In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1283

NAOMI TREECE,

Plaintiff-Appellant,

v.

STEVEN HOCHSTETLER and CITY OF NAPERVILLE,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 C 5548--Rebecca R. Pallmeyer, Judge.


Argued February 17, 2000--Decided May 17, 2000



      Before Harlington Wood, Jr., Coffey and Ripple, Circuit
Judges.

      COFFEY, Circuit Judge. Plaintiff Naomi Treece
("Treece") filed a section 1983 federal civil
rights suit against officer Steven Hochstetler
("Hochstetler") of the City of Naperville police
department and the City of Naperville ("City"),
alleging that they maliciously prosecuted her./1
After the City "agree[d] to entry of judgment
against [itself]" should "the jury enter[ ] a
finding of liability against Defendant
Hochstetler," the judge bifurcated the trial,
removing the City from the trial, and ordered
Treece’s section 1983 action against Hochstetler
to proceed. The jury returned a verdict in favor
of Hochstetler and the judge accordingly entered
a judgment on the verdict in favor of Hochstetler
and entered a summary judgment in favor of the
City./2 The plaintiff moved for a new trial and
the court denied the request. Treece appeals,
arguing that the court abused its discretion when
it bifurcated the trial and in excluding evidence
of Hochstetler’s prior "bad acts." Treece also
appeals the judge’s entry of summary judgment in
favor of the City. AFFIRM.

I.   BACKGROUND

      On September 21, 1991, Naperville police officer
Hochstetler received an anonymous tip describing
an unusually large amount of scrap wire in the
open bed of a pick-up truck parked in the
driveway of Treece and her husband, Otis Treece
("Otis"). Pursuant to the police department
supervisor’s instructions, Hochstetler went to
the Treece residence to verify the information
and discovered what he described as a large
amount of scrap wire in Otis’ pickup truck./3
Also found was a box, containing some of the same
scrap wire, addressed to the Naperville Electric
Department. The scrap wire and box were seized
and retained as evidence, and shortly thereafter,
Otis was suspended from his job./4

      A few days later, Larry Dickson, a fellow
Naperville police officer, informed Hochstetler
that Treece had attempted to contact him. That
evening, Hochstetler telephoned Treece and he
arranged to meet with her at the Naperville train
station the next day. He stated that they
conversed for about fifteen minutes, but
Hochstetler’s and Treece’s accounts of what
transpired are vastly different. Treece alleges
that Hochstetler demanded a $100,000 bribe to
drop the charges against her husband.
Hochstetler, on the other hand, claims that
Treece told him that she was connected to an
Eastern Tennessee crime family and threatened
that unless the charges against her husband were
dropped, he would be shot and his house would be
blown up.

      After the meeting, Hochstetler informed his
supervisor and the State’s Attorney’s Office of
Treece’s threats, and obtained an order from a
judge dated September 30, 1991, authorizing the
police to record his conversations with Treece.
They met again at the Naperville train station on
October 1, 1991, and Hochstetler was wired with
a recording device. During the conversation,
Treece told Hochstetler that "I don’t think your
family is in danger, I think it is a fact." One
week later, Hochstetler taped a phone
conversation with Treece, during which she
repeated that his family was in a state of
danger.

      On October 13, 1991, Hochstetler observed Treece
in the Naperville Police Department parking lot
while she appeared to be filming the license
plate numbers of the police officers’ personal
automobiles with a video camera. Treece contends
that she was filming geese on a nearby lake and
did not notice the "No Trespassing-Authorized
Vehicles Only" sign. Contrary to her assertions,
Treece can be heard on the video tape stating,
"Keep fearing Steve, cause it will happen. Word
has already come down." Another encounter
occurred two days later when Treece attempted to
take pictures of Hochstetler and his family
during a charity go-cart race. Hochstetler filed
police reports detailing these incidents and
informed the State’s Attorney’s Office, which in
turn decided to seek charges against Treece.

      Based on these incidents, a DuPage County,
Illinois grand jury returned a state criminal
indictment charging Treece with three counts of
intimidation under 720 Ill. Comp. Stat. 5/12-
6(a)./5 At trial, the state’s attorney had
difficulty prosecuting her and after two
mistrials, nolle-prossed the case. Six months
later, Treece filed a section 1983 civil rights
suit in federal court, alleging that Hochstetler
and the City of Naperville had maliciously
prosecuted her. As mentioned previously,
according to the stipulation in the record, the
City "agree[d] to entry of judgment against
[itself]" should "the jury enter[ ] a finding of
liability against Defendant Hochstetler." The
judge accordingly bifurcated the trial, removing
the City from the trial, and ordered Treece’s
section 1983 action against Hochstetler to
proceed. During trial, in spite of an objection
on the part of Treece, the court excluded
evidence in so far as Hochstetler’s prior "bad
acts," which Treece claims would have established
that he engaged in a pattern of soliciting bribes
and falsely charging individuals with crimes when
the bribes were not paid./6 The jury returned a
verdict in favor of Hochstetler, and the judge
thereafter entered a judgment on the verdict in
favor of Hochstetler and entered a summary
judgment in favor of the City, and denied
Treece’s motion for a new trial. Treece appealed.

