                               UNPUBLISHED ORDER
                            Not to be cited per Circuit Rule 53



            United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                                 Argued May 1, 2006
                                Decided July 11, 2006


                                        Before

                          Hon. FRANK H. EASTERBROOK, Circuit Judge

                          Hon. DANIEL A. MANION, Circuit Judge

                          Hon. DIANE S. SYKES, Circuit Judge


No. 05-3345                                       Appeal from the United States
                                                  District Court for the Northern
ANGEL RODRIGUEZ,                                  District of Illinois, Eastern Division
            Plaintiff-Appellant,
                                                  No. 03 C 3880
      v.
                                                  Matthew F. Kennelly, Judge.
JON WOODALL,, CITY OF
CHICAGO, and ERNEST
HALVORSEN,

                Defendants-Appellees.


                                      ORDER

       A Chicago jury convicted Angel Rodriguez for the murder of Ibrahim Zayed,
the owner of a convenience store on the city’s west side. The Illinois Court of
Appeals reversed Rodriguez’s conviction, concluding that the prosecution had failed
to prove the identity of the murderer beyond a reasonable doubt. Rodriguez then
filed this action in federal court under 42 U.S.C. § 1983 against two police officers
involved in the Zayed murder investigation and their employer, the City of Chicago.
Rodriguez asserted that the police officers, Ernest Halvorsen and Jon Woodall,
infringed his right to a fair trial by improperly pressuring the sole eyewitness to the
No. 05-3345                                                                            Page 2



crime. At trial, the district court dismissed Halvorsen at the close of Rodriguez’s
evidence, and the jury decided in favor of Woodall and Chicago. Rodriguez only
appeals the jury’s verdict. We affirm.

                                              I

       On November 24, 1996, a man entered the Karlov convenience store in
Chicago and shot Ibrahim “Billy” Zayed, its owner, killing him. Andrew Bolton, one
of the store employees, was the sole witness to the murder. He described the
murderer to police, who produced a composite sketch.

        A little over a month later, Detective Ernest Halvorsen was assigned to the
Zayed murder investigation. While showing Bolton an array of photographs,
Halvorsen learned from Bolton that he had seen the slayer again about a week after
the murder but had not reported the sighting out of fear. Bolton told Halvorsen that
the man was loading a snowblower onto the back of a truck in front of a nearby
store. Following this lead, the next day Halvorsen talked to that store’s owners, who
corroborated Bolton’s story about the snowblower. The owners’ description of the
man largely agreed with Bolton’s description of the murderer, and, upon being
shown the police composite sketch from the time of the murder, both agreed it was a
close fit, although they thought the man’s nose was bigger.

       Knowing that the predominant gang in the area was a gang by the name of
the Insane Unknowns, Halvorsen attempted to retrieve a police book of photographs
of the members of that gang to compare to the sketch and description. The book,
however, had been purged,1 which temporarily halted Halvorsen’s investigation.
The investigation resumed in March of 1997, when a drug suspect mentioned that a
man named “Flaco” killed an Arab grocer, according to the word on the street. Upon
receiving this tip, Halvorsen confirmed that Zayed was the only person killed in a
grocery store in 1996 and 1997 in that area. Halvorsen eventually learned from
other detectives that a member of the Spanish Cobras gang, Angel Rodriguez, went
by the name Flaco and lived near the area of the shooting. Halvorsen then
compared an arrest picture of Rodriguez with the composite sketch of the murderer
and noticed striking similarities. Halvorsen also had the opportunity to observe
Rodriguez in person; one night on patrol, Halvorsen’s partner pointed out
Rodriguez, who, according to Halvorsen, “was remarkably close to the description
provided by Andrew Bolton.”


       1
        Halvorsen’s testimony does not illuminate why the police department eliminated this
book from its files.
No. 05-3345                                                                     Page 3



      On March 16, 1997, Halvorsen met with Bolton again to conduct another
photo array, this time including a picture of Rodriguez in the group. After
examining the six pictures, Bolton identified Rodriguez as the shooter, telling
Halvorsen that he was positive about it. Halvorsen and other police officers then
arrested Rodriguez on an arrest warrant for an unrelated traffic violation on March
23, 1997. Halvorsen was unable to locate Bolton and another potential witness,
Tyrone Reed, that night for a lineup. As he was scheduled to appear in court the
next day, Halvorsen asked a sergeant to assign another detective to conduct a
lineup involving Rodriguez. The task fell to Detective Jon Woodall.

