriend Dalia Olmos. (Id. at 1-2; R. 105, 

Defs.’ Mot. at 3.) Simon’s 2008 post-conviction petition was denied, but his 2015 

and 2019 petitions remain pending. (R. 105, Defs.’ Mot. at 3.) The Cook County 

Public Defender’s Office is representing Simon in the 2019 post-conviction 

proceeding. (R. 112, Simon’s Resp. at 2.)

On September 19, 2022, Defendants deposed Simon as a non-party witness in 

this case. (R. 105, Defs.’ Mot. at 3-4 & Ex. I.) The deposition took place by Zoom 

web conference beginning at 9:00 a.m., with Simon appearing by iPhone from Hill 

Correctional Center in Galesburg, Illinois, where he is incarcerated. (Id. at 3 &

Ex. I at 5, 10.) Simon was asked whether he spoke and understood English, and he

answered, “Not a lot.” (Id. Ex. I at 7.) Defendants’ attorney explained that an

interpreter would repeat his questions to Simon in Spanish, and he directed Simon 

to answer them in Spanish. (Id. Ex. I at 10.) Simon’s attorney and the others

attending appeared from separate locations, (id. Ex. I at 5), and it was unclear 

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 3 of 15 PageID #:1658
4

whether Simon could see all attorneys—or even his own attorney—on his iPhone 

screen, (R. 112, Simon’s Resp. at 2 n.1).

Simon met with his attorney and an interpreter for 30 minutes before the 

deposition and again for 12 minutes during the deposition after Defendants’ 

attorney argued that Simon had waived his Fifth Amendment privilege as to certain 

topics. (R. 112, Simon’s Resp. at 2; R. 105, Defs.’ Mot. at 4 & Ex. I at 46-49.) After 

the 12-minute conference, Simon’s attorney allowed the deposition to continue but 

ended it at 1:28 p.m.—after three hours and seven minutes of questioning—when 

she expressed concerns about Simon’s “language barrier” and inability to 

understand his Fifth Amendment rights. (R. 105, Defs.’ Mot. at 4 & Ex. I at 86-91; 

R. 112, Simon’s Resp. at 2.) Defendants then filed this motion to compel Simon’s 

continued testimony, including with respect to topics on which Defendants contend

Simon waived his Fifth Amendment privilege. (R. 105, Defs.’ Mot.) The parties and 

Simon have scheduled his deposition to resume on November 10, 2022. (R. 112, 

Simon’s Resp. at 3.)

Analysis

In deciding Defendants’ motion the court must determine whether Simon had

a basis for asserting the Fifth Amendment privilege during his deposition in this 

case and whether he waived that privilege—and if so, the scope of such waiver. 

See FDIC v. Mahajan, No. 11 CV 7590, 2014 WL 3359333, at *2 (N.D. Ill. July 9, 

2014). The court addresses each of these issues in turn.

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 4 of 15 PageID #:1659
5

A. Basis for Fifth Amendment Privilege

The Fifth Amendment provides that “[n]o person . . . shall be compelled in 

any criminal case to be a witness against himself.” U.S. Const. amend. V. The 

guarantee against being “involuntarily called as a witness against himself in a 

criminal prosecution” extends to “any other proceeding, civil or criminal, formal or 

informal.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). The court construes the

privilege broadly in favor of the constitutional right. See In re Corrugated 

Container Antitrust Litig., 661 F.2d 1145, 1150 (7th Cir. 1981). That said, the

individual seeking to invoke the privilege bears the burden of showing that it

applies. See In re Folding Carton Antitrust Litig., 609 F.2d 867, 871 n.5 (7th Cir. 

1979).

To assert the Fifth Amendment privilege and refuse to answer questions, a

witness must show that providing a truthful answer would have “some tendency to 

subject the person being asked the question to criminal liability.” In re High 

Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 663-64 (7th Cir. 2002)

(emphasis in original). The witness need not establish the precise manner in which 

he would incriminate himself by responding to questions, as this would render the 

privilege meaningless. Hoffman v. United States, 341 U.S. 479, 486-87 (1951). But

it must be evident from the implications of the questions that responsive answers

might result in injury. Id. The protection extends to responses that would furnish 

“a link in the chain of evidence” needed to prosecute the witness. Id. at 486.

