Date: 01-16-2018

Case Style:

Case Number: 16-3546

Judge: Manion

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Pro Se

Defendant's Attorney: Thomas Jon Aumann for The City of Chicago and Louis Garcia

Jacqueline B. Carroll and Sandra A. Navarro for Andrew DeFuniak and Jenea McNeal, et al.

David Richard Condron and Suyon Flowers for Office of the Cook County Sheriff, et al.

Description: Ruben Sanchez appeals the denial
of his motion for a new trial in his § 1983 action against Officer
Louis Garcia of the Chicago Police Department. Sanchez alleges
that the trial court made multiple evidentiary errors,
gave an improper jury instruction, and wrongfully accepted
a partial verdict. Because we conclude that a new trial is not
required, we affirm.
2 No. 16-3546
I.
The facts underlying the parties’ dispute are contested.
However, because the jury rendered a verdict in favor of Garcia,
we recount the facts, unless noted otherwise, “in the light
most favorable to him.” See Staub v. Proctor Hosp., 562 U.S. 411,
413 (2011).
Late on the night of August 10, 2010, Garcia and his partner,
Officer William Murphy, were on patrol in an unmarked
police car. Garcia observed Sanchez fail to stop his van as required
at multiple intersections and fail to maintain his lane
three times. Garcia also observed that the van’s passenger
sliding door was completely open. Garcia turned on his siren
and lights, but Sanchez did not stop. Garcia eventually pulled
up next to Sanchez in the left lane, and Murphy, who was sitting
in the passenger seat, motioned for Sanchez to pull over.
Sanchez responded by extending his middle finger (Sanchez
maintains he flashed a “peace” sign) and waving for the officers
to pass him.
After driving a bit farther, Sanchez eventually pulled over
near his home and immediately got out of his van, stumbling
as he did so. Garcia noted that Sanchez smelled of alcohol,
had red, bloodshot eyes, and was mumbling vulgarities about
the police. Garcia approached Sanchez and ordered him to get
on the ground. Sanchez refused and stood with his hands
clenched in fists by his sides. Sanchez then took a swing at
Garcia, but missed. Garcia responded by striking Sanchez in
the face and performing an emergency takedown maneuver
to restrain him. At that point, Murphy, who had been on the
other side of the van, came to assist Garcia. When the officers
searched the van, they found an open beer can and marijuana.
No. 16-3546 3
Sanchez’s version of events after he stopped begins the
same way, with him stumbling out of the van. However,
Sanchez maintains that he struggled to exit the van because
of reconstructive surgery on his stomach that was performed
after a traffic accident in 2008. Apparently, this surgery left
his stomach badly disfigured and makes it difficult for him to
get out of his van. He also claims that his stomach prevented
him from getting on the ground, as he cannot lie on his stomach.
Sanchez believes this fact should have been evident to
Garcia because Sanchez was not wearing a shirt at the time of
the stop. Sanchez states that, after exiting the van, he raised
his hands in the air, and Garcia struck him unprovoked.
Sanchez says he responded by telling Garcia that he could not
be knocked down that way, so Garcia struck him again, then
threw him to the ground on his stomach, stomped on his back,
and hit him in the back of the head.
After being arrested, Sanchez was taken to the police station
and placed in a holding cell. Officer Karen Etti was called
to give Sanchez a breathalyzer test. When she went into the
cell, Sanchez was lying on the floor, smelling of alcohol and
mumbling profanities. When Etti asked Sanchez to get off the
floor so she could administer the test, Sanchez refused (he
claims he could not get off the floor because of his stomach
pain), but suggested they could pull him off the floor by his
pants. Eventually, with the assistance of other officers,
Sanchez was placed on a bench, but he then went back down
to the floor. This caused Etti to conclude Sanchez was too intoxicated
to be in custody, so she requested emergency medical
assistance.
One of the paramedics dispatched was Sean Ragusa. He
detected the odor of alcohol on Sanchez, but found Sanchez
4 No. 16-3546
alert and able to answer questions. In his report, based on his
conversations with Sanchez and Garcia, Ragusa made a notation
ruling out battery as a cause of Sanchez’s injuries.
After he declined treatment at the hospital, Sanchez was
taken to the jail. When he was logged in just before 5:00 AM
on August 11, the lockup keeper at the jail made a notation in
the arrest report that Sanchez did not appear visibly under the
influence of alcohol or drugs.