       According to Bolton, during the lineup the next day, Bolton initially
commented that Rodriguez looked like Zayed’s murderer, though he remembered
Rodriguez as smaller at the time of the shooting. Woodall told Bolton that the police
had been holding Rodriguez for several months and he picked up some weight.
Woodall then “pressured” Bolton to select Rodriguez as the shooter, telling Bolton to
look at Rodriguez and informing him that Rodriguez had a long criminal history in
the neighborhood. Bolton then identified Rodriguez as the murderer.

       Based on Bolton’s identification, Rodriguez was charged with murder and
convicted. During the criminal trial, Bolton testified that Rodriguez was the
shooter. In August 2000, the Illinois Court of Appeals reversed the conviction,
however, concluding that the prosecution had not met its burden. Specifically, the
court emphasized the testimony of the owners of the store where Bolton saw the
shooter with a snowblower, who stated that Rodriguez was not the man in their
store that day. After several years in jail, Rodriguez was free.

       Upon regaining his liberty, Rodriguez discovered that Bolton had been
pressured during the lineup and initiated this lawsuit against the detectives and
the City of Chicago, their employer, claiming a violation of his right to a fair trial
under 42 U.S.C. § 1983. As part of the civil suit, Bolton was deposed and, during
this deposition, stated that, despite Woodall’s interference, he properly picked
Rodriguez as Zayed’s killer. At trial, the district court dismissed Halverson from the
suit at the close of Rodriguez’s evidence, leaving only Woodall and Chicago. The
jury found in favor of the defendants. Rodriguez now appeals the jury verdict in
favor of Woodall and Chicago.

                                          II

       On appeal, Rodriguez advances three lines of attack. First, he claims that no
reasonable jury could have found in favor of the defendants, which we take as a
sufficiency of the evidence challenge. Second, he argues that the district court
No. 05-3345                                                                            Page 4



abused its discretion when it limited the admission of certain evidence relating to
Woodall. Third, he asserts that the district court erred in instructing the jury
instructions as to the proper burden of proof.

                                             A

       As an initial matter, Rodriguez waived his sufficiency of the evidence
argument. In his opening brief before this court, Rodriguez failed to cite any legal
authority to support his cursory argument, and, in his reply brief, he chose not to
address this issue at all. Failure to support one’s point with proper legal authority
constitutes waiver. See, e.g., Weinstein v. Schwartz, 422 F.3d 476, 477 n.1 (7th Cir.
2005); Boomer v. AT&T Corp., 309 F.3d 404, 422 n.10 (7th Cir. 2002); Griffin v. City
of Milwaukee, 74 F.3d 824, 828 (7th Cir. 1996).

       Moreover, even if we overlooked this briefing defect, we have no authority to
consider Rodriguez’s argument that no reasonable jury could find for the defendants
based on the evidence. Rodriguez failed to move under Federal Rule of Civil
Procedure 50(a) for a directed verdict at the close of the evidence. In the absence of
a timely motion under Rule 50(a) challenging the sufficiency of the evidence, we
cannot review the jury determination of an issue. See, e.g., Van Bumble v. Wal-
Mart Stores, Inc., 407 F.3d 823, 827 (7th Cir. 2005); Savino v. C.P. Hall Co., 199
F.3d 925, 931 (7th Cir. 1999). Rodriguez also failed to make a post-verdict motion
under Federal Rule of Civil Procedure 50(b) to challenge the sufficiency of the
evidence at that juncture. “This Court has concluded that, ‘[i]n the absence of such
a motion’ an ‘appellate court [is] without power to direct the District Court to enter
judgment contrary to the one it had permitted to stand.’” Unitherm Food Sys., Inc.
v. Swift-Eckrich, Inc., 126 S. Ct. 980, 985-86 (2006) (quoting Cone v. W. Va. Pulp &
Paper Co., 330 U.S. 212, 218 (1947)).2 Each failing is fatal. Even absent waiver,
therefore, this court still cannot review Rodriguez’s sufficiency of the evidence
claim.

