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December 3, 2004.


The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge


In this Memorandum Opinion, the Court rules on a number of disputed matters preliminary to the trial of the case, set to begin on Monday, December 6, 2004.

A. Plaintiff's fourth motion to compel

  1. Defendants asserted the attorney-client and work product privileges with regard to documents in the files of the United States Attorney's Office regarding dealings with Thomas Dye. The defendants have provided a privilege log containing forty items.*fn1 The defendants relied on the approval of Assistant United States Attorney Canella Henrichs in support of a defense of qualified immunity with regard to Manning's claim his Sixth Amendment rights were violated by the defendants' decision to have an informant elicit information from him. The Court accepted this defense on summary judgment.

  Manning argues that by raising the immunity defense based on advice of counsel, defendants waived the privileges in their entirety. The Court rejects that argument. It is true that the attorney-client privilege is waived if the defendant asserts a defense that puts the attorney's advice at issue. See, e.g., Garcia v. Zenith Electric Corp., 58 F.3d 1171, 1175 (7th Cir. 1995). But as a general rule, the scope of the waiver extends only to the subject matter of the communications that were made to obtain the advice. See, e.g., Motorola, Inc. v. Vosi Technologies, Inc., No. 01 C 4182, 2002 WL 1917256, *1 (N.D. Ill. Aug. 19, 2002). Defendants expressly waived the privilege with regard to the communications that the Federal Bureau of Investigation made to Henrichs in seeking her approval and allowed inquiry of Henrichs regarding the information given to her in connection with the request to approve the recording of Dye's conversations with Manning. But they did not — either expressly or by implication — waive the privilege for matters unrelated to that particular request for advice.

  The Court reviewed the privilege log and, at the hearing on this motion, directed the defendants to produce for in camera inspection one item from the list. Defendants have done so and have also produced it to Manning's counsel.

  2. Manning asks for production of Henrichs' so-called "grand jury file" regarding Dye's testimony before a federal grand jury regarding Manning. Manning contends the testimony was perjurious. Defendants have resisted production based on Federal Rule of Criminal Procedure 6(e). The Court has previously ruled on this matter. Manning has failed to show the "particularized need" required to permit disclosure of this material. See, e.g., United States v. Sells Engineering, Inc., 463 U.S. 418, 443 (1983).

  3. Manning's request for any informant/cooperating witness file on Curtis Stover is denied as moot, based on the defendants' representation that there is no such file. 4. With regard to Manning's request for production of any Drug Enforcement Administration documents memorializing or summarizing statements given by Ronald Tyrakowski following his arrest in the summer of 1991, the Court finds that such documents were requested and that the defendants' imposition of a limitation on its search for records to those in the hands of the United States Attorney's Office and the FBI was, in this particular instance, unwarranted. Any such statements are to be produced forthwith, and in any event by no later than 9:00 a.m. on December 6, 2004.

  B. Plaintiff's motion for leave to file amended complaint to conform legal theories to proof at trial

  The Court granted summary judgment against Manning on his § 1983 claims, as he effectively abandoned them in response to defendants' motion, making no argument to rebut defendants' contention that they had not acted under color of law. Manning, having belatedly discovered that this leaves him without any claim other than the RICO claims on which he will be entitled to attorney's fees if he prevails, has now moved to file a third amended complaint reasserting the § 1983 claim. This motion is misnamed. It is not truly a motion for leave to amend — the second amended complaint already included § 1983 claims. Rather, it is a motion for reconsideration. The motion is denied. Reconsideration is appropriate, generally speaking, only when the Court overlooked or misunderstood something; it is an inappropriate way of asserting arguments that were overlooked by a party to whom the arguments were then available. See, e.g., Bank of Waukegan v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990); Quaker Alloy Casting Co. v. Gulfco Inds., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). C. Plaintiff's motion to compel production of all evidence relating to conjugal visits to Thomas Dye in the FBI offices

  At a deposition taken on October 18, 2004, Thomas Dye testified that while he was a prisoner at the Metropolitan Correctional Center and working with the FBI as a cooperating witness against Manning in 1989 and the early 1990's, he was permitted by agents Buchan and Miller to have numerous unsupervised conjugal visits in the FBI's Chicago office. In a motion filed six weeks later (on the day after Thanksgiving, when the Court was closed, and just 10 days before trial), Manning asks the Court to order defendants to produce any and all documents relating to any such visits. The defendants deny that any such visits occurred, contending that Dye is making it up.

