Terence Tribble v. Nicholas Evangel

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3262

T ERENCE T RIBBLE,

Plaintiff-Appellant,

v.

N ICHOLAS J. E VANGELIDES and

R OGER F IESER,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 2533—William J. Hibbler, Judge.

A RGUED O CTOBER 21, 2011—D ECIDED JANUARY 26, 2012

Before B AUER and T INDER, Circuit Judges, and M AGNUS-

S TINSON, District Judge.Œ

T INDER, Circuit Judge. On Mother’s Day, 2006, Chicago

Police Officers Nicholas Evangelides and Roger Fieser

Œ

The Honorable Jane E. Magnus-Stinson, District Judge for

the United States District Court for the Southern District of

Indiana, sitting by designation.

2 No. 10-3262

arrested Terence Tribble for drinking on a public way.

According to the officers, a search incident to this

arrest turned up a heroin packet and a baggie of crack

cocaine, so drug possession charges were added. Tribble

was jailed for twelve days before bonding out. The drink-

ing charge was eventually nonsuited (that is, dismissed

by the prosecution) and, at a brief preliminary hearing,

a Cook County judge concluded there was no probable

cause for the drug charges. The case was dismissed. The

Cook County judge reached his conclusion despite the

prosecutions’ proffered physical evidence of .1 grams

of cocaine and .2 grams of heroin.

Tribble subsequently filed this 42 U.S.C. § 1983 suit

against Officers Evangelides and Fieser alleging an

illegal stop, false arrest, illegal search, and a violation of

due process. Tribble’s claims centered on whether the

officers had probable cause to arrest him and what they

found after they did. The parties, consequently, focused

considerable attention on the preliminary hearing. For

obvious reasons, if the district judge would allow it,

Tribble planned to introduce evidence that the state

court judge concluded at the preliminary hearing that

there was no probable cause. The defense, in response,

rather than objecting to the relevance of or prejudice

from such evidence, wanted to explain why that

conclusion didn’t mean that the officers didn’t actually

find drugs on Tribble. One way they planned to do

this was by calling Richard Sleesman—a law student at

the time of Tribble’s prosecution who, under the super-

vision of an Assistant State’s Attorney, questioned

Officer Evangelides at the preliminary hearing—to testify

No. 10-3262 3

that “these charges are traditionally thrown out.” In a

pretrial ruling (unfortunately, not on the record, but

not disputed) the district court rejected Sleesman’s pro-

posed testimony and, more generally, barred any testi-

mony about why the Cook County judge reached the

conclusion he did.

A week before trial, defendants informed the district

court that Sleesman was unavailable to testify and moved

to replace him on the witness list with Assistant State’s

Attorney Sabra Ebersole. Ebersole was a prosecutor

assigned to handle preliminary hearings in Branch 50,

the Illinois circuit court where Tribble’s preliminary

hearing was held. She’s on the record as having said

“Ready on Tribble” when his case was called. The

district court allowed the substitution. Tribble argues

that this was an abuse of discretion. See Grove Fresh v.

New England Apple Prod., 969 F.2d 552, 559 (7th Cir. 1992).

The substitution of Ebersole for Sleesman, however, was

not surprising or prejudicial: Both were present at the

preliminary hearing, their predicted testimony was the

same, and neither had been deposed. Id. The district

court did not abuse its discretion by allowing the swap.

At trial, the jury heard two versions of the under-

lying events. Tribble’s version was provided by Tribble

himself, Natasha Greer, an ex-girlfriend who had two

children with Tribble, and Tribble’s adult children. Ac-

cording to this version, Tribble was invited to and

attended a large Mother’s Day party with lots of food

but no alcohol (although one guy did bring vodka; he

always did, apparently). At some point, Tribble walked

4 No. 10-3262

out of the party with an ice tea and lemon in a plastic

cup. Tribble was standing on the sidewalk when

Officers Fieser and Evangelides drove past in their squad

car. The officers made a U-turn and stopped near Tribble.

