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Manning v. Miller

November 14, 2005


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Steven Manning sued Gary Miller and Robert Buchan, both agents of the Federal Bureau of Investigation, under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for violating his constitutional rights in connection with two state court criminal prosecutions, one in Missouri and one in Illinois. A jury found in Manning's favor against Buchan, but in favor of Miller, on the claim regarding the Missouri prosecution and awarded Manning $2,555,000 in compensatory damages. On the claim regarding the Illinois prosecution, the jury found in Manning's favor against both Buchan and Miller and awarded just over $3,851,000 in compensatory damages. The jury also assessed punitive damages of $100,000 against Buchan and $75,000 against Miller. Buchan and Miller have moved for entry of judgment as a matter of law or in the alternative for a new trial. For the reasons stated below, the Court denies the motion.


Manning is a former Chicago police officer who was terminated from or left the force in the early 1980's after he was prosecuted and convicted for involvement in an insurance fraud scheme. In 1985, Manning was arrested while participating in the burglary of a jewelry store. He decided to cooperate with the local authorities and eventually became an informant for the FBI. His primary contact was agent John O'Rourke, a member of "Squad 9" in the local FBI office. During this same period, the FBI was investigating Manning for alleged involvement in interstate thefts. Manning's informant relationship ended in the fall of 1986, under circumstances which were the subject of dispute at trial, after Thomas McKillip, one of Manning's alleged associates, was found murdered. Manning maintained that following the termination of his informant relationship with the FBI, O'Rourke's squad, which included Buchan and Miller, resolved to see to it that he was put behind bars and, to that end, Buchan and Miller fabricated evidence to frame him for involvement in a kidnapping and a murder.

In 1990, Manning was charged by local authorities in Missouri with a 1984 kidnapping, following an investigation spearheaded by Buchan and Buffalo Grove, Illinois detective Robert Quid. Manning was arrested in Illinois on a warrant issued by the Missouri authorities. While Manning was incarcerated at the Cook County Jail in August 1990 pending extradition to Missouri, the FBI recruited a jailhouse informant, Tommy Dye, to provide information about Manning and to engage him in conversation while wearing a recording device. This was done ostensibly to gather evidence regarding purported threats by Manning against witnesses and law enforcement investigators. Dye claimed that during their recorded conversations, Manning admitted that he had killed Jimmy Pellegrino, another of his alleged former associates. Cook County authorities ultimately charged Manning with Pellegrino's murder following an investigation largely conducted by the FBI.

Manning was convicted of both the Missouri kidnapping and the Illinois murder. He was sentenced to death for the murder and to life imprisonment for the kidnapping. The murder conviction was vacated by the Illinois Supreme Court on appeal due to improper admission of "other crimes" evidence. People v. Manning, 182 Ill. 2d 193, 695 N.E.2d 423 (1998). Cook County authorities declined to retry the case. Manning's Missouri kidnapping conviction was vacated by the United States Court of Appeals for the Eighth Circuit upon consideration of Manning's habeas corpus petition, on the ground that the authorities had violated Manning's right to counsel by using Dye to elicit incriminating information from Manning after he was charged with the kidnapping. Manning v. Bowersox, 310 F.3d 571 (8th Cir. 2002). Missouri authorities declined to retry the case, and Manning was released from prison in early 2004, after being incarcerated for over thirteen years.

In 2002, following the reversal of his murder conviction but while his kidnapping conviction was still under review, Manning filed this suit, alleging that the defendants had violated his constitutional rights in connection with the Illinois murder prosecution. Following the overturning of his kidnapping conviction, Manning amended the suit to include claims that the defendants had violated his rights in connection with that prosecution as well. In addition to his claims against Miller and Buchan, Manning asserted claims against the United States under the Federal Tort Claims Act.

A combined jury trial on Manning's claims against Miller and Buchan and bench trial on his FTCA claims was held over a period of nineteen days in December 2004 - January 2005. After over a week of deliberation, the jury found in favor of Manning and against Buchan, but not Miller, on Manning's claims for violation of his constitutional rights regarding the Missouri prosecution, and in favor of Manning and against both Buchan and Miller on Manning's claims for violation of his rights regarding the Illinois prosecution. The jury found in favor of Buchan and Miller on a parallel claims Manning had asserted against them under the civil suit provisions of the Racketeer Influenced and Corrupt Organizations Act. As noted earlier, the jury awarded Manning compensatory damages of $3,851,100 on the Missouri claim and $2,555,000 on the Illinois claim, as well as punitive damages of $100,000 against Buchan and $75,000 against Miller. The FTCA claims remain under advisement as the result of the Court's later grant of a motion by the United States seeking to reopen the evidence concerning those claims.

