United States District Court, N.D. Illinois, Eastern Division
DANIEL ENGEL, as personal representative of the Estate of GARY ENGEL, deceased, Plaintiff,
ROBERT BUCHAN, et al., Defendants
For Daniel Engel, administrator Estate of Gary Engel, Plaintiff: Arthur R. Loevy, Elizabeth N. Mazur, Jonathan I. Loevy, Michael I Kanovitz, Steven Edwards Art, Loevy & Loevy, Chicago, IL; David Benjamin Owens, Loevy & Loevy Attorneys At Law, Chicago, IL.
For Robert Buchan, United States of America, Defendants: Leah Brownlee Taylor, U.S. Department of Justice, Civil Division, Washington, DC; Siegmund Fred Fuchs, Department of Justice, Civil Division, Washington, DC.
For Robert Quid, Defendant: Thomas R. Weiler, LEAD ATTORNEY, John Anthony Masters, Kristen Ann Cemate, Theresa Bresnahan-Coleman, Langhenry, Gillen, Lundquist & Johnson, LLC, Chicago, IL.
For Village of Buffalo Grove, The, Defendant: Michael Russell Hartigan, Patrick Halpin O'Connor, Hartigan & O'Connor P.C., Chicago, IL.
For Gary Del Re, Defendant: Thomas R. Weiler, LEAD ATTORNEY, John Anthony Masters, Langhenry, Gillen, Lundquist & Johnson, LLC, Chicago, IL.
MEMORANDUM OPINION AND ORDER
Milton I. Shadur, Senior United States District Judge.
Gary Engel (" Engel" ) has sued former FBI Agent Robert Buchan (" Buchan" ) and the United States (" Government" )(collectively " Federal Defendants" ) as well as former Village of Buffalo Grove police officers Robert Quid (" Quid" ) and Gary Del Re (" Del Re" ), charging each of them with violations of state and federal law following Engel's release in 2010 after 19 years of incarceration.  More precisely, Engel claims that all three individual defendants are liable under both the seminal Bivens decision and 42 U.S.C. § 1983 (" Section 1983" ) for fabricating evidence of his guilt, for inducing false testimony by witnesses and for then failing to disclose that evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001). Engel also maintains related claims that the individual defendants failed to intervene to prevent the violations of his due process rights and engaged in civil conspiracy to violate those rights. Finally Engel charges Quid and
Del Re, and the United States via the Federal Tort Claims Act, with malicious prosecution under Missouri state law.
After the litigants had spent some time slugging it out on the discovery front, followed by a bizarre set of unrelated events that culminated in Engel's suicide, they have now brought Fed.R.Civ.P. (" Rule" ) 56 cross-motions for summary judgment.  While the case includes a number of legal twists and turns, the ultimate result is best captured by our Court of Appeals' teaching in Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003):
Where the parties present two vastly different stories--as they do here--it is almost certain that there are genuine issues of material fact in dispute.
In that respect even a brief glance at the parties' LR 56.1 statements of fact is itself instructive, for each side contests all but the most basic of facts offered by its opponent. That fundamental clash in the parties' narratives compels this Court to deny all of the motions for the reasons described below.
Summary Judgment Standards
Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). Courts " may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts" in resolving motions for summary judgments (Payne, 337 F.3d at 770). But a nonmovant must produce more than " a mere scintilla of evidence" to support the position that a genuine issue of material fact exists (Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and " must come forward with specific facts demonstrating that there is a genuine issue for trial" (id.). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
As with any summary judgment motion, this Court accepts each nonmovant's version of any disputed facts, but only so long as it is supported by record evidence. Where as here cross-motions for summary judgment are involved, the principles of Rule 56 demand a dual perspective that this Court has sometimes described as Janus-like: As to each motion the nonmovant's version of any disputed facts must be
credited, an arrangement that sometimes causes the denial of both motions.
That has unfortunately proved to be the case here, for each party has shown that genuine issues of material fact remain that must be addressed before the claims may be resolved. In any case, what follows is a summary of the facts, with material disagreements between the parties' narratives noted where appropriate. That factual " summary" is a good deal longer than this Court would have preferred, but that length has been compelled by the proliferation of cross-motions for summary judgment and the consequent need to identify contested material facts.
This case concerns two former police officers, friends and occasional criminal associates, Steve Manning (" Manning" ) and Engel, who were separately tried and convicted of kidnapping and ransoming a major drug dealer. They were convicted largely through the efforts of Buchan and Quid, and the conviction relied heavily on the testimony of Anthony Mammolito (" Mammolito" ).