  Manning requests production of all visitors' logs for an unspecified period. The request is denied. The Court agrees that material reflecting such visits would be relevant if it existed. But in view of the burdensomeness of the request — it would require a monumental search for, and of, voluminous records for a long but unspecified period of time — the Court finds that Manning waited too long to pursue the issue. To order the search to be done at this time would likely derail defendants' trial preparation to a significant extent. The Court is unwilling to take that step on a matter that was, or reasonably should have been, obvious to Manning's counsel at the moment Dye testified about the purported conjugal visits.

  D. Plaintiff's motion to reconsider adverse ruling on Sixth Amendment claim

  The Court denies Manning's motion to reconsider the Court's qualified immunity finding on Manning's claim of violation of his Sixth Amendment rights. Most of Manning's arguments in the motion were made and rejected at the time of that ruling and thus are not an appropriate subject for reconsideration. In addition, the Court has reviewed the entirety of the deposition of AUSA Henrichs (whose approval of the recording of Dye's conversations with Manning formed the basis for the qualified immunity ruling), and finds that Manning was not, contrary to his argument, hampered in inquiring of Henrichs regarding the information she was given by the FBI that led to her approval of the recording of Dye's conversations with Manning. The Court rejects the remaining arguments made by Manning for the reasons stated in open court when this motion was argued.

  E. Defendants' motions in limine

  1. Impeachment of Dye

  Defendants want to prevent Manning from impeaching Dye with any information that was unknown to defendants Miller or Buchan or that was not presented at Manning's trials. They have offered no legal basis for limiting impeachment in this manner. That is not to say that everything that Manning might use is otherwise proper impeachment, but any such issues will have to be taken up on an item-by-item basis.

  The Court agrees with defendants that statements made by the United States Attorney's Office about Dye's credibility do not constitute proper impeachment of Dye and are not admissible against Miller or Buchan on any other basis. It is conceivable they may be admissible for some proper purpose against the government, but because the FTCA claims against the government are being tried to the Court, not the jury, that subject can be deferred until a later point during the trial. The parties are advised to bring the matter to the Court's attention at some appropriate time. 2. Qualified immunity issues