Sanchez was eventually charged with aggravated driving
under the influence (“DUI”). 1 One day, while he was awaiting
trial in jail, Sanchez attempted to go to lunch. Officer Tyrone
Felix prevented him from doing so, allegedly by throwing
Sanchez to the ground and dragging him to the dormitory.
Felix denied this, and maintained that Sanchez had earlier
said he did not intend to go to lunch, so it would have thrown
off the head count to allow him to go.
A jury convicted Sanchez of the aggravated DUI. He was
sentenced to 18 months’ imprisonment and a year of supervised
release. Sanchez filed a direct appeal of his conviction,
alleging, inter alia, denial of the right to self-representation
and ineffective assistance of counsel. The Illinois Appellate
Court affirmed his conviction, People v. Sanchez, No. 1-11-
0900, 2013 WL 4711727 (Ill. App. Ct. Aug. 29, 2013), and the
Illinois Supreme Court denied his petition for leave to appeal,
People v. Sanchez, 2 N.E.3d 1049 (Ill. 2013).
1 His DUI was “aggravated” because his license was suspended at the
time of his arrest. See 625 ILCS 5/11-501(d)(1)(G).
No. 16-3546 5
Before the appellate courts had resolved his direct appeal,
Sanchez filed a petition for post-conviction relief, again alleging
numerous grounds for relief. The trial court denied his
petition on standing grounds. On appeal, the Illinois Appellate
Court concluded that his petition was timely filed, but denied
relief on the merits. People v. Sanchez, No. 1-13-0369, 2015
WL 631544 (Ill. App. Ct. Feb. 11, 2015). The Illinois Supreme
Court denied Sanchez’s petition for leave to appeal. People v.
Sanchez, 39 N.E.3d 1009 (Ill. 2015).
While seeking relief from the Illinois state courts, Sanchez
filed the instant lawsuit in the Northern District of Illinois. His
initial complaint named a multitude of defendants and made
numerous allegations, but the action ultimately whittled
down to three claims that went to trial: (1) Garcia used excessive
force in arresting Sanchez on August 10, (2) Garcia lacked
probable cause to arrest Sanchez, and (3) Felix used excessive
force on Sanchez in the jail.
Before trial, the district court resolved several motions in
limine. Among them, the district court concluded that, as a
matter of issue preclusion, Garcia could use Sanchez’s conviction
for DUI to establish that Sanchez was, in fact, driving under
the influence of alcohol or drugs at the time of his arrest.
During the trial, Sanchez submitted a proposed jury instruction
that stated the jury merely had to take it as established
that he had been convicted of the DUI. Sanchez’s proposed instruction
also informed the jury of his then-pending post-conviction
challenge (the Illinois Supreme Court had not yet denied
his petition for leave to appeal). The district court declined
to use Sanchez’s instruction, instead informing the jury
that it must take it as conclusively proven that Sanchez was
driving under the influence on the day of his arrest.
6 No. 16-3546
Three other events before the case went to the jury are pertinent
to this appeal. First, the district court allowed Murphy’s
deposition testimony (Murphy had moved to Florida and was
not available for trial), which contained Murphy’s accounts of
what he had been told by Garcia about the stop and arrest, to
be read to the jury. Second, the court allowed the introduction
of Ragusa’s paramedic’s report, which was based in part on
Ragusa’s discussions with Sanchez and Garcia. Sanchez did
not object to the introduction of either piece of evidence.
Third, at the close of the defendants’ cases, Sanchez sought
to introduce the portion of his arrest report prepared by the
lockup keeper at the jail, specifically the lockup keeper’s notation
that Sanchez was not visibly under the influence of
drugs or alcohol when he was brought to the jail. Garcia objected
to the introduction of this evidence, arguing it would
be unfair to introduce it at that point in the trial. The district
court determined that the evidence was proper rebuttal evidence,
but concluded that Sanchez could not authenticate the
report, as he had not called the lockup keeper to testify, nor
did he have a custodian of records or someone else who could
lay the foundation of authenticity. Consequently, the court
excluded the evidence.
The case went to the jury. After half a day of deliberations,
the jury sent a note to the judge indicating that it was unable
to reach consensus on a verdict concerning the claim against
Felix. The court instructed the jury to continue deliberating.
Subsequently, the jury sent another note to the judge, this
time stating that it had reached a verdict on the claims against
Garcia the day before, but remained unable to agree to a verdict
on the claim against Felix. Later, the jury sent another
note indicating the same problem.