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 5 of 15 PageID #:1660
6

Based on the facts presented, the court finds that Simon has a valid basis for 

asserting the Fifth Amendment privilege in response to questions asked at the

deposition. There is no dispute that Simon was convicted and sentenced for murder 

and attempted murder, and that his 2015 and 2019 post-conviction petitions remain 

pending. (R. 105, Defs.’ Mot. at 2-3; R. 112, Simon’s Resp. at 2.) Because “adverse 

consequences can be visited upon [him] by reason of further testimony,” Simon risks 

“further incrimination” by testifying in this case. See Mitchell v. United States, 526 

U.S. 314, 326 (1999). Accordingly, a valid basis exists for the assertion of the Fifth 

Amendment privilege.

In a footnote Defendants suggest that Simon may not be able to invoke the

privilege in a post-conviction proceeding in which a conviction has become final. 

(R. 105, Defs.’ Mot. at 6 n.2 (citing Johnson v. City of Chi., 19 CV 3904, 2021 WL 

1952489, at *1 (N.D. Ill. May 10, 2021)).) But that is not the case here. As 

discussed, Simon’s 2015 and 2019 post-conviction petitions are still pending. 

(See R. 112, Simon’s Resp. at 4-5.) Indeed, “[o]nly when ‘no adverse consequences 

can be visited upon the convicted person by reason of further testimony’ does the 

conviction become final.” Hollinger Int’l, Inc. v. Hollinger Inc., 04 CV 698, 2008 WL 

161683, at *2 (N.D. Ill. Jan. 16, 2008) (quoting Mitchell, 526 U.S. at 326). As such, 

testimony offered by Simon in this civil matter “continues to have the potential to 

prejudice [him] in connection with an appeal and a potential retrial,” id.—and he 

may invoke the privilege against self-incrimination.

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 6 of 15 PageID #:1661
7

B. Waiver of Fifth Amendment Privilege

Nevertheless, a witness such as Simon can waive his Fifth Amendment right 

by testifying voluntarily about a subject. See Mitchell, 526 U.S. at 321-22. But 

waiver “is not to be lightly inferred.” Boim v. Quranic Literacy Inst., No. 00 CV

2905, 2004 WL 2700494, at *2 (N.D. Ill. Feb. 9, 2004) (quotations and citation

omitted). In fact, courts must indulge “every reasonable presumption” against 

waiver of constitutional rights. Walton v. Briley, 361 F.3d 431, 433 (7th Cir. 2004) 

(quotations and citation omitted). Whether the privilege has been waived depends 

on the particular facts and circumstances surrounding the case. Moran v. Burbine, 

475 U.S. 412, 421 (1986).

Defendants argue that Simon waived any right to assert the Fifth 

Amendment privilege when he voluntarily disclosed information about Socha’s

shooting. (R. 105, Defs.’ Mot. at 6-7.) As an initial matter, Defendants discuss

Simon’s attestations in an affidavit in support of Plaintiff’s post-conviction petition

in Plaintiff’s criminal case—in which Simon testified that Plaintiff was not present 

when the shooting occurred, implying that Simon has the requisite knowledge to 

say who was present during the shooting. (Id. at 3.) But waiver of the Fifth 

Amendment protection against self-incrimination must occur in a “single 

proceeding.” See Shakman v. Democratic Org. of Cook Cnty., 920 F. Supp. 2d 881, 

893 (N.D. Ill. 2013) (“A person who waives the privilege in one proceeding, however,

does not thereby waive it in another proceeding.”). The single-proceeding rule

derives from the Supreme Court’s ruling in Mitchell v. United States, 526 U.S. at 

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 7 of 15 PageID #:1662
8

321, that “a witness, in a single proceeding, may not testify voluntarily about a 

subject and then invoke the privilege against self-incrimination when questioned 

about the details.” Id. (citing Rogers v. United States, 340 U.S. 367, 373 (1951)

(emphasis added)). Here, because Simon offered his affidavit in support of Plaintiff

in a separate criminal proceeding, the court cannot infer that Simon’s attestations 

in that matter amount to a waiver in this civil case.

