In the
United States Court of Appeals
For the Seventh Circuit
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No. 17–2963
CALVIN LINDSEY,
Plaintiff‐Appellant,
v.
VINCE MACIAS, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13‐cv‐04069 — Manish S. Shah, Judge.
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ARGUED SEPTEMBER 17, 2018 — DECIDED OCTOBER 23, 2018
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Before EASTERBROOK, KANNE, and BRENNAN, Circuit
Judges.
BRENNAN, Circuit Judge. After the State of Illinois dis‐
missed criminal charges against plaintiff‐appellant Calvin
Lindsey for unlawful possession of a weapon, he filed this
civil action asserting claims for false arrest, excessive force,
false imprisonment, and malicious prosecution under 42
U.S.C. § 1983 and state law assault and battery. At trial, the
jury returned a unanimous defense verdict on all counts.
2 No. 17‐2963
On appeal, Lindsey seeks to vacate the judgment for two
reasons. First, he contends the district court erred in refusing
to modify its jury instruction on “possession” to stress that
“mere proximity” to a gun is insufficient. Second, he asserts
the district court abused its discretion by denying the jurors’
request for a copy of a potentially impeaching interrogatory
answer.
Neither of Lindsey’s arguments warrants reversal. Our
precedent rejects a requirement that a possession instruction
include language expressly disclaiming the sufficiency of
“mere proximity,” and Lindsey presents no persuasive reason
to reconsider those holdings or reach a different result here.
And the district court was well within its discretion in refus‐
ing to send into the jury room a document not admitted into
evidence. Therefore, we affirm.
I. BACKGROUND
A. Arrest on April 28, 20121
During the early morning hours of April 28, 2012, Lindsey
and three female friends were drinking beer and watching tel‐
evision in a basement level apartment in Chicago. Suddenly,
four Chicago police officers kicked in the door, grabbed Lind‐
sey from behind, threw him to the floor, and arrested him.
Never in his life had Lindsey used a gun, he never saw one on
April 28, 2012, and he never went into his sister‐in‐law’s first
floor bedroom that night.
1 While the facts summarized in this section are taken from the com‐
peting witness testimony presented during trial, on appeal we must view
the facts “in the light most favorable to [the jury’s] verdict.” Matthews v.
Wisconsin Energy Corp., Inc., 642 F.3d 565, 567 (7th Cir. 2011).
No. 17‐2963 3
That is how Lindsey tells it. The defendant‐appellee police
officers paint a strikingly different picture.
According to them, Officers Macias and Perez received an
emergency call about a “male with a gun,” and all four offic‐
ers arrived on scene at about 3:35 a.m. An unidentified man
standing on the porch directed the officers inside the build‐
ing’s first floor apartment, stating only, “He’s in there.” Upon
entering, they encountered approximately ten people milling
about a party, and one attendee informed Officer Gentile,
“The man with the gun is in the back. He pointed it at my
face.”
When Officer Gentile looked up, a man saw him and fled
into the first floor bedroom, slamming the door behind him.
After announcing their presence and knocking, the officers
opened the bedroom door and saw Lindsey sitting on a mat‐
tress next to one woman. Gentile found a gun on the bedroom
floor, about two feet in front of Lindsey. None of the four
officers ever saw the gun on Lindsey’s person. Officer Macias
arrested Lindsey and escorted him out.
B. Subsequent Litigation
Lindsey was charged with unlawful possession of a
weapon by a convicted felon. Three months later, after the
state court suppressed the gun evidence, prosecutors dis‐
missed the criminal case. Lindsey then filed this lawsuit,
asserting violations of his constitutional rights and various
tort claims. The jury trial in this civil case lasted four days.
1. The district court rejects Lindsey’s modification to
jury instruction on “possession.”
At the jury instruction conference, Lindsey’s attorneys
objected to the district court’s proposed instruction regarding
4 No. 17‐2963
“possession,” which was based on Seventh Circuit Pattern
Criminal Jury Instruction 4.13 and read in relevant part:
A person possesses an object if he has the ability
and intention to exercise direction or control
over the object, either directly or through others.
A person may possess an object even if he is not
in physical contact with it and even if he does
not own it.
Worried this pattern instruction might lead jurors to incor‐
rectly conflate physical proximity to a gun with constructive
possession, Lindsey’s attorneys asked the district court to add
the following language: “The mere proximity to the contra‐
band is not enough to establish possession.”
The district court denied Lindsey’s request, explaining
that the first sentence of the instruction already emphasized
the requirement that a person have the ability and intention
to exercise control over the object, so the jury would not think
that “mere proximity” would be sufficient. Moreover, the
district court preferred defining what constitutes possession,
rather than what does not. Lindsey’s attorneys were permit‐
ted to make this “mere proximity” point during their closing
argument, which they did.
2. The district court denies the jury’s request for Of‐
ficer Gentile’s interrogatory answer.
