Terence Tribble v. Nicholas Evangel , 670 F.3d 753 ( 2012 )

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