Defendants' Motions

Buchan and Miller argue that the evidence was insufficient to sustain a verdict against them, and that as a result the Court should enter judgment in their favor as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). When considering such a motion, the Court determines whether the evidence presented at trial, with all the reasonable inferences drawn from it, is sufficient to support the verdict when viewed in the light most favorable to the prevailing party. See, e.g., Gower v. Vercler, 377 F.3d 661, 666 (7th Cir. 2004). The Court may not reweigh the evidence, draw its own inferences, or substitute its own determinations regarding the credibility of witnesses for those made by the jury. Id.; see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (regarding motion for directed verdict; "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge .... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). To prevail on their motion for judgment as a matter of law, Buchan and Miller must establish that "'no rational jury could have brought in a verdict against [them].'" Gower, 377 F.3d at 666 (quoting EEOC v. G-K-G, Inc., 39 F.3d 740, 745 (7th Cir. 1994)).

Buchan and Miller have also moved, in the alternative, for a new trial under Federal Rule of Civil Procedure 59(a). This request is based on a single contention: that the verdict was against the manifest weight of the evidence. The Court notes that before trial, the parties filed and argued numerous motions in limine. Buchan and Miller prevailed on some of these. Among other things, they were permitted to offer at trial a good deal of evidence of Manning's alleged involvement in other crimes, including other murders, on the basis that their awareness of this evidence affected their actions that were under challenge in Manning's claims. Buchan and Miller lost on other motions in limine. They have not argued that admission of any or all of the evidence that they unsuccessfully sought to exclude, and/or that exclusion of any or all the evidence they unsuccessfully sought to admit, warrants a new trial. Nor have they argued that the Court made errors during the trial or in the jury instructions that require granting a new trial.

The Seventh Circuit has recently stated that a court considering a motion for new trial may not set aside the jury's verdict "if a reasonable basis exists in the record to support the verdict, viewing the evidence in the light most favorable to the prevailing party, and leaving issues of credibility and weight of the evidence to the jury." Kapelanski v. Johnson, 390 F.3d 525, 520 (7th Cir. 2004). In their memorandum supporting their motion, Buchan and Miller at times appear to ask the Court to make its own credibility findings and reweigh the evidence. There is some indication of conflict in the Seventh Circuit's precedents about whether a court considering a motion for new trial may reweigh the evidence, and whether it must view the evidence in the light most favorable to the party that prevailed. Kapelanski, cited above, and virtually all of the Seventh Circuit's other recent cases say the answer to the first question is no and the answer to the second is yes. See, e.g., Research Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 920 (7th Cir. 2002); Savino v. C.P. Hall Co., 199 F.3d 925, 935 (7th Cir. 1999) ("In assessing the sufficiency of the evidence we will not reweigh the evidence or judge the credibility of witnesses. If there is a reasonable basis in the record for the jury's verdict, it must stand." ). On the other hand, Thomas v. Stalter, 20 F.3d 298, 304 (7th Cir. 1994), seems to give the opposite answer, stating that in assessing a motion for new trial, the trial court is entitled to weigh the evidence for itself and, in doing so, may make its own assessment of the witnesses' credibility.

It is not entirely clear whether this Court can resolve this apparent inconsistency in the precedents of a superior tribunal. It is possible, however, that the inconsistency is more apparent than real. The unquestioned authority of a court to grant a new trial when a jury's verdict is against the manifest weight of the evidence contemplates that the court will do some weighing of its own -- how else to determine the "manifest weight"? But it seems equally clear that the authority to grant a new trial based on the weight of the evidence is reserved for cases in which it is readily apparent to the trial judge that jury's determination was seriously out of kilter -- as the Seventh Circuit has put it, if the verdict "is not rationally connected to the evidence, if it is born out of passion and prejudice, or if it is monstrously excessive." Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1067 (7th Cir. 1999).

To put it another way, the authority to overturn a verdict that is against the manifest weight of the evidence does not amount to a "chancellor's foot" veto*fn1 that gives the trial judge a roving commission to overturn verdicts that he might disagree with or find distasteful. For example, a court may not set aside a verdict simply because it would have come to a different conclusion had it been the trier of fact. See, e.g., Ahern v. Scholz, 85 F.3d 774, 780 (1st Cir. 1996); see generally 11 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2806 at 69 (1995 & Supp. 2005) (hereinafter "Wright, Miller & Kane"). Rather, the court must undertake its task with due regard for the role of the jury in our system of justice. As a leading commentator puts it, "a decent respect for the collective wisdom of the jury, and for the function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of the jury, regardless of his own doubts in the matter." 11 Wright, Miller & Kane, supra, § 2806 at 74; see Ryan v. McDonough Power Equipment, Inc., 734 F.2d 385, 387 (8th Cir. 1984). For this reason, as the Seventh Circuit has stated, "[a]s long as there is a reasonable basis in the record to support it, we will not overturn a jury's verdict." Robinson v. Burlington Northern R.R. Co., 131 F.3d 648, 656 (7th Cir. 1997).

When measured against this standard, Buchan and Miller's motion falls short; there was, without question, a reasonable basis in the record to support the verdict, and the jury's determination plainly was not against the manifest weight of the evidence. Defendants' memoranda contain viable arguments about what a fact finder should conclude in the first instance. But these arguments do not provide a basis for upsetting the jury's verdict.