No. 16-3546 7
The court concluded, over Sanchez’s objection, that it
should accept a partial verdict. The court reasoned that the
cases against Garcia and Felix were only incidentally connected
and that accepting a verdict on the claims against Garcia
would not risk an ultimately inconsistent verdict on the
claim against Felix. The court called the jury back in, and it
rendered a verdict in favor of Garcia on the excessive-force
and false-arrest claims. The district court declared a mistrial
on the claim against Felix.
Shortly thereafter, Sanchez settled his claim against Felix
and filed a motion for a new trial on the claims against Garcia.
The district court denied the motion. Sanchez appeals.
II.
We review the denial of a motion for a new trial only for
abuse of discretion. Alverio v. Sam’s Warehouse Club, Inc., 253
F.3d 933, 939 (7th Cir. 2001). In performing such a review,
“[w]e ask only if the verdict stands against the weight of the
evidence or if, for other reasons, the trial was not fair to the
losing party.” Id.
Here, Sanchez asserts that the district court committed numerous
errors that made the trial unfair: (A) the court erred
by giving the jury its issue-preclusion instruction; (B) the
court erred by declining to admit the lockup keeper’s notation
on the arrest report; (C) the court erred by admitting hearsay
testimony; (D) the court erred by accepting a partial verdict;
and (E) the court’s errors, even if individually harmless, constitute
cumulative error requiring a new trial. We address
each allegation in turn.
8 No. 16-3546
A. The Jury Instruction
“We review de novo whether a challenged jury instruction
fairly and accurately summarized the law, but the trial court’s
decision to give a particular instruction is reviewed for an
abuse of discretion.” United States v. Erramilli, 788 F.3d 723,
730 (7th Cir. 2015) (quoting United States v. Lawrence, 788 F.3d
234, 245 (7th Cir. 2015)). We will reverse a district court “only
if the ‘instruction misstates the law in a way that misguides
the jury to the extent that the complaining party suffered prejudice.’”
Viramontes v. City of Chicago, 840 F.3d 423, 428 (7th Cir.
2016) (quoting Brown v. Smith, 827 F.3d 609, 614 (7th Cir.
2016)).
On appeal, Sanchez makes two arguments for why the district
court erred by giving its issue-preclusion instruction.
Sanchez asserts that the rule announced in Heck v. Humphrey,
512 U.S. 477 (1994), prohibiting convicts from collaterally attacking
their convictions in § 1983 actions, does not apply and
that the district court failed to conduct a proper equitable inquiry
into the appropriateness of applying issue preclusion in
this case. Sanchez did not make either of these arguments in
the district court. Instead, he proposed his alternate instruction
and argued that the jury should have been made aware
of his post-conviction action because it created a possibility
that his conviction would be overturned. Pretermitting
whether this change in tactic constitutes a waiver of these arguments,
see Kunz v. DeFelice, 538 F.3d 667, 681 (7th Cir. 2008),
we nevertheless are not persuaded that the district court’s instruction
is cause for a new trial.
In Heck, the Supreme Court held that a plaintiff cannot
challenge the validity of his conviction in a § 1983 action unNo.
16-3546 9
less he proves “that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such [a]
determination, or called into question by a federal court’s issuance
of a writ of habeas corpus.” 512 U.S. at 486–87. The
rule serves as an absolute bar to such a claim. See Moore v. Mahoney,
652 F.3d 722, 723 (7th Cir. 2011).
Here, there is some debate about whether Sanchez is attempting
to challenge the validity of his conviction in this suit.
Sanchez’s claims of wrongful arrest and excessive force do not
necessarily implicate his conviction; he can argue that there
was no probable cause to arrest and that Garcia used excessive
force without contesting that he was, in fact, driving under
the influence. See Gilbert v. Cook, 512 F.3d 899, 901 (7th Cir.
2008) (excessive force); Wiley v. City of Chicago, 361 F.3d 994,
997 (7th Cir. 2004) (wrongful arrest). But, some of Sanchez’s
argument suggests he wants to argue to a jury that he was
framed, which would implicate his conviction. See Okoro v.
Callaghan, 324 F.3d 488, 490 (7th Cir. 2003). We need not dwell
long on this point, however, as Sanchez is no longer in custody
for habeas corpus purposes. See Stanbridge v. Scott, 791
F.3d 715, 719 (7th Cir. 2015) (defining “in custody” for purposes
of habeas corpus jurisdiction). We have indicated that
Heck does not bar a suit by a plaintiff who is no longer in custody
but who pursued a collateral attack through appropriate
channels while he was in custody, even if such efforts were
unavailing. See Whitfield v. Howard, 852 F.3d 656, 664 (7th Cir.
