Manning v. Miller, 03-1762.

• Decision Date: 21 January 2004
• Docket Number: No. 03-1762.,03-1762.
• Citation: 355 F.3d 1028
• Parties: Steven MANNING, Plaintiff-Appellee, v. Gary MILLER, Federal Bureau of Investigation Agent, and Robert Buchan, Federal Bureau of Investigation Agent, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

355 F.3d 1028

Steven MANNING, Plaintiff-Appellee, v. Gary MILLER, Federal Bureau of Investigation Agent, and Robert Buchan, Federal Bureau of Investigation Agent, Defendants-Appellants.

No. 03-1762.

United States Court of Appeals, Seventh Circuit.

Argued September 26, 2003.

Decided January 21, 2004.

Jon Loevy (argued), Jon Rosenblatt, Loevy & Loevy, Chicago, IL, for Plaintiff-Appellee.

Jonathan C. Haile, Office of the United States Attorney, Chicago, IL, Richard A. Cordray (argued), Grove City, OH, for Defendant-Appellant.

Before FLAUM Chief Judge, and BAUER and MANION, Circuit Judges.

BAUER, Circuit Judge.

This case raises the question of how far immunity extends for Federal Bureau of Investigation (FBI) agents accused of "framing" a defendant. Steven Manning was tried and convicted for kidnaping and murder; he later had those convictions overturned. Manning now brings suit against, among others, the FBI agents involved in his investigation. The FBI agents, Buchan and Miller, moved for summary judgment based on their absolute and qualified immunity from the charges. The district court denied these motions. Buchan and Miller bring these interlocutory appeals. For the reasons stated below, we affirm.

I. Background

Manning was employed as a Chicago police officer and later as an FBI informant. In 1986 after Manning ceased to be an informer for the FBI he fell under suspicion for a variety of crimes. These crimes included the 1984 kidnaping of two drug dealers, the 1985 murder of Chuckie English, and the 1990 murder of James Pellegrino. Manning was arrested and tried for the kidnaping charges, found guilty and sentenced, effectively, to life in prison. In 1993 Manning was also charged and convicted of the murder of Pellegrino and sentenced to death. In 1998 Manning's murder conviction was overturned; the prosecutor declined to retry him on that charge. Later, in 2002 Manning's kidnaping conviction was overturned.

Manning states the following, which we take as true for the purposes of this appeal. He contends that these charges were a result of retaliatory action by the FBI taken because he ceased to do work for them as an informer. Although discovery has not yet proceeded, Manning points to several actions taken by Agents Buchan and Miller during the course of their investigations that were done with the intention of "framing" him. Specifically, Manning states that in 1990 Agent Buchan reopened the kidnaping case after the FBI had closed its investigation in order to frame him for this unsolved crime. During the course of the kidnaping investigation Manning states that the agents conducted a "highly suggestive photographic line-up" to induce a witness to identify him as the perpetrator. (Appellee's Br. at 5). Based solely on this witness's identification of Manning, he was arrested; he was later tried and, after an initial mistrial, convicted on the kidnaping charges.

When he was arrested for the kidnaping, Manning was placed in a cell with jailhouse informant Tommy Dye. Manning states that Agents Buchan and Miller intentionally chose to use Dye as the informant because they knew Dye had previously falsified information and perjured himself, and hence would be willing to lie about Manning in exchange for a reduction in his sentence. Manning asserts that Buchan and Miller provided Dye with information and details regarding the kidnaping and the murders of Pellegrino and English, and told Dye that they wanted to connect Manning to those crimes.

Dye told the agents that Manning had confessed to the kidnaping and the murder of English. The agents then "wired" Dye and sent him back into the cell with Manning. Dye told the agents that Manning again confessed to the murder of English during an August 24, 1990 conversation, however, the tape of the conversation revealed no such confession. Further, it was physically impossible for Manning to have murdered English as he was in jail at the time of that murder. Undeterred by their initial lack of success, the agents wired Dye for a September 24, 1990 conversation. This time Dye claimed that Manning confessed to the Pellegrino murder. Unfortunately, the tape of the conversation again did not contain this confession; later, Agents Buchan and Miller determined that the recording equipment had malfunctioned and Manning's confession must have occurred during a two-second gap in the recorded conversation.

A description of these confessions was presented to a Cook County grand jury; the grand jury indicted Manning. At trial Dye testified against Manning. Agents Buchan and Miller also testified. Manning was convicted and sentenced to death. Dye later received a reduction in his sentence by more than half and had other criminal charges against him dropped as a result of his cooperation in this matter.

Manning, now having had these sentences overturned, brings a Bivens claim against Agents Buchan and Miller for violation of his constitutional right to a fair trial, and a claim under 42 U.S.C. § 1983 for conspiracy to deprive Manning of his constitutional rights. Buchan and Miller raised the defenses of absolute and qualified immunity and moved for summary judgment. The district court judge denied their motions; Buchan and Miller appeal.

II. Discussion

We review appeals based on immunity de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). Because discovery has not yet occurred in this case, we will treat the motion as a motion to dismiss, rather than a motion for summary judgment. Accordingly, such a motion should not be granted unless it appears "beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

A. Absolute Immunity

For plaintiffs seeking redress for being "framed" for a crime it is a difficult task to form the complaint. This and other courts have struggled with issues regarding whether an appropriate cause of action exists and how immunity factors in where a claim does exist. In the past, plaintiffs have unsuccessfully styled their "framing" claims as perjury, conspiracy to commit perjury, malicious prosecution, false arrest, and violation of due process rights, among other things. Ultimately, in this case, whether Agents Buchan and Miller are entitled to absolute immunity depends on how this court allows Manning to characterize his claim. On one hand, Agents Buchan and Miller believe this is merely a dressed-up claim of perjury and conspiracy to commit perjury (and therefore want absolute immunity). On the other hand, Manning characterizes this as a Brady claim¹, that is, a claim for the withholding of exculpatory evidence (and claims there is no absolute immunity). The facts of this case are unique, after considering them closely we feel that Manning's claim may properly be brought under Brady and the agents are not entitled to absolute immunity.

The law regarding immunity is very fact dependent, and the various facts courts have considered reveal a spectrum of behavior that has ultimately been categorized as immune or not immune. On the end of the spectrum where behavior is solidly considered to be immune from civil liability is perjury. In Briscoe v. LaHue, the Supreme Court explained that when a witness commits perjury, he or she is granted absolute immunity from civil liability. 460 U.S. 325, 331-32, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In these instances, immunity is granted to encourage witnesses to testify fully without fear of recrimination for his or her role in the proceedings. Id. at 332-33, 103 S.Ct. 1108. Further, when police officers testify as witnesses, they have the same protections. Id. at 340, 103 S.Ct. 1108.²

Within this Circuit, we have considered variations on the holding in Briscoe, finding that some, but not all perjury claims merit absolute immunity. In House v. Belford, we held that both a witness and a prosecutor are immune from civil liability when they "conspire" together to commit perjury — that is, when the prosecutor knows a witness will lie on the stand. 956 F.2d 711, 720 (7th Cir.1992). Conversely, in Newsome v. Mccabe, we declined to extend immunity to non-witnesses who assisted in the preparation of another's testimony.³

On the other end of the spectrum are cases where prosecutors withhold exculpatory evidence; in these cases they are not immune. We examined this issue in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001). Newsome involved a claim by a plaintiff that the police should be liable for their failure to alert the prosecutor to the fact that the fingerprints from the crime scene did not match Newsome's, and that the police encouraged witnesses to pick him out of a line-up. Id. at 749. Newsome brought actions for "malicious prosecution." Id. The court dismissed the immediate malicious prosecution claim. Id. at 750; see also McCullah v. Gadert, 344 F.3d 655, 657 (7th Cir.2003). In the alternative, the court considered that Newsome might have framed his argument as a Brady claim for withholding of exculpatory evidence. The court considered this in light of the detective's claim for qualified immunity and held that Newsome could proceed with a Brady claim uninhibited by qualified immunity. Newsome, 256 F.3d at 751-52. Similarly, in Ienco v. City of Chicago, plaintiff-Ienco filed a Brady claim against Chicago police officers for withholding exculpatory evidence and lying to prosecutors. We held that whether a true Brady claim existed was a question for the district court, but the officers were not entitled to absolute immunity.⁴

Recently, we ruled on one additional case that touched briefly on this issue. In Gauger v. Hendle, the plaintiff sued county detectives for providing a false account of his interrogation. 349 F.3d 354, 358 (7th Cir.2003). We considered the merits of Gauger's claims of perjury, false arrest, and Brady violati...