Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C 3409 - Hubert L. Will, Judge.
Before Cummings, Wisdom,*fn* and Sprecher, Circuit Judges.
Plaintiff is a Chicago businessman whose automobile was stolen in Chicago on June 14, 1976. Blandford Phoenix, another Chicagoan, was arrested in La Porte, Indiana, in possession of the automobile. On October 20, 1976, a bench trial commenced in which the Government attempted to show that Phoenix had violated the Dyer Act (18 U.S.C. §§ 2311-2313) by the theft and interstate transportation of plaintiff's automobile.*fn1
Plaintiff was served with a subpoena to appear on October 15, 1976, as a witness at Phoenix's trial in South Bend, Indiana. However, through an associate, plaintiff advised federal prosecutor Richard Kieser that he would be unable to appear on that date and on October 13 the trial was reset to October 20, 1976. The bench trial commenced on that date and the Government presented certain evidence but did not conclude its case. The trial was scheduled to resume on November 4, 1976, because plaintiff had secured a continuance until then for his appearance as a government witness. According to the complaint, plaintiff was advised by his South Bend attorney "that the case would proceed on November 4, 1976 and a new subpoena would be served" on him. Since no subpoena was served upon him, plaintiff left Chicago for Bermuda on November 3, 1976, to attend a professional association meeting. After plaintiff left his Chicago office for O'Hare airport to depart for Bermuda, a Deputy United States Marshal in Chicago telephoned plaintiff's office that he had just discovered an unserved November 4, 1976, subpoena for plaintiff's attendance at Phoenix's trial. The Deputy Marshal "explained the subpoena had been misplaced, apparently by another Deputy United States Marshal who had left on vacation without serving it." An associate of plaintiff advised the Deputy United States Marshal about plaintiff's pending departure and provided him with the flight number and date of plaintiff's expected return, which was on November 9, 1976. The Deputy Marshal said he would attempt to explain the matter to defendant and obtain a new trial date, but defendant allegedly refused to seek another continuance and told the Deputy Marshal to have plaintiff in South Bend on November 4 for resumption of the trial.
On November 4, defendant appeared before Judge Grant in South Bend and told the judge that plaintiff "was attempting to evade service of the subpoena" and persuaded the court to issue a material witness arrest warrant for Daniels under 18 U.S.C. § 3149.*fn2 According to the complaint, the prosecutor made the following unsworn false statements (or statements in reckless disregard of the truth) in order to obtain Daniels' material witness arrest warrant from Judge Grant:
"(a) That Mr. Daniels was attempting to evade service of the subpoena;
"(b) That Mr. Daniels had previously attempted to evade service of the subpoena;
"(c) That Mr. Daniels had left town after having been notified by the United States Marshal's office that there was a subpoena for him;
"(d) That Mr. Kieser had been assured on November 3, 1976 by Thomas Shanahan, a lawyer who represented Mr. Daniels, that Mr. Daniels would be in the South Bend courtroom at 1:00 p.m. on November 4, 1976;
"(e) That Mr. Shanahan told Mr. Kieser on November 3, 1976 that Mr. Daniels was "double-crossing' Mr. Shanahan and not keeping an agreement between Mr. Shanahan and Mr. Kieser;
"(f) And that Mr. Kieser had no idea of when Mr. Daniels would return to the United States."
On November 4, as the transcript of that date reveals, the Dyer Act defendant Phoenix was not present in court, supposedly because he thought the trial was continued until November 5, so that the trial could not have proceeded on November 4 anyway.
When plaintiff returned to O'Hare airport in Chicago on November 9, he was arrested and taken into custody in the presence of his wife, business associates and clients, and was interrogated, handcuffed and taken to the federal lockup in Chicago upon defendant's directions pursuant to the material witness arrest warrant of November 4. When plaintiff arrived at the lockup, he was fingerprinted, photographed, disrobed, searched, physically examined and imprisoned in the maximum security portion of the Federal Detention Center until a United States Magistrate released him on November 10, 1976. Plaintiff subsequently testified as a government witness when Phoenix's trial resumed in South Bend.
Plaintiff later instituted this suit against prosecutor Kieser. Count I of the complaint alleged a violation of plaintiff's rights under the Fourth and Fifth Amendments and under 18 U.S.C. § 3149. Count II was a false imprisonment count; Count III was for malicious prosecution, and Count IV was for abuse of process. In each count except Count III, plaintiff sought ...