Markith Williams v. Christopher Dieball , 724 F.3d 957 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3348
MARKITH WILLIAMS,
Plaintiff-Appellant,
v.
CHRISTOPHER DIEBALL, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:09-cv-00005 — Rebecca R. Pallmeyer, Judge.
ARGUED MAY 21, 2013 — DECIDED AUGUST 1, 2013
Before RIPPLE, WILLIAMS, and TINDER, Circuit Judges.
WILLIAMS, Circuit Judge. Markith Williams sued several
Chicago police officers for allegedly beating and stabbing him
the day after he retrieved his vehicle from the police station
parking lot. The trial was largely a credibility contest between
Williams and the police officers. To make Williams less
believable, the defendants presented evidence that Williams
had committed seven drug or gun felonies in the last 10 years.
2 No. 12-3348
The jury found for the defendants. Williams now seeks a redo
of the trial because the district court, by allowing in the
evidence of his prior convictions under Rule 609, did not
articulate a probative-prejudice balancing analysis. However,
the motion in limine filed by Williams to preclude the prior
convictions did not ask the court to perform this balancing test.
It simply gave a pro-forma recitation of the Rule 609 standard
without any argument as to how or why the probative value of
the convictions was substantially outweighed by the danger of
unfair prejudice. Even after the defendants addressed the
balancing issue, Williams did not file a reply, so the argument
was not preserved for appeal. Williams also points to some
inflammatory comments made by the defendants’ counsel
when referring to the prior convictions, but he did not object to
those comments at trial. Though such comments were inappro-
priate, we do not find the comments to be so egregious that the
district court plainly erred in failing to instruct the jury to
disregard them. Therefore, we affirm.
I. BACKGROUND
On July 22, 2007, Markith Williams was pulled over for
allegedly running a stop sign. Because he had no proof of
insurance, he and his car were taken to the Chicago police
station. After he was cited, he left the station with his car. The
next day, several officers approached Williams on the street.
The officers claimed that he had wrongfully taken his car from
the station the previous night, but Williams claimed that one of
the officers said he could take the car from the station and gave
him back his keys. The officers sought to tow his car, and
Williams resisted. According to Williams, the officers beat him
repeatedly, and after he was handcuffed and taken to the
No. 12-3348 3
police station, the physical abuse continued. According to the
officers, Williams assaulted them, not the other way around,
and the resulting handcuffing did not involve any unnecessary
force. (Charges arising from Williams’s alleged resistance were
dropped.) Williams sued the officers for false arrest and
excessive force under 42 U.S.C. § 1983.
Before trial, Williams’s counsel filed a motion in limine,
which was a little over two pages, asking the district court to
preclude, among other things, evidence of: “Any facts tending
to show that a Plaintiff was convicted of a crime on any
occasion, not involving dishonesty or false statement or one for
which the conviction and incarceration was over 10 years ago.
F.R.Ev. 60[9].” The motion then read:
Rule 609 of the Federal Rules of Evidence governs the
admissibility of convictions of a crime. Rule 609(a)
provides that evidence of a conviction is not admissible
except to attack credibility on cross examination, and
then only if (1) the crime was punishable by death or
imprisonment in excess of one year; or (2) if the crime
involved dishonesty or false statement, and (3) proba-
tive value outweighs prejudicial effect. Rule 609(b)
provides that evidence of a conviction is not admissible
if more than ten years has passed since the conviction
and release from confinement.
It next argued for the exclusion of any facts related to the
convictions beyond the charge and the sentence. Nothing else
was said about Williams’s request to preclude evidence of the
convictions themselves. The motion concluded:
4 No. 12-3348
Because the foregoing facts are irrelevant, and if placed
before the jury would be highly prejudicial to the
Plaintiff, the Plaintiff respectfully requests that the
Court enter an Order precluding the defense from
mentioning, commenting upon, arguing or otherwise
conveying such facts to the jury, without first seeking
leave of court outside the jury’s presence.
The defendants opposed the motion. Their opposition brief
first listed the prior felony convictions they wanted to admit,
including several drug possession or distribution convictions
and one conviction for aggravated unlawful use of a weapon,
all of which occurred within the last 10 years. The brief, relying
on several relevant cases, specifically argued that the convic-
tions’ probative value was not substantially outweighed by the
danger of unfair prejudice by emphasizing the importance of
credibility in the case and suggesting that someone who flouts
society‘s norms is more likely to lie on the stand. It argued that
the prejudicial value was limited because most of the felony
convictions were non-violent. And it criticized Williams‘s
motion for simply relying on “the text of the rule and the ipse
dixit that admission of the evidence would be unfairly prejudi-
cial,” and noted that the motion failed to provide “any argu-
ments or authorities“ in support of any probative-prejudicial
analysis. Lastly, the defendants agreed not to introduce
evidence of any fact beyond the date, charge, and sentence
involved in the convictions.
Williams’s counsel did not submit a reply. The district
court then denied the motion in a short minute order, stating:
No. 12-3348 5
Plaintiffs’ motion in limine No. 1 to bar evidence of
prior arrests or convictions, is granted in part and
denied in part. Defendants assert that Plaintiff Williams
has six felony convictions within the last ten years.
Those convictions are admissible pursuant to FRE 609.
The parties agree, however, that Defendants will offer
only the date of the previous convictions, the charges,
and the sentence imposed.
At trial, counsel for the defendants gave an opening
statement which concluded with the following comments:
“You have sitting here a seven-time convicted felon who will
say or do anything to get money in this case… . [A]fter you
hear all the evidence in this case, I am confident that you will
tell Markith Williams, no, you are not going to use the courts
to justify and be rewarded for your criminal conduct.”1 Wil-
liams’s counsel did not object to these comments at trial. After
the close of evidence, the jury entered a verdict in favor of the
defendants, and Williams appealed.
II. ANALYSIS
A. Williams Failed to Preserve Rule 403 Balancing
Argument
1
As seen above, the district court referred to six prior felony convictions,
while comments from the defendants’ counsel at trial referred to seven.
Williams does not complain about this discrepancy and it is, in any event,
insignificant to our analysis.
6 No. 12-3348
Williams argues that a new trial is necessary because the
district court failed to articulate the probative-prejudicial
balancing analysis required by Rule 609 (which explicitly
incorporates Rule 403) when it denied his motion in limine. See
Fed. R. Evid. 609(a) (“The following rules apply to attacking a
witness’s character for truthfulness by evidence of a criminal
conviction: (1) for a crime that … was punishable … by
imprisonment for more than one year, the evidence: (A) must
be admitted, subject to Rule 403, in a civil case…”). He cor-
rectly notes that a district court’s “perfunctory consideration of
[the Rule 403 test] … may in itself be grounds for reversal.”
United States v. Loughry, 660 F.3d 965, 975 (7th Cir. 2011)
(citation and internal quotation marks omitted). It is undis-
puted that the district court did not articulate any evaluation
of the probative value and prejudicial effect of Williams’s prior
convictions.
However, we agree with the defendants that Williams has
failed to properly preserve this argument for appeal. We have
repeatedly stated that “a party may not raise an issue for the
first time on appeal. Consequently, a party who fails to
adequately present an issue to the district court has waived the
issue for purposes of appeal.” Fednav Int’l Ltd. v. Cont’l Ins. Co.,
624 F.3d 834, 841 (7th Cir. 2010) (citations omitted). We have
specifically emphasized that “a party has waived the ability to
make a specific argument for the first time on appeal when the
party failed to present that specific argument to the district
court, even though the issue may have been before the district
court in more general terms.” Id.; see also Puffer v. Allstate Ins.
Co., 675 F.3d 709, 718 (7th Cir. 2012) (“It is a well-established
rule that arguments not raised to the district court are waived
No. 12-3348 7
on appeal. Moreover, even arguments that have been raised
may still be waived on appeal if they are underdeveloped,
conclusory, or unsupported by law.” (citations omitted));
Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 386 (7th Cir.
2012) (“Milligan did not make that argument, either here or in
the district court. His failure to do so forfeits the argument.”).2
Williams did not present his probative-prejudicial balanc-
ing argument with any meaningful level of specificity. His
motion in limine did nothing more than give a barebones
recitation of the relevant standard (e.g., “probative value
outweighs prejudicial effect”), then conclusorily state that it
was met (e.g., “Because the foregoing facts are irrelevant, and
if placed before the jury would be highly prejudicial to the
Plaintiff …”). It did not explain how or why the balancing test
should result in exclusion. See Echo, Inc. v. Timberland Machines
2
In the criminal context, we have sought to cement the well-established
difference between waiver and forfeiture, because the distinction
determines whether plain error review applies: “The difference between
waiver and forfeiture is that waiver precludes review, whereas forfeiture
permits us to correct an error under a plain error standard. Forfeiture
occurs by accident, neglect, or inadvertent failure to timely assert a right.
Waiver occurs when a defendant or his attorney manifests an intention, or
expressly declines, to assert a right.” United States v. Doyle, 693 F.3d 769, 771
(7th Cir. 2012); see also United States v. Adigun, 703 F.3d 1014, 1021-22 (7th
Cir. 2012); United States v. Olano, 507 U.S. 725, 733 (1993). In the civil
context, however, the term “forfeiture” has not been consistently used as a
way to signal whether plain error review applies. See, e.g., Milligan, 686 F.3d
at 386 (describing unpreserved arguments in civil case as “forfeited”
without applying plain error review, and citing cases doing same). That
may be because, as discussed infra, whether plain error review applies in
the civil context does not depend solely on whether an argument was
intentionally abandoned (waived) or inadvertently not raised (forfeited).
8 No. 12-3348
& Irrigation, Inc., 661 F.3d 959, 967 (7th Cir. 2011) (three-
sentence argument asserting consequences of opponent’s
breach of contract without explaining how contract was
breached was “too skeletal, and amounted to a waiver”). The
only argument of any substance in the motion focused on
excluding facts other than the charge and sentence (which the
defendants then agreed not to present), not the convictions
themselves. See Puffer, 675 F.3d at 718 (plaintiff waived
disparate impact argument, where plaintiff “only provided
factual allegations and legal arguments to support her pattern-
or-practice claim,” not the disparate impact argument). The
motion did not cite any probative-prejudicial balancing cases
in support of excluding the convictions themselves. See id.(failure to cite cases also supporting finding of waiver). Even
when the defendants clearly addressed the probative-prejudi-
cial balancing issue and specifically pointed out this lack of
substantive argument in their opposition brief, Williams’s
counsel did not file a reply. See Pond v. Michelin N. Am., Inc.,
183 F.3d 592, 597 (7th Cir. 1999) (argument waived when only
perfunctorily presented in response to a motion for summary
judgment directly addressing the issue). Under these circum-
stances, the district court may have concluded that Williams
simply did not want to make a probative-prejudicial balancing
argument when given the perfect opportunity to do so, a
conclusion that would have been entirely justified. Cf. Puffer,
675 F.3d at 719 (“The minimal attention that the district court
gave to plaintiff’s disparate impact claim can be directly
attributed to the scant support that plaintiff provided for this
claim.”); Pond, 183 F.3d at 597-98 (“The district court judge was
No. 12-3348 9
under no obligation to discover a separate claim of disparate
treatment based on [the plaintiff’s] offhand reference …”).
Williams argues that he adequately preserved his argument
for appeal because the defendants vigorously addressed it in
their opposition brief before the district court. But to find that
one party’s argument was preserved because his opponent
defended against it out of an abundance of caution would be
to punish the opponent for being more thorough. We decline
to impose such a rule, and Williams points to no cases that
support its adoption. He also points out that if “‘a party has
presented a skeletal argument below, which the district court
recognized and addressed, and which the party has now
fleshed out and emphasized on appeal,’” that argument might
be considered preserved. Emergency Servs. Billing Corp. v.
Allstate Ins. Co., 668 F.3d 459, 465 (7th Cir. 2012) (quoting Bailey
v. Local 374, 175 F.3d 526, 529-30 (7th Cir. 1999)). But here, the
district court did not “recognize[] or address[]” the argument
in this case, nor was it required to do so given its barebones
presentation. It is not the district court’s job to flesh out every
single argument not clearly made. Cf. Gross v. Town of Cicero,
Ill., 619 F.3d 697, 704 (7th Cir. 2010) (“’[I]t is not this court’s
responsibility to research and construct the parties’ arguments,
and conclusory analysis will be construed as waiver.’” (citation
omitted)). Judges are not clairvoyant, and if they were required
to go out of their way to analyze every conceivable argument
not meaningfully raised, their work would never end.
Given that the argument has not been preserved, we next
consider whether to apply plain error review. Rule 103(e) of
the Federal Rules of Evidence provides, “A court may take
10 No. 12-3348
notice of a plain error affecting a substantial right, even if the
claim of error [in a ruling to admit or exclude evidence] was
not properly preserved.” As a result, we have held: “Plain
error review of a forfeited evidentiary issue in a civil case is
available only under extraordinary circumstances when the
party seeking review can demonstrate that: (1) exceptional
circumstances exist; (2) substantial rights are affected; and (3)
a miscarriage of justice will result.” Estate of Moreland v. Dieter,
395 F.3d 747, 756 (7th Cir. 2005) (citing Stringel v. Methodist
Hosp. of Ind., Inc., 89 F.3d 415, 421 (7th Cir. 1996); Prymer v.
Ogden, 29 F.3d 1208, 1214 (7th Cir. 1994)); see also Deppe v. Tripp,
863 F.2d 1356, 1362 (7th Cir. 1988) (establishing above test in
reliance on prior version of Rule 103(e)). The equitable consid-
erations embodied in these criteria do not weigh in favor of
applying plain error review. When a party has more than
ample opportunity to present an argument but raises it in a
perfunctory manner, it should not expect more than perfunc-
tory consideration from the district court. See Jackson v. Parker,
627 F.3d 634, 640 (7th Cir. 2010) (no “exceptional circum-
stances” existed for plain error review, where “the district
court did not have the opportunity to address Jackson’s
argument because he clearly set forth his only claim as one for
false arrest”). Because plain error review does not apply, we do
not address Williams’s unpreserved argument concerning the
need for probative-prejudicial balancing.