During trial, Lindsey’s attorneys cross‐examined Officer
Gentile on his pre‐trial answer to an interrogatory asking him
to identify potential witnesses:
[T]he women who were with Plaintiff Lindsey
in the room where Plaintiff Lindsey was placed
under arrest, whose names he does not know,
No. 17‐2963 5
may have knowledge of the events leading up
to Plaintiff Lindsey being placed under arrest.
On the witness stand, however, Officer Gentile adamantly
denied that multiple women had been in the bedroom,
instead testifying that the reference to “women” in his inter‐
rogatory answer was a typographical error. The interrogatory
answer was never moved or admitted into evidence, as Lind‐
sey’s counsel simply incorporated its substance into their
cross‐examination.
Later, during deliberations, the jury sent the district court
the following note:
May we see or have access to Gentile’s interrog‐
ative [sic] response where he states/refers to
‘women,’ ‘their,’ & ‘names,’ (indicating plurals).
If not, may we get clarification as to which room
he is referring to?
Lindsey’s counsel offered a copy of Gentile’s interrogatory
answer to send back, while defense counsel staunchly
objected that the document was not in evidence.
The district court expressed concern that sending the
interrogatory answer to the jury might “unnecessarily high‐
light one piece of evidence over another piece of evidence” or
“cause deliberations to go down a road where they ask for
more things that I can’t give them, like testimony.” So, the
district court instructed the jury, “The answer to your request
is that you must rely on your collective recollection of the
evidence and testimony at the trial.” While maintaining their
objection to the district court’s decision, Lindsey’s attorneys
did not object to the “wordsmithing” of the response.
6 No. 17‐2963
The jury returned a unanimous verdict in favor of the
defendants on all of Lindsey’s claims, and the district court
entered judgment accordingly.
II. ANALYSIS
A. Jury Instruction on Possession
First, Lindsey argues the district court erred in rejecting
his proffered jury instruction language, emphasizing “mere
proximity” to a gun is insufficient to establish constructive
possession.
We review de novo whether a jury instruction accurately
summarizes the law, but afford district courts “substantial
discretion” in formulating a particular instruction’s wording.
United States v. Edwards, 869 F.3d 490, 496 (7th Cir. 2017). As
long as the instruction is legally accurate, we reverse only if
the wording misled the jury in a way that prejudiced the
appellant. United States v. McKnight, 665 F.3d 786, 791 (7th Cir.
2011). A party is entitled to a specific jury instruction on his
theory of the case if (1) the instruction is a correct statement
of the law, (2) there is evidence supporting the theory, (3) that
theory is not already part of the charge, and (4) a failure to
provide the instruction would deny a fair trial. United States
v. Maldonado, 893 F.3d 480, 487 (7th Cir. 2018).
In his brief, Lindsey highlights our decision in United
States v. Brown, 724 F.3d 801 (7th Cir. 2013), which included
the statement that “[m]ere proximity to the item at the time of
seizure is not enough” to establish possession. Id. at 804. That
is a correct statement of law, and one that has been well‐
established for quite some time. See, e.g., United States v.
Chairez, 33 F.3d 823, 825 (7th Cir. 1994); United States v. Gates,
No. 17‐2963 7
491 F.2d 720, 721–22 (7th Cir. 1974).2 But it does not follow
that express language along the lines that “mere proximity to
contraband is insufficient to establish constructive posses‐
sion” must appear in every jury instruction on possession.
We confronted a similar argument in United States v. Rice,
995 F.2d 719 (7th Cir. 1993). There, the defendant was con‐
victed of unlawful possession of a weapon and asserted the
district court erred by failing to instruct the jury that “mere
presence in the vicinity of a firearm, or mere knowledge of its
physical location, does not constitute possession under the
statute.” Id. at 725. In affirming the defendant’s conviction, we
concluded that the jury instruction given “adequately cov‐
ered” the defense’s theory of no possession because it
explained to the jury that constructive possession requires the
“power and intention at a given time, to exercise dominion or
control” over an object. Id. at 724–25.
Here, the district court’s instruction already included sim‐
ilar language, informing the jury that constructive possession
requires that a person have “the ability and intention to exer‐
cise direction or control over the object.” This explained to the
jury that more than physical proximity is required for posses‐
sion. While Lindsey’s proffered language was also a correct
statement of law, as we noted in Rice, “district courts are not
required to give alternative explanations of every term
2 While the parties’ briefs focus on federal case law regarding posses‐
sion, the relevant inquiry at trial was whether the defendants had proba‐
ble cause to arrest Lindsey for unlawful possession under Illinois law,
namely 720 ILL. COMP. STAT. 5/24‐1.1 (2012). Regardless, Illinois follows
the same rule. See, e.g., People v. Deleon, 33 N.E.3d 900, 905 (Ill. App. Ct.
2015) (holding that a defendant’s “mere proximity to the gun in the car
did not establish his possession of the gun”).
8 No. 17‐2963
defined in the instructions.” 995 F.2d at 725. Given the district
court’s instruction and counsel’s closing argument stressing
the insufficiency of Lindsey’s physical proximity to the gun,
Lindsey’s theory of the case was adequately presented to the
jury. Id. at 726.