                                             B

       Rodriguez next argues that the district court should not have limited his use
of certain evidence regarding Woodall. Specifically, Rodriguez wanted to present
evidence concerning an arrest in which Woodall participated. In March 1998,
approximately a year after the arrest of Rodriguez, Woodall and several other


       2
          While Rodriguez made a motion under Federal Rule of Civil Procedure 59 for a new
trial, he did not raise any sufficiency of the evidence claims in it.
No. 05-3345                                                                      Page 5



Chicago police officers arrested two men for possession of cocaine. One of the men
informed the police officers that he knew of a vehicle in the police impound lot with
a hidden compartment containing cocaine. Acting on this information, the officers
retrieved six kilograms of cocaine from the impounded car’s hidden compartment,
keeping four kilograms for themselves. They subsequently planted two kilograms of
cocaine on the second man from the original arrest so that he would be charged for
possessing a greater amount of cocaine. Woodall received $9,500 from the sale of
cocaine, but he was convicted of conspiracy in 2003. While the district court
permitted Rodriguez to use Woodall’s subsequent drug conspiracy conviction to
impeach Woodall’s credibility under Federal Rules of Evidence 608(b) and 609, it
refused Rodriguez’s request to introduce it as evidence of motive or knowledge
relating to Woodall’s alleged coercion of Bolton’s identification of Rodriguez. We
review this decision for an abuse of discretion. See Okai v. Verfuth, 275 F.3d 606,
610 (7th Cir. 2001); Treece v. Hochstetler, 213 F.3d 360, 363 (7th Cir. 2000).

       Rodriguez believes that the district court should have admitted this evidence
without limitation under Federal Rule of Evidence 404(b), which generally bars
evidence of “other crimes, wrongs, or acts” when introduced “to show action in
conformity therewith.” Despite this broad prohibition, a district court may
introduce evidence of bad acts if: (1) the evidence establishes a matter in issue other
than a person’s propensity to commit a crime; (2) the evidence shows that the other
acts are similar enough and close enough in time to be relevant; (3) the evidence is
sufficient to support a jury finding that the person committed the similar act; and
(4) the probative value of the evidence is not substantially outweighed by its
prejudicial effect. See Okai, 275 F.3d at 610-11.

       Rodriguez claims that Woodall’s involvement in the drug conspiracy
establishes knowledge or motive in his case. It is difficult to see how. The fact that
Woodall used his position to participate in the drug conspiracy reveals no special
knowledge or insight into rigging a lineup, the pertinent issue here. Likewise, a
drug conspiracy does not supply Woodall with any motive to frame a man for an
unrelated murder. The chronology here punctuates this lack of motive—the
comments at the lineup occurred nearly an entire year before Woodall began his
participation in the drug conspiracy. Rodriguez defines knowledge and motive
much too broadly. In actuality, Rodriguez does not seek to present evidence of
motive or knowledge, but evidence of propensity to commit bad acts. This is
prohibited. The district court did not abuse its discretion in admitting the drug
conspiracy for the limited purpose of challenging Woodall’s credibility.

                                          C
No. 05-3345                                                                                 Page 6



       Rodriguez finally contends that the district court erred in instructing the jury
regarding the burden of proof. In particular, he objects to the district court’s
instruction that he needed to prove by a preponderance of the evidence that
“Rodriguez would not have been convicted of murder if this evidence [of Woodall’s
actions in the lineup] had been disclosed.” Rodriguez views his case as one under
Brady v. Maryland, 373 U.S. 83, 87 (1963), and argues that the district court erred
in crafting the instruction because Brady and its progeny merely require the
demonstration of a reasonable probability of a different result in the criminal trial
to show a Brady violation.3

       We review a jury instruction de novo to determine whether it provides a fair
and accurate summary of the law, but defer to the district court to craft the actual
instruction. See Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir. 2005). We first
decide whether the instruction misstates the law or fails to convey the relevant
legal principles in full. See Byrd v. Ill. Dep’t of Pub. Health, 423 F.3d 696, 705 (7th
Cir. 2005).4 If the instruction is inadequate, we determine whether it confused or
misled the jury, causing Rodriguez prejudice. See id. The challenged jury
instruction in this case provides that in order to prevail, Rodriguez needed to prove
by a preponderance of the evidence: (1) “that Mr. Woodall intentionally induced
Andrew Bolton to identify Mr. Rodriguez as the person who murdered Ibrahim
Zayed”; (2) “that Mr. Woodall intentionally concealed that fact from the prosecutors



       3
         It is not at all clear that Rodriguez’s case even involves a Brady claim. Brady stands for
the proposition that the prosecution must turn over any material, favorable evidence to the
defense. See, e.g., Ienco v. Angarone, 429 F.3d 680, 683 (7th Cir. 2005); United States v.
Grintjes, 237 F.3d 876, 880 (7th Cir. 2001). At its core, Brady prevents the police and
prosecution from suppressing evidence in their possession that would be helpful to the defense.
Kyles v. Whitley, 514 U.S. 419, 432 (1995). Here, Rodriguez asserts that the prosecution violated
Brady by not informing him of Woodall’s coercive acts during the lineup. This does not appear
to involve the kind of concealment that Brady and its progeny were crafted to prevent, see
Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003) (“The problem was not that evidence useful
to him was being concealed; the problem was that the detectives were giving false evidence.”),
overruled on other grounds by Wallace v. City of Chicago, 440 F.3d 421, 427 (7th Cir. 2006).
This type of situation may present an independent constitutional violation other than Brady that
could be addressed directly under § 1983. Nevertheless, for purposes of this appeal we apply the
Brady analysis.
       4
          Defendants suggest that Rodriguez waived his claim because he failed to object to the
jury instruction before it was given. While Rodriguez’s objection was indeed inarticulate, the
record indicates that it was enough to preserve the matter for our review.
No. 05-3345                                                                        Page 7



in Mr. Rodriguez’s trial”; and (3) “that Mr. Rodriguez would not have been convicted
if this evidence had been disclosed.”

        Rodriguez misunderstands the purpose of this instruction. He emphasizes
that, to establish a Brady violation, one must show a reasonable likelihood that,
absent the impropriety, the result of his trial would be different. See Kyles, 514
U.S. 432-34 (the touchstone of materiality inquiry under Brady is “reasonable
probability of a different result”). For a criminal trial that is true, but that has
little bearing on this case. Section 1983 creates a species of tort liability so that if a
violation of constitutional rights causes injury, the injured person shall be fairly
compensated. See Heck v. Humphrey, 512 U.S. 477, 483 (1994). Here, the
instruction laid out what Rodriguez needed to prove under § 1983 to recover
damages. “As in a common law tort action, the plaintiff in a civil rights tort action
[under § 1983] bears the burden of establishing that the defendant owed plaintiff a
duty, that the defendant breached his duties to the plaintiff, and that his breach
caused the plaintiff actual damages.” Jones v. Hamelman, 869 F.2d 1023, 1031 (7th
Cir. 1989) (quoting Garza v. Henderson, 779 F.2d 390, 395 (7th Cir. 1985)). For
recovery under this statute, therefore, a constitutional violation, such as a Brady
violation, is necessary, but more is needed. See, e.g., Baker v. McCollan, 443 U.S.
137, 140 (1979) (threshold inquiry for action under § 1983 is whether the plaintiff
has been deprived of a constitutional right). In addition Rodriguez had to
demonstrate by a preponderance of the evidence a causal link between the injuries
resulting from his conviction and the Brady violation. See Herzog v. Vill. of
Winnetka, 309 F.3d 1041, 1044 (7th Cir. 2002) (“the ordinary rules of tort causation
apply to constitutional tort suits”); Berman v. Young, 291 F.3d 976, 982 (7th Cir.
2002) (in §1983 action, plaintiff “required to prove that she sustained an actual
injury and that her injuries had a causal connection with the alleged due process
violation.”); Henderson v. Sheahan, 196 F.3d 839, 848 (7th Cir. 1999). The
instruction was a correct statement of the § 1983 requirements. While the district
court could have possibly made the instruction slightly clearer by separating the
Brady language from the language addressing the other required tort findings, its
instruction did not misstate the law. Given our great deference to the district court,
this suffices. The jury received a proper summary of the §1983 requirements, which
allowed it the opportunity to appropriately apply the law.

                                           III

       In summary, Rodriguez’s challenges fall short. Rodriguez waived his initial
claim that insufficient evidence supported the verdict. The district court properly
decided that evidence of Woodall’s subsequent crime could only be used to impeach
Woodall’s credibility, as the crime could not establish either motive or knowledge.
No. 05-3345                                                                      Page 8



Finally, the district court’s instructions properly laid out the required elements to
recover under § 1983 for a Brady violation. Given these conclusions, we AFFIRM.