Officer Evangelides approached Tribble, slapped the

drink from his hand, put him against the car, and

searched him. Tribble was then cuffed, put in the car, and

taken to a nearby police station. Tribble thought he’d

be released within a few hours; he thought the charge

was nothing more serious than drinking on a public

way. When he wasn’t released he asked for an explana-

tion. To his surprise, he was charged not just with

public drinking, but also with possession of controlled

substances.

Officers Evangelides and Fieser told a different story.

They testified that they drove past a man holding

a clear plastic cup containing a couple inches of

brown liquid. They turned around, stopped the car, and

Evangelides approached Tribble. Evangelides asked

Tribble what he was drinking and Tribble said “a little

Remy,” as in Remy Martin Cognac. They arrested Tribble

for drinking on the public way and searched him.

Evangelides claims to have found a heroin packet

in Tribble’s pocket and a small baggie of crack in

his mouth.

Assistant State’s Attorney Ebersole (the substituted

witness) testified last and complicated this contest

of conflicting stories with assertions about the signifi-

cance—or lack thereof—of the no probable cause finding

in state court. After establishing that she attended

No. 10-3262 5

Tribble’s preliminary hearing, said “Ready on Tribble,”

and explained that meant she had a good faith belief that

the state could carry its burden on Tribble’s drug charges,

she went on to testify that at Branch 50 preliminary

hearings “approximately 25 percent of the cases were

findings of no probable cause.” Defense counsel then

asked: “And would you agree that many of those cases

were controlled substance cases involving low gram

weight.” This elicited a slew of objections, including that

the question was leading, called for speculation, and

that Ebersole was not qualified to make a statistical

judgment. The judge said he would allow the question

with the proper foundation. A quick voir dire followed,

and the jury learned that Ebersole had been assigned

to Branch 50 for about six months and during that

period had seen hundreds of preliminary hearings. That

was enough for the court, and the officers’ counsel was

allowed to proceed:

Q: Can you tell me what percentage of cases—well,

you’ve indicated approximately 25 percent there

was a finding of no probable cause on any given

day?”

A: That would be my best recollection.

Q: Can you tell me what percentage of that had

cases where the controlled substance was a low

gram weight?

[Renewed objections; overruled.]

Q: Are you able to tell me what percentage of

those cases that were dismissed were a low gram

weight?

6 No. 10-3262

A: I could estimate, yes.

Q: And can you please tell us?

[Objection; overruled]

A: I would say the overwhelming majority of the

cases that were findings of no probable cause were

for what will be considered a low amount of

narcotics.

[Criminal complaint entered into evidence.]

Q: Now this complaint indicates that the estimated

weight of the heroin is .2 gram. Is that a low gram

weight?

A: That would be considered a small amount of

narcotics, yes.

Before concluding, Ebersole repeated her low-weight-

cases-are-regularly-thrown-out testimony. After the jury

returned a verdict for defendants, Tribble argued in his

motion for a new trial that the court erred in allowing

Ebersole to testify as an expert without proper disclosures

and without a proper foundation. The district court

tersely rejected Tribble’s argument: “Ebersole never

offered an opinion. Ebersole testified as to her experience

on the narcotics call in the state court, offering factual

statements based on her personal observations.”

The question now comes to us: Did Ebersole im-

properly testify as an expert and was the error, if any,

of allowing her to do so sufficiently prejudicial to

require a new trial? We review de novo whether

Ebersole’s testimony was “expert testimony subject to the

No. 10-3262 7

constraints of [Federal Rule of Evidence] 702.” United

States v. Conn, 297 F.3d 548, 553 (7th Cir. 2002); Echo Inc. v.

Timberland Machines & Irrigation, 661 F.3d 959, 963 (7th

Cir. 2011) (categorization of testimony as expert or lay

reviewed de novo). Contrary to the district court’s charac-

terization, we conclude that Ebersole did testify as an

expert and, accordingly, her testimony was subject to

the disclosure requirements of Federal Rule of Civil

Procedure 26(a)(2). Ebersole, however, was not disclosed

as an expert. Under Rule 37(c)(1), non-disclosed expert

testimony is automatically excluded unless “the failure

was substantially justified or is harmless.” Fed. R. Civ.

