Raoul Mosqueda

This case arises out of sequence of events that began on January 6, 2011. Respondent Raoul Mosqueda was on duty on that date and assigned to the 7thDistrict in Englewood. While on patrol, Officer Mosqueda monitored his police radio, which was set to receive dispatches from the radio zone for the 7thDistrict(Zone 6). At 10:00 p.m., Officer Mosqueda heard a Zone 6 radio dispatch concerning a terminated traffic pursuit of a 1998 Oldsmobile Aurora with a temporary license platethat took place southeast of Englewood within a different radio zone (Zone 8) and police district (District 4) in the vicinity of 8300 South Marquette. Less than a minute later, Officer Mosqueda heard a separate Zone 6 radio dispatch reporting shots fired at Garfield and Damen near the northern boundary of the 7thDistrict.At around 1:30 a.m. on January 7, Officer Mosqueda spotted a 1998 Oldsmobile Aurora with temporary plates and signaled for the driver to pull over.A confrontation ensued that resulted in Officer Mosqueda being knocked to the ground as the Oldsmobile backed up, Officer Mosqueda and his partner firing their weapons, the driver of the car (Darius Pinex) being shot and killedby Officer Mosqueda, and the passenger (Matthew Colyer) sustaining an injury.
A few hours later on the morning of January 7, Officer Mosqueda gave a statement to the Independent Police Review Authority (“IPRA”) regarding the traffic stop and shooting. In his IPRA statement, Officer Mosqueda stated that he and his partner decided to stop the Oldsmobile Aurora because it matched the description of a car (namely, an Oldsmobile Aurora by make and model and dark color that was wanted for shots fired) identified in a prior radio dispatch.
In 2012, Mr. Colyer and the estate of Darius Pinex sued Officer Mosqueda, his partner, and the City of Chicago alleging that the officers used excessive force in firing their weapons. One of the defense
attorneys prepared Officer Mosqueda for his deposition by playing him a recording from a radio dispatch that was broadcast on Zone 8 on the night of January 6, 2011. The Zone 8 dispatch concerned the pursuit of ablack 1998 Oldsmobile Aurora with rims and temporary plates in the vicinity of 8300 South Marquette, indicated that the car was wanted for fleeing and eluding, and assumed that there was a weapon in the car.The defense attorney did not play the Zone 6 dispatch for Officer Mosqueda even though Officer Mosqueda stated that the dispatch that was played for him was not what he heard on the night of the incident.
During his June 13, 2013,deposition, Officer Mosqueda testified that his attention was drawn to the Oldsmobile Aurora because it met the description of the police radio dispatch that he had heard (namely, a dark Aurora with temporary plates and rims that was fleeing from the 4th District, had a gun in the car, and may have had something to do with shots fired). The Culyer lawsuit proceeded to trial in 2015and Officer Mosqueda testified on February 25, 2015,that his attention was drawn to Mr. Pinex’s car because he had heard a radio dispatch about a dark colored vehicle with rims, temporary plates that had fled the 4thDistrict officers, could possibly be armed, and had something to do with a shooting.Officer Mosqueda “stood by” his 2011 IPRA statement and his testimony duringthe2013 deposition and at trial on February 25, 2015,when he gave two statements to IPRA in 2016after the actual Zone 6 dispatch he heard had been identified and played for him.
The Superintendent’s charges do not concern whether Officer Mosqueda made a lawful stop of the Oldsmobile Aurora or whether Officer Mosqueda used excessive force when he shot Mr. Pinex. Instead, the Superintendent alleges that Officer Mosqueda violated Rule 2, Rule 3, and Rule 14 by making false, misleading, and/or inconsistent statements regarding the radio dispatch he heard on January 6, 2011,during his 2011 IPRA statement, his 2013 deposition, and his February 25, 2015,trial testimony. After giving careful consideration to the testimony and evidence submitted by the parties during the hearing and to their closing arguments,1the Board finds that Respondent Officer Mosqueda is not guilty of all charges that have been filed against him.
A. Factual Findings Officer Mosqueda testified at the hearing as an adverse witness and on direct and cross-examination. The parties also introduced excerpts from Officer Mosqueda’s three statements to IPRA (dated January 7, 2011, September 12, 2016, and November 14, 2016), his two depositions (dated June 13, 2013 and July 29, 20152), and his trial testimony from February 25 and February 27, 2015. Both parties relied almost exclusively on Officer Mosqueda’s sometimes conflicting statements and testimony and the transcriptions of the Zone 6 and Zone8 dispatches to support their respective positions.
The evidence establishes the following.Respondent Mosqueda became a Chicago police officer on November 27, 2006,and he was assigned to the 7thDistrict in Englewood for the first seven years of his career. In early January 2011, Officer Mosqueda worked as a “midnight officer” on the first watch --which begins at 9:00 p.m. and ends at either 6:00 a.m. or 7:00 a.m. Officer Mosqueda worked the first watch on January 5, 2011. Although he was scheduled to check off at7:00 a.m. on January 6, he actually stayed on duty for approximately twenty-two hours until approximately 6:00 –7:00 p.m. that evening to complete the processing of an armed robbery arrest. Officer Mosqueda then went home, changed, and reported back to the 7thDistrict at 9:00 p.m. to begin his January 6 tour of duty on the first watch.
On the evening of January 6, Officer Mosqueda was partnered with Officer Gildardo Sierra and they went on patrol in a Chevy Tahoe. While on duty, Officer Mosqueda monitored his radio for notifications and dispatches that might alert him to emergencies.All police officers do not receive the same dispatches because the City of Chicago is divided into radio zones that are assigned to the different police districts. In 2011, the 7thDistrict was assigned to Zone 6 and Officer Mosqueda’s radio was set to receive dispatches from that zone.
Around10:00 p.m. on January 6, Officer Mosqueda heard the following Zone 6 dispatch:

Zone 8 traffic pursuit at 8300 South Marquette. They were chasing a 8378 Mary 393, ’98 Olds Aurora. Last seen at 9300 South East End traveling westbound. 420 terminated it. 1998 Olds Aurora, 378 Mary 393.

Officer Mosqueda understood at the time he heard this dispatch that it referred to a traffic pursuit the transcript was “printed on” August 13, 2015. in the South Chicago neighborhood within the 4th District that involved a 1998 Oldsmobile Aurora with a temporary license plate. Officer Mosqueda also understood that a sergeant terminated the pursuit as the car was at 9300 South East End heading westbound. This was the only radio dispatch that Officer Mosqueda heard that evening that had anything to do with an Oldsmobile Aurora. Twenty-five seconds later, Officer Mosqueda heard a separate Zone 6 dispatch stating:

shots fired at Garfield and Damen, use caution in the area. Garfield and Damen, shots heard.

This incident occurred within Englewood near the northern boundary of the 7thDistrictand it had no connection with the pursuit of the Oldsmobile Aurora in the 4thDistrict.
At around 1:30 a.m. on January 7, Officer Mosqueda (who was driving) saw a dark green 1998 Oldsmobile Aurora with temporary plates in the vicinity of 1119 West Marquette Road. Although the car was driving approximately 15 –20 m.p.h. and was not committing any traffic violations, Officer Mosqueda signaled for the car to pull over and stop. After Officer Mosqueda pulled the Tahoe in front of the car, he and Officer Sierra got out with weapons drawn. As Officer Mosqueda approached the Oldsmobile, the driver (Darius Pinex) knocked Officer Mosqueda to the ground as he backed his car into a tree. As the car then began moving forward, both officers fired their weapons and Officer Mosqueda shot and killed Mr. Pinex. The passenger in the car (Matthew Colyer) was also injured during the incident.
After the incident, Officer Mosqueda’s supervising sergeant drove him to the hospital to get checked out because he had been struck by the Oldsmobile and they wanted to make sure that he did not have any internal injuries. Officer Mosqueda remained at the hospital for one to two hours and his sergeant than drove him to Area 1 Headquarters. While at the Area 1, Officer Mosqueda met with several officers or detectives and then he provided a statement to an IPRA investigator. During his IPRA statement, Officer Mosqueda told the IPRA investigator that while on routine patrol he observed a vehicle that matched the description of an all call dispatch over the radio that referred:

To a vehicle Oldsmobile Aurora by make and model and dark colored that was wanted for shots fired.
He told Officer Sierra that the car matched the description and that they should check out the vehicle.

In 2012, Mr. Colyer and the estate of Mr. Pinex filed separate and later consolidated federal lawsuits (hereinafter, the “Colyer lawsuit”) against Officers Mosqueda and Sierra and the Cityof Chicago alleging the officers acted unreasonably and used excessive force in firing their weapons. Defendants were represented by attorneys from the City of Chicago’s Corporation Counsel’s Office. One of these attorneys (Tom Aumann)prepared Officer Mosqueda for his deposition. Officer Mosqueda told attorney Aumann that he had heard a message about a vehicle, and he saw a vehicle that matched the descriptionof the vehicle that was in the radio dispatch. Attorney Aumann played Officer Mosqueda a recording from a January 6, 2011,radio dispatch that was broadcast on Zone 8 (which encompassed the 4thDistrict).Like the Zone 6 dispatch, the Zone 8 dispatch concerned the pursuit of a 1998 Oldsmobile Aurora with temporary plates in the vicinity of 8300 South Marquette. However, the Zone 8 dispatch provided further details about the car (such as its color and the fact that it had rims), indicated that the car waswanted for fleeing and eluding, and assumed that there was a weapon in the car given the amount of shootings in the area and the way the driver was driving.
Attorney Aumann played the Zone 8 dispatch one or two times for Officer Mosqueda on June 12, 2013,although hedid not tell him that the dispatch was from Zone 8. Moreover, although Officer Mosqueda told attorney Aumann that this was not the dispatch that he had heard on January 6, Attorney Aumann did not play the Zone 6 dispatch for Officer Mosqueda.
During his June 13, 2013,deposition, Officer Mosqueda testified that his attention was drawn to the Oldsmobile Aurora driven by Mr. Pinex because it met the description of the radio dispatch that he had heard earlier during his tour. Specifically, Officer Mosqueda testified that:
*“I remember that the message that I heard said something about the vehicle fleeing from the Fourth District and that it may have something to do with shots being fired”;
* the dispatch “[s]aid a dark Aurora, four-door with temporary plates and rims”; and
•he “knew that there was a gun in the car because dispatch had earlier notified everyone that this particular car that matched the description could be armed.”

Officer Mosqueda admitted at the hearing that the additional facts he had not included in his 2011 IPRA statement but that were included in his 2013 deposition testimony came from the radio dispatch that was played for him during his deposition preparation.

In 2015, the Culyer lawsuit proceeded to a jury trial federal court.Officer Mosquedatestified at trial on February 25, 2015. Officer Mosqueda was again questioned about what drew his attention to Mr. Pinex’s car and about the radio dispatch that he had heard on January 6, 2011. With respect to the radio dispatch, Officer Mosqueda testified as follows:

So earlier in the day I heard a message that came over our radio and the message was something about a dark colored vehicle with rims and a yellow, obviously yellow temporary plates that had fled the Fourth District officers and that it possibly could be armed and that it had something to do with a shooting.

Officer Mosqueda further testified that he heard this dispatch on the Zone 6 radio.

However, at the time Officer Mosqueda testifiedon February 25, neither he nor the plaintiffs’ counsel nor the federal judge handling the Culyer lawsuit (the Honorable Edmond Chang) were aware that there was a recording of the actual Zone 6 dispatch that Officer Mosqueda heard on January 6, 2011. On February 26, defense counsel produced the recording of the Zone 6 dispatch to the plaintiffs5and they also played the Zone 6 dispatch to Officer Mosqueda. This was the first time that Officer Mosqueda had heard the Zone 6 dispatch since the evening of January 6, 2011.
On February 27, Judge Chang allowed plaintiffs’ counsel to recall Officer Mosqueda to the witness stand so that they could question him about the Zone 6 dispatch. Plaintiffs’ counsel confronted Officer Mosqueda with the discrepancies between his February 25 trial testimony about the radio dispatch that he heard (which included details about a dark colored vehicle with rims that could be armed and had something to do with a shooting) and the actual Zone 6 dispatch that he heard on January 6, 2011 (which did not contain those details). Officer Mosqueda explained that he testified as he did on February 25 because:

I had never heard that transmission (the Zone 6 dispatch) other than the original time that I heard it over four years ago, so as I remember it, that is what I remembered, so that is what I thought actually happened. So that is why I said that.

Plaintiffs’ counsel also sought to get Officer Mosqueda to admit that his testimony on February 25 was not true. Officer Mosqueda acknowledged the differences between his February 25 testimony and the Zone 6 dispatch but nonetheless testified that “I gave the best information that I believed.”Officer Mosqueda also testified that he believed that the car had been involved in a crime because it had fled the other officers and did not initially stop for him. Finally, he reiterated his belief that the car had a weapon even though the Zone 6 dispatch did not mention anything about a weapon.
On September 12, 2016, Officer Mosqueda was called to IPRA to make a statement pertaining to the allegations that had been made againsthim. The IPRA investigator asked Officer Mosqueda to confirm that the statements that he had made in his 2011 IPRA statement, his 2013 deposition, and his February 25, 2015,trial testimonyregarding the radio dispatch that he heard on January 6, 2011. Officer Mosquedastood by his prior statements and testimony and did not choose an explanation to add or change anything.

On November 4, 2016, he was called back to IPRA to make a statement pertaining to the allegations that he had initiated a traffic stop of Mr. Pinex’s carwithout legal justification based on the Zone 6 dispatch and that he violated Department policy when he fired his weapon at Mr. Pinex. The IPRA investigator asked Officer Mosqueda to confirm that the statements that he had made in his 2011 IPRA statement, his 2013 deposition, and his February 25, 2015,trial testimony regarding the traffic stop of Mr. Pinex on January 7, 2011,and the amount and type of force used on Mr. Pinex on that same date. Officer Mosquedaonce againstood by his prior statements and testimony and did not choose to add or change anything. No charges were filed against Officer Mosqueda based on the allegations concerning the traffic and the fatal shooting of Mr. Pinex.

Charges Against the Respondent

5. The Respondent, Police Officer Raoul Mosqueda, Star No. 13662, charged herein, isnot guiltyof violating Rule 2, Rule 3,and Rule 14 in that the Superintendent did not proveby a preponderance of the evidence the following charges:
On or about January 7, 2011, Officer Raoul Mosqueda made a false, misleading, and/or inconsistent statement to the Independent Police Review Authority by stating that he heard an all-call message over his squad-car radio pertaining to a vehicle that was an “Oldsmobile Aurora by make and model and uh dark color that was uh wanted for shots fired,” or words to that effect,thereby:

a.Engaging in any action or conduct which impedes the Department’s efforts to achieve itspolicy and goals or brings discredit upon the Department, in violation of Rule 2;
b.Failing to promote the Department’s efforts to implement its policy or accomplish its goals, in violation of Rule 3; and/or
c.Making a false report, written or oral, in violation of Rule 14.See the findings set forth in paragraph no. 4A above, which areincorporated hereby reference.