Both Engel and Manning were released from prison after successfully seeking habeas corpus review, and each separately brought suit against federal and state law enforcement officers and the United States. For his part, Manning succeeded in convincing a jury that officers had violated his constitutional rights by fabricating evidence and withholding Brady material from prosecutors, but that favorable verdict was vacated after this Court's colleague Honorable Matthew Kennelly found against Manning on his state law claims. Engel now tries his hand where Manning ultimately failed.
Buchan's and Quid's Investigation
Engel's saga is best understood by starting with that of Manning, a former Chicago Police Officer who had lost his job after either a conviction for or investigation into his criminal behavior (compare E. St. ¶ 5 with B.R. E. St. ¶ 5), then served for several years as an FBI informant (E. St. ¶ 5). In that role Manning would report on the activities of Thomas McKillip (" McKillip" ) (E. St. ¶ 6), who was murdered in 1986, after which Buchan attempted to terminate Manning's involvement with the FBI (id. at ¶ 7).
In 1989 the FBI opened an investigation into Manning under the Interstate Transportation of Stolen Property Top Thief Target (B. St. ¶ 6). That investigation was assigned to Buchan, who pursued it on multiple fronts, attempting to link Manning to burglaries, drug dealing and murders (E. St. ¶ 10).
Those investigative efforts did not bear significant fruit until Buchan visited then Buffalo Grove Police Officers Quid and Del Re, who were investigating the McKillip murder. Although Quid and Del Re had previously exhausted all of the available leads in the McKillip investigation (E. St. ¶ 11), the pair traveled on August 12, 1989 to visit Mammolito in a federal prison in Louisiana (E. St. ¶ 12). Mammolito (a former Manning associate) resented Manning and considered him responsible for his own conviction (E. Add. St. ¶ 14).
Mammolito was unable to provide concrete evidence regarding the McKillip murder, so Quid asked Mammolito whether he knew of any other crimes involving Manning that could be investigated (E. St. ¶ 15). In an effort to induce Mammolito to share information, Quid and Del Re showed Mammolito multiple photographs of murder victims, including one of a man with his hands and head chopped off--actions that they attributed to Manning.
After that prodding Mammolito offered the investigators a lead, telling Quid and Del Re that he, Engel, McKillip and Manning
had participated in the kidnapping of drug dealer Charles Ford (" Ford" ) in Kansas City, Missouri. According to Mammolito, Manning and Engel had posed as DEA agents, handcuffed and blindfolded Ford and an associate, and brought the victims to a safe house (B. St. ¶ 7). Mammolito claimed that the group convinced one of Ford's family members to pay a ransom, which Mammolito and McKillip drove to pick up (E. Add.St. ¶ 20). That last detail differs from Mammolito's testimony at trial, where he stated that he and Manning (rather than he and McKillip) had gone to pick up the ransom.
As part of their dispute on many issues of fact involving Mammolito, the parties disagree on both the tenor and content of that meeting. First (based on seemingly conflicting statements in Mammolito's deposition) the two sides argue over whether Mammolito claimed to have knowledge of the McKillip murder (B. R.E. Add. St. ¶ 15). They also dispute whether or not Quid asked Mammolito if he " knew anything to help us get this guy off the streets" (id. ¶ 18) and whether or not Mammolito initially refused to testify at any trial that might result from his tips (id. ¶ 21). Their disagreements extend to whether Quid's report of the interview is in general an accurate representation of the meeting or omits key details mentioned by Mammolito in his deposition (compare B. St. ¶ 10 with E. Add. St. ¶ 25).
In addition, the parties differ as to the extent of Buchan's involvement with Mammolito. They agree that during that period Buchan had no actual contact with Mammolito: Mammolito strongly disliked the FBI, which he claimed had framed him (E. R.B. St. ¶ 9), and he therefore refused to work directly with the Bureau. Buchan insists--relying largely on his own testimony at trial--that he did not talk to Mammolito " through" Quid or guide Quid's discussions with Mammolito. Because of Mammolito's antipathy toward the FBI, he assertedly refused to deal with federal agents and was handled " exclusively" by the Buffalo Grove people (B. St. ¶ 8).
