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The full case caption appears at the end of this opinion. COFFEY, Circuit Judge. Plaintiff Naomi Treece(“Treece”) filed a section 1983 federal civilrights suit against officer Steven Hochstetler(“Hochstetler”) of the City of Naperville policedepartment and the City of Naperville (“City”),alleging that they maliciously prosecuted her. [FOOTNOTE 1] After the City “agree[d] to entry of judgmentagainst [itself]” should “ the jury enter[ ] afinding of liability against DefendantHochstetler,” the judge bifurcated the trial,removing the City from the trial, and orderedTreece’s section 1983 action against Hochstetlerto proceed. The jury returned a verdict in favorof Hochstetler and the judge accordingly entereda judgment on the verdict in favor of Hochstetlerand entered a summary judgment in favor of theCity. [FOOTNOTE 2] The plaintiff moved for a new trial andthe court denied the request. Treece appeals,arguing that the court abused its discretion whenit bifurcated the trial and in excluding evidenceof Hochstetler’s prior “bad acts.” Treece alsoappeals the judge’s entry of summary judgment infavor of the City. AFFIRM. I. BACKGROUND On September 21, 1991, Naperville police officerHochstetler received an anonymous tip describingan unusually large amount of scrap wire in theopen bed of a pick-up truck parked in thedriveway of Treece and her husband, Otis Treece(“Otis”). Pursuant to the police departmentsupervisor’s instructions, Hochstetler went tothe Treece residence to verify the informationand discovered what he described as a largeamount of scrap wire in Otis’ pickup truck. [FOOTNOTE 3] Also found was a box, containing some of the samescrap wire, addressed to the Naperville ElectricDepartment. The scrap wire and box were seizedand retained as evidence, and shortly thereafter,Otis was suspended from his job. [FOOTNOTE 4] A few days later, Larry Dickson, a fellowNaperville police officer, informed Hochstetlerthat Treece had attempted to contact him. Thatevening, Hochstetler telephoned Treece and hearranged to meet with her at the Naperville trainstation the next day. He stated that theyconversed for about fifteen minutes, butHochstetler’s and Treece’s accounts of whattranspired are vastly different. Treece allegesthat Hochstetler demanded a $100,000 bribe todrop the charges against her husband.Hochstetler, on the other hand, claims thatTreece told him that she was connected to anEastern Tennessee crime family and threatenedthat unless the charges against her husband weredropped, he would be shot and his house would beblown up. After the meeting, Hochstetler informed hissupervisor and the State’s Attorney’s Office ofTreece’s threats, and obtained an order from ajudge dated September 30, 1991, authorizing thepolice to record his conversations with Treece.They met again at the Naperville train station onOctober 1, 1991, and Hochstetler was wired witha recording device. During the conversation,Treece told Hochstetler that “I don’t think yourfamily is in danger, I think it is a fact.” Oneweek later, Hochstetler taped a phoneconversation with Treece, during which sherepeated that his family was in a state ofdanger. On October 13, 1991, Hochstetler observed Treecein the Naperville Police Department parking lotwhile she appeared to be filming the licenseplate numbers of the police officers’ personalautomobiles with a video camera. Treece contendsthat she was filming geese on a nearby lake anddid not notice the “No Trespassing-AuthorizedVehicles Only” sign. Contrary to her assertions,Treece can be heard on the video tape stating,”Keep fearing Steve, cause it will happen. Wordhas already come down.” Another encounteroccurred two days later when Treece attempted totake pictures of Hochstetler and his familyduring a charity go-cart race. Hochstetler filedpolice reports detailing these incidents andinformed the State’s Attorney’s Office, which inturn decided to seek charges against Treece. Based on these incidents, a DuPage County,Illinois grand jury returned a state criminalindictment charging Treece with three counts ofintimidation under 720 Ill. Comp. Stat. 5/12-6(a). [FOOTNOTE 5] At trial, the state’s attorney haddifficulty prosecuting her and after twomistrials, nolle-prossed the case. Six monthslater, Treece filed a section 1983 civil rightssuit in federal court, alleging that Hochstetlerand the City of Naperville had maliciouslyprosecuted her. As mentioned previously,according to the stipulation in the record, theCity “agree[d] to entry of judgment against[itself]” should “ the jury enter[ ] a finding ofliability against Defendant Hochstetler.” Thejudge accordingly bifurcated the trial, removingthe City from the trial, and ordered Treece’ssection 1983 action against Hochstetler toproceed. During trial, in spite of an objectionon the part of Treece, the court excludedevidence in so far as Hochstetler’s prior “badacts,” which Treece claims would have establishedthat he engaged in a pattern of soliciting bribesand falsely charging individuals with crimes whenthe bribes were not paid. [FOOTNOTE 6] The jury returned averdict in favor of Hochstetler, and the judgethereafter entered a judgment on the verdict infavor of Hochstetler and entered a summaryjudgment in favor of the City, and deniedTreece’s motion for a new trial. Treece appealed. II. ISSUES On appeal, Treece argues that the court: (1)abused its discretion in excluding evidence ofHochstetler’s prior “bad acts”; (2) erred inentering a summary judgment for the City; and (3)abused its discretion when it bifurcated thetrial. III. ANALYSIS A. The District Court’s Exclusion of Prior “BadActs” Evidence Treece contends that the district court abusedits discretion by excluding evidence ofHochstetler’s prior “bad acts.” We review acourt’s decision to exclude Rule 404(b) evidenceunder the abuse of discretion standard. SeeUnited States v. Griffin, 194 F.3d 808, 820 (7thCir. 