We have reached the same result in previous cases on this
issue. See, e.g., United States v. Hendricks, 319 F.3d 993, 1006
(7th Cir. 2003) (holding instruction on unlawful possession of
a weapon sufficient despite lack of “mere presence” lan‐
guage); United States v. Saunders, 973 F.2d 1354, 1360–61 (7th
Cir. 1992) (affirming cocaine possession conviction despite
district court’s rejection of a “mere proximity” instruction);
United States v. Durades, 929 F.2d 1160, 1168 (7th Cir. 1991);
(same).3 Lindsey presents no persuasive reason why we
should reconsider those holdings.
This was a civil trial, not a criminal prosecution for unlaw‐
ful possession of a weapon. While Illinois law on possession
was relevant to the defendants’ affirmative defenses,4 the jury
was not tasked with finding whether Lindsey actually pos‐
sessed the gun. Instead, the jury needed to assess whether
probable cause existed to arrest Lindsey for unlawful posses‐
sion, which required that the officers have “reasonably trust‐
worthy information [that is] sufficient to warrant a prudent
person” to believe that Lindsey had committed a crime.
3 Illinois courts also have rejected the argument that a possession in‐
struction must disclaim the sufficiency of “mere proximity” or “mere pres‐
ence.” See, e.g., People v. Freeman, 609 N.E.2d 713, 719 (Ill. App. Ct. 1992);
People v. Stamps, 438 N.E.2d 1282, 1297 (Ill. App. Ct. 1982).
4 Probable cause to arrest is an absolute defense to any § 1983 claim
for wrongful arrest, false imprisonment, or malicious prosecution. See
Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006).
No. 17‐2963 9
Adams v. Williams, 407 U.S. 143, 148 (1972). The district court’s
legally accurate instruction gave the jury the correct law
needed to make this assessment. Further exposition on the
legal intricacies of constructive possession was unnecessary
for purposes of this case.
B. Response to the Jury’s Request for Officer Gentile’s
Interrogatory Answer
We review a district court’s response to a jury question
during deliberations for abuse of discretion, considering
“(1) whether the instructions as a whole fairly and adequately
treat the issues; (2) whether the supplemental instruction is a
correct statement of the law; and (3) whether the district court
answered the juryʹs questions specifically.” Morgan v. City of
Chicago, 822 F.3d 317, 342 (7th Cir. 2016).
Lindsey claims the district court abused its discretion by
refusing to provide the jurors with a copy of Officer Gentile’s
interrogatory answer when they asked to see it. Lindsey
believes the answer was relevant to the jurors’ assessment of
Gentile’s credibility as a witness. But the document was never
moved or admitted into evidence. In fact, the district court
could have abused its discretion had it sent a document not in
evidence to the jury room. See Baugh ex rel. Baugh v. Cuprum
S.A. de C.V., 730 F.3d 701, 705 (7th Cir. 2013) (“The general rule
is that materials not admitted into evidence simply should not
be sent to the jury for use in its deliberations.”).
To support his position, Lindsey points to this court’s
statement in United States v. Sims, 329 F.3d 937 (7th Cir. 2003),
that a district court “has an obligation to dispel any confusion
quickly and with concrete accuracy” in responding to jury
questions. Id. at 943. Lindsey contends the district court failed
10 No. 17‐2963
that obligation because it did not resolve the jury’s “clearly
indicated confusion” regarding Officer Gentile’s testimony.
Lindsey’s argument takes the statement in Sims out of
context. The district court’s obligation is to dispel jury confu‐
sion on the requirements of the law. In Sims, for example, the
jury’s confusion surrounded “the proper standard of intent
for conspiracy to commit mail fraud.” Id. By contrast, it is not
the province of a trial judge to resolve jurors’ confusion
regarding the evidence, or (even worse) to reach beyond the
domain of the record to give jurors additional information
pertaining to witnesses’ respective credibility.
In this case, providing the jury with the information it
requested would have required the district court either to
summarize the questions and answers from the cross exami‐
nation of Officer Gentile, or transmit to a deliberating jury the
text of a document not in evidence. The district court
expressed understandable concern that either choice might
improperly highlight certain evidence or encourage the jury
to request other materials more difficult to provide. Such con‐
cerns are legitimate. See, e.g., United States v. Guy, 924 F.2d 702,
708 (7th Cir. 1991) (recognizing concern about highlighting
certain testimony by sending partial transcripts to jury room);
United States v. Howard, 80 F.3d 1194, 1201–02 (7th Cir. 1996)
(same).
When the district court initially charged the jurors, it
informed them that trial transcripts would not be available
and they “must rely on [their] collective memory of the testi‐
mony.” The court’s decision to adhere to that approach
throughout deliberations was well within its discretion. See
United States v. White, 582 F.3d 787, 805 (7th Cir. 2009) (no er‐
ror in refusing jury request for trial transcript of a police
No. 17‐2963 11
officer’s testimony). We find no fault in the district court’s
refusal to provide the jury with a document not in evidence.
AFFIRMED.