P. 37(c)(1); Musser v. Gentiva Health Serv’s, 356 F.3d

751, 758 (7th Cir. 2004). In this case, it was neither.

Our first task, then, is categorization. The district court

concluded that Ebersole offered no opinion at all (and so,

by implication, she could not have offered an expert

opinion). That’s a surprising analysis given that Ebersole

testified about the percentage of cases at Branch 50 dis-

missed for no probable cause over a six-month period,

explained what “would be considered” a low gram

weight in a narcotics case at Branch 50 and if it would

include the amount of drugs allegedly found on Tribble

(it would), and surmised that “the overwhelming

majority of the cases that were findings of no probable

cause were for what will be considered a low amount

of narcotics.” It is true that “the distinction between fact

and opinion is, at best, one of degree,” Beech Aircraft Corp.

v. Rainey, 488 U.S. 153, 168 (1988) (citing treatises), but

the lead-up to the challenged testimony made it

8 No. 10-3262

clear that Ebersole was being asked to summarize her

experiences in Branch 50 and draw conclusions about

how, in general, she believed it operated. Broad gen-

eralizations and abstract conclusions are textbook exam-

ples of opinion testimony. That should have prompted

the district court to consider whether her testimony

was admissible under FRE 701 as lay opinion or had to

pass the more rigorous standards of FRE 702. See Beech

Aircraft Corp., 488 U.S. at 168.

Lay opinions and inferences—as compared with opin-

ions and inferences of experts—may not be “based on

scientific, technical, or other specialized knowledge

within the scope of Rule 702.” Fed. R. Evid. 701. Lay

opinion “most often takes the form of a summary of first-

hand sensory observations” and may not “provide special-

ized explanations or interpretations that an untrained

layman could not make if perceiving the same acts or

events.” Conn, 297 F.3d at 554. In this case, Ebersole

gave the jury a prosecutor’s-eye view of how Branch 50

worked. As an experienced prosecutor, she has

specialized knowledge that she used to make an

important assertion: The “overwhelming majority” of

cases that were dismissed with a finding of no probable

cause shared a single feature—low gram weight. That is

not testimony about Tribble’s case; that is an opinion

about probable cause hearings at Branch 50 in general,

and—by testifying that .2 grams of heroin “would be

considered a small amount of narcotics”—how Tribble’s

case “fits in this picture.” Id. at 554 n. 3.

Ebersole’s testimony has the familiar syllogistic

structure of much expert testimony. See 1 M C C ORMICK ON

No. 10-3262 9

E VID. § 13 (6th ed.). As a major premise, she presented a

general theory (the Branch 50 court throws out low-

weight cases), offered a case-specific minor premise

(Tribble’s case is low weight), and guided the jury to

a conclusion (Tribble’s case was thrown out as a low-

weight case regardless of the merits). Now, it is true, we

hasten to add, Ebersole did not spell out that conclusion

herself. But silence about the obvious implication of

her testimony should not have immunized it from

scrutiny under FRE 702. And, for good measure, in case

the point of Ebersole’s testimony about Branch 50 was not

completely clear, the defense returned to it at the begin-

ning and end of closing argument. At the beginning:

And you heard the ASA’s testimony on the vast

number of drug cases pending, the hundreds of

cases every week, and the large number that are

dismissed that have low weights. And you can

take that evidence, and you can think about that,

and you can consider for yourself why, given the

vast number of cases, the Judges dismiss many of

those cases that have low weights. The system is

overwhelmed. It does not mean these officers—

[Objection; overruled.]

. . . It means Mr. Tribble’s fortunate the cases

were dismissed.

And at the end:

[Ebersole] explained to you her experience. Three

days a week dedicated to just felony drug

cases. . . But in one courtroom in the City of Chi-

10 No. 10-3262

cago, on any given week, 20 to 40 cases on three

separate dates in the system, week after week. . . .

