Hammond v. Kunard, 96-2343

• Decision Date: 11 June 1998
• Docket Number: No. 96-2343,96-2343
• Citation: 148 F.3d 692
• Parties: Travis S. HAMMOND, Plaintiff-Appellee, v. Randall KUNARD, Bruce Harmening, and Lawrence Wait, officers and agents of the United States Marshal Service, Internal Revenue Service and adjunct officers of the Drug Enforcement Administration in their individual capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 692

148 F.3d 692

Travis S. HAMMOND, Plaintiff-Appellee, v. Randall KUNARD, Bruce Harmening, and Lawrence Wait, officers and agents of the United States Marshal Service, Internal Revenue Service and adjunct officers of the Drug Enforcement Administration in their individual capacities, Defendants-Appellants.

No. 96-2343.

United States Court of Appeals Seventh Circuit.

Argued April 10, 1998.

Decided June 11, 1998.

John H. Bisbee (argued), Macomb, IL, for Plaintiff-Appellee.

James A. Lewis (argued), Office of the United States Attorney, Springfield, IL, for Defendants-Appellants.

Before POSNER, Chief Judge, and BAUER and KANNE, Circuit Judges.

BAUER, Circuit Judge.

In this case, the defendants, who were employed (at least at the times relevant to this case) by various law enforcement agencies, appeal from the district court's denial of their motion to dismiss the plaintiff's complaint based on the doctrines of absolute and qualified immunity. Because we find no error with the district court's decision, we affirm.

BACKGROUND

The relevant facts we have gleaned from the First Amended Complaint (a whopper, weighing in at 19 pages and 45 paragraphs), which we presume to be true for purposes of the motion to dismiss, are as follows. ¹ At the times relevant to this case, plaintiff Travis Hammond ("Hammond") operated a farm located in Hancock and Schuyler Counties, Illinois. Defendant Randall Kunard ("Kunard") was an employee of the McDonough, Illinois, County Sheriff's Office who was on assignment with the Illinois State Police, Department of Criminal Investigation. Defendant Bruce Harmening ("Harmening") was an officer and agent of the United States Drug Enforcement Administration, and defendant Lawrence Wait ("Wait") was an agent of the Internal Revenue Service. In approximately November 1990, Harmening, Wait, and Kunard (collectively "the defendants") became involved in a federal drug enforcement exercise, dubbed "Operation Cowboy," which sought to track down and prosecute drug manufacturers, smugglers, and dealers in Western and Central Illinois. During the course of the operation, the defendants apprehended Randy Mustread ("Mustread") and charged him with various offenses stemming from his having brought large quantities of drugs from Texas into Illinois. Because Mustread had a long criminal history and faced a substantial amount of time in jail if convicted, the defendants urged Mustread to assist them in "Operation Cowboy" and assured him that any assistance he gave would be to his benefit.

Mustread agreed to cooperate, and met with Harmening and other agents on December 4, 1990, for a "debriefing." During this meeting, Mustread detailed a marijuana conspiracy in which he and Ramiro Adames, Dwight Bookout, Dennis Finch, Robert Lynn Jones, and Jimmy Cook procured and shipped large amounts of marijuana in Texas and brought it to central Illinois for distribution. The agents reduced this information to writing and believed it to be truthful. In subsequent meetings with the agents, Mustread related that he had previously rented a shed from Hammond, which was located on Hammond's farm, for the purposes of storing a camper. Mustread also stated that, without Hammond's knowledge, he had stored some of the marijuana brought up from Texas in the camper while it was in the shed. Between December 4, 1990 and October 21, 1991, Mustread was debriefed a total of 10 times by the agents but never implicated Hammond in any illegal activity.

According to the complaint, the defendants became aware after these initial meetings with Mustread that he was seeking financial support for his wife and children and also medication to help ease violent outbursts which he was experiencing due to being deprived of drugs on which he was dependent.

In approximately February 1991, Mustread was given prescriptions for various addictive tranquilizers which were to be paid for by county jail personnel pursuant to an authorization by Harmening. Mustread became addicted to the medications. Knowing that Mustread was dependent on them for a continued supply of drugs, Harmening and other agents informed Mustread of the civil forfeiture process by which the government seizes property used in the commission of drug offenses. Thereafter, on or about October 21, 1991, Mustread gave another detailed debriefing to Harmening concerning the marijuana conspiracy, this time implicating Hammond. Mustread informed Harmening that Hammond knew that marijuana was being stored at his farm, had participated in the delivery of marijuana to one of Mustread's customers, and had agreed to grow marijuana on his farm.

