In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2826
WILLIAM VIRAMONTES,
Plaintiff‐Appellant,
v.
CITY OF CHICAGO, JESSICA BRADY, AND MARC LAPADULA
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 6251 — Virginia M. Kendall, Judge.
____________________
ARGUED SEPTEMBER 13, 2016 — DECIDED OCTOBER 21, 2016
____________________
Before BAUER, KANNE, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. William Viramontes was convicted
in Illinois state court of aggravated assault and resisting ar‐
rest. Despite the conviction, Viramontes filed this § 1983 suit
against the officers involved in the altercation alleging that
they used excessive force in violation of his Fourth Amend‐
ment rights.
2 No. 15‐2826
The jury returned a verdict for the officers. Viramontes
sought a new trial for two reasons: (1) because the district
court instructed the jury that it had to take as true the facts
underlying the state‐court conviction, and (2) because de‐
fense counsel made improper statements during closing ar‐
gument. The district court denied the motion, holding that
the jury instruction was proper and that, although defense
counsel’s statements during closing argument were improp‐
er, they did not warrant a new trial. We agree and affirm.
I. BACKGROUND
Viramontes was charged with mob action, aggravated as‐
sault, and resisting arrest in Cook County Circuit Court aris‐
ing out of an incident at a Puerto Rican street festival in Chi‐
cago. Following a bench trial, Viramontes was convicted of
aggravated assault and resisting arrest. The state court judge
held, “I find the Defendant guilty of resisting a police officer
and aggravated assault in that he took a substantial step and
actively swung in the direction of the police officer and
missed,” and that “after the Defendant swung … he did ac‐
tively resist.” (R. 58‐3.) The court sentenced Viramontes to
100 days’ imprisonment.
Viramontes then sued two officers involved in the arrest,
Jessica Brady and Marc Lapadula, and the City of Chicago.
Viramontes brought a § 1983 claim, alleging that the officers
used excessive force during the arrest violating his Fourth
Amendment rights.
After trial, the jury returned a verdict for the defendants
on Viramontes’s claims. Viramontes filed a Rule 59 motion
for a new trial, arguing that attorney misconduct and proce‐
dural and evidentiary errors rendered the trial unfair. The
No. 15‐2826 3
district court denied the motion. On appeal, Viramontes ar‐
gues that an allegedly improper jury instruction and defense
counsel’s improper statements in closing argument entitle
him to a new trial.
Because the § 1983 claim involved the same incident for
which Viramontes had been convicted of aggravated assault
and resisting arrest, the claim implicated the Supreme
Court’s decision in Heck v. Humphrey. There, the Court held
that a plaintiff’s § 1983 claim is barred if it “necessarily
impl[ies] the invalidity of his conviction.” 512 U.S. 477, 487
(1994). The district court relied on our decision in Gilbert v.
Cook, 512 F.3d 899 (7th Cir. 2008) and held that an excessive‐
force claim was not inconsistent with Viramontes’s convic‐
tion. The district court also held, however, that the facts un‐
derlying the conviction had to be taken as true. Before trial
and over Viramontes’s objection, the district court read the
following jury instruction:
Mr. Viramontes actively swung in the direction of a
police officer and missed. After he swung, Mr. Vi‐
ramontes actively resisted the police officer. Any
statements to the contrary by Mr. Viramontes, his
lawyers, or a witness must be ignored. What you
need to determine is whether the officers used
more force than was reasonably necessary under
the circumstances and whether the officers mali‐
ciously prosecuted Mr. Viramontes for mob action.
Although during the trial you must accept that Mr.
Viramontes swung in the direction of a police of‐
ficer and missed, you must also decide whether the
testimony of each of the witnesses is truthful and
accurate in part, in whole, or not at all. You should
give fair and equal consideration to all the evidence
4 No. 15‐2826
because you are the impartial judges of all of the
facts.
(R. 97 at 20–21.) The court read the instruction before and
after the parties presented evidence. During trial, the court
reread the instruction when it believed testimony contradict‐
ed Viramontes’s conviction. Of importance here, the district
court stopped Officer Lapadula from answering whether he
testified at the criminal trial that Viramontes had pulled
away after swinging (as the state court found) or that Vi‐
ramontes had pulled away and then swung. The court told
Viramontes that he was “not permitted to directly examine
in contradiction” of the state court’s findings. (R. 98 at 124.)
