Engel v. Buchan et al
Filing
330
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 11/12/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL ENGEL, as personal
representative of the Estate
of GARY ENGEL, deceased,
Plaintiff,
v.
ROBERT BUCHAN, et al.,
Defendants.
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No. 10 C 3288
MEMORANDUM OPINION AND ORDER
Gary Engel (“Engel”) has sued former FBI Agent Robert Buchan
(“Buchan”) and the United States (“Government”)(collectively
“Federal Defendants”) as well as former Village of Buffalo Grove
police officers Robert Quid (“Quid”) and Gary Del Re (“Del Re”),
charging each of them with violations of state and federal law
following Engel’s release in 2010 after 19 years of
incarceration.1
More precisely, Engel claims that all three
individual defendants are liable under both the seminal Bivens
decision and 42 U.S.C. §1983 (“Section 1983”) for fabricating
evidence of his guilt, for inducing false testimony by witnesses
and for then failing to disclose that evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963) and Newsome v. McCabe, 256
F.3d 747 (7th Cir. 2001).
1
Engel also maintains related claims
Engel is now deceased, so that (as the caption reflects)
the case is being carried on by his son (and personal
representative of his estate) Daniel Engel. This opinion will,
however, refer to Engel himself throughout.
that the individual defendants failed to intervene to prevent the
violations of his due process rights and engaged in civil
conspiracy to violate those rights.
Finally Engel charges Quid
and Del Re, and the United States via the Federal Tort Claims
Act, with malicious prosecution under Missouri state law.
After the litigants had spent some time slugging it out on
the discovery front, followed by a bizarre set of unrelated
events that culminated in Engel’s suicide, they have now brought
Fed. R. Civ. P. (“Rule”) 56 cross-motions for summary judgment.2
While the case includes a number of legal twists and turns, the
ultimate result is best captured by our Court of Appeals’
teaching in Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003):
Where the parties present two vastly different
stories--as they do here--it is almost certain that
there are genuine issues of material fact in dispute.
In that respect even a brief glance at the parties’ LR 56.1
statements of fact is itself instructive, for each side contests
all but the most basic of facts offered by its opponent.
That
fundamental clash in the parties’ narratives compels this Court
to deny all of the motions for the reasons described below.
2
As n.10 reflects, “summary judgment” is really an
inappropriate label for the relief that the parties seek. But as
the same note says regarding other terminology employed by all
counsel, it would require too much effort to recast this
extraordinarily lengthy opinion to fit this Court’s mold, and it
would make no substantive difference if that were done, so that
this Court simply adheres to the parties’ usage.
2
Summary Judgment Standards3
Every Rule 56 movant bears the burden of establishing the
absence of any genuine issue of material fact (Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)).
For that purpose courts
consider the evidentiary record in the light most favorable to
nonmovants and draw all reasonable inferences in their favor
(Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.
2002)).
Courts “may not make credibility determinations, weigh
the evidence, or decide which inferences to draw from the facts”
in resolving motions for summary judgments (Payne, 337 F.3d at
770).
But a nonmovant must produce more than “a mere scintilla
of evidence” to support the position that a genuine issue of
material fact exists (Wheeler v. Lawson, 539 F.3d 629, 634 (7th
Cir. 2008)) and “must come forward with specific facts
demonstrating that there is a genuine issue for trial” (id.).
Ultimately summary judgment is warranted only if a reasonable
jury could not return a verdict for the nonmovant (Anderson v.
3
Both sides have complied with this District Court’s LR
56.1, adopted to implement Rule 56. This opinion cites to
Engel’s LR 56.1(a)(3) statement as “E. St. ¶--,” to Buchan’s
corresponding statement as “B. St. ¶--” and to the Government’s
statement as “U.S. St. ¶--.” All responses to statements of fact
take the form “x R. y St. ¶--,” with the “x” denoting the author
of the response and “y” denoting the party to whose statement “x”
has responded. LR 56.1(b)(3)(B) statements of additional facts
are cited as “Add. St. ¶--.” Abbreviations “E.” for “Engel,”
“B.”for “Buchan,” “Q.” for “Quid” and “U.S.” for the Government
are used throughout. Finally, the parties’ exhibits are cited
“Ex.,” their memoranda are cited “Mem.” and their responsive
memoranda are cited “R. Mem.”
3
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
As with any summary judgment motion, this Court accepts each
nonmovant's version of any disputed facts, but only so long as it
is supported by record evidence. Where as here cross-motions for
summary judgment are involved, the principles of Rule 56 demand a
dual perspective that this Court has sometimes described as
Janus-like:
As to each motion the nonmovant’s version of any
disputed facts must be credited, an arrangement that sometimes
causes the denial of both motions.
That has unfortunately proved to be the case here, for each
party has shown that genuine issues of material fact remain that
must be addressed before the claims may be resolved.
In any
case, what follows is a summary of the facts, with material
disagreements between the parties’ narratives noted where
appropriate.
That factual “summary” is a good deal longer than
this Court would have preferred, but that length has been
compelled by the proliferation of cross-motions for summary
judgment and the consequent need to identify contested material
facts.
Facts
This case concerns two former police officers, friends and
occasional criminal associates, Steve Manning (“Manning”) and
Engel, who were separately tried and convicted of kidnapping and
ransoming a major drug dealer.
They were convicted largely
4
through the efforts of Buchan and Quid, and the conviction relied
heavily on the testimony of Anthony Mammolito (“Mammolito”).
Both Engel and Manning were released from prison after
successfully seeking habeas corpus review, and each separately
brought suit against federal and state law enforcement officers
and the United States.
For his part, Manning succeeded in
convincing a jury that officers had violated his constitutional
rights by fabricating evidence and withholding Brady material
from prosecutors, but that favorable verdict was vacated after
this Court’s colleague Honorable Matthew Kennelly found against
Manning on his state law claims.
Engel now tries his hand where
Manning ultimately failed.
Buchan’s and Quid’s Investigation
Engel’s saga is best understood by starting with that of
Manning, a former Chicago Police Officer who had lost his job
after either a conviction for or investigation into his criminal
behavior (compare E. St. ¶5 with B. R. E. St. ¶5), then served
for several years as an FBI informant (E. St. ¶5).
In that role
Manning would report on the activities of Thomas McKillip
(“McKillip”) (E. St. ¶6), who was murdered in 1986, after which
Buchan attempted to terminate Manning’s involvement with the FBI
(id. at ¶7).
In 1989 the FBI opened an investigation into Manning under
the Interstate Transportation of Stolen Property Top Thief Target
5
(B. St. ¶6).
That investigation was assigned to Buchan, who
pursued it on multiple fronts, attempting to link Manning to
burglaries, drug dealing and murders (E. St. ¶10).
Those investigative efforts did not bear significant fruit
until Buchan visited then Buffalo Grove Police Officers Quid and
Del Re, who were investigating the McKillip murder.
Although
Quid and Del Re had previously exhausted all of the available
leads in the McKillip investigation (E. St. ¶11), the pair
traveled on August 12, 1989 to visit Mammolito in a federal
prison in Louisiana (E. St. ¶12). Mammolito (a former Manning
associate) resented Manning and considered him responsible for
his own conviction (E. Add. St. ¶14).
Mammolito was unable to provide concrete evidence regarding
the McKillip murder, so Quid asked Mammolito whether he knew of
any other crimes involving Manning that could be investigated (E.
St. ¶15).
In an effort to induce Mammolito to share information,
Quid and Del Re showed Mammolito multiple photographs of murder
victims, including one of a man with his hands and head chopped
off--actions that they attributed to Manning.
After that prodding Mammolito offered the investigators a
lead, telling Quid and Del Re that he, Engel, McKillip and
Manning had participated in the kidnapping of drug dealer Charles
Ford (“Ford”) in Kansas City, Missouri.
According to Mammolito,
Manning and Engel had posed as DEA agents, handcuffed and
6
blindfolded Ford and an associate, and brought the victims to a
safe house (B. St. ¶7).
Mammolito claimed that the group
convinced one of Ford’s family members to pay a ransom, which
Mammolito and McKillip drove to pick up (E. Add.St. ¶20).
That
last detail differs from Mammolito’s testimony at trial, where he
stated that he and Manning (rather than he and McKillip) had gone
to pick up the ransom.
As part of their dispute on many issues of fact involving
Mammolito, the parties disagree on both the tenor and content of
that meeting.
First (based on seemingly conflicting statements
in Mammolito’s deposition) the two sides argue over whether
Mammolito claimed to have knowledge of the McKillip murder (B.
R.E. Add. St. ¶15).
They also dispute whether or not Quid asked
Mammolito if he “knew anything to help us get this guy off the
streets” (id. ¶18) and whether or not Mammolito initially refused
to testify at any trial that might result from his tips (id.
¶21).
Their disagreements extend to whether Quid’s report of the
interview is in general an accurate representation of the meeting
or omits key details mentioned by Mammolito in his deposition
(compare B. St. ¶10 with E. Add. St. ¶25).
In addition, the parties differ as to the extent of Buchan’s
involvement with Mammolito. They agree that during that period
Buchan had no actual contact with Mammolito:
Mammolito strongly
disliked the FBI, which he claimed had framed him (E. R.B. St.
7
¶9), and he therefore refused to work directly with the Bureau.
Buchan insists--relying largely on his own testimony at
trial--that he did not talk to Mammolito “through” Quid or guide
Quid’s discussions with Mammolito.
Because of Mammolito’s
antipathy toward the FBI, he assertedly refused to deal with
federal agents and was handled “exclusively” by the Buffalo Grove
people (B. St. ¶8).
On the other hand, Engel points to statements by Buchan and
others that suggest the outsized contributions of Buchan to the
investigation, and Engel insists that Buchan was actively working
with Quid “hand in hand every step of the way.” (id.; E. Add. St.
¶¶95-99).
Engel also emphasizes Buchan’s 1990 performance
review, which credits Buchan with “self-develop[ing] leads”
surrounding the Missouri kidnapping (id ¶10).
Shortly after the first Mammolito interview, in November
1989 Buchan and Quid interviewed Ford, the alleged kidnapping
victim (B. St. ¶13). Ford--who at the time of the kidnapping was
“probably” the biggest cocaine dealer in the Kansas City
area--had not reported the kidnapping when it assertedly
occurred.
At the time of his initial conversation with Buchan
and Quid, he had just been released from prison on unrelated
charges (E. Add. St. ¶¶30-33).
Their meeting was arranged by
Ford’s probation officer, who asked Ford whether he had any
objections to going to meet the Chicago officers in Miami (id.
8
¶35). Ford felt it would be in his best interest to attend
(although he denies that his probation officer had leverage over
him) and chose to meet Buchan and Quid.
At the meeting Ford confirmed that he had been kidnapped in
1983 or 1984, though he believed a rival drug dealer had been
responsible for the kidnapping (id. ¶38).
It is unclear
precisely when the kidnapping occurred--Ford had not previously
reported the incident to law enforcement, and in later statements
he offered two different timelines for the event (one in December
1983 and one in February 1984).4
Ford explained that two
individuals approached him and an associate, identified
themselves as DEA agents, told them they were under arrest,
handcuffed them and placed tape over their eyes (B. St. ¶14).
Because Ford never saw his assailants’ faces, he could not
identify them.
Ford also told the investigators that his kidnappers stole
his ring, which he described (according to Quid’s report) as gold
with six diamonds on a top surface (id. ¶15), while according to
Buchan’s report the ring was described as having five diamonds
(E. Add. St. ¶40).
Investigators Quid and Del Re then sought to
find evidence proving that it was Engel and Manning who had
committed the kidnapping and taken possession of Ford’s ring.
4
According to Engel, Ford abandoned the earlier date after
being told by the investigators that it “would not work” (id.
¶¶40-42).
9
As part of that effort Quid interviewed Engel’s ex-wife
Sharon Dugan (“Dugan”).
There was no love lost between the
divorced duo--at the outset of the meeting Dugan explained that
she had court charges pending against Engel for harassment, that
he had made threats against her and that they were not on
speaking terms (E. Add. St. ¶46).
Quid brought up the Missouri
kidnapping and asked whether Dugan had any knowledge of Engel’s
possible involvement (E. Add. St. ¶48).
According to Quid’s
report, Dugan replied that Engel had bragged about extorting
money from drug dealers while posing as a DEA agent (B. St. ¶18).
There is a dispute as to what happened next:
Engel says that
Quid raised the issue of Ford’s ring and showed Dugan a sketch of
the ring (E. Add. St. ¶50), while Buchan says that Quid discussed
the ring only after Dugan told him that Engel possessed stolen
jewelry (B. R.E. Add. St. ¶50).
In any case, Dugan told Quid
that she believed she had seen Ford’s ring after Engel’s return
from a trip to Missouri, and in fact she had previously taken and
hidden that ring. She promised to provide it to the investigators
at a later date.
In the following week Dugan met again with Quid, with Buchan
also in attendance for the first time.
At that meeting Dugan
gave the investigators the ring that she claimed to have taken
from Engel earlier.
That ring contained seven diamonds rather
than the six-diamond configuration mentioned by Ford or the five
10
diamonds described in Buchan’s report (E. Add. St. ¶51).
At that
meeting Dugan assertedly mentioned for the first time Manning’s
involvement in the kidnapping, something she had not referred to
in the first interview.5
Buchan and Quid then met again with Ford, who identified the
ring as looking like the one that had been taken from him.6
The
investigators also interviewed Mark Harris, the second kidnapping
victim, who confirmed Ford’s general account of the
kidnapping--though he, like Ford, was unable to provide any
insight into the identity of the kidnappers (B. St. ¶29-31).
Having determined Engel’s claimed involvement to their own
satisfaction, Quid and Buchan met with Engel.
According to Engel
they sought to use his alleged involvement in the kidnapping as
leverage to induce him to implicate Manning (see E. Add. St.
¶¶64-65).
Engel denied any involvement in the kidnapping, stated
that he had met Mammolito only once and claimed he had never been
to Missouri in his life (id. ¶66).
In addition the investigators
showed Engel a report of their interview with Mammolito--a tactic
that Engel suggests was intended to persuade him to adopt
5
It is worth noting that Dugan’s recall of those
interviews is limited at best. At her deposition she claimed to
remember almost nothing of what she did or did not tell the
investigators (see E. Add. St. ¶53)).
6
Here the parties dispute whether Ford positively
identified the ring at first or merely stated that the ring
“looked like” the one that he had lost.
11
Mammolito’s story (id. ¶67).
Engel asserts that Buchan and Quid
pressured him to come up with anything to incriminate Manning,
whether truthful or not (an assertion that Buchan contests
vigorously)(B. R.E. Add. St. ¶68).
Next Buchan and Quid turned to Carolyn Heldenbrand
(“Heldenbrand”), who had paid the kidnapping ransom (id. ¶69).
Heldenbrand had seen the man who picked up the ransom, though she
had viewed him only for a “few seconds” six years earlier (id.
¶72).
Buchan conducted a photo lineup to allow Heldenbrand to
identify the kidnappers.
Although the lineup included pictures
of Engel and Manning, it omitted photographs of McKillip or
Mammolito, even though Mammolito had initially stated that it was
he and McKillip who had picked up the ransom, rather than Manning
or Engel (id. 71).
Buchan began by showing Heldenbrand a lineup that included a
photograph of Engel, but she was unable to identify anyone.
Buchan then provided a six-photo spread that included Manning
(though Engel claims that the lighting and framing of Manning’s
photo differed significantly from the other photos in the array).
Heldenbrand said that Manning’s photo “look[ed] similar” to the
man who had picked up the ransom.
Buchan then laid down another
four photos, one of which was a second photo of Manning.
According to Buchan, at that point Heldenbrand stated without
hesitation that the second Manning photo “appear[ed] identical”
12
to the person who picked up the ransom (id. ¶¶73-77).
Although
FBI policy generally discourages such multiple displays of a
suspect’s photograph in a lineup, it does permit such displays if
they are in furtherance of a legitimate law enforcement purpose
(here Buchan claims, as such purposes, (1) the difficulty in
finding a photo of Manning from the relevant time period and
(2) the fact that Buchan was already in Minnesota for the
interview and could not easily revise his lineup procedure).
Following Heldenbrand’s identification, Mammolito changed
his story to state that Manning had been the conspirator sent to
pick up the ransom money (E. Add. St. ¶85).
That revised account
meshed conveniently with Heldenbrand’s identification of Manning
and in that way aided the investigators’ efforts to convict
Manning.
Engel also emphasizes that the report documenting that
reversal, which he appears to suggest occurred at the second
Mammolito interview, is missing (id.).7
At that second interview
the investigators pressured Mammolito to testify, informing him
that he was essential to the case (Q. Ex. GG, at 29-33).
In building their case, the investigators also conducted a
search of the residence of Engel’s then girlfriend, with whom he
7
It is clear from the record that the report of the second
interview with Mammolito is indeed the only missing interview
report. It is less obvious whether that is when Mammolito’s
change of story occurred, though Quid admits that at that
interview he informed Mammolito that other witnesses disagreed
with Mammolito’s account (E. Ex. 23 at 43-44).
13
was staying.
There they found handcuffs, a badge, blank Cook
County search warrants, a bugging device and a book entitled “How
to Rip Off a Drug Dealer” (B. St. ¶44).
Criminal Trials
Having completed the investigation, Buchan asked the Clay
County, Missouri prosecutors if they would be willing to
prosecute Manning and Engel for the kidnapping.
With the FBI
already having developed the “vast majority” of the evidence used
to prosecute the kidnapping, Clay County agreed to prosecute
Manning so long as the FBI footed the bill (E. Add. St. ¶95-98).
Manning and Engel were tried separately.
Accordingly their
travels through the criminal justice system will also be dealt
with here separately.
Manning’s first trial ended in a jury deadlock, after which
Quid, Buchan and the Clay County prosecutors met to critique the
trial and brainstorm about what steps to take to win the retrial
(id. ¶101).
Manning was convicted at his second trial, after
which the prosecutor in the case noted that “Bob Buchan literally
dedicated two years of his career to convicting Mr. Manning” (id.
¶102).8
As for Engel, before going forward with his case Clay County
8
Manning was later convicted of an Illinois murder, a
conviction that Manning also successfully attributed to
misconduct by Buchan (see Manning v. Miller, 2005 WL 3078048
(Nov. 14)).
14
prosecutor Rex Gabbert (“Gabbert”) instructed Kansas City police
to re-interview witnesses.
Based on information provided by
Buchan, Quid and Del Re, as well as those re-interviews, the Clay
County prosecutor’s office made its determination that there was
probable cause to charge Engel (B. R.E. Add. St. ¶104). Gabbert
(along with Assistant Prosecuting Attorney Klopfenstein) was
assigned to the prosecution (B. St. ¶45).
On July 26, 1990 Engel was arrested (E. Add. St. ¶94).9
He
was charged with two counts of criminal action for his
participation in the Missouri kidnapping.
At a preliminary
hearing in which the state judge found probable cause, Ford, Mark
Harris and Dugan testified (B. Ex. 71).
Engel was tried in June 1991 (see Missouri v. Engel, No.
190-1698), and he was sentenced to 90 years in prison.
Mammolito Agreement
All the parties have spilled much ink debating the existence
or nonexistence of an agreement to pay Mammolito for his
testimony.
Here are the relevant facts bearing on that subject.
On July 15, 1990 Mammolito sent Del Re a letter (with no
copy to Buchan) stating that he would cooperate with the
kidnapping prosecution in return for a grant of immunity (B. St.
9
Soon after Engel’s arrest, Buchan and Engel spoke by
phone. As Engel would have it, Buchan phoned him to try to
pressure him into testifying against Manning, which in Buchan’s
account Engel initiated contact and offered to testify (B. R.E.
Add. St. ¶94).
15
¶48).
That letter also expresses a desire for certain minor
prison benefits, such as use of the telephone and visiting
privileges (id. at ¶49).
Mammolito’s letter noted that he would
speak to the prosecutor about working out details of that
arrangement, and it does not mention monetary compensation.
Hard evidence of an agreement to pay Mammolito first
surfaced approximately a year after trial.
Mammolito says he
sent a letter to Gabbert on April 14, 1991 (the “Gabbert
Letter”), referring to an agreement he claims to have reached
before trial and asking for Gabbert to send $850 to Mammolito’s
mother (B. St. ¶59).
Gabbert claims never to have received that
letter.
Mammolito sent his second request for payment a year later.
In a letter addressed to Quid dated February 7, 1992 (“Quid
Letter”), Mammolito referred to an agreement he said had been
reached before Engel’s trial (E. Add. St. ¶124):
Well Bob I would like to take this opportunity to
remind you of the agreement that we made in March of
1990, that you made with no reservations....[T]hat was
your department or some, department, would reimburse me
for my expenses that I incurred...for a total of
$1,700.
Mammolito also testified to the existence of an agreement in his
deposition, though he seemed unsure as to whether the agreement
was with Quid and Del Re or with prosecutors.
On November 9, 1992 Buffalo Grove sent a $500 check to
Mammolito’s mother, accompanied by a letter from Del Re in which
16
he apologized for the delay in payment and stated that he wished
he could have sent more (E. Add. St. ¶126).
Del Re also thanked
Mammolito for “the help [he] provided in this very important
case” (id.).
Any earlier agreement to compensate Mammolito monetarily, if
it existed, was not disclosed to Engel or his trial counsel.
Del
Re has admitted to paying Mammolito and conceded that he did not
personally inform the prosecutor of the payment, but he denied
that he had reached any monetary agreement with Mammolito before
the trial was over (E. Ex. 32).
Instead he asserts that the
money was used to compensate Mammolito for his time and expenses
and was a sort of “thank-you” for his efforts.
As to the vital question of whether or not prosecutor
Gabbert knew of any agreement for payment, the litigants differ
sharply.
Buchan and Quid note that Mammolito repeatedly
suggested in his letters and deposition that his deal may have
been with the prosecutors rather than the investigators (B. St.
¶¶48-50). Furthermore, the Gabbert Letter was marked “received by
the Clay County Prosecutor’s Office,” and one prosecutor
testified that the letter was “in the prosecutor’s file” at a
later date (B. St. ¶60).
But Gabbert has consistently denied knowledge of any
agreement to pay Mammolito in connection with his testimony, and
he has stated that if he had known of the letter he would have
17
notified defense counsel as well as refused to authorize payment
(E. Add. St. ¶130).
Gabbert has flatly denied ever seeing the
Gabbert Letter, stating that “I never saw this letter. I never
had this document” (id. 132).
And Engel’s defense counsel also
testified that when he examined the prosecutors’ file in May 1991
the Gabbert Letter was not in the file (id. 133).
Exoneration and Civil Trials
Manning’s murder conviction was vacated on appeal by the
Illinois Supreme Court due to improper admission of evidence
(People v. Manning, 182 Ill.2d 193, 695 N.E.2d 423 (1998)), and
Cook County authorities declined to retry the case.
Several
years later his Missouri kidnapping conviction was vacated by the
Eighth Circuit on habeas corpus review (Manning v. Bowersox, 310
F.3d 571 (8th Cir. 2002)).
As stated early in the Facts section, Manning filed a civil
rights action remarkably similar to the case at bar, eventually
including as defendants Buchan, another federal agent and the
United States. Judge Kennelly combined a jury trial on Manning’s
Bivens claim with a bench trial on his FTCA claims.
As for the
first of those, the jury found against Buchan on the Bivens claim
stemming from the Missouri prosecution, and it found against both
Buchan and Miller on the Bivens claim arising from the Illinois
prosecution.
Manning was awarded over $6.5 million in combined
damages--a verdict that the district court upheld against a
18
motion for judgment as a matter of law (Manning v. Miller, 2005
WL 3078048 (N.D. Ill. Nov. 14)).
In its verdict the jury made
specific findings that one or both of the agents fabricated or
caused to be fabricated material evidence and concealed that
evidence from Manning and the prosecutors who handled the
kidnapping case (Manning v. Miller, 546 F.3d 430, 432 (7th Cir.
2008)).
Meanwhile the FTCA claims remained under advisement.
Approximately six months later, on Manning’s motion the
district court reopened the FTCA claims.
Judge Kennelly found in
favor of the United States on those claims, determining that
probable cause existed for the prosecution, but he emphasized
that his findings did not call into question the validity of the
jury’s Bivens verdict, and he noted that he was convinced that
Buchan and Miller had “exceeded their proper roles as
investigators” (Manning v. United States, 2006 WL 3240112, at *1
(N.D. Ill. Sept. 28)). Following that ruling Buchan and Miller
moved to vacate the judgment against them under the FTCA’s
“judgment bar” (28 U.S.C. §2676), a provision that specifies that
an FTCA judgment bars any action by a plaintiff by reason of the
same subject matter.
Judge Kennelly granted the motion and
vacated the Bivens judgment, and our Court of Appeals affirmed
(Manning v. United States, 546 F.3d 430 (7th Cir. 2008)).
In February 2010 the Missouri Supreme Court granted Engel
habeas corpus relief, reversing his conviction (State ex rel.
19
Engel v. Dormire, 304 S.W.3d 120 (Mo. 2010)(en banc)).
Its
opinion held that the prosecution had failed to meet its Brady
obligations by not turning over the Mammolito impeachment
evidence, and it provided Missouri 60 days in which to retry
Engel before releasing him–an opportunity the state declined to
pursue.
After his release Engel commenced these proceedings.
With that lengthy prelude to serve as a backdrop, this
opinion turns to an analysis of the parties’ cross-motions.
With
no sequence of treatment seeming more logical than any other, the
discussion will begin with Engel’s motion, then turn to those of
defendants.
Engel’s Motion for Partial Summary Judgment
Collateral Estoppel (Issue Preclusion)
Engel first moves for what he calls partial summary judgment
on his Bivens claim against Buchan, basing that motion upon an
assertion of what he terms “collateral estoppel.”10
Because the
jury in the Manning litigation found that Buchan “induced Anthony
Mammolito, Carolyn Heldenbrand, and Sharon Dugan to make false
10
At the risk of being viewed as overly picky, this Court
employs Engel’s vocabulary as to the concepts in the text
sentence with some reluctance. What he really seeks is not a
judgment, but rather a narrowing of issues (a matter for Rule 16
rather than Rule 56 treatment). And this Court has always
favored the terminology of collateral estopped and res judicata
(particularly because the latter term has often been used to
cover both issue and claim preclusion--see, e.g., Justice
Blackmun’s n.1 in Migra v. Warren City School Dist. Bd. of Educ.,
465 U.S. 75 (1984). But as n.2 to this opinion says, recasting
the terminology here would be a game not worth the candle.
20
statements or fabricate claims about the kidnapping and concealed
that information from prosecutors, and...concealed from
prosecutors that a promise had been made to pay money to
Mammolito” (Manning v. Miller, 2005 WL 3078048, at *5 (N.D. Ill.
Nov. 14)), Engel argues that Buchan should be precluded from
relitigating those issues, so that Engel would prevail on his
constitutional due process claim.
For as Newsome, 256 F.3d at
752 teaches, a defendant “did not receive a fair trial if the
prosecutors withheld material exculpatory details” and thus such
a defendant would have “a due process claim in the original sense
of that phrase.”
Ross-Berger Cos. v. Equitable Life Assurance Soc’y of the
U.S., 872 F.2d 1331, 1334 (7th Cir. 1989) has quoted the teaching
of Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979)
(alterations in original)) that “trial courts [have] broad
discretion to determine when [offensive collateral estoppel]
should be applied.”
That doctrine may be invoked only when four
conditions are met (Adair v. Sherman, 230 F.3d 890, 893 (7th Cir.
2000)):
(1) the issue sought to be precluded is the same as that
involved in a prior action; (2) the issue was actually
litigated; (3) the determination of the issue was essential
to the final judgment; and (4) the party against whom
estoppel is invoked was represented in the prior action.
Buchan concedes that Engel has satisfied the final factor, but he
disputes whether the first three conditions have been met.
21
Buchan first argues that the issue in this action is not the
same as the issue in Manning.
Instead he urges that this case
presents for the first time the question whether an investigator
has a clearly established duty to disclose Brady evidence when
the prosecutor is already in possession of that evidence (B. R.
to May 8, 2013 Minute Order, at 6). Buchan frames the question as
one of entitlement to qualified immunity, and he states that
because that ground is different from the grounds he had relied
upon in the Manning litigation, preclusion is inappropriate.
That is dead wrong.
Whether Buchan and Quid withheld
information from the prosecutor was at the heart of the Manning
litigation, and the jury there found that Buchan had concealed
the existence of the agreement with Mammolito from both
prosecutors and defense counsel.
Moreover, as Engel rightly
concedes, this “new” legal issue that Buchan raises is not even
in dispute:
If Buchan and Quid withheld nothing from the
prosecutor, they are not liable for the due process violation (E.
R. Mem. 4).
Both in Manning and in this litigation, the issue
is whether Buchan did in fact withhold information.
In Manning
the jury found that one or both of the FBI agents fabricated or
caused to be fabricated material evidence and concealed that
evidence from the prosecutors who handled the case (Manning v.
United States, 546 F.3d at 432), and Buchan is not now entitled
to distinguish that once-resolved factual dispute as a new legal
22
issue.
Next Buchan contends that the issues were not actually
litigated because he did not have an opportunity to appeal the
Manning jury’s verdict.
Courts will not apply collateral
estoppel against a party who did not have a “full and fair
opportunity to litigate” the relevant issue, and a “full and fair
opportunity to litigate includes the right to appeal an adverse
decision” (Gray v. Lacke, 885 F.2d 399, 406 (7th Cir. 1989)).
According to Buchan he lacked that opportunity because Judge
Kennelly vacated the jury verdict before Buchan’s appeal to our
Court of Appeals was resolved (while Buchan did address the jury
verdict in his brief to that court, it declined to rule on the
merits of the jury verdict after affirming the district court’s
application of the FTCA bar--see Manning v. United States, 546
F.3d at 438).
That being so, Gray, 885 F.2d at 406 makes it
clear that collateral estoppel should not be applied:
[A]lthough the district court decided those issues against
her in her prior suit, our court expressly declined to reach
those issues on appeal. Thus, under these circumstances, she
contends that collateral estoppel is inappropriate. We
agree.
Engel attempts to escape the force of that holding by
arguing that Buchan’s time to appeal the jury verdict had already
expired when he actually filed his appeal. Because Buchan’s
appeal was not timely, Engel contends, he cannot now complain
that he was denied a full and fair opportunity to litigate the
23
jury verdict.
Resolving that disagreement requires a close look
at the procedural timeline:
On March 25, 2005 Judge Kennelly
entered judgment for Manning on the Bivens claim; on November 14,
2005 he denied Buchan’s first motion that the latter labeled as
having been brought under Rule 59; on September 28, 2006 (nearly
a year later) he entered judgment on the FTCA claims; on October
16, 2006 Buchan filed another asserted Rule 59 motion, this time
seeking to vacate the judgment in accordance with the FTCA’s
judgment bar; on December 26, 2006 Judge Kennelly granted that
motion and vacated the Bivens judgment; on January 16, 2007
Manning appealed the vacature; and on February 20, 2007 Buchan
filed his notice of cross-appeal, which raised the issue of the
sufficiency of the evidence in the jury’s Bivens verdict.
Engel contends that the Bivens judgment survived (and
therefore became an appropriate subject of collateral estoppel)
because Buchan’s time to appeal that judgment had expired either
(1) during the nearly year-long gap between the jury verdict and
the FTCA verdict or (2) 60 days after the entry of the FTCA
verdict.
In the first scenario, Buchan would have missed the
appeal deadline by more than a year.
In the second, he would
have missed it by more than a month.
That first scenario is a non-starter.
No Rule 54(b)
determination was made after the entry of the Bivens claim, even
though the jury verdict had adjudicated fewer than all of the
24
claims of all the parties.
Thus the Bivens determination did not
constitute a final judgment that rendered the jury verdict final
and appealable (Principal Mut. Life Ins. Co. v. Cincinnati TV 64
Ltd. P’ships, 845 F.2d 674, 676 (7th Cir. 1988)).
Although Engel
points out that Buchan did not “seek a Rule 54(b) finding,
despite the opportunity to have done so” (E. R. 65), litigants
have no obligation to request a Rule 54(b) determination, and
without such a determination the judgment was not final.
Because
an appeal did not yet lie at that point, Buchan cannot be held
responsible for failing to appeal before the entry of the FTCA
judgment.
Engel’s second line of attack may be more promising in
purely surface terms--although as the following in-depth analysis
reveals, that surface promise is merely specious.
Engel argues
that when Judge Kennelly entered judgment on the FTCA claims the
District Court had disposed of all claims against all parties, so
that the time within which to appeal the unfavorable jury verdict
(if Buchan were indeed called upon to do so) would have begun to
run.
Buchan did not file his conditional cross-appeal of the
Bivens verdict for nearly four months after it was returned--two
months longer than the 60 days allowed under Fed. R. App. P.
4(a)(1)(B) where the government or its employees are parties.
Buchan’s time to appeal had begun to run on September 28, 2006
when Judge Kennelly entered the FTCA judgment, Buchan’s appeal
25
If
would have been untimely.
But on September 28 Judge Kennelly had not yet disposed of
all claims against all parties, because he had not yet resolved
the validity of the earlier Bivens judgment in light of the
FTCA’s judgment bar embodied in 28 U.S.C. §2676.
According to
that provision, entry of the FTCA judgment constituted a
“complete bar to any action by the claimant, by reason of the
same subject matter,” and Buchan contended that the Bivens claim
constituted just such an action.
At the moment that Judge Kennelly entered the FTCA judgment,
the viability of the earlier Bivens judgment was called into
question.
Buchan highlighted that fact on October 16, 2006 when
he filed his motion to vacate the jury verdict--a motion that
Judge Kennelly did not grant until December 26.
Until that time
the posture of the Bivens judgment remained unresolved and it was
thus inappropriate for appeal.
Instead all claims in the case
were finally disposed of (and thus acquired finality) only on
that December 26 date.
Recall that a party cannot be said to have had a “full and
fair opportunity to litigate” an issue if that party had no
opportunity to appeal the issue (Gray, 885 F.2d at 406)--and that
is doubly so where, as in this case, Buchan had no basis for
appeal.
Because the jury verdict on the Bivens claim was vacated
at the same moment that the FTCA judgment became final, Buchan
26
had no predicate for appealing that no-longer-extant Bivens
verdict.11
In short, collateral estoppel cannot apply because
under Gray Buchan simply cannot be said to have fully litigated
the issue to which that concept could attach.
So the prohibition against employing collateral estopped on
the basis of a vacated verdict is independently fatal to Engel’s
summary judgment motion.
This Court expressed its grave doubts
on the appropriateness of giving the jury verdict on the Bivens
claim preclusive effect soon after this case was filed (see page
3 of its June 4, 2010 memorandum), and Engel’s current
submissions have in no way dispelled that doubt.
As he concedes,
a vacated judgment does not trigger collateral estoppel
(Pontarelli Limousine, Inc. v. City of Chicago, 929 F.2d 339, 340
(7th Cir. 1991)(citations omitted):
A vacated judgment has no collateral estoppel or res
judicata effect under Illinois law (or any other law).
Nothing in this case alters that proposition.12
11
Buchan did file a “conditional” cross-appeal to guard
against the possibility that Manning’s effort to resuscitate the
Bivens verdict might find favor with the Court of Appeals.
Understandably that court expressly declined to reach that crossappeal after resolving Manning’s appeal in Buchan’s favor
(Manning v. United States, 546 F.3d at 438).
12
Engel’s attempted reliance on Ross-Berger Cos. as an
exception to the just-completed analysis provides him no comfort
at all.
There our Court of Appeals had vacated only the award
of damages as excessive and had left the district court’s finding
of liability undisturbed and thus a proper candidate for
collateral estoppel treatment.
27
Brady Claims Against Quid and Del Re
Engel also moves for partial summary judgment against Quid
and Del Re on his Brady/Newsome claims, urging that the
uncontroverted evidence is so overwhelming that a reasonable jury
must find that Buchan and Quid violated his constitutional right
to a fair trial by failing to disclose impeachment evidence
related to the agreement with Mammolito (see, e.g., Newsome, 256
F.3d at 752-53).
That approach must fail, because a jury could
reasonably conclude that Quid and Del Re did not have an
agreement to pay Mammolito at the time of trial.
Quid and Del Re
have repeatedly stated that they had no such agreement, and a
jury could choose to trust their testimony as against Mammolito’s
letters requesting compensation.13
Just as importantly,
Mammolito, Ford and Dugan have all steadfastly denied that they
testified falsely or were encouraged to do so (B. St. ¶58), and a
13
Both sides complain of “self-serving” affidavits used to
buttress the various motions. Lawyers (and regrettably judges)
often lump “self-serving affidavits” into the category of
submissions that are insufficient to overcome summary judgment.
Not so--during the past 3-1/2 months our Court of Appeals has not
just once but twice sought to drive dispositive judicial nails
into the coffin of that mistaken notion (Hill v. Tangherlini, 724
F.3d 965, 967-68 (7th Cir. 2013) and United States v. Funds in
the Amount of $100,120, 730 F.3d 711, 717 (7th Cir. 2013)), with
Hill, 724 F.3d at 967 n.1 having expressly overruled no fewer
than 26 of that court’s own earlier cases that had suggested
otherwise. But old habits (particularly bad ones) die hard, and
counsel here and elsewhere would be well advised to recognize
that all relevant and probative evidence proffered by a party is
“self-serving” in a real-world sense, and they should accordingly
abandon that locution in favor of any legitimate attack on the
materiality of such adverse evidence.
28
jury would be entitled to credit those denials.
Alternatively, a jury could conclude from the evidence that
an agreement for payment to Mammolito did exist but that it was
known to the prosecutors, so that it was they rather than Quid
and Del Re who failed to comply with the Brady obligation (see
Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008)).
Given
the several possible fact-based “outs” for Quid and Del Re, Engel
cannot prevail on his Brady/Newsome claims against them as a
matter of law.
Defendants’ Motion on Engel’s Constitutional Claims
Due Process Claims
Buchan moves for summary judgment on Engel’s constitutional
claim that Buchan withheld Brady evidence and denied him his due
process right to a fair trial.
Buchan frames that challenge as a
question of law, arguing that he had no duty to disclose
impeachment material in the prosecutor’s possession, so that he
claims the mantle of qualified immunity.
Buchan’s legal argument on that premise is sound:
Where a
prosecutor knows of Brady evidence, it is his or her duty rather
than that of the law enforcement officer to share that evidence
with the defense (see, e.g., Giglio v. United States, 405 U.S.
150, 154 (1972); Carvajal, 542 F.3d at 566).
Buchan might also
be immune if he reasonably believed the prosecutor had received
the Mammolito letter or was otherwise aware of the arrangement
29
with Mammolito (see Kelly v. Curtis, 21 F.3d 1544, 1552 (11th
Cir. 1994)).
But that legal analysis is beside the point here. Even Engel
concedes that “everyone agrees that Buchan would enjoy qualified
immunity...if nothing was withheld from the prosecutor” (E.
R.Mem. 63).
Here the issue is not one of law but of fact,
because Engel’s basic contention is that the prosecution never
possessed the Brady evidence.
And qualified immunity will not
protect law enforcement officials who knowingly fail to disclose
Brady evidence to both prosecutors and defense counsel (see
Steidl v. Fermon, 494 F.3d 623, 632-33 (7th Cir. 2007)).
Engel does not merely allege that Buchan failed to highlight
evidence in the prosecutor’s possession--he presents evidence
that Buchan intentionally withheld information from prosecutors.
As Engel repeatedly points out, the Missouri prosecutors deny
knowledge of the agreement, and they claim that if Buchan and
Quid had made such an agreement it was withheld from them (see E.
Add. St. 130-33).
Gabbert also stated that if he had been aware
of such an agreement he would have notified defense counsel and
would have made a record that his office would not reimburse
Mammolito’s expenses (E. St. ¶129).
And Engel’s defense attorney
testified that he reviewed the prosecutor’s files and that the
Mammolito letter was not included in the files at that time (id.
at 133).
30
Buchan can point to contrary evidence--most notably, the
facts that Mammolito wrote to Gabbert about the asserted deal and
that the Gabbert Letter was stamped “received by the Clay County
Prosecutor’s Office April 16, 1991" (B. Stat. ¶60).
Buchan can
also point to moments in Mammolito’s deposition in which he seems
to imply that his agreement was with prosecutors rather than
investigators.
Each side thus marshals significant evidence, and the
question is one of weighing the credibility of each side’s
assembled support.
summary judgment.
That is not of course a court’s role on
As Washington v. Haupert, 481 F.3d 543, 550
(7th Cir. 2007) has quoted from Payne, 337 F.3d at 770:
On summary judgment a court may not make credibility
determinations, weigh the evidence, or decide which
inferences to draw from the facts; these are jobs for a
factfinder.
Thus, while Buchan may ultimately prevail at trial by convincing
a jury that Gabbert knew of the agreement or possessed the
relevant documents, he cannot prevail on summary judgment.
Buchan also contends that he is entitled to summary judgment
because he himself did not know of any agreement with Mammolito.
That line of attack as a matter of law is surprising, given that
the Manning jury rejected precisely that argument when confronted
with the parties’ factual submissions (see Manning v. Miller,
2005 WL 3078048, at *6 (N.D. Ill. Nov. 15, 2005)). In upholding
that jury’s verdict Judge Kennelly explicitly held that “[t]he
31
jury properly could infer...that Quid would not have made a deal
with Mammolito without letting Buchan in on it” (Manning v.
Miller, 2005 WL 3078048, at *10 (N.D. Ill. Nov. 15)).
While neither the jury verdict nor Judge Kennelly’s ruling
is binding on this Court, they confirm (at the very least) that a
reasonable jury could find that Buchan was aware of the
agreement.
Among other evidentiary matters, Engel can point to
numerous statements by those involved in the investigation that
Buchan was intimately involved in the Missouri kidnapping
prosecution, dedicated significant energy to catching Manning and
worked closely with Quid throughout the investigation and
prosecution of both Engel and Manning.
Hence a jury (in that
instance the Manning jury) could thus reasonably determine that
Quid would not have made a deal with Mammolito without informing
Buchan.
Again viewing the evidentiary record in the light most
favorable to Engel, a jury here could also reasonably conclude
that prosecutors induced Dugan to lie and concealed that
information from prosecutors and Engel’s counsel. Upon commencing
the interview with Dugan, Quid quickly learned that she bore
considerable animosity towards her ex-husband.
So a jury could
reasonably find that Quid took advantage of that animosity to
raise the issue of kidnappings--a suggestion that Dugan accepted
with alacrity.
It could also reasonably find that Dugan
32
“remembered” the diamond ring only after being told of its
existence by Quid and shown a sketch of the ring and could also
find that discrepancies in the ring’s description and in other
respects rendered suspect her then handing over a similar-looking
piece of jewelry.
As Judge Kennelly observed, there is evidence to support “a
reasonable inference that Buchan exploited, and perhaps created,
a motive for Dugan to falsely implicate Manning,” and that a jury
would be “entitled to believe that Buchan fed [Dugan] her
information” (Manning v. Miller, 2005 WL 3078048, at *10 (N.D.
Ill. Nov 14)). Finally, a jury could reasonably conclude that
Buchan and Quid intentionally violated FBI protocol in putting
together the photo lineup for Hildenbrand in an effort to induce
a false identification of Manning.14
Buchan insists that there can be no genuine issues of
material fact here because all of the relevant witnesses deny
being involved in the fabrication of testimony or evidence. But
14
Defendants justifiably object to reliance on the
Heldenbrand testimony, noting that Heldenbrand did not testify at
Engel’s trial and that her identification was not introduced.
Engel appears to concede that the improper identification
procedure, standing alone, could not support his claim of a due
process violation (“[B]ecause neither Heldenbrand nor Dye
testified at Engel’s trial, Defendants are correct that due
process is not directly implicated by this misconduct” (E. R.Mem.
32-33)). But Engel’s denial-of-due-process claim survives on the
alleged Brady violations, and the investigators’ alleged
misconduct in the identification procedures remains relevant
background evidence in support of a claimed attempt to “frame”
Engel in an attempt to capture Manning.
33
in a conspiracy case the testimony of co-conspirators is not
necessary to succeed at trial. Merely showing that the alleged
conspirators have committed acts that “raise the inference of
mutual understanding” and that “are unlikely to have been
undertaken without an agreement” may allow a factfinder to infer
the existence of a conspiracy (Amundsen v. Chicago Park Dist.,
218 F.3d 712, 718 (7th Cir. 2000)).
Here Engel is able to marshal a great deal of circumstantial
evidence of a constitutional violation, including the shifting
stories of various witnesses, strong motivation to lie both on
behalf of the witnesses and the investigators, and of course the
Mammolito letters.
In this case, as in Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970), “the sequence of events created a
substantial enough possibility of a conspiracy to allow [the
plaintiff] to proceed to trial, especially given the fact that
the non-circumstantial evidence of the conspiracy could only come
from adverse witnesses.”
In sum, Engel’s constitutional claims
against Buchan survive.
Evidentiary Issues Raised by Quid and Del Re
That same analysis applies equally to Quid’s and Del Re’s
motion for summary judgment. But those two defendants also raise
a significant evidentiary issue that must be dealt with.
They
insist that Engel’s key evidence against them--the Mammolito
deposition and Mammolito’s 1992 letter to Quid--are inadmissible
34
hearsay (Mammolito has since died).
Without that evidence
Engel’s case would be weakened considerably and might perhaps not
survive summary judgment.
Engel responds by arguing that the evidence is admissible
under the “predecessor in interest” exception of Fed. R. Evid.
804(b)(1), as well as the “equivalent circumstantial guarantees
of trustworthiness” exception of Fed. R. Evid. 807.
Hence each
of those provisions calls for discussion (the latter just
briefly).
To invoke Fed. R. Evid. 804(b)(1), Engel must show that the
testimony is being offered against a party “whose predecessor in
interest had an opportunity and similar motive to develop it by
direct, cross-, or redirect examination.”
At the time of
Mammolito’s deposition, Quid and Del Re had been voluntarily
dismissed out of the Manning litigation.
So the question becomes
whether Buchan and Miller, who were present at the deposition,
were Quid’s “predecessor[s] in interest” and had a “similar
motive to develop” Quid’s testimony. Quid argues that Buchan had
no incentive to disprove the existence of an agreement between
Mammolito and Quid (as opposed to one between Mammolito and
Buchan), so that Buchan cannot be said to have had a “similar
motive” to develop Mammolito’s testimony.
United States v. Feldman, 761 F.2d 380, 385 (7th Cir. 1985)
has held that circumstances or factors that influence motive-to-
35
develop-testimony include:
(1) the type of proceeding in which the testimony is given,
(2) trial strategy, (3) the potential penalties or financial
stakes, and (4) the number of issues and parties.
Each of those factors either weighs in favor of admission or is
neutral here.
Clearly the first factor supports Engel:
the testimony was
given in a federal civil rights action, which is the same type of
proceeding as the present case.
Each of the other factors
requires further analysis, but in the end they support Engel
rather than defendants.
As to the second factor, Quid rightly points out that the
parties who deposed Mammolito in Manning did not cross-examine
him closely as to the existence of a deal with Buffalo Grove.
Instead Buchan’s counsel focused his energy on proving that
Buchan never learned of any such agreement, regardless of its
existence.
Nonetheless Buchan had every motive to question the
basic existence of an agreement, for that would have prevented a
finding of liability against Buchan. And indeed Buchan argued in
his closing both that the evidence showed there was no promise to
pay Mammolito and that Quid’s version of the story regarding the
alleged agreement was the truth (E. Ex. 45). While if Quid had
remained a defendant in the trial his counsel might have focused
more heavily on the nonexistence of an agreement, Buchan cannot
be said to have pursued a significantly different trial strategy.
36
Hence the second factor--a closer call--does not weigh strongly
in favor of either party.
As to the third factor, it like the first weighs in favor of
Engel.
Here the potential financial stakes are really similar to
those in the Manning litigation--if anything, the stakes here are
likely smaller, as there are fewer allegations of misconduct than
in the earlier litigation.
And finally the numbers of issues and parties are also very
similar.
Although Manning included a few parties (such as
Miller) and issues (such as the Hildenbrand identification) not
present here, the basic contours of the two lawsuits are very
much alike.
Thus the four-factor test calls for admission of the
Mammolito evidence here.
That outcome accords with the plain
language of Fed. R. Evid. 804(b)(1), under which the question is
not whether Buchan pursued the same line of questioning as Quid
would have done, but whether they had a “similar motive.”
And
Buchan had ample motivation in Manning to disprove the existence
of any illicit deal between Quid and Mammolito.
In fact, at
trial Buchan attempted to do precisely that, telling the jury
that “Bob Quid went in and talked to Mammolito and told him...I
don’t have authority to promise you anything,” and that “[w]hat
you would probably find is there wasn’t any agreement” (E. Ex.
45).
37
Quid may be correct that Buchan might well have interrogated
Mammolito more fully.
But such an essentially tactical
difference in approach does not necessarily indicate--let alone
equate to--a difference in motive.
In fact Engel provides
several reasons as to why an in-depth interrogation might have
been ill advised (E. Combined R. 26-27). Though these are
entirely speculative, and Quid might have assessed the situation
differently, again such tactical differences do not suggest
dissimilar motives.
As United States v. McClellan, 868 F.2d 210,
215 (7th Cir. 1989) has said, “the emphasis in this inquiry is
upon the motive underlying the cross-examination rather than the
actual exchange that took place.”
Quid cites United States v. Feldman, 761 F.2d at 385 for the
proposition that courts may examine the actual pattern of
questioning to show that no similar motive existed. But in
Feldman our Court of Appeals focused primarily on the fact that
the questioner had a lesser stake in the proceedings than the
criminal defendant against whom the deposition was eventually
used, and the court noted that “no one at the...deposition had
the requisite stake in the proceedings that would be necessary
for them to be deemed a predecessor in interest” (id. at 387).
Here Buchan had as significant a stake in the Manning
proceedings as Quid has in the current case, and Buchan would
have benefitted immensely from demonstrating that Mammolito had
38
no deal with Quid or Del Re.
This Court holds that regardless of
the actual exchange that took place, Buchan’s motives were
sufficiently similar to call for the admission of Mammolito’s
deposition in this case.
Quid also argues that Fed. R. Evid. 804(b)(1) contains a
privity requirement, such that a “predecessor in interest” must
stand in a privity relationship to the party against whom
testimony is to be admitted, as well as having similar motives to
develop a witness’ testimony.
That notion conflicts with the
decision of several Courts of Appeals, as well as decisions of
other judges in this District Court (see, e.g., Dykes v. Raymark
Indus., Inc., 801 F.2d 810, 816 (6th Cir. 1986); Lloyd v. Am.
Exp. Lines, Inc., 580 F.2d 1179, 1185 (3d Cir. 1978); Erickson v.
Baxter Healthcare, Inc., No. 99 C 0426, 2001 WL 36275328, at *16
(N.D. Ill. Sept. 28)(collecting cases)).