2017). As Sanchez sought post-conviction relief in the state
courts before his release from custody, Heck does not apply
here.
10 No. 16-3546
Nonetheless, even where Heck’s categorical bar does not
apply, we have indicated that “[a] challenge that would undermine
a state-court conviction or sentence would still face
Rooker-Feldman jurisdictional problems or res judicata issues.”
Whitfield, 852 F.3d at 664. Accordingly, we move on to address
whether, as the district court concluded, basic preclusion
principles prevent Sanchez from arguing he was not under
the influence on the night of his arrest.
Sanchez’s criminal trial was an Illinois proceeding, so we
apply Illinois law to determine the preclusive effect of his conviction.
See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.
75, 81 (1984). As the dispute here only implicates one discrete
issue—whether Sanchez was under the influence on the night
of his arrest—we look to the law concerning issue preclusion,
otherwise known as collateral estoppel. Under Illinois law,
“[c]ollateral estoppel may be applied when the issue decided
in the prior adjudication is identical with the one presented in
the current action, there was a final judgment on the merits in
the prior adjudication, and the party against whom estoppel
is asserted was a party to … the prior adjudication.” Du Page
Forklift Serv., Inc. v. Material Handling Servs., Inc., 744 N.E.2d
845, 849 (Ill. 2001). In addition to these threshold requirements,
a court should also satisfy itself that “no unfairness
will result to the party sought to be estopped,” that is, the
party must have had “a full and fair opportunity to present
his case” and an “incentive to litigate.” Am. Family Mut. Ins.
Co. v. Savickas, 739 N.E.2d 445, 451 (Ill. 2000).
The threshold requirements for application of issue preclusion
are all met here. The issue—whether Sanchez was
driving under the influence—is the same. Sanchez was assuredly
a party to his own criminal trial. And the conviction was
No. 16-3546 11
final when the Illinois Supreme Court declined review of his
direct appeal. Sanchez does not contest any of these points.
Instead, he argues that his conviction is not entitled to preclusive
effect because he did not have a “full and fair” opportunity
to litigate in his criminal trial, given the alleged issues
with discovery and ineffective assistance of counsel that
formed the basis of his post-conviction petition. According to
Sanchez, the district court should have considered his allegations
concerning the fairness of his criminal trial before giving
his conviction preclusive effect.
At trial, Sanchez could legitimately argue that his criminal
trial was tainted by these issues, because the Illinois Supreme
Court had not yet ruled on his petition for leave to appeal in
his post-conviction action. See Ballweg v. City of Springfield, 499
N.E.2d 1373, 1375 (Ill. 1986) (“For purposes of applying the
doctrine of collateral estoppel, finality requires that the potential
for appellate review must have been exhausted.”); Allianz
Ins. Co. v. Guidant Corp., 900 N.E.2d 1218, 1231–32 (Ill. App.
Ct. 2008) (concluding collateral estoppel did not apply under
Illinois law where a party had a petition pending to the Indiana
Supreme Court). However, on September 30, 2015, the Illinois
Supreme Court denied his petition for leave to appeal,
definitively ending his post-conviction action and rendering
the judgment of the Illinois Appellate Court—which determined
that Sanchez’s trial was not affected by ineffective assistance
of counsel or any other defect—final. Because we conclude
the judgment of the Illinois Appellate Court has preclusive
effect on Sanchez’s present allegations of unfairness at his
criminal trial, any error of the district court in failing independently
to consider the “full and fair opportunity” criterion
was harmless.
12 No. 16-3546
Neither party argued the preclusive effect of the decision
in Sanchez’s post-conviction action, but it is well established
“that courts, in the interest of judicial economy, may raise the
issue of preclusion sua sponte even when a party fails to do
so.” Kratville v. Runyon, 90 F.3d 195, 198 (7th Cir. 1996). In addition
to the goal of promoting economy, we may also add the
purpose of promoting “the comity between state and federal
courts that has been recognized as a bulwark of the federal
system.” Allen v. McCurry, 449 U.S. 90, 96 (1980). Here, those
considerations compel the conclusion that we should give
preclusive effect, if otherwise appropriate, to the decision in
Sanchez’s post-conviction action concerning his alleged issues
in his criminal trial.