  Defendants Buchan and Miller seek to preclude evidence of various matters on which they say they are entitled to qualified immunity and which, they say, the Court "refrained from resolving" on summary judgment. In this regard, the Court incorporates an order we entered clarifying the summary judgment ruling after we had reviewed this part of defendants' motions in limine:
The Court has reviewed the motions in limine filed by the parties. Defendants' motion includes a contention that in dealing with the defendants' summary judgment motion, the Court "refrained from resolving qualified immunity issues" on what defendants characterize as five Brady v. Maryland claims made by plaintiff. See Dfdts' Mots. In Limine at 2. This contention reflects a misconception regarding the claims made by the plaintiff in this case, and a misunderstanding of the summary judgment motion and the Court's ruling. This order is entered to correct the misconception and misunderstanding.
First, the plaintiff has not made, as defendants' argument suggests, a series of mini-claims for relief, each arising out of a particular bit of evidence claimed to have been concealed in connection with the plaintiff's convictions in Illinois for murder and in Missouri for kidnapping. Rather, with regard to each trial, the plaintiff has made, as referenced at pages 5-6 of the Court's summary judgment ruling, a single Bivens claim against the individual defendants and a single malicious prosecution claim against the government (as well as parallel RICO claims). In the Bivens claims, the plaintiff contends that the defendants, by using various inducements, fabricated inculpatory evidence that was used at the trials and concealed a variety of matters that are said to have been exculpatory or impeaching. It is a single claim for each trial, not a constellation of separate sub-claims.
Second, summary judgment may be sought only as to a claim, not as to a bit or piece of a claim. See generally Jamsports and Entertainment, LLC v. Paradama Productions, Inc., 336 F. Supp. 2d 824, 845 (N.D. Ill. 2004) (citing Biggins v. Oltmer Iron Works, 154 F.2d 214, 217 (7th Cir. 1946), and other cases). But even were such an approach proper, the defendants' summary judgment memorandum, even read liberally, did not ask the Court to grant summary judgment on qualified immunity as to the particular pieces of evidence catalogued by defendants in their motion in limine. The legal discussion of the plaintiff's Brady claims in the defendants' summary judgment memorandum appears at pages 20-25. Nothing in that discussion reasonably may be construed as asking the Court to grant "summary judgment" on the supposed discrete "claims" arising from the concealment of benefits to Mammolito; benefits to Dye; a statement that Dye attributed to Tyrakowski; a letter from Mrs. Pellegrino; and the act of moving Dye close to Manning. Rather, the defendants addressed the plaintiffs' claims as the Court did in its ruling, arguing that "Manning lacks any concrete evidence showing that the defendants coached and paid Dye and Mammolito to testify falsely against Manning, and then intentionally withheld this information from the prosecution in bad faith." Dfdts' SJ Mem. at 22. The Court rejected that argument in holding that a reasonable fact finder could determine that the defendants had done just that (pages 7-11 and 13-20 of our ruling), and in holding that defendants were not entitled to summary judgment on qualified immunity (pages 11-13 and 20-21). It is noteworthy that in contending that the Court "refrained" from ruling, defendants cite only their reply brief on summary judgment, not their opening brief. Dfdts' Mot. In Limine at 2. Arguments made only in a reply brief are forfeited.
Third, the Court did not, in fact, refrain from ruling on the defendants' request for summary judgment on qualified immunity as to the Brady claims. The defendants seem to want to think that the Court ruled only on the claims of "fabricating evidence." Not so. First, our discussion of the Illinois case clearly described Manning's claim as a claim "that the defendants fabricated the key evidence against Manning and then concealed this fact from prosecutors and Manning's defense at trial." Ruling at 10 (emphasis added). We denied defendants' request for summary judgment on the merits of that claim, id. at 11, and made reference to that same description in denying qualified immunity. Id. at 12-13. Though our discussion regarding the Missouri case was not quite as crystal clear, the Court considered the claim as the plaintiff has always characterized it: fabrication of evidence and concealment of the fabrication from prosecutors and the defense. In short, the Court did not "refrain from resolving" the defendants' request for summary judgment on qualified immunity on the Brady claim; rather we denied that request for the reasons stated in our ruling.
Order of Nov. 18, 2004.

  Whether or not defendants might be entitled to qualified immunity on various aspects of Manning claim — a matter that the Court can, of course, assess at trial on a motion under Federal Rule of Civil Procedure 50(a) — that would provide no basis for excluding these matters from evidence. To decide Manning's claims, the jury will be required to assess the believability of Dye and Mammolito's accounts so that it can, among other things, determine whether they were induced to fabricate evidence. Defendants' concern that the jury be prevented from finding liability based on matters that were disclosed to Manning's defense or the non-disclosure of which was not attributable to them can, the Court believes, be handled by appropriate instructions to the jury, which we will leave it to the parties to propose.