As for statements Simon made during his September 19, 2022 deposition, 

however, a waiver may be inferred insofar as he testified voluntarily about certain 

topics and then invoked the Fifth Amendment privilege as to the details. See id. 

Simon contests his ability to waive the privilege because he says he did not 

understand “the implications and the parameters” of such privilege. (R. 112, 

Simon’s Resp. at 2.) Based on the facts and circumstances presented, see Moran, 

475 U.S. at 421, the court disagrees. As Defendants point out, they retained a 

Spanish-speaking interpreter and Simon’s attorney not only attended the deposition

but met with Simon with the assistance of the interpreter before the deposition

began. (R. 105, Defs.’ Mot. at 3-4.) At the beginning of the deposition, Defendants’ 

attorney asked Simon to speak up if he did not understand a question or if Zoom 

“cut out,” and Simon agreed to do so. (Id. Ex. I at 8-9.) Defendants’ attorney also 

asked Simon whether “the best they [could] do there . . . with regard to this 

deposition [was] an iPhone for the Zoom,” and Simon responded affirmatively. (Id. 

Ex. I at 10.) While an iPhone may not be the best device for a witness to use for a 

remote deposition, particularly with the deponent’s attorney also attending by 

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 8 of 15 PageID #:1663
9

remote connection, (R. 112, Simon’s Resp. at 2 n.2), neither Simon nor his attorney 

objected to the deposition moving forward in the manner it did.

As the deposition progressed, it became clear that Simon voluntarily 

answered some questions—including regarding his Latin Kings membership and 

his alleged alibi—while at the same time invoking the privilege as to other 

questions relating to the same topics. (R. 105, Defs.’ Mot. at 4-5.) When Simon’s 

attorney perceived that her client did not understand the parameters of his 

privilege, she stopped the deposition to counsel him on his Fifth Amendment rights. 

(Id. Ex. I at 86-87; R. 112, Simon’s Resp. at 7-8.) After that consultation and as 

detailed below, the deposition continued and Simon divulged additional facts,

“pick[ing] and choos[ing]” the details he wished to provide. (R. 105, Defs.’ Mot. 

at 8.)

Such picking and choosing of aspects of a subject to disclose triggers a waiver

of the privilege. See Mitchell, 526 U.S. at 322 (“The illogic of allowing a witness to 

offer only self-selected testimony should be obvious even to the witness, so there is 

no unfairness in allowing cross-examination when testimony is given without 

invoking the privilege.”). Accordingly, and as explained below, the court finds that 

Simon waived his Fifth Amendment privilege as to certain topics at the deposition

where he voluntarily disclosed facts about that subject matter. See In re High 

Fructose Corn Syrup, 293 F. Supp. 2d at 859 (“Without question, the rights granted 

by the Fifth Amendment may be waived.”).

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 9 of 15 PageID #:1664
10

C. Scope of Waiver

When the witness makes a voluntary disclosure, “[t]he privilege is waived for 

the matters to which the witness testifies, and the scope of the ‘waiver is 

determined by the scope of relevant cross-examination.’” Mitchell, 526 U.S. at 321

(quoting Brown v. United States, 356 U.S. 148, 154-55 (1958)); see also United 

States v. Gamble, 969 F.3d 718, 724 (7th Cir. 2020) (“The Fifth Amendment 

privilege can be waived, and the scope of the waiver is determined by the subject 

matter on which the defendant breaks her silence.”). Of course, “questions will 

arise” as to the scope of any waiver. Mitchell, 526 U.S. at 322. As a result, the 

court carefully examines the extent to which Simon volunteered facts in his initial 

testimony and whether additional questions may be “comprehended within [the]

scope” of waiver as to that subject matter. Id. Here, Defendants claim that Simon 

waived the Fifth Amendment privilege as to “his involvement in the murder of 

Marilu Socha and his involvement in the Latin Kings gang.” (R. 105, Defs.’ Mot. at

6-7.)