Chief Eddie Welch of the Bureau of Internal Affairs testified that proof of a Rule 14 violation requires the Superintendent to establishthat a respondent officer (here, Officer Mosqueda) willfully made a false report, written or oral, that was material to the issues in question. Proof of a violation of Rule 2 and Rule 3 in the context of the charges here requires the Superintendent to establish Officer Mosqueda made a false, misleading, and/or inconsistent statement that either impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department (Rule 2) or fails to promote the Department’s efforts to implement its policy or accomplish its goals (Rule 3).A good faith but mistaken statement that is factually inaccurate or misleading would not suffice to prove the charges at issue here.
The Zone 6 dispatch that Officer Mosqueda heard on January 6, 2011,did not make any reference to the color of the 1998 Oldsmobile Aurora and or to the fact that it was wanted for shots fired. Consequently, Officer Mosqueda’s 2011 IPRA statementisfactually inaccurateand misleading in part becausehis statementindicates that Oldsmobile was a “dark color” and “wanted for shots fired.” Officer Mosqueda’s 2011 IPRA statement is also material because he asserted that he and his partner decided to make a traffic stop of Mr. Pinex’s car because of what he heard on the radio dispatch.
The parties dispute Officer Mosqueda’s motivation in making the statement.The Superintendent asserts Officer Mosqueda deliberately falsified his statement by embellishing it with additional details to bolster his justification for stopping Mr. Pinex’s car. The Superintendent also relies on the fact that Officer Mosqueda stood by his 2011 IPRA statement when he gave additional statements to IPRA in September and November of 2016. Officer Mosqueda attributes the discrepancies in his statement tothe fact that he had experienced the stress of shooting and killing Mr. Pinex and had been on continuous duty (with the exception of a two-hour break) for more than forty hoursover a two-day period prior to giving his IPRA statement.
The Board finds that Officer Mosqueda’s argument is more persuasive. First, the Board does not find that Officer Mosqueda made his 2011 IPRA statement with the intent of embellishing the information he received from the radio dispatch so as to justify his traffic stop of Mr. Pinex’s car. The Zone 6 dispatch identified a 1998 Oldsmobile Aurora with temporary plates that fled from officers in the 4th District. Mr. Pinex was driving a 1998 Oldsmobile Aurora --a vehicle that Officer Mosqueda testified without contradiction was “very distinctive” and “not a common car” --with temporary plates. Moreover, Officer Mosqueda believed that the Oldsmobile had been involved in a crime because it fled the other officers and did not initially stop when he tried to pull it over. Thus, regardless of whether the traffic stop of Mr. Pinex’s vehiclewas legally justified, Officer Mosqueda certainly believed that he had a sufficient justification to make the stop based on information that did notinclude the details that rendered his IPRA statement factually inaccurate.
Second, the Board agrees that the fact that Officer Mosqueda had worked for nearly forty hoursstraight prior to giving his IPRA statement and that he had been throughthehighly stressful situation of being knocked down by a car and fatally shooting Mr. Pinex could have caused him to mistakenly include additional detailswithin his statement. Even the Superintendent’s counsel acknowledged in her closing argument that “[m]emory is a tricky thing, and at least in January of 2011, Officer Mosqueda was an intense --he was in an intense, frightening, high-stakes situation. There’s no question about that.”Here,Officer Mosqueda heard a second Zone 6 dispatch that mentioned “shots fired” just twenty-five seconds after he heard the Zone 6 dispatch regarding the 1998 Oldsmobile Aurora. It is easy to imagine that the fatigued, highly stressed Officer Mosqueda could have mistakenly conflated thetwo Zone 6 dispatchesand included information about “shots fired” in his IPRA statement.
Third, the Board rejects the Superintendent’s argument that Officer Mosqueda’s motivation and intent when he made his 2011 IPRA statement can be determined by examining his motivation at the time he made his 2016 IPRA statements. Knowledge and intent must be determined at the time a false statement is made. See, e.g., People v. Boyd, 81 Ill.App.3d 259, 261 (3d Dist. 1980) (“An essential element of the crime of perjury is knowledge of falsity ofthe statements at the time of utterance.”);6People v. Drake, 63 Ill.App.3d 633, 635 (4thDist. 1978) (same).Thus, although the Board agrees that Officer Mosqueda’s decision to “stand by” his early statements in his 2011 IPRA statement, his 2013 deposition, and his February 25, 2015,trial testimony without acknowledging that they were, based on the physical evidence, factually incorrect, is troubling,his actions in 2016 do not provide proof of his motivation and intent in 2011 when he made his first IPRA statement.
6. The Respondent, Police Officer Raoul Mosqueda, Star No. 13662, charged herein, isnot guiltyof violating Rule 2, Rule 3, and Rule 14 in that the Superintendent did not prove by a preponderance of the evidence the following charges:
On or about June 13, 2013, Officer Raoul Mosqueda made a false, misleading, and/or inconsistent statement during sworn deposition testimony by stating, “I remember that the message that I heard said something about the vehicle fleeing from the 4thDistrict and that it may have something to do with shots being fired,” and “It said a dark Aurora, four-door, with temporary plates and rims,” and “I knew that there was a gun in the car because dispatch—dispatch had earlier notified—notified everyone that this particular car that matched the description could be armed,” or words to that effect, thereby:

a.Engaging in any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department, in violation of Rule 2;
b.Failing to promote the Department’s efforts to implement its policy or accomplish its goals, in violation of Rule 3; and/or
c.Making a false report, written or oral, in violation of Rule 14.See the findings set forth in paragraphsnos. 4A and 5above, which are incorporated here by reference.
The Zone 6 dispatch that Officer Mosqueda heard on January 6, 2011,did not make any reference to the color of the 1998 Oldsmobile Aurora, the fact that it had rims, the fact that it was wanted for shots fired, or the fact that a car that matched this description could be armed. Consequently, Officer Mosqueda’s 2013 deposition testimony is factually inaccurateand misleading in part because his testimony included the above details in his description of whathe heard on the Zone 6 radio dispatch. Officer Mosqueda’s deposition testimony is also material because he asserted that he and his partner decided to make a traffic stop of Mr. Pinex’s car because of what he heard on the radio dispatch.
The parties dispute Officer Mosqueda’s motivation in providing this deposition testimony. Officer Mosqueda explains that he mistakenly incorporated the above additional details in his description of the radio dispatch that he heard because one of his attorneys played the Zone 8 dispatch for him during his deposition preparation the day before he gave his deposition on June 13, 2013. The Superintendent agrees that the additional details that Officer Mosqueda included in his description of the radio dispatch he heard were present in the Zone 8 dispatch. However, the Superintendent argues that Officer Mosquedawillfully --and not mistakenly --included these additional details in his testimony because he knew at the time of his 2013 deposition that the radio dispatch that his counsel played for him was not the radio dispatch that he heard on the night of January 6, 2011.
The Board disagrees. Although Officer Mosqueda knew that his counsel played him a different radio dispatch than he had heard, there is no evidencethat Officer Mosqueda recalled at that time howthe dispatch he heard differed from the dispatch his counsel played for him. At that time, Officer Mosqueda had heard the Zone 6 dispatch only once and that was two and a half years before his 2013 deposition. Officer Mosqueda’s counsel did not tell him that the radio dispatch that he played for him was from Zone 8. Moreover, the Zone 6 and Zone 8 dispatches shared many common and important details (namely, they both concerned a 1998 Oldsmobile Aurora --a very distinctive and uncommon car --with temporary plates that had fled from officers). Officer Mosqueda could have justifiably even if mistakenly assumed that his counsel would not have played a radio dispatch for him during his deposition preparation that materially differed from the dispatch he actually heard.

7. The Respondent, Police Officer Raoul Mosqueda, Star No. 13662, charged herein, isnot guiltyof violating Rule 2, Rule 3, and Rule 14 in that the Superintendent did not prove by apreponderance of the evidence the following charges:
On or about February 25, 2015, Officer Raoul Mosqueda made a false, misleading, and/or inconsistent statement during sworn trial testimony by stating, “So earlier that day I heard a message that cameover our radio, and the message was something about a dark colored vehicle with rims and a yellow, obviously yellow temporary plate that had fled the 4thDistrict officers, and that it possibly could be armed, and it had something to do with a shooting,” or words to that effect, thereby:
a.Engaging in any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department, in violation of Rule 2;
b.Failing to promote the Department’s efforts to implement its policy or accomplish its goals, in violation of Rule 3; and/or
c.Making a false report, written or oral, in violation of Rule 14.

See the findings set forth in paragraph nos. 4A, 5, and 6above, which are incorporated here by reference.
The Zone 6 dispatch that Officer Mosqueda heard on January 6, 2011,did not make any reference to the color of the 1998 Oldsmobile Aurora, the fact that it had rims, the fact that it was wanted for shots fired, orthe fact that a car that matched this description could be armed. Consequently, Officer Mosqueda’s February 25, 2015,trial testimony isfactually inaccurateand misleading in part because his testimony included the above details in his description of what he heard on the Zone 6 radio dispatch. Officer Mosqueda’s February 25, 2015, testimony is also material because he asserted that he and his partner decided to make a traffic stop of Mr. Pinex’s car because of what he heard on the radio dispatch.
The parties dispute Officer Mosqueda’s motivation in providing this trial testimony. The Superintendent points to Officer Mosqueda’s later trial testimony on February 27, 2015, during which Officer Mosqueda was questionedfor the first time after he heard the Zone 6 dispatch that he had heard on the evening of January 6, 2011.The Superintendent’s stated in her closing argument that Officer Mosqueda “begrudgingly acknowledged that the Zone 6 call did not say what he said it said, but he offered no explanation at all for why he testified otherwise.” However, Officer Mosqueda did offer an explanation for his testimony. In particular, he testified on February 27 that his prior trial testimony was what he believed that he remembered and that he gave the best information that he believed.
There is no question that Officer Mosqueda’s belief was mistaken but that fact --in itself --is not sufficient to prove the charges against him. See, e.g., Drake, 63 Ill.App.3d at 635 (“A conviction for perjury cannot bepredicated on a belief even though the belief is unfounded in fact and law”); People v. McCulloch, 404 Ill.App.3d 125, 131 (2d Dist. 2010) (citing to Drake).
The Superintendent, whose counsel acknowledged that “[m]emory is a tricky thing,” has not proven that Officer Mosqueda did not actually believe what he claimed that he remembered. See Drake, 63 Ill.App.3d at 635.(“This general rule . . . that a charge of perjury may not be based upon belief or opinion, is subject to the qualification that such a statement of belief or opinion may constitute perjury when, as a matter of fact, the witness had no such belief or opinion.”)