Buchan and Miller claim the jury "fell for ... obfuscation and misrepresentation" by Manning's counsel and that it was "confused" by counsel's "tactics and arguments." Dfdt. Reply at 1, 3. The Court takes exception to these contentions. The jury was a highly educated and sophisticated group,*fn2 and its verdict -- particularly the special verdict form that was given to the jury on defendants' proposal -- reflects the careful and discerning job that it did evaluating the evidence and claims during its lengthy deliberations. This was anything but a runaway jury, and there is no basis to believe that it was bamboozled by counsel for either side.

The case was, in the Court's view, a close one, in which a jury reasonably could have come out either way; it was not a case in which the evidence clearly favored the losing parties. It is true, as Buchan and Miller argue, that Manning had no direct evidence establishing his claims. But the law does not require a jury's verdict to be supported by direct evidence. See, e.g., Garrett v. Barnes, 961 F.2d 629, 632 (7th Cir. 1992). Circumstantial evidence may serve as the sole support for a guilty finding in a criminal case, see, e.g., United States v. Reyes, 270 F.3d 1158, 1168 (7th Cir. 2001), and there is no basis to believe the contrary is true for a civil case, in which the burden of proof is lower. Indeed, this jury was instructed, without objection by Buchan or Miller, that it was to consider both direct and circumstantial evidence, and that it was entitled to give equal weight to each. Tr. Vol. 19 at 15.

There is, or should be, nothing particularly surprising about the fact that Manning's case was based largely on circumstantial evidence. To support his claims, Manning was required to adduce evidence largely from government agents, prosecutors, and persons who had testified against him at his criminal trials. In the normal course, one cannot expect such persons to supply direct evidence of a claim that evidence was fabricated and that the falsification was concealed. Were direct evidence required, it would be tantamount to a death-knell for cases of this type. In fact, however, there is no such requirement.

That said, a good deal of the factual underpinning for Manning's claims did, in fact, come from government witnesses who were called by Manning during his case. No such witness made an admission that Manning's claims were true, but as we will discuss, the claims of fabricated evidence were supported inferentially and circumstantially by testimony of government agents and some of the witnesses who allegedly were suborned.

Manning contended that the defendants, and Squad 9 generally, targeted him for retaliation when he terminated his informant status. The evidence supporting this particular contention was meager at best. But this was in no way necessary to support a verdict in Manning's favor. There is no question that the defendants considered Manning to be a dangerous criminal, and as such, he became a focus of investigation. The evidence was sufficient to support the proposition that in their zeal to get Manning off the streets, the defendants -- directly and through Buffalo Grove detective Quid -- induced witnesses to give false statements implicating Manning, and also produced a false identification of Manning, and concealed all of this from prosecutors and Manning's defense. The evidence was likewise sufficient to support the proposition that the defendants knowingly mischaracterized the purpose of a cash payment to Tommy Dye. To be sure, the evidence was conflicting. But granting a new trial because of such conflicts would invade the jury's province. See Latino v. Kaizer, 58 F.3d 310, 315 (7th Cir. 1995). It is the function of the jury, not the Court, to choose from conflicting inferences. Though the jury would have been justified in drawing contrary inferences, its verdict was not against the manifest weight of the evidence.

The Court will briefly discuss the evidence and our reasons for concluding that it supported the jury's findings. Our omission of particular items should be viewed only as reflecting the fact that we are providing a summary of salient points, rather than a complete rendition of the evidence adduced. Our discussion will track the findings that the jury made as reflected on the special verdict form, which we reproduce below.

As indicated earlier, the jury based its verdict with regard to the Missouri kidnapping case on findings that Buchan induced Anthony Mammolito, Carolyn Heldenbrand, and Sharon Dugan to make false statements or fabricate claims about the kidnapping and concealed that information from prosecutors, and that he knew of, and concealed from prosecutors, that a promise had been made to pay money to Mammolito. With regard to the Illinois murder case, the jury based its verdict on findings that Buchan and Miller induced Tommy Dye to make false statements or fabricate claims about the Pellegrino murder and concealed that from prosecutors, and also knowingly mischaracterized to prosecutors the purpose of a $2,000 payment to Dye. The following is a reproduction of the special verdict form as the jury completed it, omitting only the signature lines and the date:

Supplemental Verdict Form

Please answer the questions on this form if, and only if, you find in favor of Mr. Manning on either claim 1 or claim 2 against either Mr. Buchan or Mr. Miller.

1. Has Mr. Manning proved that Mr. Buchan or Mr. Miller knowingly induced or caused other law enforcement officers to induce the following witnesses to make false statements and/or to fabricate claims about the Missouri kidnapping and concealed that information from prosecutors?

Buchan Miller

Anthony Mammolito

Yes 9

No 9



Carolyn Heldenbrand

Yes 9

No 9

Yes :

No Sharon Dugan

Yes 9

No ...

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