March 29, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:11-cv-01420 -
Harry D. Leinenweber, Judge.
Hamilton, Barrett, and St. Eve, Circuit Judges.
Eve, Circuit Judge.
Lewellen, a dirty cop with the Chicago Police Department
(CPD), arrested Refugio Ruiz-Cortez for possessing cocaine.
Lewellen served as the key witness at the trial, where
Ruiz-Cortez was convicted. Ruiz-Cortez then spent a decade in
prison before the federal government discovered
Lewellen's crimes, which included drug conspiracy,
racketeering, and, according to the government, perjury at
Ruiz-Cortez's trial. The government prosecuted Lewellen
and moved to vacate Ruiz-Cortez's conviction, recognizing
that without Lewellen's testimony there was no evidence
to prosecute Ruiz-Cortez.
sued the City of Chicago and Lewellen for violating his
constitutional rights. See 42 U.S.C. § 1983. He
complained that the City and Lewellen withheld material
impeachment evidence-namely, evidence of Lewellen's drug
and racketeering crimes. See Giglio v. United
States, 405 U.S. 150 (1972); Brady v. Maryland,
373 U.S. 83 (1963). The district court dismissed the claim
against the City at summary judgment, concluding that there
was no evidence of municipal liability. See Monell v.
Dep't of Social Sews., 436 U.S. 658 (1978). A jury
later found for Lewellen, despite his refusal to testify
based on the Fifth Amendment right against
affirm the dismissal of the City. Ruiz-Cortez failed to
marshal the evidence needed to meet Monell's
high standard. But we vacate the judgment for Lewellen and
remand for a new trial against him. The district court
allowed Lewellen to offer innocent explanations for his Fifth
Amendment invocation, ones that fly in the face of Fifth
Amendment law, and it then failed to instruct the jury about
when a Fifth Amendment invocation is proper. Those errors,
taken together, made for a fundamentally unfair trial.
background to this appeal concerns two drug-dealing schemes,
one involving Ruiz-Cortez and the other involving Lewellen
and his go-to informant Saul Rodriguez. It also concerns
three trials: the prosecution of Ruiz-Cortez, the prosecution
of Lewellen, and the civil dispute that gives rise to this
1999, the CPD and Drug Enforcement Administration (DEA)
started surveilling Ruiz-Cortez's suburban home,
suspecting it was a part of a drug-dealing operation. They
arrested two people for picking up drugs from the home on
June 23, 1999, and a few weeks later, on July 8, 1999, they
arrested Ruiz-Cortez. Lewellen claimed to have recovered a
bag filled with cocaine bricks just outside of
Ruiz-Cortez's home. A search of the home turned up $1,
800 in hundred-dollar bills stored in a broken vacuum
jury indicted Ruiz-Cortez for cocaine possession with intent
to distribute in December 1999. At trial, the government
relied primarily on Lewellen as a witness; he was the only
member of law enforcement who claimed to have seen
Ruiz-Cortez with the drugs. Lewellen testified that he and
others had been observing Ruiz-Cortez's home on the day
of the arrest, when Lewellen saw Ruiz-Cortez stick his head
out the door a few times, as if he was expecting company.
Lewellen said that Ruiz-Cortez later walked onto his back
porch with a plastic bag. Lewellen and another officer pulled
up to the home, and, according to Lewellen, Ruiz-Cortez
dropped the bag and returned inside. Ruiz-Cortez, for his
part, took the stand and maintained that the drugs had been
planted. The jury found Ruiz-Cortez guilty, and the district
court sentenced him to 17 and a half years in prison.
years later, the DEA began investigating Lewellen and
Rodriguez for their crimes. In 2009, a grand jury indicted
the two for, among other things, conspiracy and racketeering.
The predicate acts in the racketeering count included murder,
kidnapping, and-most relevant here-obstruction of justice,
stemming from Lewellen's testimony in Ruiz-Cortez's
trial. Rodriguez pleaded guilty and began cooperating with
the government, including by testifying at Lewellen's
eventual criminal trial.