With this new information in hand, Harmening told Hammond that Kunard and Wait wanted to interview him, to which Hammond agreed. On December 3, 1991, Hammond met with the defendants and was questioned about his dealings with Mustread and other members of the conspiracy. Hammond related that he knew nothing about any illegal activity, but acknowledged that he allowed Mustread to store a camper in a shed on his farm and that he had gone to Texas with Mustread in 1987 to purchase a car from Bookout. During the interview, Agent Wait took notes which show that Hammond gave an exculpatory account of his involvement with the conspiracy; in the report of the meeting, however, the agents stated that Hammond had a history of involvement in the drug business and had assisted Mustread in bringing marijuana from Texas to Illinois. Subsequently, based on Mustread's testimony, the false report, and various threats and promises, the defendants induced others, including Bookout, to make statements which falsely implicated Hammond in the drug trade.

Harmening and Wait prepared the evidence they had gathered, which was submitted to a federal grand jury. On December 18, 1992, the grand jury returned an indictment against Hammond, in which he was charged with conspiracy to distribute marijuana. The indictment was amended on March 17, 1993, and added charges of manufacturing marijuana and money laundering against Hammond. Pursuant to the indictment, the defendants seized Hammond on January 2, 1992. Hammond was released on bail, but subject to many restrictions, including abstaining from alcohol, participating in a drug treatment program, submitting to weekly urine tests, and avoiding contact with certain individuals, including his son. On April 11, 1994, Hammond went to trial. The jury acquitted Hammond of the money laundering and drug manufacturing counts but was unable to reach a verdict on the conspiracy count. A mistrial was declared on the conspiracy count, and it was dismissed with prejudice by the district court on June 24, 1994.

On November 3, 1992 (after the first indictment had been returned against Hammond but before it was amended), Harmening verified a complaint alleging that Hammond's farm was used as an instrumentality in violation of federal narcotics laws and was subject to forfeiture to the United States. Pursuant to this complaint, federal agents seized Hammond's property on November 25, 1992. On July 11, 1994, after all of the criminal charges against Hammond had been resolved in his favor, the United States moved to dismiss the forfeiture action, which the district court granted the next day.

On August 11, 1994, Hammond filed this constitutional tort suit, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against Kunard, Harmening, and Wait. In Count I of the Complaint, Hammond asserted that the defendants, without any objectively reasonable basis for believing that he had violated any United States laws, violated the rights guaranteed him under the Fourth, Fifth, and Sixth Amendments to the United States Constitution. Specifically, Hammond claimed that the following rights were violated: (1) his liberty interest (secured by the probable cause standard of the Fourth Amendment and the grand jury clause of the Fifth On April 17, 1995, the defendants moved to dismiss the complaint. They argued that: (1) any testimony they gave before a grand jury or petit jury is absolutely privileged; (2) their actions in investigating, and ultimately seizing, Hammond are protected by qualified immunity; and (3) Hammond cannot bring suit against them on the basis of the abandoned civil forfeiture because the district court's issuance of a certificate of reasonable cause precludes such an action. This motion was referred to Magistrate Judge Robert Kauffman, who issued a report and recommendation in January 1996 recommending that the motion to dismiss be denied. The defendants filed objections with the district court, but on March 7, 1996, Chief Judge Michael Mihm denied the objections and adopted the report and recommendation. The defendants unsuccessfully sought reconsideration of the district court's decision, and on May 28, 1996, filed a notice of appeal with this court.

Amendment) in being free from prosecution and seizure based on fraudulently induced and manufactured evidence without which no objectively reasonable basis or probable cause existed; (2) his right to be free from prosecution instituted on the basis of knowingly false, improperly induced, and fraudulently manufactured evidence (as secured by the due process clause of the Fifth Amendment and the confrontation clause of the Sixth Amendment); and (3) the right to not be deprived of property without due process (secured by the due process clause of the Fifth Amendment). In Count II, Hammond asserted that the actions of the defendants caused him to default on payments on his farm, resulting in a foreclosure action being filed against him by the party that sold him the land. ²

DISCUSSION

On appeal, the officers assert that the district court erroneously found that their actions in the underlying criminal investigation and prosecution of Hammond were not entitled to either absolute or qualified immunity. Before...