1999). [FOOTNOTE 7] In reviewing a judge’sdetermination of the admissibility of Rule 404(b)evidence, “we must accord great deference to the[trial] court’s assessments because of thejudge’s first hand exposure to the evidence andbecause of the judge’s familiarity with the caseand ability to gauge the impact of evidence inthe context of the proceeding.” United States v.Asher, 178 F.3d 486, 494 (7th Cir. 1999). We utilize a four-prong test to determine theadmissibility of prior “bad acts” evidence underFed. R. Evid. 404(b). Under this test, evidenceof prior crimes, wrongs, or acts may be admittedwhen: (1) the evidence is directed toward establishinga matter in issue other than the defendant’spropensity to commit the crime charged; (2) theevidence shows that the other act is similarenough and close enough in time to be relevant tothe matter in issue; (3) the evidence issufficient to support a jury finding that thedefendant committed the similar act; and (4) theprobative value of the evidence is not outweighedby 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 ofthe test because it established Hochstetler’s”modus operandi”–his “common scheme” or patternof conduct of soliciting bribes and then filingfalse police reports to support the trumped upcharges when the bribes are not paid. Indeed, wehave held that prior “bad acts” evidence isadmissible under Rule 404(b) to demonstrate modusoperandi. See United States v. Smith, 103 F.3d600, 603 (7th Cir. 1996). But we have cautionedthat “[i]f defined broadly enough, modus operandievidence becomes nothing more than the characterevidence that Rule 404(b) prohibits.” Id. Thus,in order to ensure that the evidence at issue isnot offered to establish Hochstetler’s propensityto commit the acts for which he is accused, “werequire that [the prior bad acts] evidence bear’a singular strong resemblance to the pattern ofthe offense charged.’” United States v. Robinson,161 F.3d 463, 468 (7th Cir. 1998) (emphasisadded) (quoting United States v. Shackleford, 738F.2d 776, 783 (7th Cir. 1984)). Treece’s federal suit essentially accusedHochstetler of violating her constitutionalrights by demanding a bribe from her in exchangefor dropping the charges against her husband. Thetrial judge found, and we agree, that the recordreflects that none of Hochstetler’s purportedprior “bad acts” revealed any information, muchless, any allegations of Hochstetler “shakingdown” individuals or demanding a bribe inexchange for the dismissal of the charges. Thus,these incidents are not “sufficientlyidiosyncratic to permit an inference of pattern.”See United States v. Hudson, 884 F.2d 1016, 1021(7th Cir. 1989). Accordingly, because theexcluded evidence of Hochstetler’s prior “badacts” did not “bear a singular strong resemblanceto the pattern of the offense charged,” Robinson,161 F.3d at 468 (internal quotations omitted), weconclude that the district court did not abuseits discretion in excluding this evidence. B. The District Court’s Entry of Judgment forthe City Next, despite the jury’s verdict in favor ofHochstetler, Treece baldly claims that the trialcourt erred in entering a summary judgmentthereafter in favor of the City of Napervillebecause, she contends, the City could still havebeen found independently liable based on itsknowledge of Hochstetler’s acts and failure totake action thereafter. Treece’s unsupportedassertion [FOOTNOTE 8] fails as a matter of law because itis well established in this Circuit that amunicipality’s liability for a constitutionalinjury “requires a finding that the individualofficer[ ] [is] liable on the underlyingsubstantive claim.” Tesch, 157 F.3d at 477.Similarly, in City of Los Angeles v. Heller, 475U.S. 796 (1986), the Supreme Court held that: neither Monell v. New York City Dept. of SocialServices, 436 U.S. 658 (1978), nor any other ofour cases authorizes the award of damages againsta municipal corporation based on the actions ofone of its officers when in fact the jury hasconcluded that the officer inflicted noconstitutional harm. If a person has suffered noconstitutional injury at the hands of theindividual police officer, the fact that thedepartmental regulations might have authorizedthe use of constitutionally excessive force isquite beside the point. Id. at 799 (emphasis added). Indeed, Hellerestablishes that a city’s liability is derivativeof its police officer’s liability. See id.Likewise, because a jury has determined thatHochstetler was not liable for committing aconstitutional deprivation (tort) against Treece,it is impossible under existing case law for theCity to be held liable for its knowledge orinaction concerning its officer’s activity. SeeGossmeyer v. McDonald, 128 F.3d 481, 494 (7thCir. 