The last court to address Sanchez’s post-conviction claims
on the merits was the Illinois Appellate Court. Pursuant to
Illinois’s Post-Conviction Hearing Act, 725 ILCS 5/122-1 et
seq., that court reviewed Sanchez’s petition to determine
“whether [it] set[] forth a ‘gist’ of a constitutional claim.”
Sanchez, 2015 WL 631544, at *9. Though Sanchez’s petition had
made numerous allegations, including issues with discovery,
he abandoned all but one on appeal. Id. at *8. His sole argument
to the Illinois Appellate Court was “that his ‘petition
stated the gist of an arguable claim that he was denied his
right to the effective assistance of counsel and his constitutional
right to testify.’” Id. Sanchez argued that his counsel
had advised him not to testify, and claimed this constituted
ineffective assistance. Id. at *9. After reviewing the record, the
Illinois Appellate Court concluded that Sanchez had “failed
to raise a colorable claim of ineffective assistance of counsel”
and affirmed the dismissal of his petition. Id. at *10.
No. 16-3546 13
The decision of the Illinois Appellate Court is entitled to
preclusive effect on the question of whether ineffective assistance
or discovery issues prevented Sanchez from having a
“full and fair opportunity to litigate” in his criminal trial.
First, those issues were raised in his post-conviction action.
Second, those issues were litigated to a final judgment. Third,
Sanchez was a party to his own post-conviction action. And
finally, given the fact that Sanchez based his entire argument
to us concerning the fairness of his criminal trial on his postconviction
action, we see no reason to doubt that the Illinois
courts afforded a full and fair opportunity to litigate in that
action or that Sanchez was motivated to litigate that action.
See generally Raper v. Hazelett & Erdal, 449 N.E.2d 268, 271 (Ill.
App. Ct. 1983) (“[C]ourts generally hold the ‘full and fair opportunity
to litigate’ requirement to be satisfied if the parties
to the original action disputed the issue and the trier of fact
resolved it.”). Accordingly, because the Illinois state courts
have now rejected Sanchez’s arguments that he was denied
discovery and effective assistance in his criminal trial,
Sanchez cannot now argue those same points to avoid the preclusive
effect of his criminal conviction. Thus, though the district
court may not have considered Sanchez’s “full and fair”
arguments at trial, if we were to remand the case for a new
trial, the district court would have to give the same instruction
it did the first time. Under these circumstances, we cannot
conclude that Sanchez is entitled to a new trial.
B. The Arrest Report
Sanchez contends that the district court improperly prevented
him from introducing the portion of his arrest report
showing the lockup keeper’s notation that Sanchez was not
visibly under the influence of drugs or alcohol at the time he
14 No. 16-3546
was placed in jail. The district court ruled that Sanchez could
not authenticate that portion of the arrest report because he
did not have the lockup keeper or a records custodian to lay
the foundation. Sanchez maintains that he could have authenticated
the report with testimony from Garcia, given Garcia’s
general experience with police reports. See United States v.
Dumeisi, 424 F.3d 566, 574–75 (7th Cir. 2005) (concluding that
the district court did not abuse its discretion by accepting authentication
testimony from a “witness with knowledge” of
Iraqi Intelligence Service communications generally).
For his part, Garcia does not defend the district court’s authentication
reasoning. Instead, Garcia argues that he objected
to the evidence under Federal Rule of Evidence 403,
claiming it would be “unfair” to admit the evidence so late in
the trial without having called the lockup keeper. He urges us
to affirm the district court on that basis.
Rule 403 allows the exclusion of otherwise relevant evidence
“if its probative value is substantially outweighed by”
various considerations, including unfair prejudice and undue
delay. By its very terms, the Rule calls for a balancing that requires
an exercise of discretion that is best performed in the
first instance by the district court. See Sprint/United Mgmt. Co.
v. Mendelsohn, 552 U.S. 379, 384 (2008). As we can affirm the
district court without performing this balancing, we decline
to conduct the Rule 403 inquiry in this case.
The alternate ground for affirmance is harmless error. Federal
Rule of Civil Procedure 61 provides that, “[u]nless justice
requires otherwise, no error in admitting or excluding evidence
… is ground for granting a new trial.” An error is serious
enough only “if there is a significant chance that [it] affected
the outcome of the trial.” Griffin v. Bell, 694 F.3d 817,
No. 16-3546 15
827 (7th Cir. 2012). In this case, the exclusion of the lockup
keeper’s notation did not affect the outcome of the trial.