Lewellen's trial, in 2012, Rodriguez testified that he
met Lewellen in 1996. He quickly began providing Lewellen
confidential information about local drug sales. Rodriguez
also continued selling drugs himself, and in 1997, federal
agents arrested him after discovering more than 150 pounds of
marijuana in his vehicle. Lewellen, however, convinced
federal law enforcement not to press charges against
Rodriguez, citing his substantial cooperation with the CPD.
And substantial it was-records, according to Ruiz-Cortez,
show the CPD paid Rodriguez more than $800, 000 for his
information over the course of several years.
testimony highlighted the various crimes he committed with
Lewellen. Rodriguez explained, for example, that in 1998
Lewellen gave him multiple kilograms of cocaine, which he
resold. The same year, Rodriguez and Lewellen plotted to rob
another drug dealer of $500, 000 under the guise of a
legitimate police stop. The two planned to repeat that crime
against another dealer some months later, this time for $800,
000. Rodriguez also testified that he had planted drugs on at
least one unwitting person at Lewellen's behest.
further touched on the events that led to Ruiz-Cortez's
arrest. Rodriguez testified that he knew two suppliers,
Carlos Rodriguez (no relation; we will refer to him as Carlos
to avoid confusion) and Lisette Venegas. In July 1999,
Venegas told Rodriguez that she planned to pick up drugs from
the suburbs at what turned out to be Ruiz-Cortez's home.
Rodriguez shared the information with Lewellen, and he told
Lewellen what kind of car Venegas would be driving to ensure
that she was not arrested during the bust. This testimony
formed the basis of the obstruction-of-justice charge: the
government submitted that Lewellen perjured himself at
Ruiz-Cortez's trial by lying about the circumstances of
the arrest in order to protect Rodriguez and Venegas.
Rodriguez, however, faced serious impeachment at trial; he
admitted he was cooperating to avoid the death penalty or a
life sentence and he had previously lied to law enforcement
and the grand jury.
jury ultimately found Lewellen guilty of conspiring to
possess cocaine with intent to distribute. But it hung on the
racketeering count. The government did not retry Lewellen on
that count, and the district court later sentenced Lewellen
to 18 years in prison.
revelation of Lewellen's wrongdoing led the government in
2010 to move the district court to vacate Ruiz-Cortez's
conviction. Recognizing that the case against Ruiz-Cortez
rested almost solely on Lewellen's testimony and reports,
the government noted that "there is virtually no
admissible evidence of defendant's guilt." The
district court granted the motion and Ruiz-Cortez was
released from custody.
then filed this suit against Lewellen, other CPD officers,
and the City. He brought a slew of claims, but the only ones
relevant to this appeal sound in due process. Ruiz-Cortez
asserted that the defendants deprived him of due process in
two ways: by withholding exculpatory information-namely,
Lewellen's crimes and his conspiracy with Rodriguez-in
violation of Brady v. Maryland, 373 U.S. 83 (1963),
and by fabricating evidence against him. And, Ruiz-Cortez
claimed, the City was liable under Monell v. Dep't
of Social Servs., 436 U.S. 658 (1978), which
permits liability when a municipality is directly responsible
for the constitutional deprivation.
discovery, the parties cross moved for summary judgment. The
City argued that there was no issue of fact regarding its
liability. Ruiz-Cortez, in response, relied heavily on the
1997 Report of the Commission for Police Integrity- or the
"Webb Report," named for the Commission's
Chairman, Dan Webb. The Webb Report, Ruiz-Cortez argued,
highlighted for the City the dangers of police corruption,
and thus, there was reason to hold the City liable for
failing to act adequately in its wake. The district court,
however, disagreed; it concluded that there was no issue of
fact regarding the City's liability, the Webb Report
notwithstanding, and so it dismissed the City from the case.
Lewellen's liability, the district court decided that
there was an outstanding issue of fact. Lewellen had invoked
his Fifth Amendment right against self-incrimination when
Ruiz-Cortez sought to depose him. But the court concluded it
would not draw from that invocation a conclusively adverse