Nathson Fields v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17-3079, 17-3125 & 18-1207
NATHSON FIELDS,
Plaintiff-Appellee,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:10-cv-01168 — Matthew F. Kennelly, Judge.
____________________
ARGUED NOVEMBER 8, 2019 — DECIDED NOVEMBER 20, 2020
____________________
Before SYKES, Chief Judge, and RIPPLE and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. These appeals stem from an action
brought in 2010 by Nathson Fields, asserting claims under 42
U.S.C. § 1983 and state law against the City of Chicago and
individuals including several Chicago police officers as well
as two former Cook County prosecutors. The lawsuit alleged
that the defendants violated Fields’s constitutional rights as
well as state law in their actions in fabricating evidence and
2 Nos. 17-3079, 17-3125 & 18-1207
withholding exculpatory evidence in a criminal investigation
that resulted in Fields’s conviction for murder. After a retrial
that resulted in an acquittal, Fields filed this civil suit, and the
jury entered an award in his favor on a number of grounds.
Two individual defendants, Chicago Police Detectives David
O’Callaghan and Joseph Murphy, and the City of Chicago,
now appeal.
I. FACTS AND PROCEDURAL HISTORY
The § 1983 and state law claims in this case relate to the
investigation and prosecution of Fields for the murders of Tal-
man Hickman and Jerome Smith in 1984. Following a bench
trial before Cook County Circuit Judge Thomas Maloney,
Fields and his co-defendant Earl Hawkins were convicted of
the murders. During the penalty phase, the prosecutors intro-
duced evidence that Fields and Hawkins had also murdered
Dee Eggers Vaughn and Joe White.1 Fields and Hawkins were
sentenced to death for the murders of Hickman and Smith,
and the conviction and sentence were affirmed on appeal in
1990. Twelve years after the trial, in 1998, those convictions
were overturned on post-conviction review based on evi-
dence that Hawkins’s attorney had bribed Judge Maloney to
secure an acquittal and that Judge Maloney during the trial
became concerned that he was being investigated by law en-
forcement and returned the bribe; that corruption under-
mined confidence in the outcome. Hawkins, who began to co-
operate with federal law enforcement in 1987 following the
1 Hawkins and Anthony Sumner—who first implicated Fields in both
the Smith and Hickman murders and the Vaughn and White murders—
later confessed to the Vaughn and White murders.
Nos. 17-3079, 17-3125 & 18-1207 3
conviction, provided the evidence of the bribe. He also made
a deal to testify for the prosecution in a retrial of Fields for the
Hickman and Smith murders, in return for avoidance of the
death penalty or life in prison without release. Under the plea
agreement, Hawkins pled guilty to two counts of armed vio-
lence and received a sentence recommendation of 42 years on
each count to be served consecutively. The plea agreement
also stated that “[i]t is the intent of both parties that defendant
Hawkins remain in custody until he reaches 72 years of age,”
which would be in 2027. R. 770-2 at 8.
In the criminal retrial of Fields for the Smith and Hickman
murders, the prosecutors presented a different factual sce-
nario than in the first, relying on Hawkins’s testimony.
Whereas Hawkins had been identified as a shooter in the first
trial, he was portrayed as the getaway driver in the second
trial and Fields and another individual were characterized as
the shooters. Fields was acquitted in that retrial in 2009. He
then sought a certificate of innocence, which was ultimately
denied, and at the same time pursued this lawsuit.
The lawsuit alleged that Chicago Police Detectives David
O’Callaghan and Joseph Murphy violated his constitutional
rights in connection with his criminal trials by fabricating ev-
idence, engaging in suggestive identification procedures, and
withholding exculpatory evidence. Fields alleged that the
withholding of evidence was done in accordance with a pol-
icy of the City of Chicago to withhold “street” files which
were compiled by detectives and contained such exculpatory
evidence. See Jones v. City of Chicago, 856 F.2d 985, 995 (7th Cir.
1988) (noting that “street files” are police files withheld from
4 Nos. 17-3079, 17-3125 & 18-1207
the stateʹs attorney and defense counsel and therefore una-
vailable as a source of exculpatory information for a prosecu-
tor deciding whether to charge or a defense attorney).
Fields also included state law claims of malicious prosecu-
tion, intentional infliction of emotional distress, and civil con-
spiracy. The case proceeded to trial in March 2014, but after
seven days of trial, the court declared a mistrial when the de-
fendants introduced prejudicial testimony that the court had
excluded in a pretrial in limine ruling. The second trial com-
menced in April 2014, and at the close of the month-long trial
the jury found in favor of Fields on his due process claim
against defendant O’Callaghan, and in favor of the defend-
ants on the remaining claims. The jury awarded Fields $80,000
on his due process claim against O’Callaghan. All parties filed
post-trial motions. O’Callaghan sought entry of judgment as
a matter of law on the due process claim, and Fields sought
an entry of judgment on his claim against the City, both of
which the district court denied. Fields also sought a new trial
as to the claims that were not decided in his favor as to the
individual defendants, a new trial as to damages regarding
the due process claim against O’Callaghan upon which he
prevailed, and a new trial on his Monell claim against the City.
See Monell v. Dept. of Social Services, 436 U.S. 658 (1978). The
district court granted Fields’s motion for a new trial as to the
claims found in favor of the individual defendants and the
City, and for a new trial as to damages with respect to the
O’Callaghan claim. O’Callaghan subsequently sought a new
trial as to liability, arguing that the damages issue could not
be separated from that of liability, and the court granted that
motion. After another month-long trial, the jury found in fa-
vor of Fields against O’Callaghan and Murphy on one of his
§ 1983 claims, against the City on Fields’s Monell liability
Nos. 17-3079, 17-3125 & 18-1207 5
claim under §1983, and against O’Callaghan on a state-law
claim for intentional infliction of emotional distress, and
found for the defendants on the remaining § 1983 and state
law claims. The jury awarded Fields $22 million in compen-
satory damages, and punitive damages of $30,000 against
O’Callaghan and $10,000 against Murphy. O’Callaghan and
Murphy (hereinafter the “individual defendants”) and the
City now appeal that jury determination.
We will not recap the evidence presented below in its en-
tirety because such a comprehensive overview is unnecessary
to the resolution of the issues before us and, with challenges
before us to decisions made in two separate month-long trials,
any such effort to do so for both trials would prove both vo-
luminous and confusing. Instead, we present the relevant ev-
idence in the discussion of each issue raised on appeal. For
context, the district court summarized the evidence as fol-
lows:
Fields contended, and the evidence supported, that
OʹCallaghan and Murphy falsified incriminating evi-
dence and concealed favorable evidence, and that he
was deprived of his liberty as a result. This includes
evidence from which the jury reasonably could infer,
among other things, that Murphy pulled a group of
suspects, including Fields, more or less out of the air
and turned them over to OʹCallaghan; OʹCallaghan in
turn fabricated identifications by witnesses who had
no real opportunity to see the perpetrators; Murphy
caused the fabrication of a purported admission by
Fields to Anthony Sumner; OʹCallaghan had responsi-
bility—perhaps along with others—to review a police
investigative “street file” and provide it to Cook
6 Nos. 17-3079, 17-3125 & 18-1207
County prosecutors; Murphy, too, had information
placed in the street file (a request for photographs used
to purportedly identify the perpetrators); and the
street file, which was never turned over, contained in-
formation that a reasonably competent defense attor-
ney could have used to show the existence of reasona-
ble doubt.
Corrected Memorandum Opinion and Order 9-11-2017 (“Cor-
rected Op.”) at 3-4.
II. CHALLENGES BY INDIVIDUAL DEFENDANTS
O’CALLAGHAN AND MURPHY
O’Callaghan and Murphy raise a number of challenges to
the court’s evidentiary decisions in the last (third) trial, argu-
ing that those errors individually and cumulatively warrant
yet another new trial. We review a trial court’s evidentiary de-
cisions only for abuse of discretion. Lewis v. City of Chicago Po-
lice Dept., 590 F.3d 427, 440 (7th Cir. 2009); Hammel v. Eau Galle
Cheese Factory, 407 F.3d 852, 868 (7th Cir. 2005). “A determina-
tion made by a trial judge regarding the admissibility of evi-
dence is treated with great deference because of the trial
judge’s first-hand exposure to the witnesses and the evidence
as a whole, and because of his familiarity with the case and
ability to gauge the likely impact of the evidence in the con-
text of the entire proceeding.” Doornbos v. City of Chicago, 868
F.3d 572, 579 (7th Cir. 2017) (internal quotation marks omit-
ted), quoting United States v. Wash, 231 F.3d 366, 371 (7th Cir.
2000). A new trial based on such errors will be granted only if
the evidentiary errors had “a substantial and injurious effect
or influence on the determination of a jury and the result is
Nos. 17-3079, 17-3125 & 18-1207 7
inconsistent with substantial justice.” Lewis, 590 F.3d at 440;
Doornbos, 868 F.3d at 579.
The first evidentiary challenges address evidence that the
defendants sought to introduce to rebut Fields’s character ev-
idence. According to the defendants, Fields was a high-rank-
ing member of the El Rukn gang who nevertheless sought to
portray himself as a peaceful building manager for an El Rukn
property uninvolved in the El Rukn’s criminal activities. They
sought to rebut that perception with evidence that Fields had
been convicted of murdering a rival gang member years ear-
lier, that he was involved with El Rukn criminal activities
prior to his arrest in 1985, and that he participated in the
scheme to bribe Judge Maloney. The defendants assert that
the trial judge abused his discretion in precluding such evi-
dence.
A. FBI wiretaps
The defendants first challenge the court’s exclusion of FBI
wiretaps regarding the scheme to bribe Judge Maloney. They
sought to introduce a recording of Jeff Fort, the leader of the
El Rukn gang, in a discussion conducted using coded words,
asking whether Fields had been informed about the bribe of
Judge Maloney, and being told by Alan Knox that Hawkins
said that he had informed Fields about the bribe. The trial
judge engaged in an extensive analysis of the admissibility of
the wiretap evidence, determining that the recording was in-
admissible hearsay. That determination is not erroneous. The
defendants sought to use the recording to demonstrate
Fields’s connection to the bribe and the El Rukns. The state-
8 Nos. 17-3079, 17-3125 & 18-1207
ments as to whether Fields was made aware of the bribe in-
volved multiple levels of hearsay, in that it involved Knox’s
statement to Fort as to what Hawkins told Knox that Hawkins
had said to Fields. The statements were used for their truth to
connect Fields with the bribe by showing his knowledge of it.
The defendants dispute that, arguing that the recordings re-
lated to orders from Fort and the orders were not being of-
fered to prove the existence of the bribe. But the recordings
were being used to prove that Fields had knowledge of the
bribe and therefore was involved in bribing the judge, by
showing that the El Rukns informed him of the bribe prior to
the trial, and that uses the statements for their truth. In fact,
in arguing that the residual hearsay exception applies, the de-
fendants argue that Fields put his knowledge of the bribe
squarely at issue and that they therefore should be allowed to
rebut it. That argument acknowledges that the evidence was
intended to demonstrate Fields’s knowledge of the bribe. The
district court properly determined that the use of the wiretap
recordings for that purpose rendered it inadmissible hearsay
that should be excluded.
Nor can the defendants succeed on their claim that an ex-
ception to the hearsay prohibition applies here. They assert
that the wiretaps were admissible under the residual hearsay
exception in Federal Rules of Evidence 807, which permits ad-
mission of hearsay if it is supported by sufficient guarantees
of trustworthiness considering the totality of the circum-
stances and any corroboration, and it is more probative as to
the point for which it is offered than could otherwise be at-
tained by reasonable effort. The defendants argue that the
wiretaps were “particularly trustworthy because the El Rukns
were not aware they were being recorded and spoke in code.”
Indiv. Defs. Brief at 23. The speaking in code, however, signals
Nos. 17-3079, 17-3125 & 18-1207 9
the opposite conclusion; it indicates an awareness that the
communications could be intercepted. There is nothing in the
nature of that communication that renders it “particularly
trustworthy.” See Cody v. Harris, 409 F.3d 853, 860–61 (7th Cir.
2005). Moreover, the recording is also not the most probative
evidence demonstrating that Fields was informed about the
bribe before the trial. The recordings relate Knox’s statement
that Hawkins told Knox that he told Fields of the bribe. But
that fact was related to the jury directly by Hawkins. The dis-
trict court allowed Hawkins to testify directly that he told
Fields about the bribe, thus presenting the jury with that in-
formation in admissible form. See Flournoy v. City of Chicago,
829 F.3d 869, 876 (7th Cir. 2016) (notation on a police report
not the most probative evidence under Rule 807 where others
testified to the matter). The district court properly held that
the wiretaps should not be admitted under the residual ex-
ception.
The district court also properly rejected the argument that
the wiretaps were admissible as a co-conspirator statement
under Federal Rules of Evidence 801(d)(2)(E). The court did
not clearly err in determining that the defendants had not
demonstrated that Fields was a co-conspirator in the scheme
to bribe Judge Maloney. As the defendants acknowledge, that
decision by the district court judge was based on the court’s
conclusion that Hawkins lacked credibility, and there is no
reason to disturb that finding on appeal. The defendants have
raised no meritorious claim that the district court erred in ex-
cluding the wiretap evidence.
10 Nos. 17-3079, 17-3125 & 18-1207
B. Possession of TEC-9
The defendants next object to the district court’s exclusion
of other evidence regarding Fields’s character. According to
the defendants, Fields presented himself to the jury as a
“small fish” who was a building manager and not a hit man
for the El Rukns. To rebut that characterization, the defend-
ants argue that they should have been allowed to produce ev-
idence that Fields was arrested in possession of a submachine
gun while accompanying a group of fellow El Rukns who
were stalking a rival gang member, Treddest Murray. They
contend that Fields and other El Rukns planned to kill Murray
and went looking for him, finding his car outside a bar, and
that Fields was arrested and a TEC-9 submachine gun was
found in the car in which Fields was riding. “The well-estab-
lished, general rule is that a witnessʹs credibility may not be
impeached by evidence of his or her prior arrests, accusations,
or charges.” Barber v. City of Chicago, 725 F.3d 702, 709 (7th Cir.
2013); see also Michelson v. United States, 335 U.S. 469, 482
(1948) (dicta) (“Arrest without more does not, in law any more
than in reason, impeach the integrity or impair the credibility
of a witness. It happens to the innocent as well as the guilty.
Only a conviction, therefore, may be inquired about to under-
mine the trustworthiness of the witness.”) The district court
held that the charge against Fields was dismissed and that ev-
idence of an arrest is generally not admissible for impeach-
ment purposes, and that decision is well-founded. The de-
fendants offer no argument on appeal addressing that hold-
ing by the court or distinguishing that caselaw.
Moreover, the district court noted that contrary to the de-
fendants’ assertion, the evidence at trial did not portray Fields
Nos. 17-3079, 17-3125 & 18-1207 11
as a law-abiding person of peaceful character. The court em-
phasized that evidence was admitted that Fields:
- joined the El Rukn street gang;
- committed a serious crime for which he served 12
years in prison;
- concocted a false alibi and suborned others to assist
in an unsuccessful attempt to avoid conviction for
that crime;
- was involved in violent incidents in prison;
- became an officer in the street gang;
- resumed activities in the gang after getting out of
prison; and
- voluntarily associated with killers and drug dealers
in the El Rukn gang.
Defendants also introduced a significant amount of ev-
idence regarding the illegal and violent activities of the
El Rukn gang. … This evidence tainted Fields given his
membership and rank in the gang.
12 Nos. 17-3079, 17-3125 & 18-1207
Corrected Op. at 12-13. The district court, therefore, allowed
the introduction of evidence as to Fields’s character. The court
did not err in refusing to allow evidence of an arrest, for pos-
session of a weapon found in a car in which he was a passen-
ger, in which the charge was later dismissed.
C. Hunter and Clay
The defendants also challenge the district court’s exclu-
sion of the testimony of Eugene Hunter and Jackie Clay,
through which they sought to portray Fields’s role as an El
Rukn killer. They argue that the district court erred in exclud-
ing the testimony for want of “foundation,” arguing that no
rule of evidence requires a foundation. But the district court’s
reasoning in excluding that testimony was well-grounded.
Clay was allowed to testify that his duties in managing an El
Rukn building included armed security and narcotics traffick-
ing. The court allowed Clay to testify as to Clay’s own build-
ing management responsibilities, but did not permit Clay to
testify that those were the responsibilities of Fields as a build-
ing manager, because Clay acknowledged that he lacked per-
sonal knowledge of Fields’s responsibilities. There is no error
in limiting a witness’s testimony to testimony within his per-
sonal knowledge. See Fed. R. Evid. 602 (“A witness may tes-
tify to a matter only if evidence is introduced sufficient to sup-
port a finding that the witness has personal knowledge of the
matter.”); United States v. Fenzl, 670 F.3d 778, 782 (7th Cir.
2012) (“a lay witness is permitted to base his testimony on
his personal knowledge (and on nothing else)”); Palucki v.
Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989). Be-
cause Clay was allowed to testify as to his own responsibili-
ties as building manager, the defendants were free to argue
Nos. 17-3079, 17-3125 & 18-1207 13
that by inference a jury should find that Fields had similar re-
sponsibilities. But there is no error in refusing to allow Clay
to opine on a matter beyond his own personal knowledge.
Similarly, Hunter admitted lacking personal knowledge that
Fields was an “assigned killer,” and that testimony was there-
fore properly excluded as well.
D. Prisoner visitor list
The defendants next complain that the district court ex-
cluded the admission of Fields’s prisoner visitor list that con-
tained the names of persons authorized to visit him in prison
and included a number of El Rukn names. The list was offered
to demonstrate that Fields had a relationship with those El
Rukns and to rebut Fields’s claim that he did not associate
with them. The court held, however, that the defendants had
not presented competent evidence that Fields added those
persons to the list. The names of Fields’s family on the visitor
list were written in Fields’s handwriting, but the names of the
El Rukns were in a different handwriting. And although the
defendants planned to call some of the El Rukns on that visi-
tor list as witnesses, counsel for the defendants informed the
court that none of those witnesses were going to testify that
they actually visited Fields. The defendants respond that they
informed the court that Fields admitted that he approved the
names on the list, and that admission is all that was necessary.
But the cite for that proposition is just to the hearing on the
motions in limine, and consists of a one-line statement by
counsel for the defendants stating that Fields admitted he au-
thorized the name; defense counsel did not identify the source
for that admission, and has provided no cite in the brief before
this court to such an admission anywhere else in the record.
14 Nos. 17-3079, 17-3125 & 18-1207
Therefore, the court’s holding that the defendants did not es-
tablish any foundation for that assertion is unchallenged. The
district court did not abuse its discretion in holding that the
visitor list was inadmissible.
E. Stateville incident report
In addition, the defendants complain that the district court
excluded a Stateville Incident Report and the testimony of
Warden DeRobertis that two El Rukns, Derrick Kees and
Hank Andrews, attempted to visit Fields in prison. As is true
of a number of arguments in the briefs on appeal, their argu-
ment is replete with shorthand references to the record, such
that the court has to go to that record in order to comprehend
the basis of the argument. That is insufficient to preserve the
argument to this court. Puffer v. Allstate Ins. Co., 675 F.3d 709,
718 (7th Cir. 2012) (“even arguments that have been raised
may still be waived on appeal if they are underdeveloped,
conclusory, or unsupported by law”); United States v. Dun-
kel, 927 F.2d 955, 956 (7th Cir.1991) (“[a] skeletal ‘argument,’
really nothing more than an assertion, does not preserve a
claim.”). For instance, after baldly stating that the court erred
in excluding evidence of those attempts to visit Fields in
prison, the defendants declare that
[w]hile the court thought the corresponding Incident
Report was hearsay, records of prison visits are admis-
sible as business records under Rule 803(6) … [citations
omitted] and as public records under Rule 803(8). De-
Robertis’ proffered testimony regarding this visit pro-
vided the factual background necessary under those
rules.
Nos. 17-3079, 17-3125 & 18-1207 15
Indiv. Defs. Brief at 29. That is the entire development of the
argument that the exclusion of the Incident Report–a prison
record of visit attempts—is being challenged, that the district
court excluded it based on hearsay, and that the testimony by
DeRobertis was sufficient to demonstrate that a hearsay ex-
ception applied. It is insufficient to preserve the issue on ap-
peal. Missing is an explanation of the court’s holding, the re-
quirements of the business records and public records excep-
tions, and an explanation as to what testimony by DeRobertis
meets the requirements of those exceptions. This is a problem
that recurs in the briefing in this appeal, and we could well
have held that some of those other arguments were insuffi-
ciently developed as well, but have erred on the side of con-
sidering them. The cursory treatment is even more problem-
atic here because the district court held that the incident re-
port involved multiple levels of hearsay in that it involved a
recording of what other persons told him, and that the busi-
ness record exception would only get the defendants past the
first level of hearsay. The defendants do not address that issue
at all. Therefore, the argument as set forth in this brief is in-
sufficient to challenge the court’s holding that the evidence of
a visit was premised on inadmissible multi-level hearsay.
F. 1972 murder conviction
Finally, the defendants argued that the court erred in ex-
cluding evidence that Fields was convicted of murder in 1972.
The defendants claim that the court abused its discretion in
excluding the 1972 murder conviction and that it was relevant
16 Nos. 17-3079, 17-3125 & 18-1207
to damages because it was a factor the jury considered in im-
posing the death penalty. According to the defendants, the
court erred in excluding it on the ground that the conviction
was immaterial regarding damages because Fields’s convic-
tions for the Smith and Hickman murders alone rendered him
death-eligible. The defendants argue that the court’s determi-
nation rests on a legal error – a misunderstanding of Illinois
death-penalty law – because even if Fields was eligible for the
death penalty based on the Smith and Hickman murders
alone, his 1972 conviction would nevertheless be considered
by the jury as well as any other factors in aggravation and mit-
igation.
This argument is meritless. The district court did not mis-
understand Illinois death penalty law. In fact, the court’s ex-
planation of the relevance of the 1972 conviction to the death
penalty directly matches the defendants’ explanation of that
law. The court noted that Fields became eligible for the death
penalty based on his conviction for the Smith and Hickman
murders, and that the 1972 conviction was part of the aggra-
vating evidence offered. The court rejected the argument that
every factor in aggravation and mitigation that could contrib-
ute to the ultimate decision to impose the death penalty is rel-
evant to damages for the misconduct related to his
Smith/Hickman conviction. The court held that the 1972 con-
viction was not necessary to make Fields eligible for the death
penalty, and that the precise reason why Fields received the
death penalty after his conviction for the Smith/Hickman
murders was immaterial to the damages calculation. Instead,
the court held that the only material evidence is that which
rendered him death eligible. Because the Smith/Hickman con-
viction alone rendered him death eligible, the damages result-
ing from the imposition of the death penalty were necessarily
Nos. 17-3079, 17-3125 & 18-1207 17
related to that conviction. The defendants have failed to sup-
port their argument that all evidence introduced at the sen-
tencing phase is relevant to the due process claim or to the
damages for the due process violation. The district court
properly limited the materiality determination to reflect that
which subjected him to the death penalty, as opposed to in-
viting the reweighing of all aggravation and mitigation fac-
tors which would invite conjecture as to how the jury made
that determination.
Moreover, the defendants’ argument does not address the
ultimate basis for the court’s decision. The 1972 conviction
was a conviction for murder based on an accountability the-
ory. The court allowed the defendants to introduce that Fields
was convicted of a crime, that Fields presented a false alibi
defense at the 1972 trial and induced others to do so, and that
he was imprisoned for 12 years for that offense. The only in-
formation excluded by the court was the nature of the convic-
tion and the underlying information. The court held that
given the age of the conviction, the potential for unfair preju-
dice – specifically the use of the murder conviction as inap-
propriate propensity evidence – outweighed any minimal
probative value. That determination is entitled to deference
and was not an abuse of discretion. Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008) (noting that a district
court is afforded wide discretion in evidentiary matters, par-
ticularly with respect to Rule 403 which can require “on-the-
spot” balancing of prejudice and probative value for other-
wise-relevant evidence).
18 Nos. 17-3079, 17-3125 & 18-1207
G. Vaughn/White investigation
In addition to challenging the exclusion of evidence, the
defendants also challenge the court’s decision to admit evi-
dence – including evidence regarding the investigation of the
Vaughn and White double murder. They argue that the dis-
trict court abused its discretion in allowing Fields to introduce
evidence regarding the Vaugh/White investigation because
that investigation was irrelevant and the evidence was offered
solely to show O’Callaghan’s alleged propensity to coerce
false witness identifications. The defendants further argue
that the evidence had no probative value. They argue that the
evidence tainted Murphy as well, because Murphy was
O’Callaghan’s supervisor who Fields argued should have
prevented the allegedly improper witness identification.
Although the defendants argue that the district court “did
not engage in a meaningful Rule 403 analysis,” that is belied
by the record. The court heard oral argument on the matter,
and ordered additional briefing specifically as to that issue,
prior to making its decision. Moreover, the district court, in
determining whether the probative value of the evidence out-
weighed its potential prejudicial impact, had the benefit of
having heard evidence in the context of the case as a whole in
the first trial which ended after 7 days in a mistrial, and in the
second, month-long, trial. The court therefore was well-situ-
ated to assess the relevance of the evidence and its potential
for misuse.
The court did not abuse its discretion in allowing the ad-
mission of the evidence in this case. Although the defendants
portray the Vaughn/White investigation as distinct from the
Smith/Hawkins investigation, and unrelated to it, the court
properly rejected that characterization. The court noted that
Nos. 17-3079, 17-3125 & 18-1207 19
the intent of the individual defendants was directly in issue
as to Fields’ malicious prosecution claim, such that Fields had
to demonstrate that they acted with malice, defined as acting
for a purpose other than to bring the crime’s true perpetrator
to justice. As to Fields, the Smith/Hickman and the
Vaughn/White investigations had the same genesis. Anthony
Sumner was arrested and faced the death penalty for the
Vaughn and White murders. To better his situation, Sumner
offered information as to crimes committed by El Rukns, in-
cluding seven murders. At that time, he implicated Fields in
both the Vaughn/White and the Smith/Hickman double mur-
ders. Therefore, the investigation of Fields for the Smith/Hick-
man murders arose from the statements made by Sumner im-
plicating him in both double murders and the investigations
as to both proceeded at that time. Fields sought to demon-
strate at trial that O’Callaghan had reason to know very early
in the investigation that Sumner’s statements implicating
Fields in the Vaughn/White murder were not credible, and
that he fabricated evidence to nevertheless implicate Fields in
that double murder. That calls into question whether
Sumner’s implication of Fields in the Smith/Hickman double
murder could have been considered credible by O’Callaghan,
and whether he acted in good faith in pursuing that charge.
The court held that “[i]f Fields can show that an indi-
vidual defendant deliberately took steps to fabricate or con-
ceal evidence in connection with Vaughn/White, it tends to
make it more likely that the same defendant acted deliber-
ately—i.e., with malice—in connection with Smith/Hick-
man.” Order Regarding Evidentiary Issues Addressed on
11/15/2016 at 9. Because Sumner implicated Fields in the two
double murders at the same time, and with the same incentive
to deceive so as to receive a reduced charge and sentence, the
20 Nos. 17-3079, 17-3125 & 18-1207
actions in response to both double murders are relevant, or so
the district court could properly determine. The court held
that “Federal Rule of Evidence 404(b) specifically permits use
of other act evidence – if that is what this is, which is perhaps
questionable given the intertwining of the matter – to show a
party’s intent or motive.” Corrected Op. at 30. Our review is
quite limited in analyzing evidentiary decisions by the court,
and we find no abuse of discretion in the district court’s con-
clusion that actions with respect to the Vaughn/White investi-
gation were relevant to demonstrate the intent as to the
Smith/Hickman investigation given their common inception
and overlap. Doornbos, 868 F.3d at 579.
H. Morris affidavit
In yet another challenge to the court’s evidentiary deci-
sions, the defendants contest the admission of the 2011 affida-
vits by Gerald Morris to impeach Morris’s criminal trial testi-
mony. Morris provided witness testimony at the criminal trial
identifying Fields as a perpetrator. He subsequently retracted
that identification of Fields, and provided affidavits to that ef-
fect. Morris was unavailable to testify at trial, and the district
court allowed the use of those affidavits at trial pursuant to
Federal Rule of Evidence 806, which allows the use of state-
ments to impeach a declarant’s hearsay statement. The de-
fendants object to the applicability of that Rule on the ground
that Morris’s criminal trial testimony was not used for its
truth, but rather was used for the non-hearsay purpose of al-
lowing the jury to assess the materiality of the allegedly with-
held and fabricated evidence underlying the due process
claim. The district court properly rejected that argument. In
Nos. 17-3079, 17-3125 & 18-1207 21
addition to using the transcripts for that non-hearsay pur-
pose, the defendants also used Morris’s criminal trial testi-
mony for a hearsay purpose—to prove Fields’s guilt of the
Smith/Hickman murders, a purpose that relied on the truth of
Morris’s testimony. In fact, in determining that the testimony
was being used for a hearsay purpose, the district court
quoted opening arguments by counsel for the defendants,
pointing to the eyewitness testimony of Morris and two other
persons to show that Fields was guilty of the murders. There-
fore, the argument that Morris’s testimony was used only for
non-hearsay purposes is meritless. With Morris unavailable at
trial, the court did not err in finding that the Morris affidavits
could be admitted under Rule 806.
The defendants’ argument that the prejudicial impact out-
weighed the probative value is also unavailing. As the district
court recognized, the defendants were able to present their
own out-of-court statements by Morris disavowing state-
ments in the affidavits, and were also able to introduce evi-
dence as to the circumstances under which the affidavits were
obtained to attempt to discredit those affidavits. The court’s
reasoned weighing of the Rule 403 factors was not an abuse of
discretion. Nor did the court abuse its discretion in refusing
to reopen discovery to allow the defendants to depose Morris
following the 2014 month-long trial and before the 2016 trial;
discovery had long been closed and a month-long trial com-
pleted before the request was made, and the court reopened
discovery before the 2016 trial only as to the narrow issue
upon which the new trial motion had been granted. Moreo-
ver, the court noted that there was ample opportunity for ei-
ther party to take Morris’s deposition before discovery closed
for the 2014 trial, and that it specifically permitted that. Dis-
trict court judges are accorded broad discretion in discovery
22 Nos. 17-3079, 17-3125 & 18-1207
matters, and therefore our review is deferential and only for
abuse of discretion. Kuttner v. Zaruba, 819 F.3d 970, 974 (7th
Cir. 2016); Thermal Design, Inc. v. Am. Socʹy of Heating, Refrig-
erating & Air-Conditioning Engineers, Inc., 755 F.3d 832, 837 (7th
Cir. 2014). Regarding temporal limitations on discovery, we
have asked whether some time limit was warranted and, if so,
was the time limit imposed a reasonable one that allowed the
parties a meaningful opportunity for discovery. Kuttner, 819
F.3d at 974. Here, the parties had an opportunity to take Mor-
ris’ deposition prior to the first completed trial, and it was rea-
sonable for the district court to ensure that the second full trial
did not get unnecessarily delayed by a reopening of the dis-
covery and evidentiary decisions already made in the first full
trial. The defendants have failed to demonstrate any abuse of
discretion in the court’s decision to limit the reopening of dis-
covery in that manner.
I. Whiteout question
Finally, the defendants argue that the district court erred
in allowing Fields’s attorney to “accuse” Murphy of whiting
out the notes of his debriefing of Sumner. They argue that
there was no good faith basis to ask Murphy if his notes of the
Sumner interview were whited out, and that the baseless ac-
cusation that the notes were redacted was therefore improper.
See United States v. Beck, 625 F.3d 410, 418 (7th Cir. 2010). They
allege that the unsupported allegation prejudiced Murphy,
and that the court erred in refusing to take remedial action.
This argument is without merit, because a good faith basis
for the question is apparent in the record. The copy of the con-
temporaneous handwritten notes taken by Murphy of his in-
terview of Sumner had gaps within it containing blank spaces
Nos. 17-3079, 17-3125 & 18-1207 23
that appeared unrelated to the organization of the notes as a
whole in that it did not match the structure of the notes gen-
erally. The original of the notes was not provided. When Mur-
phy hand-wrote the General Progress Report (“GPR”) a year
later, memorializing those notes in the proper form, some sen-
tences contained language not in the original notes, but which
could have been in the portion that corresponded to the blank
gaps. For instance, a sentence in the handwritten notes that
states “Earl [Hawkins] got Fields and Carter” has nothing af-
ter it, but has a noticeable blank space both immediately fol-
lowing as well as a blank line below it, in contrast to the rest
of the handwritten bullet points that have no blank line in be-
tween them. In the GPR, Murphy has written “Hawkins re-
lated that he got Nathson Fields and George Carter to shoot
‘Freddy’ because they were not known in the neighborhood.”
That difference in wording, in conjunction with the white
spaces that deviated from the general format, provided a
good faith basis to ask whether the gaps reflected white-outs.
See Beck, 625 F.3d at 418 (“an attorney does not need definitive
proof to have a good-faith basis, just ‘[a] well reasoned suspi-
cion that a circumstance is true.’”). Moreover, the defendants
could not demonstrate that the questioning resulted in the
type of a substantial and injurious effect or influence on the
determination of a jury that would require yet another trial.
Lewis, 590 F.3d at 440; Doornbos, 868 F.3d at 579. There is no
reversible error in the court’s decision to allow the question-
ing.
III. CHALLENGES BY CITY OF CHICAGO
We turn to the challenges raised by the City of Chicago
which involve both trials. First, the City challenges the court’s
24 Nos. 17-3079, 17-3125 & 18-1207
decisions to grant a new trial following the first full trial, on
the claims of the individual defendants and, by extension, the
claim of Monell liability. In addition, the City contests the de-
nial of its motion for judgment as a matter of law as to Monell
liability following the second full trial. We consider them in
turn.
The City, joined by the individual defendants, challenges
the district court’s decision to grant a new trial as to individ-
ual and Monell liability following the jury verdict in that first
completed trial. We review a trial court’s grant or denial of a
new trial for abuse of discretion. Browder v. Dir., Depʹt of Corr.
of Illinois, 434 U.S. 257, 263 n.7 (1978); Vojdani v. Pharmsan Labs,
Inc., 741 F.3d 777, 781 (7th Cir. 2013). That standard of review
recognizes that deference should be given to a trial judge who
has had the benefit of observing the trial – in this case a trial
that spanned a month.
A. Rule 60 grant of new trial
We consider first the district court’s grant of a new trial as
to the claims of the individual defendants under Federal Rule
of Civil Procedure 60(b), based on newly discovered evidence
discrediting the representations that Hawkins would be im-
prisoned until 2027. The court held that Hawkins’s release
from prison mere months after his testimony in this civil trial
evidenced a pretrial deal in which Hawkins received an accel-
erated release from prison in return for his testimony in favor
of the defendants.
We begin with the district court’s reasoning in granting
the motion for a new trial as to the individual defendants. The
court noted that Hawkins had received benefits in return for
Nos. 17-3079, 17-3125 & 18-1207 25
his testimony in prior proceedings. Hawkins made a deal
with both federal and state prosecutors and testified against
Fields in Fields’s 1999 murder retrial. Under the plea agree-
ment, Hawkins – who had received the death penalty in the
first criminal trial – instead pled guilty to two counts of armed
violence and received a sentence recommendation of 42 years
on each count to be served consecutively. R. 770-2 at 7-8. He
obtained further benefits in return for his testimony at the
proceedings for Fields’s petition for a certificate of innocence.
Hawkins’s plea agreement prior to that time provided that he
agreed to cooperate with law enforcement and testify in re-
turn for two consecutive 42-year prison terms, totaling 84
years, to run concurrently to his federal prison term. That plea
agreement explicitly provided that it was the intent of both
sides that Hawkins would remain in custody until age 72,
which would be the year 2027. Id. at 8.
In conjunction with his testimony against Fields on his pe-
tition for a certificate of innocence and civil trial, Hawkins en-
tered into a revised plea agreement with the Cook County
States’ Attorney which reduced his prison sentence to two
consecutive 39-year terms, for a total of 78 years. The revised
plea agreement eliminated the statement regarding Hawkins
serving until the age of 72, replacing it with language stating
that “[i]t is the intent of both parties that defendant Hawkins
not serve any additional time in state custody beyond what
he is already serving in his federal sentence. Defendant Haw-
kins will receive credit for time spent in state custody dating
back to his original arrest on May 18, 1985.” Dist. Ct. Memo-
randum Opinion and Order 4-6-15 (“Mem. Op.”) at 14. In a
joint deposition covering both the certificate of innocence pro-
ceedings and the present civil case, Cook County Assistant
States’ Attorney Brian Sexton provided testimony so as to
26 Nos. 17-3079, 17-3125 & 18-1207
“place on the record” the understanding as to the revised plea
agreement. Sexton testified that the understanding in the orig-
inal plea agreement had been that the state and federal sen-
tences would be served concurrently, such that all of his sen-
tence could be served in federal custody with no additional
state time following the expiration of his federal sentence.
Sexton noted that there had been some confusion and that the
original “out date” from the Bureau of Prisons on the federal
sentence had been 2016, but provided a letter from the AUSA
William Hogan clarifying that Hawkins’ actual “out date” on
the federal sentence was 2027. Accordingly, the state plea
agreement was revised to provide for 39 years on each count,
to be served consecutively, thus totaling 78 years for the state
offenses rather than 84 years, and ensuring that the termina-
tion of the state sentence would coincide with the end of the
federal one. That revision would ensure that Hawkins could
complete his time in federal rather than state incarceration,
while still ensuring a release date of 2027. Sexton declared that
the change was a clarification rather than a new agreement, to
reflect the original understanding of the plea agreement. That
letter from AUSA Hogan setting forth Hawkins’ release date
provided:
As we discussed, the BOP calculates Hawkins’s statu-
tory release date as January 1, 2027, at which time he
will have served 40 years of his 60 year federal sentence
(i.e., his mandatory expiration date under the pre-
guidelines law with credit for time served from Sep-
tember 19, 1987,the date of imposition of his Illinois
murder sentence by Judge Maloney, and 10 days per
month statutory ʺgood timeʺ pursuant to the provi-
sions of former 18 U.S.C. § 4161). The ʺtwo-thirds dateʺ
and ʺprojected satisfaction dateʺ of 9-18-2016 shown on
Nos. 17-3079, 17-3125 & 18-1207 27
page 2 of the Sentencing Monitoring Computation
memo have no bearing on Hawkinsʹs actual release
date under former 18 U.S.C. §§ 4205 and 4206; as you
have been advised by both me and Tony Merola of the
BOP when we contacted him in approximately Febru-
ary 2002 on this issue, Hawkins will be ʺcontinued to
expirationʺ (i.e., ʺmax outʺ on his sentence) based on
his criminal history, Offense Severity Rating and Sali-
ent Factor Score, and the provision in § 4206 that ʺthere
is a reasonable probability that he will commit any
Federal, State, or Local crimeʺ if released before man-
datory expiration.
Id. at 16-17. Thus, the deposition testimony as part of the pre-
sent civil trial confirms that Hawkins would serve his term to
the statutory release date of January 2, 2027, at the age of 72,
based on his sentence and the relevant release factors of his
criminal history, Offense Severity Rating and Salient Factor
Score, and the reasonable probability of recidivism. As so por-
trayed, that was consistent with the original plea agreement
which had explicitly recognized the intent of both parties that
Hawkins remain imprisoned until 2027 at the age of 72, and
therefore did not shorten his sentence.
As the district court noted, defense counsel repeated that
representation throughout the trial, emphasizing that Haw-
kins would be imprisoned for life and that he was receiving
no deal in return for his testimony at the civil trial. Defense
counsel called Hawkins to testify, and elicited testimony from
him to that effect:
28 Nos. 17-3079, 17-3125 & 18-1207
Q: And is it true that you will not be released from the
penitentiary until you are 72 years of age?
A (Hawkins) : I never agreed to that. Thatʹs what they
said. I thought my time would be up when my 60 years was
up in 2016.
Q: You have come to learn that you actually will remain
in custody, isnʹt that true?
A: If nothing donʹt happen, thatʹs what theyʹre saying.
Q: Is that until 2028, do you know?
A: No. I thought my paper said that Iʹm in jail until 2026,
and at one time we went to
–
Q: We donʹt want to go into other matters.
THE COURT: 2026. He said he thought it was 2026.
MR. BURNS: Very well, Judge.
Id. at 17. Although the defendants in this appeal seize
upon the “[i]f nothing don’t happen” language as indicating
that he could obtain an early release under his current sen-
tence, the only plausible meaning in light of the unequivocal
statements at the deposition was that he would be imprisoned
until at least 2026 under the current agreement, and would
serve that time unless something happened such as another
revision of the plea agreement in the future. His subsequent
statement that he would be in jail until 2026 reaffirms that un-
derstanding.
As the district court noted, “[s]omething did happen.”
Less than three months after his testimony in this civil case,
Hawkins received a parole hearing at which the examiner
Nos. 17-3079, 17-3125 & 18-1207 29
noted that AUSA Hogan was listed as his representative and
could not appear but would be sending a letter in support of
Hawkins. The Parole Commission then received letters from
Hogan, Sexton, and defendants Daniel Brannigan (a defend-
ant in the civil case in the first full trial who is no longer in the
case) and O’Callaghan. Hawkins was granted immediate re-
lease on federal parole, at which time the terms of the revised
plea agreement ensured a release on the state charges as well.
Therefore, within a few months of testifying in favor of the
defendants against Fields, Hawkins’ term of imprisonment—
which originally would have provided for a release in 2027 on
the federal charge and a nearly identical sentence on the state
charges—morphed into a September 2014 release on both fed-
eral and state charges. The district court could properly hold
that the timing and the coordination of letters between Ho-
gan, Sexton, and the defendants, as well as the pretrial mach-
inations to restructure the language of the state plea agree-
ment, evidenced a deal that existed pretrial to provide an
early release in exchange for Hawkins’s testimony at the civil
trial.
As stated earlier, we review the district court’s grant of
Rule 60(b) relief only for abuse of discretion. “An abuse of dis-
cretion on a Rule 60(b) motion ‘is established only when no
reasonable person could agree with the district court; there is
no abuse of discretion if a reasonable person could disagree
as to the propriety of the courtʹs action.’” Lee v. Vill. of River
Forest, 936 F.2d 976, 979 (7th Cir. 1991), quoting McKnight v.
United States Steel Corp., 726 F.2d 333, 335 (7th Cir.1984). Un-
der that highly-deferential standard of review, the defendants
cannot show that they are entitled to relief here. The district
court’s decision granting relief under Rule 60(b) is not one as
to which no reasonable person could agree.
30 Nos. 17-3079, 17-3125 & 18-1207
1. Rule 60(b)(2)
The court granted the motion for a new trial under Rule 60
based on the factors in Rule 60(b)(2), which has been inter-
preted as requiring the movant to show that: he had evidence
that was discovered after trial, the evidence was not merely
cumulative or impeaching, the evidence was material, he ex-
ercised due diligence, and the evidence is such that a new trial
would probably produce a different result. Jones v. Lincoln
Elec. Co., 188 F.3d 709, 732 (7th Cir. 1999). First, the court held
that the evidence of Hawkins’s release and the circumstances
surrounding it clearly arose after trial and evidenced a pre-
trial deal in which Hawkins received an accelerated release
from prison in return for his testimony in favor of the defend-
ants. That holding was well-supported in the record.
Moreover, the court held that although the evidence could
be impeaching, it could not be considered merely impeaching.
The court noted that the evidence indicated that the restruc-
turing of his state court deal that appeared to make only a
modest adjustment actually was a bonanza to Hawkins that
had a direct connection to his testimony, and that the post-
trial events reflected a pre-trial deal to obtain his early release
in return for his testimony. The court did not err in determin-
ing that the evidence was not merely for impeachment. Evi-
dence of the pre-existing arrangement with Hawkins cer-
tainly could be useful for impeachment purposes, but here the
evidence is not merely impeaching because it demonstrated
misrepresentation and fraud in the case. The newly discov-
ered evidence does not merely cast doubt on the credibility of
a witness, but rebuts the substantive evidence introduced into
Nos. 17-3079, 17-3125 & 18-1207 31
the record by the defendants, and exposes the misrepresenta-
tions as to Hawkins’s sentence that were part of discovery, the
trial, and closing arguments. Such evidence implicates the in-
tegrity of the fact-finding process. Courts have regularly rec-
ognized that such claims of newly discovered evidence of
false statements or fraud can fall under Rule 60(b)(2) as well
as 60(b)(3). Id. at 722 (analyzing a claim of false testimony un-
der Rule 60(b)(2)); Gupta v. U.S. Atty. Gen., 556 F. Appʹx 838,
842 (11th Cir. 2014) (motion alleging the government commit-
ted a fraud on the court by presenting false evidence and
withholding other evidence “alleged conduct within the am-
bit or Rules 60(b)(2) and (3)”); Taylor v. Streicher, 469 F. Appʹx
467, 468 (6th Cir. 2012)(allegation of newly discovered evi-
dence that deposition testimony was false and misleading and
constituted fraud on the court considered under both Rule
60(b)(2) and (b)(3)); United States v. Intʹl Bhd. of Teamsters, 247
F.3d 370, 391–92 (2d Cir. 2001) (evidence regarding Nash’s
fraud and possible perjury could properly be considered un-
der Rule 60(b)(2) and therefore Rule 60(b)(6) claim rejected);
Abrahamsen v. Trans-State Exp., Inc., 92 F.3d 425, 426-28 (6th
Cir. 1996) (district court granted relief under Rules 60(b)(2)
and (3) on claim that defendant’s attorney was aware that the
defendant had made an inculpatory statement to tow truck
driver but did not reveal that information, thus violating dis-
covery orders and suborning perjury when allowing defend-
ant to testify he had not made any such statement); Washing-
ton v. Patlis, 916 F.2d 1036, 1039 (5th Cir. 1990) (holding that a
Rule 60(b) claim of newly discovered evidence of alleged per-
jury is more properly addressed under Rule 60(b)(2)); Ma-
donna v. United States, 878 F.2d 62, 64 (2d Cir. 1989) (Rule
60(b)(2) “allows the court to relieve a party from a judgment
if new evidence of fraud or mistake is discovered”).
32 Nos. 17-3079, 17-3125 & 18-1207
As the district court noted, in the deposition of Hawkins
in this case, the parties were informed by Cook County pros-
ecutor Sexton that Hawkins would be in prison until 2027 and
that release date was confirmed in the letter from AUSA Ho-
gan. Defense counsel then advanced that same argument in
questioning Hawkins and in arguing the case to the jury at
trial. In fact, in addition to the questioning of Hawkins set
forth above, defense counsel in leading questions on cross-ex-
amination of Herschella Conyers – one of Fields’s lawyers in
his criminal case – elicited testimony that Hawkins would not
be released until 2027 or 2028. Defense counsel expanded on
that theme at closing arguments, mocking Fields’s claim that
Hawkins had received deals for his cooperation by stating
that Hawkins “will be in the penitentiary until 2028 or 26” and
that he would be locked up for “most of his life.” R. 726 at
3072. In fact, defense counsel repeated that contention that no
deals were made with the witnesses, stating that “[t]here was
suggestion that we were cutting deals, Mr. Hogan was cutting
deals. Mr. Hogan said, I cut no deals with these people. Mo-
tions were filed. Pleas were entered, 99 years, and that was
reduced over the objection of the government. There was no
side deals, no promises, no winks and nods.” Doc. 726 at 3091-
92; see also Doc. 730 at 475 (“We heard that again today. These
people are getting deals. And you heard from Derrick Kees
getting a deal. Let me be clear on this. I offered no one any
deals. These are people that have testified consistently in
these matters. To suggest that we are now involved with it?”)
That evidence and argument was false in light of the
knowledge of the pre-trial deal that could see Hawkins re-
leased within mere months. The defendants’ participation in
the hearing that obtained his release and their direct benefit
from his testimony evidenced their prior knowledge of the
Nos. 17-3079, 17-3125 & 18-1207 33
pre-trial arrangement for his early release. Both the timing of
his release and the machinations pre-trial to modify the state
plea agreement in a way that proved to be a bonanza rather
than a “clarification” provide ample support in the record that
the representations as to Hawkins’s sentence were false.
The court further found that there was no viable claim of
a lack of due diligence. The court detailed that Fields’s attor-
ney was told at the deposition that Hawkins would be impris-
oned until 2027, was given a letter from the federal prosecutor
that said the same, and defense counsel advanced the same
view in questioning Hawkins at trial and arguing the case to
the jury. The district court accordingly held that “[k]nowing
what she knew at the time, Fields’s counsel would have had
no basis to doubt those statements. And there is no basis to
believe that further inquiry on counsel’s part during discov-
ery, or prior to trial, would have turned up anything differ-
ent.” Mem. Op. at 20.2
2 The district court in its opinion granting a. new trial described at
length that sequence of events, from the misrepresentations at the deposi-
tion to questioning at trial to the early release—extensively quoting from
the deposition and trial testimony to detail the trail of misrepresentations.
The court then concluded that the restructuring of Hawkins’s sentence
that was portrayed as a “clarification” was actually a bonanza connected
to his testimony, and that the post-trial events reflected a pre-trial deal.
That is the claim of fraud and misrepresentation that we discuss under
Rule 60(b)(2) and (b)(3), and the dissent’s contention that this is a new is-
sue unaddressed by the district court is inconsistent with the court’s lan-
guage and analysis. See Mem. Op. at 13-21, Order on City Defendants’
Motion to Reconsider 4-27-15 at 1-2. Moreover, the district court issued its
decision in the context of the briefing below, and although Fields based
his claim on Rule 60(b) generally, the defendants-appellants properly rec-
ognized and analyzed Fields’s argument as invoking claims of fraud and
34 Nos. 17-3079, 17-3125 & 18-1207
Finally, the court held that the evidence that Hawkins’s
trial testimony would lead to his near-immediate release
would have “cut at the heart of the defendants’ case” given
“the critical role Hawkins played in the underlying events
and as a witness at trial,” and held that it was reasonably
probable that such evidence would have produced a different
result in the present case. Id. at 21. In fact, defendant O’Calla-
ghan pointed to Hawkins’s testimony implicating Fields in
another murder and in bribery as a basis to explain the low
damage award and to counter Fields’s claim that an award of
$80,000 was shockingly inadequate for a due process violation
that resulted in 18 years of incarceration – of which 12 years
were spent on death row. The district court, having observed
the month-long trial as well as the 7-day trial that ended in a
mistrial, was is in the best position to analyze whether the
newly discovered evidence was material in light of the trial as
a whole, and to assess its likely impact. In this case, the district
court had the benefit of both a 7-day trial that resulted in a
mistrial, and a full month-long trial. No district court will
lightly grant a new trial after a month-long original trial, with
its corresponding burden on the jurors and the court itself.
There is no reasoned basis to question the court’s determina-
tion that the evidence would have cut at the heart of the de-
fendants’ case. Although not a basis for our decision to affirm,
we note that the court’s perception of that significance was
borne out by the vastly different result in the subsequent trial.
newly-discovered evidence—based on misrepresentations as a deal re-
garding Hawkins’s release date—that were cognizable under subsections
(2) and (3) of Rule 60(b), and discussed the legal arguments under both.
See Doc. 770. As we will discuss in footnote 4, issues so presented in the
district court are properly before us.
Nos. 17-3079, 17-3125 & 18-1207 35
The district court did not abuse its discretion in granting a
new trial pursuant to Rule 60(b)(2).
2. Rule 60(b)(3)
Although we can affirm based solely on Rule 60(b)(2), we
note that claims of fraud and misrepresentation fall even
more typically under Rule 60(b)(3). In the district court, Fields
argued generally for relief under Rule 60 or Rule 60(b) in his
filings without specifying the subsection, save a lone refer-
ence in one filing to subsection (b)(2). The defendants recog-
nized that Fields’s argument for post-trial relief fell within ei-
ther of two subsections – as either newly discovered evidence
under Rule 60(b)(2) or alleged fraud under Rule 60(b)(3). Doc.
770 at 1. The defendants accordingly addressed both provi-
sions, arguing that Fields should not be allowed to conduct
post-trial discovery and that his claims should be denied un-
der both Rules 60(b)(2) and 60(b)(3).3 Id. After granting the
new trial under Rule 60(b)(2), the court held that it need not
consider any other arguments for a new trial by Fields. On
appeal, we are not limited by the argument credited by the
district court, but can affirm on any basis apparent in the rec-
ord, including Rule 60(b)(3) here.4
3 The briefing as to the issue of Hawkins’s release under Rule 60 was
completed under a separate schedule than the other issues in the motion
for a new trial. Accordingly, the defendants’ response to the Rule 60 claims
as to Hawkins are found in the City Defendants’ Response to Plaintiff’s
Proposed Discovery Plan for Post-Trial Motions, Doc. 770, rather than in
City Defendants’ Combined Response to Plaintiff’s Post-Trial Motions,
Doc. 766. See Doc. 766 at 49.
4 Fields asserted in his brief on appeal that we could affirm under Rule
60(b)(3), but although he developed the factual basis for the claim, he
36 Nos. 17-3079, 17-3125 & 18-1207
Under Rule 60(b)(3), “a court may set aside a judgment if
a party engaged in ‘fraud (whether previously called intrinsic
or extrinsic), misrepresentation, or misconduct by an oppos-
ing party.’” Wickens v. Shell Oil Co., 620 F.3d 747, 758 (7th Cir.
2010). It is an extraordinary remedy granted only in excep-
tional circumstances. Id. at 759. A party seeking relief under
that provision must demonstrate by clear and convincing ev-
idence that: “(1) the party maintained a meritorious claim at
failed to develop the legal argument beyond one cite. We need not deter-
mine whether that presentation ordinarily would be sufficient to raise an
issue here. We have held that we can affirm a district court even on
grounds not raised at all by the appellee, as long as the argument was pre-
sented to the district court and the appellant had an opportunity to re-
spond to the argument there such that the appellee did not waive it in that
court. See Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012) and Sebesta
v. Davis, 878 F.3d 226, 233 (7th Cir. 2017); see also Froebel v. Meyer, 217 F.3d
928, 932–33 (7th Cir. 2000) (recognizing that a degree of leniency applies
to the failure to raise all possible grounds for affirmance), Shields v. Burge,
874 F.2d 1201, 1210 n.2 (7th Cir. 1989) (noting that qualified immunity was
not raised on appeal but that “[w]e may affirm the district courtʹs decision
on any ground that the record fairly supports and the appellee has not
waived below.”). That standard was met below, as the defendants-appel-
lants in fact briefed the Rule 60(b)(3) issue there. Moreover, the appellants
addressed the Rule 60(b)(3) issue in the brief on appeal as well, even com-
plaining that “Fields primarily devotes his response, to a new argument:
that the City ‘perpetrated a fraudʹ to cover up a conspiracy to enter a secret
deal with Hawkins, … [and] asserts that, even if Rule 60(b)(2) could not
reach this supposed ʹcorruption of the judicial process,ʹ a court could in-
voke Rule 60(b)(3) or (b)(6) to grant a new trial.” The appellants devoted
much of their reply brief to countering the Rule 60(b)(3) argument. Given
that the appellant had the opportunity to address the argument both in
the district court and on appeal, and did so, there is no impediment to this
court’s consideration of the issue as an alternative ground to affirm in this
appeal.
Nos. 17-3079, 17-3125 & 18-1207 37
trial; and (2) because of the fraud, misrepresentation or mis-
conduct of the adverse party; (3) the party was prevented
from fully and fairly presenting its case at trial.” Lonsdorf v.
Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995); Wickens, 620 F.3d at
758-59. The rule applies equally to both intentional and unin-
tentional misrepresentations, and protects the fairness of the
proceedings and not necessarily the correctness of the verdict.
Id.Accordingly, we consider the court’s reasoning in light of
the factors of Rule 60(b)(3) in determining whether the court
properly ordered a new trial. The court’s findings establish all
of those factors. There is no dispute that, mere months after
Hawkins testified in the civil trial, he was released from
prison – shearing 13 years of imprisonment from both his
state and federal sentences. The district court held that the
post-trial development of Hawkins’s early release sheds light
on pre-trial events, evidencing a deal in which his accelerated
release from prison was interrelated with his testimony
against Fields. As is set forth above, throughout the case the
defendants and defense counsel misrepresented Hawkins’s
sentence and whether Hawkins’s testimony in the civil trial
could impact the amount of time he would serve. In fact, the
misrepresentations were so comprehensive that the court
held that Fields’s attorney would have no basis to even ques-
tion those statements. Specifically, the court recognized that
given the testimony of Sexton and the letter in the record from
Hogan, Fields would have had no basis to question the repre-
sentation that Hawkins would be imprisoned until 2027, and
that there was no basis to believe that further inquiry would
have discovered that it was a misrepresentation. That holding
is well-supported in the record, based on clear and convincing
– indeed, undisputed – evidence including: that the plea
38 Nos. 17-3079, 17-3125 & 18-1207
agreement was revised shortly before trial to eliminate the
language that Hawkins’s state sentence should result in his
imprisonment until the age of 72 and instead track the federal
sentence; that Hogan and Sexton represented in this case that
the revision was a clarification not a modification that did not
lessen his sentence and that he would be imprisoned until
2027; that counsel for the defendants repeatedly elicited testi-
mony and argued that Hawkins would be imprisoned until
2027; that Hogan and Sexton in conjunction with two of the
individual defendants in this civil case, then sought his im-
mediate release before the Parole Commission within months
of the conclusion of the trial; and that a few months after the
trial, in 2014, Hawkins was actually released 13 years early.
The district court also recognized that the inability to ar-
gue that Hawkins’s testimony was interrelated with an accel-
erated release adversely impacted Fields’s ability to present
his case fully and fairly. In fact, the court held that the evi-
dence that Hawkins’s trial testimony would lead to his near-
immediate release would have “cut at the heart of the defend-
ants’ case” given “the critical role Hawkins played in the un-
derlying events and as a witness at trial,” and held that it was
reasonably probable that such evidence would have pro-
duced a different result in the present case. Therefore, Fields
established that he had a meritorious claim and that because
of a misrepresentation, he was unable to fully and fairly pre-
sent his case.
The defendants challenge the applicability of Rule
60(b)(3), but the arguments largely dispute the court’s find-
ings regarding the misrepresentations as to the release date,
and as described above those findings are well-supported in
the record. The defendants also argue that the decision of the
Nos. 17-3079, 17-3125 & 18-1207 39
Parole Commission was not actually impacted by the letters
urging a release, but that is irrelevant. Although it would be
pure speculation to think that the letters were entirely imma-
terial to the outcome, that is the wrong question. It is irrele-
vant whether the release resulted from their actions; the rele-
vant issue is whether the unequivocal representation that
Hawkins would be imprisoned until 2027 and therefore could
receive no benefit from his testimony at the civil trial was
false, and the clear answer is that it was – and that the defend-
ants knew that it was wrong, although even unintentional
misrepresentations can fall within Rule 60(b)(3).
The defendants also argue that the restructured plea
agreement did not rest on misrepresentations because its
guarantee of an immediate release on the state convictions
when his federal custody ended merely reflected the original
intent to ensure he did not serve additional time in state cus-
tody. But the problem with the restructured agreement is not
that it tied the state term to the federal term. The misrepresen-
tation is the statement that the restructured agreement was
merely a clarification of the original intent of the plea agree-
ment and not a new agreement that would materially alter his
sentence. The coordination of the release from federal and
state charges would not be problematic if, as represented, the
federal term would run until 2027. That proved to be false, as
became apparent when he was instead released from that fed-
eral term 13 years early. Because of the restructured agree-
ment, he was then also released from his state sentence 13
years early. Given that the original plea agreement explicitly
provided that it was both parties’ intent that Hawkins would
be imprisoned until the age of 72 in 2027, the restructured
agreement which allowed for his release 13 years earlier could
not be a “clarification” of the original plea agreement that did
40 Nos. 17-3079, 17-3125 & 18-1207
not modify the original intent. It obliterated that original in-
tent by allowing for the earlier release, because it was based
on a misrepresentation as to the end date for his federal term.
And the removal of that language regarding the mutual intent
that he remain imprisoned until age 72, even though its reten-
tion would not have been inconsistent with the “clarification”
that he serve his time in federal custody, further indicates a
design to engineer an early release. The district court’s find-
ings establish Fields’s entitlement to a new trial under Rule
60, and therefore the court did not abuse its discretion in
granting that new trial.
B. Rule 59(e) grant of new trial
The City also challenges the grant of a new trial under Fed-
eral Rules of Civil Procedure 59(e) on the claim of Monell lia-
bility. The court rested its decision to grant a new trial on two
alternative grounds, either one of which the court deemed
sufficient to necessitate a new trial. First, the court held that a
new trial was necessary because its limitation on discovery
prevented Fields from pursuing the evidence to support his
claim of Monell liability. Second, the court held that its jury
instruction on the Monell claim and its response to a question
regarding Monell liability by the jury during its deliberations
created jury confusion and prejudiced Fields. Because we up-
hold the decision to grant a new trial on the first ground re-
garding the limitations on discovery, we need not consider
the alternate basis for the new trial based on the jury instruc-
tion and the response to the jury question.
“The critical question under Monell, reaffirmed in Los An-
geles Cnty. v. Humphries, 562 U.S. 29 (2010), is whether a mu-
nicipal (or corporate) policy or custom gave rise to the harm
(that is, caused it), or if instead the harm resulted from the acts
Nos. 17-3079, 17-3125 & 18-1207 41
of the entity’s agents.” Glisson v. Indiana Depʹt of Corr., 849 F.3d
372, 379 (7th Cir. 2017). Fields sought to establish that the City
had a policy or practice of withholding exculpatory evidence
by using separate files maintained by police officers in crimi-
nal investigations that were not provided to prosecutors in
making the charging decisions or to defense counsel in dis-
covery in criminal cases.
The court held that Fields was unfairly prejudiced at trial
by its discovery rulings that prevented Fields from obtaining
and investigating the “street” files held by police officers in
the “basement” filing cabinets.
The district court refused Fields’s request to lift the protec-
tive order as to those files, under which Fields’s counsel could
review the files but could not disclose any information to the
public. Fields sought to make public the names of defendants
for whom such street files were kept, arguing that such dis-
closure was necessary to contact the defense attorneys in
those cases and to determine whether the material in the
street files had been improperly withheld in the criminal case.
Fields argued that the production and public disclosure of the
files was necessary to ascertain the information to show a pat-
tern or practice of Brady violations as relevant to demonstrate
Monell liability. Fields also contended that the names of the
defendants on those “street” files should be made public as a
matter of justice to ensure that wrongful convictions could be
redressed. The court, in denying the discovery request, fo-
cused on the latter purpose and rejected the request. The court
also cautioned Fields against raising the issue again, stating
that any further request would be summarily denied. The
court left open the ability of Fields to seek to introduce evi-
42 Nos. 17-3079, 17-3125 & 18-1207
dence from the files that was relevant to the case, but pre-
cluded disclosure of the files or the names. But the court later
held that the only way Fields could argue that files were not
tendered to defendants in other cases would be to bring in
defense counsel from those cases – a feat rendered insur-
mountable by the prohibition on the disclosure of the infor-
mation in the street files.
On considering the motion for a new trial, the district
court held that Fields was unfairly prejudiced by the court’s
discovery ruling that “effectively prevented him from ascer-
taining whether evidence in files found in the so-called ‘base-
ment’ file cabinets had been withheld from criminal defense
attorneys in other cases.” Mem. Op. at 10. The court stated
that it had failed to properly appreciate the purpose for which
Fields’s counsel sought the files. In order to prove his claim of
Monell liability, Fields had to demonstrate a pattern or custom
of wrongdoing, and access to those street files that were with-
held from criminal defense attorneys was critical to demon-
strate that policy or practice. The district court recognized that
a discovery ruling will entitle a party to a new trial only if it
denied the moving party a fair trial, but held that its re-
striction on discovery in this case did so. See Pickens v. Run-
yon, 128 F.3d 1151, 1155 (7th Cir. 1997); see also Kuttner v. Za-
ruba, 819 F.3d 970, 974 (7th Cir. 2016) (relief may be proper
where a denial of discovery results in actual and substantial
prejudice). The discovery restriction rendered it impossible
for Fields to attempt to prove that the police department’s
method of file maintenance and disclosure impacted anyone
other than himself, and therefore made it “virtually impossi-
ble” for Fields to establish a policy of concealing exculpatory
evidence in that manner. In fact, the court noted that defense
Nos. 17-3079, 17-3125 & 18-1207 43
counsel emphasized that failure of proof in closing arguments
in stating:
There was no evidence presented as to any file, not one,
that information was withheld from anyone . … But to
suggest there’s a widespread practice that exists that we
withhold exculpatory or impeaching information, what
case? We didn’t hear a word about it … Is there evidence
to support a widespread practice? No. No, there’s not.
Mem. Op. at 11.
The court did not abuse its discretion in that decision. The
discovery sought by Fields would have opened the door to
exploring the extent to which the withholding of evidence
was a systemic practice by the City, and to determining
whether exculpatory information in those files had been dis-
closed to defense counsel in those other cases. The court’s pre-
vention of that discovery foreclosed Fields’s ability to prepare
and present the case for Monell liability. The court’s recogni-
tion of that mistake after the month-long trial, and its willing-
ness to correct it, was not an abuse of discretion. Because that
ground alone supported the court’s decision to grant a new
trial as to Monell liability, we need not address the court’s al-
ternative basis for granting a new trial – that the instruction
for Monell liability and the response to the jury question de-
prived Fields of a fair trial
C. Rule 50 motion for judgment
In its final challenge, the City contends that if the decision
to grant a new trial is upheld, then the decision of the jury in
44 Nos. 17-3079, 17-3125 & 18-1207
the subsequent trial should be overturned and judgment en-
tered in favor of the City. The City argues that in Monell lia-
bility cases premised upon a widespread practice or implicit
policy, a plaintiff cannot succeed by showing only a single in-
stance of unconstitutional activity pursuant to a facially con-
stitutional policy. Applying that principle, the City asserts
that although Fields presented evidence that exculpatory ma-
terial was not disclosed to him, he needed evidence of similar
Brady violations in other cases to prove a Monell claim. The
City asserts that Fields proved that investigative materials
were not disclosed to other individuals, but did not prove
Brady violations with respect to those individuals because
Fields did not provide a meaningful record of their criminal
proceedings and therefore the jury could not determine
whether any undisclosed material affected the result in other
proceedings. The City argues that Monell liability was not es-
tablished because, “[w]hen a municipal policy is facially con-
stitutional, a ‘series of unconstitutional acts’ is necessary to
demonstrate deliberate indifference to deficiencies in that pol-
icy.” Brief of City at 46-47.
We have rejected that narrow interpretation of Monell lia-
bility, recognizing that “a risk of constitutional violations can
be so high and the need for training so obvious that the mu-
nicipalityʹs failure to act can reflect deliberate indifference and
allow an inference of institutional culpability, even in the ab-
sence of a similar prior constitutional violation.” J.K.J. v. Polk
Cty, 960 F.3d 367, 380 (7th Cir. 2020)(en banc). For that reason
alone, the City’s challenge cannot stand.
Moreover, Fields presented evidence of similar violations
that provided notice to the City. The district court assumed
that a plaintiff must show more than deficiencies specific to
Nos. 17-3079, 17-3125 & 18-1207 45
his own experience, and held that “Fields’s evidence, includ-
ing evidence of systemic underproduction of police reports,
was sufficient to show a systemic failing that went beyond his
own case.” Corrected Op. at 7. The court held that the City
was on notice – from prior litigation and its own subsequent
internal inquiry—of deficiencies in its record-keeping and
record production practices that led to harm in some cases.
Fields produced evidence that the City did not introduce pol-
icies sufficient to correct those known deficiencies.
Our review is a narrow one. Jury verdicts are accorded
great respect, and on review we consider whether the evi-
dence presented to the jury was legally sufficient to support
the verdict against the City. J.K.J., 960 F.3d at 378. In making
that determination, we do not reweigh evidence, assess wit-
ness credibility, or otherwise usurp the role of the jury as fact-
finder, and we give the nonmovant the benefit of every infer-
ence. Id.; Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 601 (7th
Cir. 2019). “To the contrary, we must affirm unless there is ‘no
legally sufficient evidentiary basis for a reasonable jury to find
for the non-moving party.’” Id., quoting Woodward v. Corr.
Med. Servs. of Ill., Inc., 368 F.3d 917, 926 (7th Cir. 2004).
Monell recognized that “[a] local governing body may be
liable for monetary damages under § 1983 if the unconstitu-
tional act complained of is caused by: (1) an official policy
adopted and promulgated by its officers; (2) a governmental
practice or custom that, although not officially authorized, is
widespread and well settled; or (3) an official with final pol-
icy-making authority.” Thomas v. Cook Cty. Sheriffʹs Depʹt, 604
F.3d 293, 303 (7th Cir. 2010); Monell, 436 U.S. at 690; Valentino
v. Vill. of S. Chi. Heights, 575 F.3d 664, 674 (7th Cir.2009). “[A]
‘cityʹs policy of inaction in light of notice that its program will
46 Nos. 17-3079, 17-3125 & 18-1207
cause constitutional violations is the functional equivalent of
a decision by the city itself to violate the Constitution.’” J.K.J.,
960 F.3d at 378 (internal quotation marks omitted), quoting
Connick v. Thompson, 563 U.S. 51, 61–62 (2011). That failure to
act will support Monell liability only if the City had notice that
its programs would cause constitutional violations, which re-
quires a showing of a “known or obvious” risk that constitu-
tional violations will occur. Id. at 379, 381. That notice can be
established in various ways, such as through proof of a prior
pattern of similar constitutional violations, or through a
demonstration that the need for governmental action is so ob-
vious, and the inadequacy so likely to result in constitutional
violations, that the failure to act constitutes deliberate indif-
ference even in the absence of similar prior constitutional vi-
olations. Id. at 380. Regardless of the approach taken, “[t]he
critical question under Monell, …, is whether a municipal (or
corporate) policy or custom gave rise to the harm (that is,
caused it), or if instead the harm resulted from the acts of the
entityʹs agents.” Glisson, 849 F.3d at 379.
Here, the district court properly recognized that “street
files” were utilized by law enforcement officers and that a jury
could find from the evidence introduced by Fields that there
was a “systemic underproduction of exculpatory materials to
prosecutors and defense counsel.” Corrected Op. at 7 n. 8. The
City argues that it was not enough for Fields to produce evi-
dence of ongoing use of street files in which investigative ma-
terials were withheld, but Fields must also demonstrate that
the withheld evidence would have affected the outcome of the
criminal trial. Although knowledge of the risk of constitu-
tional violations is necessary for Monell liability, the City’s
knowledge of that risk is unquestionable in this case. As the
district court recognized, the City was aware as a result of
Nos. 17-3079, 17-3125 & 18-1207 47
prior litigation that the use of street files and the failure to en-
sure the production of the evidence within those files pre-
sented a constitutional problem. In Jones, 856 F.2d at 996, we
recognized that the custom of the maintenance of street files
was department-wide and of long standing, and that a jury
could therefore conclude it was consciously approved at the
highest policy-making level for decisions involving the police
department. See also Palmer v. City of Chicago, 755 F.2d 560 (7th
Cir. 1985). In fact, the City in Jones did not even contest that
the use of such a practice presented a due process problem,
although the City represented it had abandoned the practice.
Id. at 995. The evidence presented in this case – that such street
files were still being used and that exculpatory evidence from
such files was still being withheld in criminal cases – allowed
a jury to conclude that the City had failed to take the neces-
sary steps to address that unconstitutional practice. Accord-
ingly, the district court did not err in determining that there
was a legally sufficient evidentiary basis for a reasonable jury
to find for Fields on the issue of Monell liability.
The decision of the district court is AFFIRMED.
48 Nos. 17-3079, 17-3125 & 18-1207
SYKES, Chief Judge, dissenting. The first trial in Nathson
Fields’s wrongful-conviction suit ended in a mistrial. The
second resulted in an $80,000 verdict against one of the
Chicago police officers involved in his criminal case. Fields
moved for a new trial pursuant to Rule 60(b)(2) of the Feder-
al Rules of Civil Procedure, which permits the court to grant
relief based on newly discovered evidence. The judge grant-
ed the motion, and a third jury awarded $22 million in
compensatory damages against two Chicago officers and the
City, plus punitive awards of $30,000 and $10,000 against the
officers.
The case should not have been tried a third time.
Rule 60(b)(2) authorizes the court to grant a new trial based
on newly discovered evidence if (1) the evidence was discov-
ered after trial; (2) the moving party exercised due diligence
in discovering it; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material; and (5) the evidence
is likely to produce a different result in a new trial. Harris v.
Owens-Corning Fiberglass Corp., 102 F.3d 1429, 1434 n.3 (7th
Cir. 1996). The new evidence at issue here was additional
impeachment evidence concerning the precise terms of the
deal offered to Earl Hawkins for his testimony in this case.
That’s insufficient as a matter of law to support a request for
a new trial under Rule 60(b)(2).
The judge acknowledged that the new evidence was im-
peachment evidence. But he said it could not be considered
“merely impeaching” because “[a]rmed with this evidence,
Fields’s counsel could have argued that Hawkins’s testimo-
ny … should be disregarded in its entirety.” It’s hard to
make sense of this reasoning. The judge’s sole rationale for
characterizing the new impeachment evidence as something
Nos. 17-3079, 17-3125 & 18-1207 49
other than impeachment evidence is just a description of
impeachment evidence.
My colleagues apparently agree; they do not defend this
reasoning. Instead, they conclude that the new evidence
“demonstrated misrepresentation and fraud in the case” and
uphold the judge’s Rule 60(b)(2) ruling on that basis. In the
alternative, they reconstrue the judge’s decision as if it were
based on Rule 60(b)(3)—which permits relief on a finding of
fraud or misrepresentation—rather than Rule 60(b)(2).
Majority Op. at 30. These alternative grounds are not availa-
ble to us. We may affirm on any ground fairly supported by
the record but only if the appellee has preserved the argu-
ment in the district court. Burns v. Orthotek, Inc. Emps.’
Pension Plan & Tr., 657 F.3d 571, 575 (7th Cir. 2011). Indeed,
“[o]nly if a party raises an argument both here and in the
district court may we use it as an alternate means to affirm.”
Tully v. Barada, 599 F.3d 591, 594 (7th Cir. 2010). Fields did
neither.
Rule 60(b)(3) permits a judge to grant a motion for a new
trial upon a finding of “fraud … , misrepresentation, or
misconduct by an opposing party.” The burden to obtain
relief under this rule is heavy: the proponent must establish
by clear and convincing evidence that he has a meritorious
claim and that he was prevented from fairly presenting that
claim by the fraud, misrepresentation, or misconduct of the
opposing party. Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir.
1995).
Fields did not argue fraud as an alternative basis for his
request for relief under Rule 60(b)(2), and he never sought
relief under Rule 60(b)(3). He neither cited the rule nor
developed an argument under it. The judge likewise made
50 Nos. 17-3079, 17-3125 & 18-1207
no mention of fraud in his Rule 60(b)(2) ruling, and he never
discussed Rule 60(b)(3). He did not apply the heightened
burden of proof or the applicable legal framework, nor did
he make the findings required for relief under the rule.
Accordingly, any argument about fraud—whether under
Rule 60(b)(2) or Rule 60(b)(3)—is waived. Duncan Place
Owners Ass’n v. Danze, Inc., 927 F.3d 970, 973 (7th Cir. 2019)
(“Arguments not raised in the district court are waived … .”).
Indeed, any argument about fraud under either rule has
been doubly waived. On appeal Fields did not make a fraud-
based argument under Rule 60(b)(2), and he made no effort
whatsoever to develop an argument under Rule 60(b)(3) as
an alternative basis to affirm. His brief addressed only
whether his new impeachment evidence provided an ade-
quate basis for a new trial under Rule 60(b)(2) on the ra-
tionale actually offered by the judge. He mentioned
Rule 60(b)(3) only once, and then only in passing, saying that
“even assuming” the defendants could “formalistically
sidestep” the application of Rule 60(b)(2), their “egregious
misconduct could be corrected under Rules 60(b)(3) (mis-
conduct by opposing party) or 60(b)(6) (the catch-all provi-
sion).” That’s it.
Undeveloped and perfunctory appellate arguments are
deemed waived. Shipley v. Chi. Bd. of Election Comm’rs,
947 F.3d 1056, 1063 (7th Cir. 2020). Fields therefore waived
any substitute argument under Rule 60(b)(2) or Rule 60(b)(3),
both in the district court and here.
The judge also granted a new trial based on certain ar-
guments raised in Fields’s alternative motion under
Rule 59(e), essentially reversing himself on a jury-instruction
issue and a discovery ruling. But this aspect of the judge’s
Nos. 17-3079, 17-3125 & 18-1207 51
posttrial decision pertained only to the Monell claim against
the City. The legal error in the judge’s Rule 60(b)(2) ruling
requires us to unwind the order granting a third trial on the
claims against the individual officers and reinstate the
$80,000 judgment from the second trial.
Under the single-recovery rule, Fields can recover only
once for his constitutional injury; a plaintiff is “entitled to
only one recovery though different constitutional theories
support liability and different officers were involved.”
Swanigan v. City of Chicago, 881 F.3d 577, 582 (7th Cir. 2018);
see also Janusz v. City of Chicago, 832 F.3d 770, 774 (7th Cir.
2016). So even if the judge’s Rule 59(e) ruling was sound, the
single-recovery rule bars any additional recovery on the
Monell claim.
Unwinding the judge’s Rule 60(b)(2) order reinstates the
$80,000 compensatory judgment, which brings the single-
recovery rule into play. The City is on the hook for the
reinstated $80,000 award against its officer. See 745 ILL.
COMP. STAT. 10/9-102. And because Fields is entitled to only
one recovery for his constitutional injury, he cannot receive
additional compensation on a Monell theory. This case need
not and should not have been tried a third time.
Accordingly, I would vacate the order granting a third
trial based on the judge’s legal error in the Rule 60(b)(2)
ruling and remand with instructions to reinstate the verdict
from the second trial. I therefore respectfully dissent.