Sanchez argues that the notation is probative of his level
of intoxication at the time of his arrest, which is true. But it is
of very limited probative value. As the Supreme Court itself
has recognized, “as a result of the human body’s natural metabolic
processes, the alcohol level in a person’s blood begins
to dissipate once the alcohol is fully absorbed and continues
to decline until the alcohol is eliminated.” Missouri v. McNeely,
569 U.S. 141, 152 (2013). Consequently, the passage of time
lowers the probative value of the results of alcohol tests. Id. It
does not take a great logical leap to conclude that a person’s
outward signs of intoxication will also decline due to the passage
of time.
Here, Sanchez was brought to the jail and presented to the
lockup keeper approximately five hours after his arrest. During
that time, Sanchez’s level of intoxication would have declined
significantly. See id. (commenting that blood alcohol
percentages can decrease “by approximately 0.015 percent to
0.02 percent per hour”). Thus, the lockup keeper’s notation
that Sanchez did not appear visibly intoxicated around 5:00 in
the morning was not highly probative of Sanchez’s level of
intoxication at the time of his arrest approximately five hours
earlier. This is particularly true when weighed against the testimony
that was presented concerning Sanchez’s visible signs
of intoxication closer to the time of the arrest. He stumbled
when he left the car, he had bloodshot eyes, he smelled of alcohol,
and he was mumbling obscenities. Additionally, his
criminal conviction established that he was under the influence
that night. Given this evidence, we conclude that the exclusion
of the report did not affect the outcome of the trial.
16 No. 16-3546
C. The Deposition and the Paramedic’s Report
Sanchez argues that portions of Murphy’s deposition and
the paramedic’s report, both admitted into evidence, contained
inadmissible hearsay. However, Sanchez did not object
to the introduction of this evidence at trial, so we are limited
to plain-error review. Fed. R. Evid. 103(e); Zayre Corp. v. S.M.
& R. Co., Inc., 882 F.2d 1145, 1151 (7th Cir. 1989). This review
is extremely limited, and we will find plain error only if the
appellant “can demonstrate (1) that exceptional circumstances
exist, (2) that substantial rights are affected, and (3)
that a miscarriage of justice will result if the [plain-error] doctrine
is not applied.” Stringel v. Methodist Hosp. of Ind., Inc., 89
F.3d 415, 421 (7th Cir. 1996) (quoting Prymer v. Ogden, 29 F.3d
1208, 1214 (7th Cir. 1994)).
Unsurprisingly, this is not one of those unusual cases that
call for reversal, as it does not present an exceptional circumstance
requiring our intervention. We so conclude primarily
because there is little doubt that Sanchez knew of these alleged
hearsay statements before the court admitted them. The
paramedic’s report was created in part based on the paramedic’s
discussion with Sanchez, and Sanchez’s counsel directly
asked Ragusa on cross-examination about the fact that
Ragusa talked to Garcia before talking to Sanchez. Its contents
should not have come as a surprise. Concerning the deposition,
the record reflects that, before trial, Sanchez identified
for introduction the very statements to which he now objects
as hearsay.
As we have noted in the past, “a party cannot complain of
errors which it has committed, invited, induced the court to
make, or to which it consented.” Int’l Travelers Cheque Co. v.
BankAmerica Corp., 660 F.2d 215, 224 (7th Cir. 1981). Given the
No. 16-3546 17
indicators of Sanchez’s knowledge, it appears that Sanchez
made a strategic decision not to object to this evidence. It is
not an appellate court’s responsibility to rescue a party from
a tactical decision that, in hindsight, he regrets. Accordingly,
we find no plain error.
D. The Partial Verdict
Sanchez takes issue with the district court’s acceptance of
a partial verdict. At trial and in his motion for a new trial,
Sanchez’s argument amounted to a generalized contention
that because the claims against Garcia and Felix were tried together,
they must be resolved together, and that there is no
authority expressly allowing partial verdicts in civil cases. On
appeal, Sanchez argues that the Federal Rules of Civil Procedure
do not allow the acceptance of partial verdicts in civil
cases. Any waiver issues aside, we conclude that there is no
unconditional bar to accepting partial verdicts in civil cases.
