Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75 C 3204 -- Julius J. Hoffman, Judge.
Before Fairchild, Chief Judge, Moore, Senior Circuit Judge,*fn* and Sprecher, Circuit Judge.
Plaintiff, Eloise Beard,*fn1 appeals from a jury verdict finding the defendant, Roy Martin Mitchell, not guilty of depriving her deceased brother of rights secured by the United States Constitution. Plaintiff seeks a new trial on the grounds that the trial judge improperly instructed the jury and committed other prejudicial errors in the conduct of the trial. We affirm.
On May 17, 1972, Jeff Beard was abducted and brutally murdered by Stanley Robinson, a Chicago police officer. An F.B.I. informant, William O'Neal accompanied Robinson on the night of the murder. Robinson was convicted of the crime in 1973.*fn2 In 1975 plaintiff brought this suit against Roy Martin Mitchell, an F.B.I. agent who participated in the investigation of Robinson's activities.*fn3 Plaintiff alleges that Mitchell's reckless conduct of the Robinson investigation resulted in the deprivation of Jeff Beard's constitutional rights, giving rise to a Bivens action for damages. The plaintiff contends that liability could be premised on Mitchell's reckless training and use of an informant, O'Neal, whose conduct allegedly caused Beard's death. Further plaintiff maintains that liability could be premised on Mitchell's failure to arrest Robinson prior to the murder or to take other preventive action.
A thorough review of the facts surrounding the investigation is necessary to demonstrate what information Mitchell had and how he acted in response to that information. Much of the evidence adduced at trial was undisputed. The plaintiff introduced testimony to establish that Mitchell and O'Neal had a long-standing relationship. In 1968 Mitchell recruited O'Neal, who was under investigation for car theft, to be an informant for the F.B.I. At Mitchell's request, O'Neal joined the Black Panther Party (B.P.P.) in order to monitor its activities for the F.B.I. O'Neal continued this assignment until February of 1972, contacting Mitchell almost daily for much of the period. The plaintiff established that in his role as informant O'Neal participated in criminal activities with other B.P.P. members and that Mitchell had knowledge of these activities.*fn4 Mitchell also introduced evidence establishing that O'Neal was successful in preventing crimes on a number of occasions. O'Neal ceased activity as a B.P.P. informant in early 1972.
In December of 1971 or January, 1972, Ira Lynn Roten, a special agent of the F.B.I. was assigned to investigate the disappearance of Richard Stean, whose father had received an extortion letter. The Chicago Police Department was concurrently investigating the murder of six black businessmen whose bodies were recovered from the Chicago Canal. After Stean's body was recovered from the same canal, Roten coordinated his investigation with the Chicago Police because of the possibility of a single conspiracy.*fn5
Although Mitchell was then assigned to the Joliet office, Roten requested Mitchell to contact his Chicago sources in an effort to acquire information relating to the Stean investigation. Mitchell was not actually assigned to the investigation until much later. On May 16 or 17, Mitchell contacted O'Neal. Roten subsequently informed Mitchell that the Chicago Police theorized that the murders may have been committed by a former police officer since there had been no evidence of rough abductions.
On the afternoon of April 21 or 22, 1972, O'Neal received a telephone call from a relative, Theodore Holmes, requesting O'Neal to participate in a robbery planned by a police officer. O'Neal agreed, for the purpose of supplying information to Mitchell. The same evening O'Neal and Holmes met with Stanley Robinson to discuss the plans for a million dollar robbery. Robinson advised them that the robbery was to be financed with money obtained by robbing narcotics dealers.
The same evening Robinson recruited Holmes and O'Neal to assist him in the robbery of a drug dealer named "Stu." While waiting for Stu, Robinson spotted a man named Coffey, who worked for Stu. Robinson put Coffey in the back seat of the car with O'Neal and began questioning him about Stu. At Robinson's direction, O'Neal handcuffed Coffey and slapped him when he refused to give any information. While driving the car, Robinson handed O'Neal a plastic bag with a string and an ice pick and informed O'Neal to place the bag over Coffey's head and tie it. O'Neal stated that, when Coffey became frantic, O'Neal said "hey man, that man is dying," and removed the bag.*fn6 When Coffey still didn't talk, Robinson ordered him to put the bag on again. O'Neal started to do so, but Coffey began disclosing information. Coffey was later released.
O'Neal reported the incident to Mitchell shortly after it occurred. Mitchell, however, did not report the incident to the Chicago Police or to the U. S. Attorney at that time. Mitchell testified that he did not do so because he did not know the identity of the victim ("Coffey" was a nickname) and he had no corroboration of O'Neal's account. He also doubted whether the F.B.I. had jurisdiction over the case. Mitchell stated that he did tell O'Neal that O'Neal should not have struck Coffey but that Mitchell thought O'Neal might well have saved Coffey's life.
O'Neal's activities with Robinson continued. Shortly after the Coffey incident, on approximately April 24, Robinson enlisted Holmes and O'Neal to assist in performing a contract to murder Chuck McFerren, owner of the El Caballero lounge. Pancho Hall, the "contractor," wanted McFerren killed to prevent him from testifying in a state murder trial.
During the next two weeks, approximately April 24 through May 6, Robinson, O'Neal and Holmes waited for the opportunity to murder McFerren. A number of incidents occurred during those two weeks. At some point Robinson informed O'Neal that he had previously murdered three black Chicago businessmen for money. Other individuals became engaged with Robinson during this period. William Tolliver, another Chicago police officer and an associate of Robinson's, joined the hunt for McFerren. O'Neal introduced two other criminals that he had encountered in his B.P.P. activity to Robinson for assistance. O'Neal stated that this was done to bolster his own protection.
During the first week in May, while staking out the lounge, Tolliver and Robinson reported seeing McFerren drive by in a yellow Mercury Cougar. Tolliver and Robinson pursued the Cougar, leaving O'Neal to watch the lounge. The two returned and informed O'Neal that they had shot and killed McFerren in the Cougar. O'Neal advised them that he had just seen McFerren in the lounge. After the Cougar incident, but still during the first week in May, O'Neal, Tolliver and Robinson believed they saw McFerren in a blue Pontiac. Robinson told O'Neal that it was "his turn." O'Neal got out of Robinson's car and followed the Pontiac into an alley. He fired his gun but did so in a manner to avoid hitting anyone. Robinson later learned that no one was shot.
There is a dispute as to precisely how much Mitchell knew about the activities which transpired between April 24 and May 6. Mitchell did not notify McFerren during this period that his life was in danger. He maintained, however, that his only information on this before May 6, was that his name was "Chuck" and that Robinson intended to extort money from him. Mitchell did relay the information concerning the Coffey incident and that concerning "Chuck" to agent Roten, the agent assigned to the case, sometime before May 6. Mitchell stated that he did not attempt to corroborate the information because he was not the case agent. Roten had informed him that he had unsuccessfully attempted to locate Stu and Coffey.
On May 6, O'Neal, Robinson and Tolliver followed McFerren's Cadillac onto an expressway at 5:00 a. m. Robinson identified the passenger as McFerren and positioned the car so that Tolliver could shoot. Using O'Neal's carbine, Tolliver shot and killed the passenger. The passenger was not McFerren, but an individual later identified as Verdell Smith. Later that morning, Robinson, Tolliver and O'Neal took the carbine to O'Neal's father's house. O'Neal stated that he called Mitchell to inform him of the May 6 killing the same afternoon. Mitchell testified that he did receive a call from O'Neal on May 6 but that O'Neal only said "These (people) are killers" and hung up. Mitchell said O'Neal did not report the May 6 murder of Verdell Smith to Mitchell until May 8 or 9.
Shortly after receiving this information, Mitchell reported it to Roten. Mitchell also began attempts to corroborate O'Neal's account. On May 10, Mitchell went to the Chicago Police headquarters to check the arrest records for the names he had learned and to determine whether Verdell Smith's death had been reported. Mitchell informed Officer James Tobin as to the information he needed and requested his assistance.
Tobin called Mitchell a day or two later and advised him that Verdell Smith's murder had been reported but that the murderer had confessed and that the police had closed the case. Tobin agreed to meet Mitchell at his home on May 13 and bring a copy of the report. Before meeting with Tobin on May 13, Mitchell met O'Neal in order to pick up the gun used in the Smith murder. At the meeting with Tobin, Mitchell shared the information which he had relating to Robinson's activities. Although McFerren's chauffeur had confessed to the murder of Smith, Mitchell told Tobin that he had doubts about the veracity of the confession. Tobin agreed to seek permission to work on the case in coordination with the F.B.I.
After the May 6 murder of Verdell Smith, O'Neal continued his association with Robinson. On approximately May 15, Robinson, O'Neal, and Bruce abducted Joe Rubio, a narcotics dealer. O'Neal was driving and Robinson cocked his gun, aiming it at Rubio and said that he was going to kill Rubio. Robinson told O'Neal to drive to the forest preserve. O'Neal testified that he told Robinson that Rubio could be financially important to them and that killing him would be senseless. Robinson agreed to let Rubio out of the car after he paid each of them $100. Afterwards Robinson told O'Neal that he was not to do that anymore and that in the future when he was told to do something, he had better do it.
On approximately May 14, Mitchell met with Roten to discuss the case and the information he received from Tobin. On May 15, Mitchell conducted an extensive briefing session with O'Neal wherein he learned the details of the events during the McFerren surveillance. Plaintiff contended that O'Neal's testimony established that he knew these details sooner, but he clearly knew them by the 15th. After the interview Mitchell forwarded the Smith weapon to Roten to be taken to the crime laboratory. On May 16, Mitchell and Roten pursued some leads on locating "Stu."
On either May 16 or 17, Mitchell was officially assigned to assist Roten in the Robinson investigation. On May 17, Roten and Mitchell spent the entire day interviewing the individuals O'Neal had named. They interviewed McFerren and informed him that he was the intended victim in the Verdell Smith killing.*fn7 They also interviewed the chauffeur who had confessed to the killing, Anthony Brown, who admitted that his confession was false. The agents were also able to determine the identity of "Stu" and "Coffey" and interviewed them as well. Mitchell did not arrive home until midnight on May 17.
On the afternoon of May 17, the date of Jeff Beard's murder, Robinson called O'Neal and told him that he would not be able to see O'Neal that evening because he had something else going. O'Neal protested that he did not wish to be left out. Robinson explained that it was only a small job and that he thought O'Neal had no interest in small jobs. O'Neal persuaded Robinson to include him.
O'Neal and Robinson set out at 6:00 that evening to perform a murder contract. Robinson only knew that the intended victim was a tall black man named Jeff with a high natural hair style. After searching unsuccessfully for some time, O'Neal told Robinson he should get better information. Robinson did so but was still unsuccessful at locating him after 21/2 more hours of searching. O'Neal then told Robinson he was tired and wanted to go home. While driving O'Neal back to his car, Robinson fortuitously spotted Jeff Beard in a pool hall.
Robinson and O'Neal sat outside the pool hall for 45 minutes. During that time O'Neal went to a telephone and tried to call Mitchell at his home. Mitchell had not yet returned from conducting the corroborating interviews with Roten. O'Neal left no message other than his name. O'Neal returned to the car.
When Beard came out of the pool hall Robinson instructed O'Neal to drive into an alley. Robinson got out of the car and placed Beard under arrest and handcuffed him. Robinson and Beard got into the back seat. Robinson told O'Neal that they were taking Beard to the Indiana District which O'Neal understood as an instruction to drive south.
When O'Neal had reached the 75th Street exit of the Dan Ryan Expressway, Robinson told him to exit so that he could make a telephone call. Robinson was out of the car for three to five minutes. O'Neal did not inform Beard that Robinson intended to kill him, nor did he attempt to drive away. He testified that he did not do so because he feared Robinson would kill him. When Robinson returned he began driving and told Beard that he was not under arrest but that they wanted him to sell narcotics for them.
Robinson later pulled off on the shoulder of the road in Indiana. He stepped out of the car alone, and O'Neal slid into the driver's seat. O'Neal again did not attempt to drive away. Robinson returned and asked Beard to leave the car so they could talk. O'Neal remained in the car. When Beard got out and walked around to the back of the car, Robinson shot him, but did not fatally wound him. Beard dashed out in front of the traffic and ran across the interstate.
Robinson returned to the car and O'Neal said that Robinson had really "screwed up." Robinson told O'Neal to stay there. Robinson found Beard and brutally murdered him. Robinson then called to O'Neal, who went and helped throw Beard's body over a fence.
O'Neal called Mitchell at 3 or 4:00 a. m. that morning and reported what had occurred. Mitchell and Roten immediately informed the Gary Indiana F.B.I. agents and met them at the location O'Neal described. The agents searched for the body unsuccessfully for several hours. Mitchell returned to Chicago, contacted O'Neal, and requested him to drive to the precise location. Mitchell followed O'Neal's car to a spot where O'Neal got out of the car and motioned. Roten arranged for the Indiana State Police to then do a terrain search. When they arrived ...