In that respect
Supermarket of Marlinton, Inc., v. Meadow Gold Dairies, Inc., 71
F.3d 119, 128 (4th Cir. 1995)(internal quotation marks and
brackets omitted) is representative:
[P]rivity is not the gravamen of the Rule 804(b)(1)
analysis. Instead, the party against whom the testimony is
offered must point up distinctions in the case not evident
in the earlier litigation that would preclude similar
motives of witnesses examination.
As Quid repeatedly emphasizes, those out-of-circuit
decisions do not bind this Court--but neither does the sole
decision that Quid cites for the claimed existence of a privity
39
requirement (Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp.
1498, 1525-26 (E.D. Wis. 1992)). Nor does this Court find Acme
Printing persuasive, for that decision relies heavily on the
House of Representatives’ amendment to Fed. R. Evid. 804(b),
ignoring the judgments (1) of the Senate Judiciary Committee
report that “the difference between the versions [of the Rule] is
not great” (S. Rep. No. 93-12277, at 28 (1974), reprinted in 1974
U.S.C.C.A.N. 7051, 7074) and (2) of the numerous earlier-cited
decisions that agree in rejecting Acme’s narrow construction of
“predecessor in interest.”
Ultimately the weight of both reason and authority favor
Engel.
Clay v. Johns-Manville Sales Corp., 722 F.2d 1289, 1295
(6th Cir. 1983) has put the matter ably:
We believe that what has been described as “the practical
and expedient view” expresses the congressional intention:
“if it appears that in the former suit a party having a like
motive to cross-examine about the same matters as the
present party would have, was accorded an adequate
opportunity for such examination, the testimony may be
received against the present party.”
Under that sensible standard Buchan and Quid shared a
sufficiently similar motive, and Mammolito’s deposition testimony
may therefore be received against Quid.15
15
Engel’s other grounds of admission--the “equivalent
circumstantial guarantees of trustworthiness” language of Fed. R.
Evid. 807 and an argument that the Brady obligation extends to
evidence that comes into existence after conviction--are more
dubious. But this opinion need not reach those issues, given its
resolution of the Fed. R. Evid. 804(b)(1) question.
40
With the evidentiary issue disposed of, Quid’s motion for
summary judgment on the Brady claim must fail.
Indeed, this
Court’s earlier analysis of Buchan’s motion applies with equal
force here.
Accepting Engel’s version of the facts and drawing
reasonable inferences in his favor, a jury could easily and
reasonably find that Quid withheld Brady evidence during Engel’s
prosecution.16
Indeed, that is precisely the conclusion that the
Manning jury reached and that Judge Kennelly upheld (see Manning
v. Miller, 2005 WL 3078048, at *9 (N.D. Ill. Nov. 15)).
Other Constitutional Claims
Quid and Del Re argue at length that Engel’s claim “that his
due process rights were violated through fabricated evidence or
witness coercion by Quid and Del Re” cannot survive (Q. R. Mem.
11).
They seem to view that contention as separate from Engel’s
Brady-based claim, while Engel treats all of his allegations as
stating a single constitutional claim that he was denied his due
process right to trial “in the original sense of that phrase”
(Newsome, 256 F.3d at 752).
If the two contentions in fact
coalesce, the dispute is irrelevant on a motion for summary
judgment, because Engel’s Brady claim survives easily.
If on the
other hand the two claims are distinct, Quid and Del Re might
16
Quid argues that the Mammolito agreement is not material
(see Q. Mem. 8). But the proper question is whether a jury could
reasonably find that an undisclosed financial arrangement with a
key prosecution witness was material evidence. And the answer to
that question is self-evidently “yes.”
41
have a plausible argument, for they point to several Court of
Appeals decisions suggesting that police are not liable under
Section 1983 for fabrication of evidence if a state law malicious
prosecution remedy is available.
But Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008)
has also confirmed that “manipulating or tampering with
identification and testimonial evidence” gives rise to a
constitutional due process claim that is “more than a Fourth
Amendment claim by another name.”
Dominguez is particularly
instructive because that case--like this one--included
allegations that officers withheld exculpatory evidence, used
improper identification procedures and fabricated evidence.
But in all events, given the overlaps in this case among the
state law claim, Engel’s Bivens claim and his due process claim,
any divergence in the precedents may not turn out to be
particularly significant.
As a practical matter, the jury in
this case will be given the claims and will be entitled to make
its findings. If the jury finds in favor of plaintiff, there will
be ample time to decide whether the remedy should be granted in
accordance with state or federal law.
To shift to the merits of a “fabrication of evidence” claim,
Quid and Del Re point to considerable evidence that no witness
was manipulated or evidence fabricated.
But such evidence is
noncontrolling in the summary judgment context where, as here,
42
there is also evidence that evidence was fabricated. Engel’s
evidence includes Mammolito’s change of story, a missing police
report that might have cast light on that change in story and the
fact that Dugan altered her account to conform with the BuchanQuid expectations.
That evidence too does not control, but it is
surely sufficient to defeat summary judgment.
Engel’s failure-to-intervene claim also survives.
Quid and
Del Re attempt to frame that claim as one involving only the
Heldenbrand testimony (see Q. Mem. 9).
But Engel appears to
press that claim as an alternative to direct liability for
unlawful actions surrounding Ford, Dugan and Mammolito, as well
as Heldenbrand (see E. R.Mem. 33).
Given the extensive cooperation between Quid and Buchan, a
jury could reasonably find that either of them (1) knew that the
testimony of Ford or Dugan had been improperly influenced and (2)
had a realistic opportunity to intervene, perhaps by informing
the prosecutor, even though that defendant did not himself
actively cause the constitutional violation.
Thus a jury could
readily find in Engel’s favor on the failure-to-intervene claim
as to either defendant, and the claim must survive.
State Law Claims
Quid, Del Re and the United States also move for summary
judgment on Engel’s claims of malicious prosecution and civil
conspiracy (in the case of the United States, a claim that
43
applies via the Federal Tort Claims Act).17
This Court has
previously ruled that Missouri law governs those claims.
As a preliminary matter, defendants face an uphill battle
where as here they seek summary judgment based on the asserted
existence of probable cause. Under Missouri law, “[a]s a general
rule, the defense of probable cause is a question of fact for the
jury” (Signorino v. Nat’l Super Markets, Inc., 782 S.W.2d 100,
103 (Mo. Ct. App. 1989)), and our Court of Appeals has likewise
said that “claims presenting the question of probable cause are
generally inappropriate for disposition on summary judgment...
where there is room for a difference of opinion” (Schertz v.
Waupaca County, 875 F.2d 578, 582 (7th Cir. 1989)).
Nonetheless
Engel will bear the heavier burden at trial, for in Missouri
“[a]ctions in malicious prosecution have never been favorites of
the law,” and a plaintiff must provide “strict and clear proof”
of all elements of the claim (Simpson v. Indopco, Inc., 18 S.W.3d
470, 473 (Mo. Ct. App. 2000)).
Under Missouri law malicious prosecution claims require
proof of six elements (id.)
(1) the commencement of an earlier prosecution against the
17
Under the FTCA the United States is liable “in the manner
and to the same extent as a private individual under the
circumstances” (28 U.S.C. §2674). While malicious prosecution is
among the state torts as to which the United States does not
generally waive its sovereign immunity, there is an exception for
claims such as this one that arise from the acts or omissions of
law enforcement officers (28 U.S.C. §2680(h)).
44
plaintiff; (2) the instigation of that prosecution by the
defendant; (3) termination of the prosecution in favor of
the plaintiff; (4) the want of probable cause for the
prosecution; (5) that defendant’s conduct was actuated by
malice; and (6) damage to the plaintiff.
Defendants insist that Engel has failed to provide sufficient
evidence as to the satisfaction of the second (instigation) and
fourth (probable cause) requirements.
1.
Instigation
As the government points out, under Missouri law a defendant
will be deemed to have instigated a prosecution only where there
is "some affirmative action by way of advice, encouragement,
etc.” (Hunter v. Karchmer, 285 S.W.2d 918, 929 (Mo. Ct. App.
1955)).
No officer will be held liable for merely providing
honest information to a prosecutor (see Baker v. St. Joe Minerals
Corp., 744 S.W.2d 887, 889 (Mo. Ct. App. 1988)).
But "liability
may arise from supplying false information to the prosecuting
official" (id., emphasis added), and that is precisely what Engel
alleges:
that Buchan, Quid and Del Re knowingly provided false
information to the prosecutor.
On that score Engel cites evidence that defendants played on
Dugan's antipathy towards her ex-husband, induced her to testify
falsely and prodded her to find and turn over a ring that could
plausibly be said to be the one described by Ford.