II.    ISSUES

       On appeal, Treece argues that the court: (1)
abused its discretion in excluding evidence of
Hochstetler’s prior "bad acts"; (2) erred in
entering a summary judgment for the City; and (3)
abused its discretion when it bifurcated the
trial.

III.    ANALYSIS

      A. The District Court’s Exclusion of Prior "Bad
Acts" Evidence

      Treece contends that the district court abused
its discretion by excluding evidence of
Hochstetler’s prior "bad acts." We review a
court’s decision to exclude Rule 404(b) evidence
under the abuse of discretion standard. See
United States v. Griffin, 194 F.3d 808, 820 (7th
Cir. 1999)./7 In reviewing a judge’s
determination of the admissibility of Rule 404(b)
evidence, "we must accord great deference to the
[trial] court’s assessments because of the
judge’s first hand exposure to the evidence and
because of the judge’s familiarity with the case
and ability to gauge the impact of evidence in
the context of the proceeding." United States v.
Asher, 178 F.3d 486, 494 (7th Cir. 1999).

      We utilize a four-prong test to determine the
admissibility of prior "bad acts" evidence under
Fed. R. Evid. 404(b). Under this test, evidence
of prior crimes, wrongs, or acts may be admitted
when:

(1) the evidence is directed toward establishing
a matter in issue other than the defendant’s
propensity to commit the crime charged; (2) the
evidence shows that the other act is similar
enough and close enough in time to be relevant to
the matter in issue; (3) the evidence is
sufficient to support a jury finding that the
defendant committed the similar act; and (4) the
probative value of the evidence is not outweighed
by the danger of unfair prejudice.

Asher, 178 F.3d at 492.

      Treece argues that the prior "bad acts"
evidence satisfies the first and second prongs of
the test because it established Hochstetler’s
"modus operandi"--his "common scheme" or pattern
of conduct of soliciting bribes and then filing
false police reports to support the trumped up
charges when the bribes are not paid. Indeed, we
have held that prior "bad acts" evidence is
admissible under Rule 404(b) to demonstrate modus
operandi. See United States v. Smith, 103 F.3d
600, 603 (7th Cir. 1996). But we have cautioned
that "[i]f defined broadly enough, modus operandi
evidence becomes nothing more than the character
evidence that Rule 404(b) prohibits." Id. Thus,
in order to ensure that the evidence at issue is
not offered to establish Hochstetler’s propensity
to commit the acts for which he is accused, "we
require that [the prior bad acts] evidence bear
’a singular strong resemblance to the pattern of
the offense charged.’" United States v. Robinson,
161 F.3d 463, 468 (7th Cir. 1998) (emphasis
added) (quoting United States v. Shackleford, 738
F.2d 776, 783 (7th Cir. 1984)).

      Treece’s federal suit essentially accused
Hochstetler of violating her constitutional
rights by demanding a bribe from her in exchange
for dropping the charges against her husband. The
trial judge found, and we agree, that the record
reflects that none of Hochstetler’s purported
prior "bad acts" revealed any information, much
less, any allegations of Hochstetler "shaking
down" individuals or demanding a bribe in
exchange for the dismissal of the charges. Thus,
these incidents are not "sufficiently
idiosyncratic to permit an inference of pattern."
See United States v. Hudson, 884 F.2d 1016, 1021
(7th Cir. 1989). Accordingly, because the
excluded evidence of Hochstetler’s prior "bad
acts" did not "bear a singular strong resemblance
to the pattern of the offense charged," Robinson,
161 F.3d at 468 (internal quotations omitted), we
conclude that the district court did not abuse
its discretion in excluding this evidence.


      B. The District Court’s Entry of Judgment for
the City

      Next, despite the jury’s verdict in favor of
Hochstetler, Treece baldly claims that the trial
court erred in entering a summary judgment
thereafter in favor of the City of Naperville
because, she contends, the City could still have
been found independently liable based on its
knowledge of Hochstetler’s acts and failure to
take action thereafter. Treece’s unsupported
assertion/8 fails as a matter of law because it
is well established in this Circuit that a
municipality’s liability for a constitutional
injury "requires a finding that the individual
officer[ ] [is] liable on the underlying
substantive claim." Tesch, 157 F.3d at 477.
Similarly, in City of Los Angeles v. Heller, 475
U.S. 796 (1986), the Supreme Court held that:

neither Monell v. New York City Dept. of Social
Services, 436 U.S. 658 (1978), nor any other of
our cases authorizes the award of damages against
a municipal corporation based on the actions of
one of its officers when in fact the jury has
concluded that the officer inflicted no
constitutional harm. If a person has suffered no
constitutional injury at the hands of the
individual police officer, the fact that the
departmental regulations might have authorized
the use of constitutionally excessive force is
quite beside the point.

Id. at 799 (emphasis added). Indeed, Heller
establishes that a city’s liability is derivative
of its police officer’s liability. See id.
Likewise, because a jury has determined that
Hochstetler was not liable for committing a
constitutional deprivation (tort) against Treece,
it is impossible under existing case law for the
City to be held liable for its knowledge or
inaction concerning its officer’s activity. See
Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th
Cir. 1997) ("Here, the Sheriff’s Department
cannot be found liable because [the officers’]
actions did not constitute, nor did they cause,
a constitutional tort."); Thompson v. Boggs, 33
F.3d 847, 859 n.11 (7th Cir. 1994) ("Monell
expressly holds that there is no cause of action
for respondeat superior liability against a
municipal corporation under 42 U.S.C. sec.
1983.").

       Indeed, as we held in Estate of Phillips v.
City of Milwaukee, 123 F.3d 586, 596-97 (7th Cir.
1997),

[h]aving decided that the officers did not
violate the Constitution, we must conclude that
neither the City nor [police chief] can be held
liable for [the plaintiff’s] death. . . . [I]f
the [officers] inflicted no constitutional injury
on [the plaintiff], it is inconceivable that the
[City and police chief] could be liable . . . .
Neither the City nor the police officer’s
supervisor can be held on a failure to train
theory or on a municipal policy theory absent a
finding that the individual officers are liable
on the underlying substantive claim.

No convincing case law has been presented to us
(nor have we discovered any) that would compel us
to deviate from the law as it now exists.
Accordingly, because the jury returned a finding
of liability in favor of Hochstetler, we conclude
that the district court did not err in entering
a summary judgment in favor of the City.


      C. The District Court’s Bifurcation of the Trial

      Finally, Treece contends that the court abused
its discretion when it bifurcated the trial,
thereby removing the City from the trial and
ordering Treece’s section 1983 action against
Hochstetler to proceed. "The district court has
considerable discretion to order the bifurcation
of a trial, and we will overturn this decision
only upon a clear showing of abuse." Krocka v.
City of Chicago, 203 F.3d 507, 516 (7th Cir.
2000) (internal quotations omitted). We have held
that "Federal Rule of Civil Procedure 42(b)
permits the separate trial of any issue when
separation would be in furtherance of convenience
or to avoid prejudice, or when separate trials
will be conducive to expedition and economy."
Berry v. DeLoney, 28 F.3d 604, 610 (7th Cir.
1994) (internal quotations omitted). "Only one of
these criteria need be satisfied for a court to
order a separate trial." Id.

      Here, bifurcation avoided the needless costs and
burdens of a second trial, as well as, but not
limited to, the waste of the valuable time and
resources of the court, and the inconveniencing
of witnesses, especially in light of the fact
that the City "agree[d] to entry of judgment
against [itself]" should "the jury enter[ ] a
finding of liability against Defendant
Hochstetler." Further, as previously discussed,
under established law, the liability of the City
of Naperville was derivative of Hochstetler’s
liability. See Gossmeyer, 128 F.3d at 494. Thus,
we conclude that the trial judge’s bifurcation of
the trial against Hochstetler and the City was
proper and, accordingly, was not an abuse of
discretion.

VI.   CONCLUSION

      We hold that the trial judge did not abuse her
discretion when she excluded evidence of
Hochstetler’s prior "bad acts" and did not err
when she entered a summary judgment in favor of
the City. We also hold that the court did not
abuse its discretion when it bifurcated the
trial. The decision of the district court is

Affirmed.



/1 Treece also claimed malicious prosecution and
intentional infliction of emotional distress
under Illinois state law.

/2 The summary judgment entered in favor of the City
is consistent with the well established principle
that a municipality is not liable for a
constitutional injury unless there is "a finding
that the individual officer[ ] [is] liable on the
underlying substantive claim." Tesch v. County of
Green Lake, 157 F.3d 465, 477 (7th Cir. 1998).
The jury returned a verdict in favor of
Hochstetler, and thus found no liability on the
officer’s part.

/3 Otis gave Hochstetler permission to search his
truck.

/4 On October 1, 1991, Otis Treece was charged with
felony theft, but he later was acquitted of that
charge. Thereafter, he was reinstated to his job
with the City’s Electric Department.

/5 "A person commits intimidation when, with intent
to cause another to perform or to omit the
performance of any act, he communicates to
another, whether in person, by telephone or by
mail, a threat to perform without lawful
authority any of the following acts: (1) Inflict
physical harm on the person threatened . . . ."

/6 But it is interesting to note that among these
purported prior "bad acts," nobody accused
Hochstetler of "shaking them down" or demanding
a bribe. Thus, the trial judge found that Treece
"offered no credible purpose for [its]
admission," and excluded the evidence in the
case. We also note that two of the four alleged
"bad acts" occurred after Treece’s indictment on
the state charges.

/7 Fed. R. Evid. 404(b) provides:

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show that he acted in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident.

/8 In her brief, Treece misinterprets the prevailing
law on this issue and fails to direct this
court’s attention to any properly construed case
that supports her assertion.