Additionally, two district court orders are relevant to Vi‐
ramontes’s appeal. First, the district court denied Vi‐
ramontes’s motion to bar reference to prior convictions, al‐
lowing the defendants to use Viramontes’s 2012 felony con‐
viction for impeachment purposes only. Second, the district
court granted Viramontes’s motion in limine to bar evidence
bolstering the officers’ character. In closing argument, how‐
ever, defense counsel disobeyed the district court’s orders.
Defense counsel used the 2012 felony conviction to make a
propensity argument when he argued that the felony “con‐
viction reflects on Mr. Viramontes’ unwillingness to conform
his conduct to the law.” (R. 99 at 40.) Defense counsel also
claimed that the officers were “stars” and “outstanding po‐
lice officers.” (R. 99 at 61.) Viramontes objected immediately
to the remarks. The district court sustained both objections
and instructed the jury that statements made during closing
argument were not evidence.
No. 15‐2826 5
II. ANALYSIS
Viramontes appeals the district court’s denial of his mo‐
tion for a new trial on two grounds. First, Viramontes argues
that the Gilbert instruction was unlawful and prejudiced him
in three ways: (1) the instruction reflected the state court’s
factual findings instead of the criminal complaint, (2) the in‐
struction was read before he contradicted his conviction, and
(3) the district court inappropriately used the instruction to
prevent him from impeaching Officer Lapadula. Second, Vi‐
ramontes argues that defense counsel’s improper comments
during closing argument denied him his right to a fair trial.
We take those claims in turn.
A. The Gilbert Instruction
In Heck, the Supreme Court held that a plaintiff seeking
damages under § 1983 cannot recover if judgment in the
plaintiff’s favor would “necessarily imply the invalidity” of a
criminal conviction. 512 U.S. at 487. This court has held that
a plaintiff’s conviction for assaulting a police officer does not
“necessarily imply” that the officer used appropriate force
during the course of arrest after the assault. Gilbert, 512 F.3d
at 901. A subsequent excessive‐force claim may, however,
imply the invalidity of a conviction if the plaintiff attempts
to testify in a way that contradicts the conviction’s factual
basis. To balance this tension, we held in Gilbert that the dis‐
trict court should implement Heck by instructing the jury
that it must take as true the facts proved at the earlier crimi‐
nal or disciplinary proceeding. Id. at 902. The district court
gave this exact instruction.
This court reviews jury instructions “de novo when the
underlying assignment of error implicates a question of
6 No. 15‐2826
law.” Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc.,
No. 15‐2526, 2016 WL 4097439, at *14 (7th Cir. Aug. 2, 2016)
(citing United States v. Macedo, 406 F.3d 778, 787 (7th Cir.
2005). We give the district court “substantial discretion with
respect to the precise wording of instructions so long as the
final result, read as a whole, completely and correctly states
the law.” Saathoff v. Davis, 826 F.3d 925, 932 (7th Cir. 2016)
(internal quotation marks omitted); see also Brown v. Smith,
827 F.3d 609, 614 (7th Cir. 2016) (“We review a district courtʹs
decisions on jury instructions for abuse of discretion.”). Re‐
versal due to an improper jury instruction is warranted only
if the “instruction misstates the law in a way that misguides
the jury to the extent that the complaining party suffered
prejudice.” Brown, 827 F.3d at 614.
1. Content
Viramontes argues that the district court erred in crafting
the jury instruction because it relied on the state court’s fac‐
tual findings instead of the criminal complaint. We disagree.
Gilbert itself belies Viramontes’s argument. There, the
court referred to the prison disciplinary board’s finding that
the plaintiff had delivered the first punch in the fight be‐
tween the plaintiff and the prison guards. 512 F.3d at 902.
The Gilbert court’s proposed jury instruction was not limited
to the complaint filed with the disciplinary board but instead
mirrored the disciplinary board’s factual findings. Id. at 900.
That principle has since been entrenched in our case law.
In Helman v. Duhaime, we held that, when considering
whether Heck bars a § 1983 claim, “we must consider the fac‐
tual basis of the claim and determine whether it necessarily
implies the invalidity of [the] conviction.” 742 F.3d 760, 762
No. 15‐2826 7
(7th Cir. 2014) (emphasis added). “[T]he plaintiff can only
proceed to the extent that the facts underlying the excessive
force claim are not inconsistent with the essential facts sup‐
porting the conviction.” Id. (citing Evans v. Poskon, 603 F.3d
362, 363–64 (7th Cir. 2010)). In Moore v. Mahone, this court
held that the plaintiff’s § 1983 suit was barred by Heck be‐
cause the allegations were “in tension with the disciplinary
board’s findings.” 652 F.3d 722, 724–25 (7th Cir. 2011).
In fact, at no point has our focus been on the words used
in the actual criminal or disciplinary complaint. Even our
Heck analysis in decisions that predate Gilbert focused on
facts and not on the formalistic language in the original
complaint. See VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir.
2006) (holding that the plaintiff’s § 1983 suit was not barred
by Heck in part because it didn’t “challenge the factual basis
presented at his change of plea hearing”); McCann v. Neilsen,
466 F.3d 619, 621 (7th Cir. 2006) (“[A] plaintiffʹs claim is Heck‐
barred despite its theoretical compatibility with his underly‐
ing conviction if specific factual allegations in the complaint
are necessarily inconsistent with the validity of the convic‐
tion … .”); Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003)
(“It is irrelevant that he disclaims any intention of challeng‐
ing his conviction; if he makes allegations that are incon‐
sistent with the conviction’s having been valid, Heck kicks in
and bars his civil suit.”).
Here, the state court held that Viramontes was guilty of
aggravated assault because “he took a substantial step and
actively swung in the direction of the police officer and
missed.” (R. 58‐3.) The state court also concluded that Vi‐
ramontes was guilty of resisting arrest because “after the De‐
fendant swung … he did actively resist.” (Id.) The jury in‐
8 No. 15‐2826
struction the district court gave—that “Mr. Viramontes ac‐
tively swung in the direction of a police officer and missed.
After he swung, Mr. Viramontes actively resisted the police
officer.”—was consistent with the state court’s findings. (R.
97 at 20.) Consequently, the jury instruction’s content was
appropriate.
2. Timing
Viramontes next argues that the district court should not
have read the instruction until he contradicted his convic‐
tion. We disagree.
First, we expressly stated in Gilbert that an instruction
could be read to the jury “at the start of trial, as necessary
during the evidence, and at the close of the evidence.” 512
F.3d at 902. The district court did exactly what we stated dis‐
trict courts should do and thus did not err.
Despite the plain language in Gilbert, Viramontes argues
that this case is distinguishable because the court in Gilbert
was faced with a plaintiff who “encountered difficulty ad‐
hering to an agnostic posture on” the disciplinary board’s
factual findings. 512 F.3d at 902. Viramontes argues, then,
that no instruction should be given until a defendant contra‐
dicts a prior conviction. Although Viramontes correctly ar‐
ticulates the factual situation in Gilbert, we decline to adopt
his narrow interpretation of the rule. In most cases, a district
court judge won’t know before trial whether a plaintiff will
remain agnostic about a prior conviction. Indeed, before tri‐
al, all plaintiffs must claim to remain agnostic in order to
have their day in court. See Evans, 603 F.3d at 364 (stating
that “a plaintiff is master of his claim and can, if he insists,
stick to a position that forecloses relief”). Waiting to instruct
No. 15‐2826 9
the jury to take certain facts as true until the plaintiff claims
innocence or disputes the conviction’s factual basis might
confuse the jury. An instruction before the presentation of
evidence solves this potential problem—the jury knows up‐
front that it must decide all facts except for the facts already
stipulated.
Even if the rule was not as plain as we make it here, the
district court’s decision would still withstand scrutiny be‐
cause Viramontes proved that he could not remain agnostic
about his conviction. Viramontes claimed in his deposition
that he never tried to hit Officer Lapadula, a claim that di‐
rectly contradicts his conviction. Further, at trial, Viramontes
testified that he “never resisted” (R. 97 at 103) and was “in‐
nocent” (R. 97 at 120). Far from remaining agnostic, Vi‐
ramontes’s conduct makes clear why a Gilbert instruction is
necessary in these cases.
Because the district court was within its discretion to give
the Gilbert instruction at the beginning of trial, the timing of
the instruction was appropriate.
3. Use
During the presentation of evidence, the district court
read the Gilbert instruction multiple times when it believed
that testimony contradicted Viramontes’s conviction. Vi‐
ramontes objects to one of those times. At trial, Viramontes
sought to get Officer Lapadula to testify that at the criminal
trial he said Viramontes resisted arrest and then swung, not
vice versa. The district court stopped Officer Lapadula from
answering based on the Gilbert instruction that stipulated
that Viramontes had swung and then resisted arrest. Vi‐
ramontes now claims that he should have been able to “ar‐
10 No. 15‐2826
gue this contradiction” between the conviction and Officer
Lapadula’s testimony and to impeach Officer Lapadula for
inconsistencies in his testimony.