Moreover,
Engel can point to Mammolito’s testimony (and particularly the
change in his story as to which of the conspirators picked up the
45
ransom money) as motivated by the undisclosed deal with Quid.
And Engel also calls on ample evidence that the prosecution was
as a practical matter instigated and driven by Buchan and Quid,
who built the kidnapping case in its entirety before handing it
over to prosecutors and then continued their involvement through
trials.
Cases cited by the United States are inapposite, as they
discuss instances in which witnesses have merely furnished facts
to prosecutors, have not withheld information and have not
actively driven a prosecution forward (see, e.g., Hunter, 285
S.W.2d at 931).
By contrast Engel identifies record evidence
that all of those misdeeds occurred in this case.
Nor does it
matter that the witnesses repeated their stories to Missouri
police officers or that prosecutors found those stories
plausible. According to Engel--and more importantly, supported by
sufficient evidence to be taken as true for present purposes-those witnesses merely repeated stories that they had falsified
under pressure from Buchan, Quid and Del Re.
In Engel easily
satisfies the instigation requirement.
2. Probable Cause
Engel has a more difficult time in establishing the lack of
probable cause--more precisely, in showing that a reasonable
factfinder, viewing the evidence in the light most favorable to
Engel, could find that there was no probable cause to initiate
46
the prosecution.
Under Missouri law a defendant may rebut a
claim of malicious prosecution by demonstrating probable cause,
defined as “reasonable grounds for suspicion, supported by
circumstances in evidence sufficiently strong to warrant a
cautious man in his belief that the person accused is guilty of
the offense charged” (Simpson, 18 S.W.3d at 474).
That belief
need not be true, or even more likely true than false.
What is
required instead is “a fair probability--from the perspective of
a prudent and cautious law enforcement officer--that a particular
offense has been committed based on the totality of the
circumstances” (Southards v. Dir. of Revenue, 321 S.W.3d 458, 462
(Mo. Ct. App. 2010)).
Defendants begin by arguing that they are entitled to a
presumption of probable cause based upon Gabbert's sworn
complaint and the Missouri judge's finding of probable cause in a
preliminary hearing. As Moad v. Pioneer Fin. Co., 496 S.W.2d 794,
798-99 (Mo. 1973) has put it:
[I]f the charge is initiated...by a prosecuting attorney on
his sworn information and belief, [that] amounts to a prima
facie showing that probable cause did exist for the
prosecution.
That presumption might perhaps carry the day were it not for the
predicate for overcoming the presumption exemplified by Anton v.
Police Ret. Sys., 925 S.W.2d 900, 905 (Mo. Ct. App. 1996):
The prima facie showing is conclusive unless rebutted
by evidence that false testimony was the basis of the
charge and the falsity was discoverable upon reasonable
47
investigation.
Here fraud and false testimony are at the very heart of
Engel’s case and are supported by sufficient evidence for summary
judgment purposes.
And that being so, defendants are not
entitled to wrap themselves in the mantle of presumptive probable
cause.
Nor can the officers insulate themselves from liability for
false statements by relying on a probable cause determination by
a magistrate.
As Franks v. Delaware, 438 U.S. 154, 168 (1978)
has said in the search context:
The requirement that a warrant not issue “but upon probable
cause, supported by Oath or affirmation,” would be reduced
to a nullity if a police officer was able to use
deliberately falsified allegations to demonstrate probable
cause, and, having misled the magistrate, then was able to
remain confident that the ploy was worthwhile.
In the same way, if Engel is able to prove that Buchan and Quid
falsified evidence and misled the magistrate, they are not
entitled to a presumption of probable cause.18
18
Engel’s conviction complicates matters somewhat.
Ordinarily under Missouri law a criminal conviction conclusively
establishes the existence of probable cause, but that conclusion
too is rebutted “by proof that the conviction was based on fraud
or false testimony” (State ex rel. Police Ret. Sys. of St. Louis
v. Mummert, 875 S.W.2d 553, 555 (Mo. 1994)(en banc)). That is
precisely what Engel has alleged, and as already said in this
opinion he has tendered enough evidence for that proposition to
withstand summary judgment. Furthermore, despite Quid’s and Del
Re’s arguments to the contrary, Engel’s conviction has no
preclusive effect. That conviction was vacated in Engel’s habeas
proceeding, and this opinion has already addressed at length the
impact of a vacatur. It is likewise irrelevant that the Missouri
Supreme Court, in granting habeas relief to Engel, stated that
the evidence at Engel’s trial was sufficient to convict (State ex
48
With the legally required adjunct of reasonable inferences,
a jury could reasonably find (as a jury did in fact find) that
Buchan, Quid and Del Re worked together to induce Dugan to
implicate Manning and fed her information to enable her to do so
(Manning, 2005 WL 3078048, at *10).
It could relatedly find that
Dugan knowingly lied at Engel's preliminary hearing in order to
implicate her ex-husband.
remains:
Even so, however, the question
Without the testimony of Dugan and Mammolito's
identification of Engel, did probable cause nonetheless exist?
Recall that Ford and Harris also testified at Engel’s
preliminary hearing.
Though they described the kidnapping in
some detail, neither ever saw the faces of their assailants. And
though their accounts in some ways mirrored (and thus
corroborated) that of Mammolito, they really provided no direct
testimony linking Engel or Manning to the crime.
There is one arguable exception--Ford’s missing ring, which
remains the strongest potential link between Engel and the
kidnapping.
But here too a jury could reasonably find that Ford
was initially told about the ring rather than bringing it up
himself (as he at one point testified in his deposition).
Or it
could find that investigators went to Dugan and told her of the
rel. Engel v. Dormire, 304 S.W.3d at 129). That a jury could
credit the prosecution’s evidence, however, has no bearing on the
different question of whether a jury could find that enough
evidence was falsified to negate probable cause.
49
ring, after which she “coincidentally” happened to remember that
she had not only seen such a ring but had previously stolen it
from Engel.
Although Ford eventually identified the ring that
Dugan gave to the investigators as the one he had lost, Engel
notes that Ford generally said only that the ring "looked like"
his, that multiple explanations were offered for the distinctive
dent in the ring, and that Ford benefitted from identifying the
ring by eventually being allowed to retain it.19
At this stage
(and for that matter later) the resolution of conflicting
evidence is not (and will not be) this Court’s function.
As an alternative the government argues that Mammolito’s
identification of Engel suffices to sustain a finding of probable
cause (U.S. Mem. 32).
But that ignores Engel’s central
contention that Mammolito was coached by Buchan and Quid to
provide false testimony and given incentives (financial and
otherwise) to do so.
It would hardly be implausible for a jury
to find that Quid gave Mammolito both the incentive and
opportunity to fabricate testimony, including inducing him to
change his story as to who picked up the ransom.
And the cases
that the Government musters to support the proposition that
“[p]robable cause does not require that an informant be one whose
reliability has been previously established” (see, e.g., Missouri
19
Note as well the several disparate descriptions of the
ring, another factor that could shake the factfinders’ reliance
on that piece of evidence in the face of evidence of the asserted
conspiracy submitted by Engel.
50
v. Taylor, 889 S.W.2d 124, 128 (Mo. Ct. App. 1994)) do not speak
to whether probable cause may be undermined where a witness such
as Mannolito evinces indicia of unreliability.
Each side has come up with more ammunition, but no useful
purpose would be served by adding further detail.
This is not
after all a preponderance-of-the-evidence exercise.
True enough,
the malicious prosecution claim will be difficult for Engel to
prove at trial.
Under Missouri law he must show not only that
Dugan lied but also that she did so knowingly (Zike v. Advance
Am., Cash Advance Ctrs. of Mo., Inc., 646 F.3d 504, 511 (8th Cir.
2011)).
And he cannot simply rely on a jury’s finding that the
Missouri judge came to the wrong conclusion or should have
weighed the testimony of witnesses differently (id.).
Nonetheless Engel has provided sufficient evidence of malfeasance
to enable the factfinder to determine that no prudent officer,
putting aside evidence that the jury finds was false, could
determine that there was a fair probability that Engel was guilty
of the offense.
One final matter:
As defendants appear to concede, because
Engel’s malicious prosecution claim has survived, his civil
conspiracy claim survives as well.
Thus all motions on both
sides have failed--and this Court has returned to the point of
beginning, a good deal wearier but uncertain whether it is any
wiser.
51
Conclusion
To spare this Court’s courtroom deputy the chore of
traversing the convoluted pathways that this opinion has had to
travel, the results may be condensed into the denial of the
motions designated as Dkt. Nos. 260, 264, 266 and 269.
And
finally, a status hearing is set for 9:15 a.m. November 21, 2013
to discuss the future course of this litigation.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
November 12, 2013
52
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