1. Gang Membership

Starting with his gang membership, Simon testified that he went by the 

nickname “Magic” when he was a member of the Latin Kings. (R. 105, Defs.’ Mot. 

Ex. I at 19-21.) When asked when he last used the nickname “Magic,” Simon 

invoked the Fifth Amendment. (Id. Ex. I at 20.) Simon asserted the same privilege

when questioned about whether he currently was a Latin Kings member and why 

Latin Kings members called him “Magic.” (Id. Ex. I at 20, 22.) Later in the

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 10 of 15 PageID #:1665
11

deposition, Simon testified that he joined the Latin Kings when he was 15 years old, 

and that he was a member for two years. (Id. Ex. I at 44-45.) But then he invoked 

the privilege when asked whether he was a Latin Kings member in December 2002 

when Socha was shot and killed. At this point, Simon’s attorney asked for—and 

received—a 12-minute break to ensure Simon understood the parameters of the 

privilege. (Id. Ex. I at 46-48.) After the break, Simon was asked whether he had 

been a Latin Kings member since he was 15, whether he was a member in 

December 2002, and whether he currently is a member. (Id. Ex. I at 49.) Simon 

asserted the Fifth Amendment privilege to each of these questions. (Id.)

Having reviewed the subject deposition testimony, the court concludes that 

Simon disclosed certain facts regarding his past involvement in the Latin Kings 

gang and, as such, he has “waive[d] the privilege as to details” relating to those 

facts. Rogers, 340 U.S at 373. Specifically, in his initial testimony Simon disclosed 

facts about when he first joined the Latin Kings, how long that membership lasted, 

and his gang nickname “Magic.” During his continued deposition, Simon may be

asked “ensuing questions” that fall within the scope of this subject matter, including 

whether Simon was a Latin Kings member in December 2002 when Socha was 

killed. Mitchell, 526 U.S. at 321-22; see also In re Bon Voyage Travel Agency, Inc., 

449 F. Supp. 250, 253 (N.D. Ill. 1978) (“[O]nce a person has revealed an 

incriminating fact, requiring him to make other disclosure on the same matter, 

without further incrimination, does not conflict with the interests protected by the

Fifth Amendment.”). This ruling does not extend to gang membership related 

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 11 of 15 PageID #:1666
12

questioning that is not embodied within the subject matter to which Simon 

voluntarily testified. For example, Defendants’ attorney asked Simon questions 

about gang signs, characteristics, territory, roles, activities, and tattoos. (R. 105, 

Defs.’ Mot. Ex. I at 53-59.) Simon consistently invoked the privilege in response to 

this line of questioning and, therefore, no disclosure is required.

Simon argues that his “ordinary witness” status as a non-party allows him to 

“pick the point beyond which he will not go” in his testimony—and that here, he

clearly chose not to divulge facts at least as to any current Latin Kings involvement. 

(R. 112, Simon’s Resp. at 9-10 (citing In re Bon Voyage, 449 F. Supp. at 253

(quotations omitted)).) The Supreme Court in Mitchell suggested a possible 

distinction between a party witness and an ordinary witness in determining the 

scope of inquiry following a voluntary disclosure. 526 U.S. at 321 (finding that 

“certainly if he is a party,” the witness “determines the area of disclosure and 

therefore of inquiry”). Regardless, as to any current gang affiliation, Simon 

asserted his Fifth Amendment privilege and did not disclose facts on that subject. 

And, in any event, Defendants have not shown why such testimony is relevant to a 

party’s claim or defense in this case. See Fed. R. Civ. P. 26(b)(1). Accordingly,

Simon may not be asked about current gang involvement during the continued 

deposition. Nor may he be asked about involvement he may have had in crimes

(including gang related crimes) unrelated to a party’s claim or defense in this case. 

(See, e.g., R. 105, Defs.’ Mot. Ex. I at 41 (questioning Simon about spray painting 

Latin Kings signs on property).)