  3. Evidence of Sixth Amendment violation

  The Court agrees with the defendants that it would be improper for Manning to introduce evidence reflecting that Buchan and Miller violated his Sixth Amendment rights by using Dye and Sylvia Herrera to elicit information from him; the Court has barred this claim on qualified immunity grounds. The Court also agrees with Manning, however, that he is likely to need to be able to explain that the improper admission of this evidence is why his Missouri conviction was overturned. Both sides' concerns may be accommodated. Manning will be permitted to elicit that the convictions were overturned because the Eighth Circuit held that the use in evidence of these matters violated Manning's constitutional right to counsel. The jury may be instructed at that time, and/or at the conclusion of the case, that this forms no part of the claims made against Miller or Buchan in this case. The Court will leave it to the parties to propose appropriate instructions.

  4. Heldenbrand photographic lineup

  Defendants seek to bar Manning from arguing that photographic spreads that were shown to Carolyn Heldenbrand, a prosecution witness at Manning's Missouri trial, were unduly suggestive or otherwise unlawful. They argue that a claim based on a misleading identification process cannot give rise to a civil suit for violation of the accused person's constitutional rights.

  The Seventh Circuit appears to have determined, as defendants argue, that a plaintiff cannot maintain a claim against a law enforcement officer for violation of constitutional rights based exclusively on the officer's use of a suggestive identification procedure. See Newsome v. McCabe, 319 F.3d 301, 305 (7th Cir. 2003). Rather, a constitutional claim for damages arises in the identification context only if the officer conceals information tending to undercut the identification from prosecutors or the defense. See Newsome v. McCabe, 256 F.3d 747, 749 (7th Cir. 2001).

  In response to defendants' motion in limine, Manning has proffered a chain of circumstantial evidence which, if established, would permit a jury reasonably to find that defendant Buchan did more than simply show Heldenbrand suggestive photographic displays, that is, that he affirmatively encouraged or prompted Heldenbrand to identify Manning, and then failed to disclose this to Missouri prosecutors or Manning's defense. Res judicata does not bar this claim, as it was not presented (and did not need to be presented) to the Missouri or federal habeas courts; if the claim is proven, the defendants are not entitled to qualified immunity, as Newsome holds, see id. at 752-53; and the defendants do not get off the hook based on a prosecutor's decision to use the identification without knowledge of the concealed information. Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988).

  For these reasons, the Court rejects defendants' request to bar evidence regarding the lineup. It will be necessary, however, to instruct the jury at some appropriate point that Manning's claim, insofar as it is based on the Heldenbrand identification, is based on withholding of evidence, not the mere suggestiveness of the photographic arrays that were used. The Court will leave it to defendants to propose an appropriate limiting and/or final jury instruction.

  5. Expert testimony of Gary Wells

  The Court rejects the defendants' request to bar the testimony of Gary Wells, a professor of psychology who will testify as an expert in the area of eyewitness identifications. According to defendants, Wells will testify that the photographic arrays shown to Carolyn Heldenbrand were highly suggestive and that a well trained law enforcement officer would have known that the procedure was improper. As Manning points out, there is more to Wells' testimony than this. Among other things, Wells will testify regarding Heldenbrand's susceptibility to suggestion. This and other opinions he will offer are relevant even under the withholding-information theory of liability discussed in the preceding section of this Memorandum Opinion — among other reasons, Manning is entitled to try to refute the notion that Heldenbrand's identification of him was genuine and legitimate.

  The Court also rejects defendants' argument that Wells' failure to perform laboratory testing renders his opinions inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702 and Daubert both require, among other things, that an expert's testimony be based on reliable principles and methods, applied reliably to the facts. See, e.g., United States v. Conn, 297 F.3d 548, 555 (7th Cir. 2002). But the Seventh Circuit has made it clear that an expert is not required to substantiate his opinions through testing particularized to the specific case if the science he is using has already been shown experimentally to be reliable — which is what Wells will testify. See United States v. George, 363 F.3d 666, 672-73 (7th Cir. 2004). The primary purpose of the Rule 702/Daubert inquiry is to ensure `"that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Bryant v. City of Chicago, 200 F.3d 1092, 1098 (7th Cir. 2000). It appears to the Court that Wells' expected testimony meets this standard, and thus we reject defendants' Daubert/Rule 702 challenge. Defendants will, of course, be free to inquire on cross-examination regarding the feasibility of experimental corroboration, Wells' use of it in other cases, and his non-use of it in this case. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596.