And what routinely happens? About a quarter of

them are dismissed right off the bat. Vast majority

of cases with low weights. . . . This was one of the

low-weight cases that was before [the judge] that

day and was dismissed. . . . Mr. Tribble was fortu-

nate that the charges were dismissed, fortunate

due to the state of a complicated criminal court

system with hundreds and hundreds of drug

cases pending every month that his case was

dismissed.

Ebersole’s testimony, as emphasized in closing, was

that cases like Tribble’s are traditionally thrown out,

exactly the kind of testimony that the court’s pretrial

ruling prohibited. If, in a reversal of its pretrial ruling,

the district court decided to allow expert testimony

about how, in general, Branch 50 operated, that wit-

ness needed to comply with the admissibility standards

of FRE 702 and the disclosure requirements of

FRCP 26(a)(2).

Rule 26(a)(1) requires, among other things, the dis-

closure of the names and addresses of fact witnesses.

Rule 26(a)(2) requires that expert witnesses be disclosed.

That duty to disclose a witness as an expert is not ex-

cused when a witness who will testify as a fact witness

and as an expert witness is disclosed as a fact witness.

Musser, 356 F.3d at 757. This is a strict but well-founded

requirement: “Knowing the identity of the opponent’s

expert witnesses allows a party to properly prepare for

No. 10-3262 11

trial.” Id. Without proper disclosures, a party may miss

its opportunity to disqualify the expert, retain rebuttal

experts, or hold depositions for an expert not required to

provide a report. Id. at 758. Because of these and other

ways a party may be prejudiced by an improperly dis-

closed expert, the sanction is severe. Under Rule 37(c)(1)

“exclusion of non-disclosed evidence is automatic and

mandatory . . . unless non-disclosure was justified or

harmless.” Musser, 356 F.3d at 758.

In this case, non-disclosure was neither justified nor

harmless. Well before trial defendants announced that

they wanted to have an ASA (or the law student who

acted as one) testify about the significance of a no

probable cause finding at Branch 50. But, crucially, the

district court specifically ruled that it would not allow

such testimony—it would not allow testimony that

charges like Tribble’s are traditionally thrown out. Dis-

agreement with that ruling or a belief that such testimony

would be lay and not expert opinion (or no opinion at

all) is not justification; at best, it’s just a misunder-

standing of law. Musser, 356 F.3d at 757.

And non-disclosure was not harmless. We have

indicated several factors that a district court should

consider in deciding whether non-compliance with

Rule 26(a) is harmless:

(1) the prejudice or surprise to the party against

whom the evidence is offered; (2) the ability of the

party to cure the prejudice; (3) the likelihood of

disruption to the trial; and (4) the bad faith

12 No. 10-3262

or willfulness involved in not disclosing the evi-

dence at an earlier date.

David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003).

Reviewing for harmlessness for the first time on appeal,

factors two and three can’t be applied: It’s too late to

cure the problem or disrupt the trial. As for the fourth

factor, we do not have evidence of bad faith, but there

is an element of willfulness in defendants’ failure to

disclose Ebersole as an expert. They knew that they

wanted to elicit exactly the testimony that they did—it

was the subject of a pretrial ruling against them—but,

nevertheless, they did not disclose Ebersole as an expert.

That would have been impossible, of course, without

asking the court to revisit its ruling in limine. But that

could have been done. Instead defendants pressed

their luck at trial and, temporarily at least, got away

with it.