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 12 of 15 PageID #:1667
13

2. Socha’s Murder

Turning next to Simon’s involvement in Socha’s murder, in his postconviction petitions Simon alleged that he was not present at the shooting. (R. 105, 

Defs.’ Mot. at 3.) Instead, he attested that he was at Hernandez’s house speaking 

by phone with Olmos when the shooting occurred. (Id.) Simon made those 

attestations in connection with his criminal case, not this civil proceeding. 

Therefore, under the single-proceeding rule they cannot be considered as part of the 

Fifth Amendment privilege waiver inquiry. Mitchell, 526 U.S. at 321; Shakman, 

920 F. Supp. 2d at 888.

That said, Simon referenced his alleged alibi during his deposition in this 

case. Specifically, when asked what he was doing at the time of Socha’s murder, 

Simon responded, “I was with my family, with my children.” (R. 105, Defs.’ Mot.

Ex. I at 85.) Despite providing this testimony, he invoked the privilege in response 

to questions about which family members he was with at that time. (Id. Ex. I at 85-

86.) Simon did explain that his former girlfriend Hernandez was the mother of two 

of his children and that his current girlfriend Olmos was pregnant with his third 

child at the time of his arrest in connection with Socha’s murder. (Id. Ex. I at 27-

28.) Simon testified that he has never discussed the murder of Socha or any related 

proceedings with Olmos. (Id. Ex. I at 29.) At the same time, Simon invoked the 

privilege when asked whether he has discussed the matters with Hernandez, 

although Simon did testify that he was in contact with Hernandez in December 

2002 and that she had recently visited him in prison. (Id. Ex. I at 29-30.) Given 

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 13 of 15 PageID #:1668
14

Simon’s testimony regarding his alibi, he waived his privilege with respect to details 

regarding such alibi. This ruling extends to Simon’s whereabouts during the 

murder and the identity of individuals he was with at the time of the subject 

murder.

Simon also invoked the privilege when asked whether he knew any police 

officers involved in the murder investigation, whether he was convicted of the 

murder, and whether he was in the car from which shots were fired. (Id. Ex. I at 

82-84.) Because Simon chose to testify as to his alleged alibi, that initial testimony

opens the door to inquiry about his role (or lack thereof) in Socha’s murder, 

including any knowledge he has regarding the car involved, occupants of that car, 

and how the murder occurred. As to testimony regarding his co-defendants in the 

underlying criminal case, however, Simon asserted the Fifth Amendment privilege

when asked about the co-defendants, including their involvement with the Latin 

Kings gang and Socha’s murder. (Id. Ex. I at 51-52, 59-80.) Simon’s testimony 

therefore did not amount to a waiver as to the co-defendants’ alleged involvement.2

D. Additional Time to Complete Deposition

Defendants ask for an additional seven hours to depose Simon during the 

continued deposition. (R. 105, Defs.’ Mot. at 10-11.) Simon does not object. (R. 112, 

Simon’s Resp. at 12.) Defendants’ request would add about three hours to the 

typical seven-hour limit. See Fed. R. Civ. P. 30(d)(1). The court agrees that 

2 Likewise, the waiver resulting from Simon’s disclosure of his alleged alibi does 

not extend to questioning regarding alleged Latin Kings member Ricardo Argueta 

because Simon invoked the privilege in response to such questioning. (R. 105, Defs.’ 

Mot. Ex. I at 79-82.)

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 14 of 15 PageID #:1669
15

additional time is warranted because Simon improperly invoked the privilege on 

certain topics for which he had already disclosed some facts, and because his need 

for an interpreter necessarily slows down questioning. Accordingly, the court allows 

seven hours of deposition time during the continued deposition, but the hours must 

be allocated between Defendants and the City of Chicago.

Conclusion

For the foregoing reasons, the motion is granted in part and denied in part. 

ENTER:

____________________________________

Young B. Kim

United States Magistrate Judge

Case: 1:20-cv-02977 Document #: 120 Filed: 11/07/22 Page 15 of 15 PageID #:1670