A district court’s evidentiary decisions are reviewed for
an abuse of discretion. Nelson v. City of Chicago, 810 F.3d
1061, 1066 (7th Cir. 2016). We will not reverse a jury verdict
unless the district court’s error affected the objecting party’s
substantial rights. Id.; Barber v. City of Chicago, 725 F.3d 702,
715 (7th Cir. 2013). An error affects substantial rights only if
there is a “significant chance” that the ruling affected the tri‐
al’s outcome. Nelson, 810 F.3d at 1066 (quoting Maurer v.
Speedway, LLC, 774 F.3d 1132, 1135 (7th Cir. 2014)). We will
not reverse if the error is harmless in light of the trial record
as a whole. Nelson, 810 F.3d at 1066; Barber, 725 F.3d at 715.
First, the district court did not err in denying Viramontes
the chance to argue a contradiction between Officer Lapadu‐
la’s testimony and the state court’s factual findings. Specifi‐
cally, Viramontes wanted to argue that “[r]egardless of the
extent, or even direction, that Plaintiff’s fist moved, he did so
after the defendants touched his person; he resisted then
swung—not swung and then resisted.” (Appellant’s Br. at
12.) Fair enough, Viramontes might believe that to be the se‐
quence of events. But that sequence directly contradicts his
conviction. Consequently, that argument would violate Heck
and thus the district court did not err.
Second, the district court erred in preventing Viramontes
from impeaching Officer Lapadula based on inconsistent tes‐
timony. The district court was correct in its pretrial ruling:
Heck prevents plaintiffs from implying the invalidity of a
conviction; it does not bar a plaintiff from impeaching a wit‐
ness based on inconsistent testimony across trials. Impeach‐
No. 15‐2826 11
ment evidence is used to impugn a witness’s reliability, not
to prove the truth of the matter asserted. United States v. Burt,
495 F.3d 733, 736–37 (7th Cir. 2007). Thus, even though Vi‐
ramontes could not challenge the state court’s factual find‐
ings, he should have been allowed to argue that Officer
Lapadula was not a reliable witness because his testimony
had changed over time.
The district court’s error, however, was harmless. Despite
Viramontes’s argument to the contrary, Officer Lapadula’s
testimony at the criminal trial was consistent with the state
court’s factual findings. Viramontes alleges that Officer
Lapadula testified that Viramontes resisted arrest and then
swung at him, not that Viramontes swung and then resisted
arrest as the state court found. The Illinois Appellate Court’s
decision affirming the state court conviction stated that
“both officers testified that after they took defendant down
to the ground and attempted to handcuff him, defendant
continued moving his body and arms, and tried to get away
from them.” People v. Viramontes, 2013 IL App (1st) 123014‐U,
¶ 16. Any attempt to impeach Officer Lapadula would have
been rebutted by the fact that he did testify that Viramontes
resisted arrest after swinging at him. In fact, both officers
testified that Viramontes continued to resist arrest after he
swung at Officer Lapadula.
There is not a substantial likelihood that the jury’s analy‐
sis would have been any different than it was because Of‐
ficer Lapadula’s testimony was consistent. United States v.
Miller, 688 F.3d 322, 329 (7th Cir. 2012) (“The test for harm‐
less error is whether, in the mind of the average juror, the
prosecution’s case would have been significantly less per‐
suasive had the improper evidence been excluded.” (quoting
12 No. 15‐2826
United States v. Loughry, 660 F.3d 965, 975 (7th Cir. 2011)).
Thus, the error was harmless.
B. Defense Counsel’s Improper Comments
We turn to Viramontes’s argument that defense counsel’s
improper statements during closing argument denied him
his right to a fair trial. Defense counsel stated that Vi‐
ramontes’s 2012 felony conviction reflected his “unwilling‐
ness to conform his conduct to the law.” Defense counsel al‐
so attempted to bolster the officers’ character and credibility
by calling them “stars” and “outstanding officers.” Appel‐
lants admit that the statements were improper but argue that
the district court did not abuse its discretion in denying Vi‐
ramontes’s motion for a new trial. We agree.
A district court’s ruling on a Rule 59 motion for a new tri‐
al is reviewed for an abuse of discretion. Empress Casino,
2016 WL 4097439, at *13. Parties seeking a new trial based on
counsel’s improper comments must show that “misconduct
occurred and that it prejudiced their case.” Christmas v. City
of Chicago, 682 F.3d 632, 642 (7th Cir. 2012); see also Smith v.
Hunt, 707 F.3d 803, 812 (7th Cir. 2013). We give great defer‐
ence to the district court’s ruling because the district court is
in the best position to evaluate improper conduct in light of
the trial and determine whether it caused prejudice. Christ‐
mas, 682 F.3d at 642–43.
Defense counsel’s comments were plainly improper. That
propensity arguments are improper is basic hornbook evi‐
dence law. Fed. R. Evid. 404(b)(1); United States v. Gomez, 763
F.3d 845, 855 (7th Cir. 2014). The statements concerning the
officers’ character were also improper—the district court ex‐
plicitly ruled before trial that these comments were prohibit‐
No. 15‐2826 13
ed. The impropriety of the comments notwithstanding, we
cannot conclude that the statements prejudiced Viramontes.
Improper comments during closing argument rarely consti‐
tute reversible error. Smith, 707 F.3d at 812; Schandelmeier‐
Bartels v. Chi. Park Dist., 634 F.3d 372, 388 (7th Cir. 2011).
Viramontes objected immediately to the propensity ar‐
gument and to the comment that the officers were “stars.”
The district court sustained those objections. When improper
comments are objected to and the district court sustains the
objection, the comments are less likely to require reversal.
See Smith, 707 F.3d at 812; Christmas, 682 F.3d at 643. Moreo‐
ver, the district court instructed the jury twice, once before
closing argument and once after, that attorneys’ statements
during closing argument are not evidence. “There is a
longstanding presumption that ‘curative instructions to the
jury mitigate harm that may otherwise result from improper
comments’ during closing argument.” Smith, 707 F.3d at 812
(citing Schandelmeier‐Bartels v. Chi. Park Dist., 634 F.3d 372,
388 (7th Cir. 2011)); see also Soltys v. Costello, 520 F.3d 737, 744
(7th Cir. 2008) (“We presume that juries follow the instruc‐
tions given them by the court.”). Finally, the statements were
brief and did not represent a substantial part of defense
counsel’s closing statement. Banister v. Burton, 636 F.3d 828,
834 (7th Cir. 2011) (holding that brief and unrepeated im‐
proper statements at closing are unlikely to rise to the level
of reversible error).
Because the improper comments were made in closing
argument, objections to the statements were sustained, the
district court gave a curative instruction, and the statements
were brief, the district court did not abuse its discretion
denying the motion for a new trial.
14 No. 15‐2826
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of Viramontes’s motion for a new trial.
No. 15‐2826 15
HAMILTON, Circuit Judge, concurring. I join Judge Kanne’s
opinion for the court, including the holding that the district
judge did not abuse her discretion by denying a new trial on
the basis of the defendants’ lawyer’s misconduct in closing ar‐
gument. I write separately to emphasize how important our
standard of review is on that issue.
The defendants’ lawyer said in closing argument that
plaintiff’s 2012 felony conviction for unlawful use of a
weapon “reflects on Mr. Viramontes’ unwillingness to con‐
form his conduct to the law.” The admissibility of the convic‐
tion had been the subject of a pretrial motion in limine and
order by the district court limiting its use to references only to
“a felony conviction,” without explanation, based on the per‐
missible purpose (as defense counsel had argued to the court)
of impeaching credibility under Federal Rule of Evidence 609.
The defense brief to the district court on the motion in limine
shows that counsel fully understood the difference between
proper and improper use of the conviction, as should any law‐
yer who has passed an introductory evidence class. It is diffi‐
cult to see this misconduct during closing argument as any‐
thing other than a deliberate harpoon, in flagrant violation of
Rule 609 and the judge’s order in limine. The defendants make
no effort on appeal to justify the misconduct. They ask only
that we not order a new trial.
As the court explains, the appropriate response to such
misconduct during trial is left to the sound discretion of the
district judge. In this case, Judge Kendall’s response was to‐
ward the gentler end of the spectrum of reasonable responses.
It is important to recognize that a much stronger response was
also within the judge’s discretion. For example, the trial judge
might have granted a new trial and ordered the offending
16 No. 15‐2826
party to pay the court and opposing party for the additional
costs of a new trial. I would also have found such a response
within the judge’s discretion.