But willful non-disclosure is not the real problem

here. The problem is that Ebersole’s testimony as an

undisclosed expert was extremely prejudicial. Defendants

argue that there cannot be prejudice or surprise be-

cause Tribble knew Ebersole (or Sleesman) was going to

testify all along. Based on the district court’s pretrial

ruling, however, Tribble also knew the limit of that testi-

mony. Tribble knew that defendants would not be

able to offer testimony that cases like Tribble’s are tradi-

tionally thrown out. If that kind of testimony would

have been allowed, and an expert would have been

disclosed, then Tribble could have challenged Ebersole’s

competency to testify about the percentage of cases that

are dismissed and whether Ebersole’s analysis is sup-

No. 10-3262 13

ported by Branch 50’s records. Tribble didn’t investigate

patterns of dismissal at Branch 50 preliminary hearings,

but he can’t be faulted for that. After the pretrial ruling

against them, defendants gave no indication that they

planned to introduce evidence about the general signifi-

cance of a finding of no probable cause at a Branch 50

hearing. And even if Ebersole was qualified to testify as

an expert on the subject, Tribble was deprived of the

opportunity to obtain a rebuttal expert, one that might

provide a more criminal defendant friendly analysis of

what happens at Branch 50. See Musser, 356 F.3d at 758.

As defendants’ closing argument made plain,

Ebersole’s improper testimony was critical to their

theory of the case: The officers were doing their jobs as

usual, made a routine arrest, and found some drugs.

Tribble, the arrestee, got lucky and had his case assigned

to Branch 50. Branch 50 was too busy to do its job

properly and threw out Tribble’s low-weight case, as it

typically does with low-weight cases. Who could blame

that court, really? But instead of being grateful for his

good fortune, Tribble decided to see if he could cash in

by suing the officers. Obviously, we think, defendants

theory of the case relies on Ebersole’s analysis of how

things (allegedly) worked at Branch 50. Her testimony as

a non-disclosed expert was not harmless. Tribble, there-

fore, is entitled to a new trial.

Two more issues raised by Tribble merit brief comment.

First, one week before the end of discovery, after the

parties were deposed, and more than a year after

the original complaint was filed, Tribble moved to

14 No. 10-3262

amend his complaint to include a claim that he was strip-

searched in violation of the Fourth Amendment. On

the topic of illegal search, the prior complaint alleged

only that Tribble was “searched and placed under custo-

dial arrest. . . . [T]he search of the person of the Plaintiff . . .

was without probable cause.” The request to amend

was denied. We review the district court’s decision for

abuse of discretion. Fannon v. Guidant Corp., 583 F.3d

995, 1001 (7th Cir. 2009). Although we recognize that

“leave to amend should be freely given . . . that does not

mean it must always be given. District courts have

broad discretion to deny leave to amend where there

is undue delay, bad faith, dilatory motive, repeated

failure to cure deficiencies, undue prejudice to the de-

fendants, or where the amendment would be futile.”

Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir.

2009) (internal quotation omitted). In this case, Tribble

sought to make an entirely new allegation one week

before trial. The complaint didn’t mention or imply a

strip search, and even during Tribble’s deposition,

where he recounted the events surrounding his arrest

in great detail, there was no mention of a strip search.

The request to amend came too late and appeared futile;

it was well within the district court’s discretion to deny

it. On this issue, we affirm. Tribble has a right to a new

trial but not one that includes a claim involving an

alleged strip search.

Finally, five days before trial, Tribble was arrested and

jailed on an unrelated burglary charge. Tribble’s prelimi-

nary hearing in that criminal case was scheduled for

the same time as jury selection in this § 1983 case.

No. 10-3262 15

Tribble moved to delay jury selection for a day or a few

hours so he could be present for the entire process. The

district court denied the motion. The trial could not be

pushed back a few hours while still leaving sufficient

time for the defense to present its case. Because of the

court’s busy calendar, any delay would necessarily have

been for weeks or months. To avoid prejudice to Tribble,

however, the district court did not introduce the

parties until just before opening statements, when Tribble

was present. Tribble now argues that the district

court’s refusal to grant a continuance violated the

Seventh Amendment. We doubt that Tribble himself—in

addition to his lawyer, who didn’t miss any of the pro-

ceedings—had a Seventh Amendment right to attend

voir dire in these circumstances. But because we are

reversing based on Ebersole’s improper testimony, we

do not reach this issue.

The district court is A FFIRMED in part, R EVERSED in

part, and the case is R EMANDED for further proceedings

consistent with this opinion.

1-26-12