1997) (“Here, the Sheriff’s Departmentcannot be found liable because [the officers']actions did not constitute, nor did they cause,a constitutional tort.”); Thompson v. Boggs, 33F.3d 847, 859 n.11 (7th Cir. 1994) (“Monellexpressly holds that there is no cause of actionfor respondeat superior liability against amunicipal 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 notviolate the Constitution, we must conclude thatneither the City nor [police chief] can be heldliable for [the plaintiff's] death. . . . [I]fthe [officers] inflicted no constitutional injuryon [the plaintiff], it is inconceivable that the[City and police chief] could be liable . . . .Neither the City nor the police officer’ssupervisor can be held on a failure to traintheory or on a municipal policy theory absent afinding that the individual officers are liableon the underlying substantive claim. No convincing case law has been presented to us(nor have we discovered any) that would compel usto deviate from the law as it now exists.Accordingly, because the jury returned a findingof liability in favor of Hochstetler, we concludethat the district court did not err in enteringa summary judgment in favor of the City. C. The District Court’s Bifurcation of the Trial Finally, Treece contends that the court abusedits discretion when it bifurcated the trial,thereby removing the City from the trial andordering Treece’s section 1983 action againstHochstetler to proceed. “The district court hasconsiderable discretion to order the bifurcationof a trial, and we will overturn this decisiononly upon a clear showing of abuse.” Krocka v.City of Chicago, 203 F.3d 507, 516 (7th Cir.2000) (internal quotations omitted). We have heldthat “Federal Rule of Civil Procedure 42(b)permits the separate trial of any issue whenseparation would be in furtherance of convenienceor to avoid prejudice, or when separate trialswill be conducive to expedition and economy.”Berry v. DeLoney, 28 F.3d 604, 610 (7th Cir.1994) (internal quotations omitted). “Only one ofthese criteria need be satisfied for a court toorder a separate trial.” Id. Here, bifurcation avoided the needless costs andburdens of a second trial, as well as, but notlimited to, the waste of the valuable time andresources of the court, and the inconveniencingof witnesses, especially in light of the factthat the City “agree[d] to entry of judgmentagainst [itself]” should “ the jury enter[ ] afinding of liability against DefendantHochstetler.” Further, as previously discussed,under established law, the liability of the Cityof Naperville was derivative of Hochstetler’sliability. See Gossmeyer, 128 F.3d at 494. Thus,we conclude that the trial judge’s bifurcation ofthe trial against Hochstetler and the City wasproper and, accordingly, was not an abuse ofdiscretion. VI. CONCLUSION We hold that the trial judge did not abuse herdiscretion when she excluded evidence ofHochstetler’s prior “bad acts” and did not errwhen she entered a summary judgment in favor ofthe City. We also hold that the court did notabuse its discretion when it bifurcated thetrial. The decision of the district court is Affirmed. :::FOOTNOTES::: FN1 Treece also claimed malicious prosecution andintentional infliction of emotional distressunder Illinois state law. FN2 The summary judgment entered in favor of the Cityis consistent with the well established principlethat a municipality is not liable for aconstitutional injury unless there is “a findingthat the individual officer[ ] [is] liable on theunderlying substantive claim.” Tesch v. County ofGreen Lake, 157 F.3d 465, 477 (7th Cir. 1998).The jury returned a verdict in favor ofHochstetler, and thus found no liability on theofficer’s part. FN3 Otis gave Hochstetler permission to search histruck. FN4 On October 1, 1991, Otis Treece was charged withfelony theft, but he later was acquitted of thatcharge. Thereafter, he was reinstated to his jobwith the City’s Electric Department. FN5 “A person commits intimidation when, with intentto cause another to perform or to omit theperformance of any act, he communicates toanother, whether in person, by telephone or bymail, a threat to perform without lawfulauthority any of the following acts: (1) Inflictphysical harm on the person threatened . . . .” FN6 But it is interesting to note that among thesepurported prior “bad acts,” nobody accusedHochstetler of “shaking them down” or demandinga bribe. Thus, the trial judge found that Treece”offered no credible purpose for [its]admission,” and excluded the evidence in thecase. We also note that two of the four alleged”bad acts” occurred after Treece’s indictment onthe state charges. FN7 Fed. R. Evid. 404(b) provides: Evidence of other crimes, wrongs, or acts is notadmissible to prove the character of a person inorder to show that he acted in conformitytherewith. It may, however, be admissible forother purposes, such as proof of motive,opportunity, intent, preparation, plan,knowledge, identity, or absence of mistake oraccident. FN8 In her brief, Treece misinterprets the prevailinglaw on this issue and fails to direct thiscourt’s attention to any properly construed casethat supports her assertion.
Treece v. Hochstetler 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.
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