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


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  •                                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.