  Finally, the Court agrees with plaintiff that Wells has sufficient background and expertise in the field to testify regarding law enforcement procedures regarding identifications. He is not required to have worked as a law enforcement officer, investigator, or prosecutor as a prerequisite to testifying on that topic.

  6. Expert testimony of Michael Lyman

  Manning intends to call Michael Lyman, a professor of criminal justice, to testify regarding a series of opinions concerning defendants' use of Thomas Dye. In his report provided pursuant to Federal Rule of Civil Procedure 26(a)(2), Lyman listed his opinions as follows:
1. Defendants were aware or should have been aware that Dye was unreliable but still chose to utilize him as an informant.
2. Defendants in this case knew or should have known that Dye's statements were false regarding Manning's "confession" of the Pellegrino murder.
3. Defendants in this case knew or should have known that Mammolito's statements about Manning's involvement in the Missouri kidnapping were false.
4. Defendants in this case ignored nationally accepted informant management guidelines by "prepping" informant Dye and providing him with case files with which to memorize aspects of the case.
5. Defendants in this case inappropriately offered informant Mammolito and Dye favors and inducements in exchange for their testimony against Manning.
6. Defendants in this case ignored convincing evidence that would have established Manning's innocence.
7. Defendants in this case, knew or should have known that Manning was represented by an attorney, and that his 6th Amendment protections under the Constitution would be violated by prompting Dye and Herrera to discuss his pending criminal charges.
Def. Mot. In Limine, Ex. 3 at 4.

  Defendants argue that these matters are not the appropriate subject of expert opinion, because they amount to comments on intent and credibility and the resolution of disputed fact issues. Manning contends that Lyman is simply making factual assumptions based on the record and giving expert opinions about proper law enforcement practice based on those assumptions. But it appears from the above, as well as the text of Lyman's report, that at least some of his opinions amount to assessing the evidence and making "findings" regarding the inferences and conclusions to be drawn.

  It is highly doubtful whether such testimony is admissible under Rule 702. Lyman is not, strictly speaking, giving opinions on witness credibility (which, as a general rule, are improper, see, e.g., Goodwin v. MTD Products, Inc., 232 F.3d 600, 609 (7th Cir. 2000)). But the Court has a hard time seeing how his apparent conclusions about what the evidence showed and his resolution of contested issues are helpful to the jury, or what the "reliable principles and methods" are that led him to those conclusions. These elements are prerequisites to admissibility under Federal Rule of Evidence 702. See Fed.R. Evid. 702; see also, e.g., United States v. Young, 316 F.3d 649, 657 (7th Cir. 2002). In his response to defendants' motions in limine, Manning points out that some aspects of Lyman's testimony, regarding proper police practices, do not constitute an assessment of what the evidence shows or an opinion on credibility. See Pl. Resp. at 21. And at oral argument on the motion, Manning's counsel gave an outline of Lyman's testimony phrased in a manner that might make its admissibility less suspect. But the proffer was somewhat vague. As a result, the Court does not have a good enough handle on Lyman's actual expected testimony to assess its admissibility. Before Lyman's testimony can be offered at trial or mentioned before the jury, Manning will be required to make a more particularized proffer of how he expects Lyman to testify, so that defendants can respond and the Court can make a definitive ruling. This should be done as close to the start of trial as possible.

  7. Credibility finding regarding Buchan

  Manning does not oppose defendants' motion to bar introduction of evidence that in 1995, another judge of this Court (Judge Shadur) made an adverse credibility finding regarding defendant Buchan following ...

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