B. Defendants’ Inappropriate Comments During Open-
ing Statement Did Not Amount to Reversible Error
Williams’s brief also points to inflammatory language used
by counsel for defendants in their opening statement to
No. 12-3348 11
describe Williams’s prior convictions. Williams’s counsel
characterizes this language as a natural consequence of the
district court’s allowance of the prior convictions, and he
explains that he did not object to these statements at the time
because he did not want to seem like he was belatedly chal-
lenging the judge’s prior ruling admitting the convictions. But
objecting to the way certain evidence is being used by opposing
counsel is not the same as objecting to the admission of the
evidence itself. So even though the district court had already
ruled that the evidence could come in, an independent objec-
tion to opposing counsel’s inflammatory statements describing
that evidence still could have been raised at trial. The failure of
Williams’s counsel to make such an objection also fails to
preserve it for appeal.
Though we need not go further, see Kafka v. Truck Ins. Exch.,
19 F.3d 383, 385 (7th Cir. 1994) (“‘no plain error doctrine exists
[in civil cases] to remedy errors which are alleged to have
occurred during closing argument’” (quoting Deppe, 863 F.2d
at 1364)); but see Moore v. Tuelja, 546 F.3d 423, 430 (7th Cir. 2008)
(appearing to suggest that the test applies to any unpreserved
argument in a civil case); Willis v. Lepine, 687 F.3d 826, 839 (7th
Cir. 2012) (same), we observe that even if plain error review
applied, reversal would not be warranted. An error is consid-
ered plain when it is “at once indisputable and likely to have
influenced the outcome.” Mays v. Springborn, — F.3d —, 2013
WL 2504964, at *1 (7th Cir. June 11, 2013). We cannot say that
the district court indisputably erred by failing to stop or
mitigate the statements at issue (e.g., by alerting the jury to the
statements’ prejudicial nature). The statement, “You have
sitting here a seven-time convicted felon who will say or do
12 No. 12-3348
anything to get money in this case,” was strongly worded but
it did focus on how Williams’s prior convictions might affect
his credibility.
As for the statement, “I am confident that you will tell
Markith Williams, no, you are not going to use the courts to
justify and be rewarded for your criminal conduct,” which
shortly followed, we do find that comment to be inappropriate,
because it suggests that people with criminal records are
entirely undeserving of compensatory remedies, and the jury
was never instructed that Williams’s prior convictions were
only to be considered to determine his credibility. See generally
Gora v. Costa, 971 F.2d 1325, 1331 (7th Cir. 1992) (“courts should
be careful to ensure that a civil rights plaintiff’s criminal past
is not used to unfairly prejudice him or her,” since civil rights
actions “‘often pit unsympathetic plaintiffs-criminals, or
members of the criminal class … against the guardians of the
community’s safety’” (citation omitted)). Yet they were not so
egregious that allowing such comments or failing to provide
mitigating instructions in response to them was obviously
error. See, e.g., Wipf v. Kowalski, 519 F.3d 380, 387-88 (7th Cir.
2008); DeWitt, Porter, Huggett, Schumacher & Morgan, S.C. v.
Kovalic, 991 F.2d 1243, 1246-47 (7th Cir. 1993). The statement
may simply have been referring (albeit obliquely) to the impact
of Williams’s criminal record on his credibility, or “criminal
conduct” may have referred generally to what the defendants
allege was Williams’s violent resistance on the day of the
incident. More importantly, Williams does not suggest that
such inflammatory comments, which were part of an opening
statement whose transcript spanned nine pages, dominated the
trial. See Banister v. Burton, 636 F.3d 828, 834 (7th Cir. 2011)
No. 12-3348 13
(“improper comments during closing argument rarely rise to
the level of reversible error,” especially “when the comment is
merely a brief and unrepeated part of a lengthy argument”
(internal quotation marks and citation omitted)). Indeed, at
closing argument, counsel for defendants simply argued that
the prior convictions were something to consider when
deciding “who you want to believe,” or “whether or not to
believe [Williams],” and explicitly disavowed any suggestion
that Williams was not entitled to recovery simply because he
was a felon (i.e., “[I]t really got to me when counsel was
arguing … that I have suggested to you that the reason you
should … find against Markith Williams is because he has been
convicted seven times of felonies. I have never said that and
wouldn’t say that.”). That was entirely proper. Defendants’
counsel reinforced this point by saying the judge would “tell
you when you decide who you want to believe, you can
consider this is a seven-time convicted felon.” Though the
district court did not ultimately give this instruction, Wil-
liams’s counsel did not object to this comment or suggest that
such an instruction was incorrect at the time, during his
rebuttal, or before the court instructed the jury. Because there
was no indisputable error, no reversal is warranted in connec-
tion with the comments made during the defendants’ opening
statement.
III. CONCLUSION
For the above-stated reasons, we AFFIRM.