Sanchez believes that the Federal Rules of Civil Procedure,
interpreted in the light of the Federal Rules of Criminal Procedure
(which expressly allow partial verdicts), prohibit the
acceptance of a partial verdict. Sanchez divines this restriction
by cherry-picking two instances of article use in the Rules.
First, he cites Criminal Rule 31(b), which refers to “a” verdict
when discussing partial verdicts. He then cites to Civil Rule
48(b), which refers to “the” verdict when discussing the requirement
that jury verdicts be unanimous. Sanchez concludes
that the use of the indefinite article in the Criminal
Rules and the use of the definite article in the Civil Rules
shows that partial verdicts are not allowed in civil cases.
A simple look at the entirety of the rules Sanchez cites
reveals the deficiency of this argument, as both rules make
18 No. 16-3546
use of both articles. For instance, Criminal Rule 31(a) states
that “[t]he verdict must be unanimous.” And Civil Rule 48(c)
states that the court may poll the jury “[a]fter a verdict is
returned.” Given these usages, we will not make the drafters’
choice of article the deciding factor in our analysis.
Though the Rules are silent and there is no binding authority
in this circuit allowing partial verdicts in civil cases,
there is authority from our sister circuits indicating support
for accepting a jury’s conclusions on some, but not all, issues
raised at a trial. See Kerman v. City of New York, 261 F.3d 229,
242 n.9 (2d Cir. 2001); Robertson Oil Co. v. Phillips Petroleum
Co., 871 F.2d 1368, 1375 n.5 (8th Cir. 1989); Bridges v. Chemrex
Specialty Coatings, Inc., 704 F.2d 175, 180 (5th Cir. 1983). This
is not surprising, given that the Civil Rules call for interpretations
that “secure the just, speedy, and inexpensive determination
of every action and proceeding.” Fed. R. Civ. P. 1. Interpreting
the Rules to allow partial verdicts accomplishes
that goal. See generally United States v. Cotter, 60 F.2d 689, 690–
91 (2d Cir. 1932) (Hand, J.) (observing in a criminal case that
“the fate of all” should not “hang in the balance” where the
jury “had concluded as to [some defendants] and wanted no
more time”). Thus, we agree with the Second Circuit that, in
the absence of authority directly proscribing partial verdicts
in civil cases, “we believe that at the very least a trial judge, in
the exercise of sound discretion, may follow such a course.”
Kerman, 261 F.3d at 242 n.9.
Here, the district court properly exercised its discretion in
accepting the partial verdict. Indeed, it is hard to imagine a
more textbook-ready scenario for when to accept a partial verdict
than this case. The district court considered that accepting
No. 16-3546 19
a verdict on the claims against Garcia would not risk an inconsistent
verdict against Felix, as a finding concerning
whether Garcia had probable cause to arrest Sanchez and
whether Garcia used excessive force in making that arrest
would have no effect on whether Felix used excessive force
on Sanchez in the jail. The court also did not prematurely accept
the partial verdict, accepting the verdict only after the
jury indicated it had been deadlocked for quite some time.
The district court was entitled to take the practical step of accepting
a partial verdict and did not abuse its discretion in
doing so.
E. Cumulative Error
As a final argument, Sanchez maintains that, even if the
errors at trial were individually harmless, their cumulative effect
was harmful. It is true that errors that are harmless in isolation
may, in the aggregate, become harmful. Alvarez v. Boyd,
225 F.3d 820, 824 (7th Cir. 2000). To show harm, a party must
show that “the multiple errors so infected the jury’s deliberation
that they denied the [party] a fundamentally fair trial.”
Id. When considering whether there has been a cumulatively
harmful effect, we “consider only plain errors or errors which
were preserved for appellate review.” Id. at 825.
Here, we have identified two errors as harmless: the jury
instruction and the exclusion of the lockup keeper’s notation.
We are not convinced that these errors, taken together, altered
the fate of the trial. As we have discussed, the district court
would have to give the same jury instruction even if we were
to reverse and remand. Consequently, the exclusion of the
lockup keeper’s notation did not make the instruction any less
harmless. And given the testimony concerning Sanchez’s in20
No. 16-3546
toxication at the time of his arrest, the instruction did not significantly
affect the probative value of the notation made several
hours later. Therefore, there is no cumulative error.

Outcome: In accordance with the foregoing, we conclude that the
district court did not abuse its discretion in denying the motion
for a new trial. Accordingly, we AFFIRM.

Plaintiff's Experts:

Defendant's Experts:

Comments: