In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2172

Thomas E. Harris,

Plaintiff-Appellant,

v.

City of Chicago and Alex D. Ramos, Officer,
individually, and as a police officer
for the City of Chicago, Illinois,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 684--Blanche M. Manning, Judge.

Argued April 3, 2001--Decided September 21, 2001


  Before Posner, Kanne, and Rovner, Circuit
Judges.

  Kanne, Circuit Judge. During discovery
in this civil case, defendant-appellee
Alex Ramos refused to respond to a
number of discovery requests, instead
invoking his Fifth Amendment privilege
against self-incrimination. At trial,
however, Ramos answered all questions
posed to him on direct and cross-
examination, and all evidence of his
prior silence was excluded. After a jury
verdict for the defendants, plaintiff-
appellant Thomas Harris moved for a new
trial contending that the effect of
these two rulings--permitting Ramos to
respond to questions that he had
previously refused to answer while
simultaneously excluding evidence of
Ramos’s prior silence--allowed Ramos to
avoid the discovery process altogether.
Because we agree that the district court
committed prejudicial error, we reverse
and remand for a new trial.

I.   History

  On December 7, 1993, Chicago police
officer Alex Ramos--who was also a part-
time YMCA security officer--arrested the
plaintiff, Thomas Harris, at his YMCA
residence. The parties vigorously
dispute the events giving rise to the
arrest. Harris contends that Ramos
forced his way into his apartment,
placed him under arrest, and placed a
small amount of cocaine on his person.
He claims that he was falsely arrested
because, a few days earlier, he had
refused to help Ramos convert stolen
drugs into cash. For his part, Ramos
claims that he was walking by Harris’s
apartment when he overheard what he
believed to be a drugs-for-sex
transaction occurring inside. According
to Ramos, as he was standing outside
Harris’s doorway, the door suddenly
flung open and a woman ran out. Ramos
alleges that he observed drugs and drug
paraphernalia inside Harris’s room and
that, after a struggle, he forced his
way into Harris’s room and arrested him.
Pursuant to the charges brought by
Ramos, Harris was incarcerated at the
Cook County Jail for over 400 days. The
State of Illinois dropped all charges
against Harris on February 20, 1997,
however, after Ramos was arrested and
charged with a number of criminal
offenses including racketeering,
extortion, carrying a firearm during a
drug crime, and possession with intent
to distribute crack cocaine.

  Harris filed suit against Ramos and
the City of Chicago pursuant to 42
U.S.C. sec. 1983 alleging, inter alia,
claims of federal and state law
malicious prosecution. On October 15,
1997, the district court granted a stay
of discovery until the criminal charges
pending against Ramos were resolved. On
May 21, 1998, Ramos was found guilty of
each of the criminal counts against him,
and, shortly thereafter, the district
court lifted the stay.

  After the stay was lifted, Harris
served written discovery requests on
Ramos. Invoking his Fifth Amendment
privilege against self-incrimination,
Ramos refused to answer any of
plaintiff’s interrogatories, document
requests, orrequests to admit./1 On
the advice of counsel, Ramos again
refused to give any testimony at his
scheduled deposition on July 31, 1998.
Harris moved to compel, and the district
court granted the motion on August 12,
1998. Ramos was consequently re-deposed
on September 28, 1998. At his second
deposition, Ramos selectively invoked
his Fifth Amendment privilege. He
refused to answer any questions about
the time frame of his criminal
activities, his criminal convictions,
and whether his encounter with Harris
was part of a criminal enterprise for
which he was convicted. Harris then
filed another motion to compel, arguing
that Ramos had invoked the Fifth
Amendment to avoid answering several
questions which could not possibly
incriminate him. Pursuant to Harris’s
motion, the court ordered Ramos to
respond in writing to any questions to
which he had inappropriately invoked the
Fifth Amendment. At no time before the
close of discovery on November 25, 1998,
did Ramos or his counsel attempt to
amend or supplement Ramos’s
interrogatory responses or produce any
documents.

  The case proceeded to trial on
February 17, 1999. At trial, Ramos
waived his Fifth Amendment privilege and
answered all questions posed to him on
direct as well as on cross-examination,
including questions which he had
previously refused to answer. Over the
objection of Harris’s counsel, the
district court barred Harris from
impeaching or cross-examining Ramos with
his prior silence. On February 26, 1999,
the jury returned a verdict for the
defendants. Harris filed a motion for a
new trial, arguing that the district
court abused its discretion by
precluding evidence of Ramos’s
invocation of the Fifth Amendment. The
district court denied the motion, and
Harris now appeals.

II.    Analysis

A.    Standard of Review

  On appeal, Harris contends that the
district court should have granted a new
trial because allowing Ramos to testify
at trial while excluding any evidence of
his prior silence allowed the defendants
to avoid the discovery process "with
impunity." We review the denial of a
motion for a new trial for abuse of
discretion. See Goodwin v. MTD Prods.,
Inc., 232 F.3d 600, 606 (7th Cir. 2000).
In order to ascertain whether the
district court improperly refused to
grant a new trial in this case, we must
first determine whether the challenged
ruling was "prejudicial error." Romero
v. Cincinnati Inc., 171 F.3d 1091, 1096
(7th Cir. 1999). We now turn to that
question.

B.   Exclusion of Ramos’s Prior Silence

  The district court ruled that Harris
would not be allowed to present evidence
of Ramos’s invocation of the Fifth
Amendment to the jury despite the well-
settled principle that "the Fifth
Amendment does not forbid adverse
inferences against parties to civil
actions when they refuse to testify in
response to probative evidence offered
against them." Baxter v. Palmigiano, 425
U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d
810 (1976); see also LaSalle Bank Lake
View v. Seguban, 54 F.3d 387, 389-91
(7th Cir. 1995) ("The rule that adverse
inferences may be drawn from Fifth
Amendment silence in civil proceedings
has been widely recognized by the
circuit courts of appeals, including our
own."). The reason for the district
judge’s ruling is not clear from the
transcript or from the order denying a
new trial,/2 but the parties agree
that the district judge most likely
excluded the evidence because she
determined that the prejudicial effect
of Ramos’s prior silence substantially
outweighed its probative value. See Fed.
R. Evid. 403.

  Whether this evidence was properly
excluded under Rule 403 depends on the
timing of Ramos’s abandonment of the
Fifth Amendment privilege with respect
to the events leading up to Harris’s
arrest. If--as defendants contend--Ramos
waived his privilege well before trial
and agreed to testify to matters
concerning Harris’s arrest, then Harris
had sufficient opportunity to obtain
discovery from Ramos on all issues
related to the trial. Thus, the
probative value of Ramos’s prior silence
was extremely low and the district court
was justified in excluding it pursuant
to Rule 403. See Fed. R. Evid. 403. On
the other hand, if--as Harris
claims--Ramos refused to answer any
questions about his encounter with the
plaintiff until just prior to trial, it
was error for the district court to
exclude Ramos’s prior silence because
the effect of such a ruling would be
tantamount to allowing Ramos to avoid
discovery altogether. See McGahee v.
Massey, 667 F.2d 1357, 1362 (11th Cir.
1982) ("A defendant cannot have it both
ways. . . . [He may not] testify in
attack . . . and at the same time seek
refuge behind the shield of the Fifth
Amendment."). In that situation, the
district court should have either
prevented Ramos from testifying to
matters about which he had previously
refused to testify or allowed Harris to
impeach him with his prior silence on
those matters.

  As indicated above, defendants argue
that the district court’s ruling was
proper because Ramos waived his Fifth
Amendment privilege well before
trial./3 They assert that Ramos was
ready and willing to testify about the
events surrounding his encounter with
Harris at his September 28, 1998
deposition. According to the defendants,
Ramos did not testify about these events
at his deposition because Harris failed
to phrase his questions narrowly enough
to avoid an invocation of the Fifth
Amendment. We cannot agree. First of
all, defendants’ contention that Ramos
was willing to speak freely at the
September 28, 1998 deposition is belied
by the fact that, at that deposition,
Ramos invoked the Fifth Amendment in
response to several general questions
which could not possibly have
incriminated him./4 Defendants also
gloss over the fact that Ramos never
amended or supplemented any of his
interrogatory responses, nor did he ever
produce a single document during
discovery. Rule 26 of the Federal Rules
of Civil Procedure provides that: "a
party is under a duty seasonably to
amend a prior response to an
interrogatory, request for production,
or request for admission if the party
learns that the response is in some
material respect incomplete or
incorrect." Fed. R. Civ. P. 26(e)(2).
Thus, Harris was entitled to assume that
Ramos’s interrogatory responses had not
changed, and rely on those answers in
preparing for deposition. Absent an
effort by Ramos to clarify where he
asserted the privilege and where he did
not, it was not unreasonable for Harris
to assume that Ramos’s position with
respect to the privilege remained
unchanged. Contrary to defendants’
suggestion, Harris was not required to
continue asking questions until he hit
an issue that Ramos was willing to
testify about. Therefore, we agree with
Harris that Ramos did not abandon his
Fifth Amendment privilege with respect
to the events at issue in this case
until just prior to trial. Consequently,
we find that the district court’s ruling
that Harris was precluded from
presenting to the jury evidence of
Ramos’s prior silence was an abuse of
discretion./5

C.   Harmless Error

  Although we have determined that the
district court erroneously excluded
evidence of Ramos’s prior invocation of
the Fifth Amendment, a new trial is not
required if the error was harmless. See
Romero v. Cincinnati Inc., 171 F.3d
1091, 1096 (7th Cir. 1999). The Federal
Rules of Civil Procedure provide that
"[n]o error in either the admission or
the exclusion of evidence is . . .
ground for granting a new trial or for
setting aside a verdict or for vacating,
modifying, or otherwise disturbing a
judgment or order, unless refusal to
take such action appears to the court
inconsistent with substantial justice."
Fed. R. Civ. P. 61. Our cases hold that
"evidentiary errors satisfy this
standard only if a significant chance
exists that they affected the outcome of
the trial." Hasham v. California State
Bd. of Equalization, 200 F.3d 1035, 1048
(7th Cir. 2000).

  Here, defendants present three
arguments to support their claim that
the exclusion of Ramos’s prior silence
was harmless error. First, they argue
that, once Ramos took the stand and
answered all questions posed to him,
evidence of his prior silence would not
have been helpful to Harris’s case
because, at that point, Harris was free
to ask Ramos about any of the details of
his encounter with Harris. Next,
defendants claim that the evidence at
trial that Ramos was convicted of a
myriad of federal offenses was far more
damaging to his credibility than
testimony about his prior invocation of
the Fifth Amendment would have been.
Lastly, defendants claim that the
district court’s exclusion was harmless
because, even if the district court had
admitted evidence of Ramos’s prior
silence, the jury would not have been
required to draw an adverse inference
from that evidence. See Daniels v.
Pipefitters Ass’n Local Union No. 597,
983 F.2d 800, 802 (7th Cir. 1993)
(finding that the adverse inference to
be drawn from the invocation of the
Fifth Amendment is permissive rather
than mandatory).

  We are unable to accept defendants’
claim that the evidence of Ramos’s prior
invocation of the Fifth Amendment could
not possibly have had an effect on the
outcome of the trial. Although plaintiff
was allowed to ask Ramos about details
of the incident at trial, he was forced
to do this without the benefit of any
discovery. Harris’s ability to formulate
a trial strategy was certainly hindered
by the fact that he had no idea what
Ramos was going to say while on the
stand. We also disagree with defendants’
contention that there is no material
difference between the impeachment
effect of the fact that Ramos was a
convicted felon and the fact that he had
invoked the Fifth Amendment with respect
to specific questions about his
encounter with Harris. The inference
that the jury drew from the fact that
Ramos had been convicted of various
federal crimes is certainly different
from the inference the jury would likely
have drawn from the fact that Ramos’
specifically invoked the Fifth Amendment
in response to questions about his
arrest of Harris. Furthermore, the fact
that the jury was not required to draw
an adverse inference from the evidence
of Ramos’s prior silence is not enough
to render the error in this case
harmless. Not only was Harris prevented
from impeaching Ramos with his silence,
he was also precluded from arguing to
the jury that a negative inference
should be drawn from that silence. For
all of these reasons, we are convinced
that there is a significant chance that
the outcome of the trial was affected by
the exclusion of Ramos’s invocation of
the Fifth Amendment in response to
questions relating to the incident in
question.
 III. Conclusion

  For the reasons stated above, we
REVERSE the judgment of the district
court and REMAND for a new trial.

FOOTNOTES
/1 The interrogatories included questions concern-
ing: the sequence of events which led to Har-
ris’s arrest on December 7, 1993; Ramos’s use
of force in arresting Harris; whether Ramos had
ever been charged with abuse of authority; and
whether Ramos had been the subject of an inter-
nal review for abuse of authority.

/2 It does not appear that this ruling resulted
from a misunderstanding of the relevant legal
principle because, in the order denying a new
trial, the court properly recognized that
"there is no longer any doubt that at trial a
civil defendant’s silence may be used against
him, even if that silence is an exercise of his
constitutional privilege against self incrimi-
nation." Harris v. City of Chi., No. 97 c 684,
slip op. at 6 (N.D. Ill. March 31, 2000) (order
denying Harris’s motion for a new trial) (quot-
ing National Acceptance Co. v. Bathalter, 705
F.2d 924, 929-30 (7th Cir. 1983)).

/3 Defendants initially asserted that Ramos’s at-
torney had informed the district court prior to
Ramos’s deposition that "Ramos would invoke his
Fifth Amendment privilege only when answering
questions that tended to incriminate him in the
pending criminal charges." Appellees’ Bri. at
7. Because plaintiff vigorously disputed this
statement, we asked Ramos’s trial counsel,
Sheldon Nagelberg, to file an affidavit explaining
whether, when, and in what manner he first ad-
vised the district court of his client’s Fifth
Amendment position. Nagelberg’s affidavit con-
firmed that he did not inform the district
judge that his client did not intend to assert
the privilege--with respect to his encounter
with Harris-- prior to the September 28, 1998
deposition.

/4 Ramos asserted the Fifth Amendment in response
to questions such as: "What did your duties
entail as a patrolman?" and "Who was your part-
ner?" Tr. of Ramos Dep. at 9, 17.

/5 Our review of the record leads us to believe
that the court’s ruling was a result of the
district judge’s mistaken belief that Ramos had
consistently maintained the position that he
would invoke the Fifth Amendment only in re-
sponse to questions tending to incriminate him
in the pending criminal proceedings. This con-
fusion was probably due, in part, to Ramos’s
attorney’s representation at the pretrial hear-
ing that, "[Ramos] will talk freely and answer
questions about December 7 of 1993 and subse-
quent court action at 26th and California. We
have always maintained that position." Because
all discovery matters were initially assigned
to the magistrate, the district judge may not
have realized that this statement misrepresent-
ed the extent and scope of Ramos’s prior
silence.
