Ruiz-Cortez v. City of Chi.

• Decision Date: 26 July 2019
• Docket Number: No. 18-1078,18-1078
• Citation: 931 F.3d 592
• Parties: Refugio RUIZ-CORTEZ, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

931 F.3d 592

Refugio RUIZ-CORTEZ, Plaintiff-Appellant,

v.CITY OF CHICAGO, et al., Defendants-Appellees.

No. 18-1078

United States Court of Appeals, Seventh Circuit.

Argued March 29, 2019

Decided July 26, 2019

Rehearing and Suggestion for Rehearing En Banc Denied September 16, 2019

Christopher R. Smith, Attorney, CHRISTOPHER SMITH TRIAL GROUP, LLC, Chicago, IL, for Plaintiff - Appellant.

Ellen W. McLaughlin, Attorney, CITY OF CHICAGO LAW DEPARTMENT, Chicago, IL, for Defendants - Appellees.

Before Hamilton, Barrett, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Glenn Lewellen, a dirty cop with the Chicago Police Department (CPD), arrested Refugio Ruiz-Cortez for possessing cocaine. Lewellen served as the key witness at the trial, where Ruiz-Cortez was convicted. Ruiz-Cortez then spent a decade in prison before the federal government discovered Lewellen’s crimes, which included drug conspiracy, racketeering, and, according to the government, perjury at Ruiz-Cortez’s trial. The government prosecuted Lewellen and moved to vacate Ruiz-Cortez’s conviction, recognizing that without Lewellen’s testimony there was no evidence to prosecute Ruiz-Cortez.

Ruiz-Cortez sued the City of Chicago and Lewellen for violating his constitutional rights. See 42 U.S.C. § 1983. He complained that the City and Lewellen withheld material impeachment evidence—namely, evidence of Lewellen’s drug and racketeering crimes. See Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court dismissed the claim against the City at summary judgment, concluding that there was no evidence of municipal liability. See Monell v. Dep’t of Social Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A jury later found for Lewellen, despite his refusal to testify based on the Fifth Amendment right against self-incrimination.

We affirm the dismissal of the City. Ruiz-Cortez failed to marshal the evidence needed to meet Monell ’s high standard. But we vacate the judgment for Lewellen and remand for a new trial against him. The district court allowed Lewellen to offer innocent explanations for his Fifth Amendment invocation, ones that fly in the face of Fifth Amendment law, and it then failed to instruct the jury about when a Fifth Amendment invocation is proper. Those errors, taken together, made for a fundamentally unfair trial.

I. Background

The background to this appeal concerns two drug-dealing schemes, one involving Ruiz-Cortez and the other involving Lewellen and his go-to informant Saul Rodriguez. It also concerns three trials: the prosecution of Ruiz-Cortez, the prosecution of Lewellen, and the civil dispute that gives rise to this appeal.

In June 1999, the CPD and Drug Enforcement Administration (DEA) started surveilling Ruiz-Cortez’s suburban home, suspecting it was a part of a drug-dealing operation. They arrested two people for picking up drugs from the home on June 23, 1999, and a few weeks later, on July 8, 1999, they arrested Ruiz-Cortez. Lewellen claimed to have recovered a bag filled with cocaine bricks just outside of Ruiz-Cortez’s home. A search of the home turned up $1,800 in hundred-dollar bills stored in a broken vacuum cleaner.

A grand jury indicted Ruiz-Cortez for cocaine possession with intent to distribute in December 1999. At trial, the government relied primarily on Lewellen as a witness; he was the only member of law enforcement who claimed to have seen Ruiz-Cortez with the drugs. Lewellen testified that he and others had been observing Ruiz-Cortez’s home on the day of the arrest, when Lewellen saw Ruiz-Cortez stick his head out the door a few times, as if he was expecting company. Lewellen said that Ruiz-Cortez later walked onto his back porch with a plastic bag. Lewellen and another officer pulled up to the home, and, according to Lewellen, Ruiz-Cortez dropped the bag and returned inside. Ruiz-Cortez, for his part, took the stand and maintained that the drugs had been planted. The jury found Ruiz-Cortez guilty, and the district court sentenced him to 17 and a half years in prison.

Several years later, the DEA began investigating Lewellen and Rodriguez for their crimes. In 2009, a grand jury indicted the two for, among other things, conspiracy and racketeering. The predicate acts in the racketeering count included murder, kidnapping, and—most relevant here—obstruction of justice, stemming from Lewellen’s testimony in Ruiz-Cortez’s trial. Rodriguez pleaded guilty and began cooperating with the government, including by testifying at Lewellen’s eventual criminal trial.

At Lewellen’s trial, in 2012, Rodriguez testified that he met Lewellen in 1996. He quickly began providing Lewellen confidential information about local drug sales. Rodriguez also continued selling drugs himself, and in 1997, federal agents arrested him after discovering more than 150 pounds of marijuana in his vehicle. Lewellen, however, convinced federal law enforcement not to press charges against Rodriguez, citing his substantial cooperation with the CPD. And substantial it was—records, according to Ruiz-Cortez, show the CPD paid Rodriguez more than $800,000 for his information over the course of several years.

Rodriguez’s testimony highlighted the various crimes he committed with Lewellen. Rodriguez explained, for example, that in 1998 Lewellen gave him multiple kilograms of cocaine, which he resold. The same year, Rodriguez and Lewellen plotted to rob another drug dealer of $500,000 under the guise of a legitimate police stop. The two planned to repeat that crime against another dealer some months later, this time for $800,000. Rodriguez also testified that he had planted drugs on at least one unwitting person at Lewellen’s behest.

Rodriguez further touched on the events that led to Ruiz-Cortez’s arrest. Rodriguez testified that he knew two suppliers, Carlos Rodriguez (no relation; we will refer to him as Carlos to avoid confusion) and Lisette Venegas. In July 1999, Venegas told Rodriguez that she planned to pick up drugs from the suburbs at what turned out to be Ruiz-Cortez’s home. Rodriguez shared the information with Lewellen, and he told Lewellen what kind of car Venegas would be driving to ensure that she was not arrested during the bust. This testimony formed the basis of the obstruction-of-justice charge: the government submitted that Lewellen perjured himself at Ruiz-Cortez’s trial by lying about the circumstances of the arrest in order to protect Rodriguez and Venegas. Rodriguez, however, faced serious impeachment at trial; he admitted he was cooperating to avoid the death penalty or a life sentence and he had previously lied to law enforcement and the grand jury.

The jury ultimately found Lewellen guilty of conspiring to possess cocaine with intent to distribute. But it hung on the racketeering count. The government did not retry Lewellen on that count, and the district court later sentenced Lewellen to 18 years in prison.

The revelation of Lewellen’s wrongdoing led the government in 2010 to move the district court to vacate Ruiz-Cortez’s conviction. Recognizing that the case against Ruiz-Cortez rested almost solely on Lewellen’s testimony and reports, the government noted that "there is virtually no admissible evidence of defendant’s guilt." The district court granted the motion and Ruiz-Cortez was released from custody.

Ruiz-Cortez then filed this suit against Lewellen, other CPD officers, and the City. He brought a slew of claims, but the only ones relevant to this appeal sound in due process. Ruiz-Cortez asserted that the defendants deprived him of due process in two ways: by withholding exculpatory information—namely, Lewellen’s crimes and his conspiracy with Rodriguez—in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and by fabricating evidence against him. And, Ruiz-Cortez claimed, the City was liable under Monell v. Dep’t of Social Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which permits liability when a municipality is directly responsible for the constitutional deprivation.

After discovery, the parties cross moved for summary judgment. The City argued that there was no issue of fact regarding its liability. Ruiz-Cortez, in response, relied heavily on the 1997 Report of the Commission for Police Integrity—or the "Webb Report," named for the Commission’s Chairman, Dan Webb. The Webb Report, Ruiz-Cortez argued, highlighted for the City the dangers of police corruption, and thus, there was reason to hold the City liable for failing to act adequately in its wake. The district court, however, disagreed; it concluded that there was no issue of fact regarding the City’s liability, the Webb Report notwithstanding, and so it dismissed the City from the case.

As to Lewellen’s liability, the district court decided that there was an outstanding issue of fact. Lewellen had invoked his Fifth Amendment right against self-incrimination when Ruiz-Cortez sought to depose him. But the court concluded it would not draw from that invocation a conclusively adverse inference against Lewellen. So the due process claims against Lewellen went to trial.

At trial, Ruiz-Cortez testified that he had been coerced by a man named Carlos into holding the cocaine and giving it to Venegas. He admitted, however, that this narrative was inconsistent with the one he advanced during his criminal trial, when he testified that he had never held the drugs and that they were planted by law enforcement.

Lewellen also took the stand, so to speak, testifying by video from prison. When asked if he lied in a police report and at trial, Lewellen stated: "as I’m currently in the process of challenging my federal case, I have been advised by my criminal lawyers to decline to answer any questions under my Fifth Amendment. Mr. Smith, I would love to testify in this ... ." Ruiz-Cortez’s lawyer cut him off with an objection and the court...