On the other hand, Engel points to statements by Buchan and others that suggest the outsized contributions of Buchan to the investigation, and Engel insists that Buchan was actively working with Quid " hand in hand every step of the way." (id.; E. Add. St. ¶ ¶ 95-99). Engel also emphasizes Buchan's 1990 performance review, which credits Buchan with " self-develop[ing] leads" surrounding the Missouri kidnapping (id ¶ 10).
Shortly after the first Mammolito interview, in November 1989 Buchan and Quid interviewed Ford, the alleged kidnapping victim (B. St. ¶ 13). Ford--who at the time of the kidnapping was " probably" the biggest cocaine dealer in the Kansas City area--had not reported the kidnapping when it assertedly occurred. At the time of his initial conversation with Buchan and Quid, he had just been released from prison on unrelated charges (E. Add. St. ¶ ¶ 30-33). Their meeting was arranged by Ford's probation officer, who asked Ford whether he had any objections to going to meet the Chicago officers in Miami (id. ¶ 35). Ford felt it would be in his best interest to attend (although he denies that his probation officer had leverage over him) and chose to meet Buchan and Quid.
At the meeting Ford confirmed that he had been kidnapped in 1983 or 1984, though he believed a rival drug dealer had been responsible for the kidnapping (id. ¶ 38). It is unclear precisely when the kidnapping occurred--Ford had not previously reported the incident to law enforcement, and in later statements he offered two different timelines for the event (one in December 1983 and one in February
1984).  Ford explained that two individuals approached him and an associate, identified themselves as DEA agents, told them they were under arrest, handcuffed them and placed tape over their eyes (B. St. ¶ 14). Because Ford never saw his assailants' faces, he could not identify them.
Ford also told the investigators that his kidnappers stole his ring, which he described (according to Quid's report) as gold with six diamonds on a top surface (id. ¶ 15), while according to Buchan's report the ring was described as having five diamonds (E. Add. St. ¶ 40). Investigators Quid and Del Re then sought to find evidence proving that it was Engel and Manning who had committed the kidnapping and taken possession of Ford's ring.
As part of that effort Quid interviewed Engel's ex-wife Sharon Dugan (" Dugan" ). There was no love lost between the divorced duo--at the outset of the meeting Dugan explained that she had court charges pending against Engel for harassment, that he had made threats against her and that they were not on speaking terms (E. Add. St. ¶ 46). Quid brought up the Missouri kidnapping and asked whether Dugan had any knowledge of Engel's possible involvement (E. Add. St. ¶ 48). According to Quid's report, Dugan replied that Engel had bragged about extorting money from drug dealers while posing as a DEA agent (B. St. ¶ 18). There is a dispute as to what happened next: Engel says that Quid raised the issue of Ford's ring and showed Dugan a sketch of the ring (E. Add. St. ¶ 50), while Buchan says that Quid discussed the ring only after Dugan told him that Engel possessed stolen jewelry (B. R.E. Add. St. ¶ 50). In any case, Dugan told Quid that she believed she had seen Ford's ring after Engel's return from a trip to Missouri, and in fact she had previously taken and hidden that ring. She promised to provide it to the investigators at a later date.
In the following week Dugan met again with Quid, with Buchan also in attendance for the first time. At that meeting Dugan gave the investigators the ring that she claimed to have taken from Engel earlier. That ring contained seven diamonds rather than the six-diamond configuration mentioned by Ford or the five diamonds described in Buchan's report (E. Add. St. ¶ 51). At that meeting Dugan assertedly mentioned for the first time Manning's involvement in the kidnapping, something she had not referred to in the first interview. 
Buchan and Quid then met again with Ford, who identified the ring as looking like the one that had been taken from him.  The investigators also interviewed Mark Harris, the second kidnapping victim, who confirmed Ford's general account of the kidnapping--though he, like Ford, was unable to provide any insight into the identity of the kidnappers (B. St. ¶ 29-31).
Having determined Engel's claimed involvement to their own satisfaction, Quid and Buchan met with Engel. According to Engel they sought to use his alleged involvement in the kidnapping as leverage to induce him to implicate Manning (see E. Add. St. ¶ ¶ 64-65). Engel denied any involvement
in the kidnapping, stated that he had met Mammolito only once and claimed he had never been to Missouri in his life (id. ¶ 66). In addition the investigators showed Engel a report of their interview with Mammolito--a tactic that Engel suggests was intended to persuade him to adopt Mammolito's story (id. ¶ 67). Engel asserts that Buchan and Quid pressured him to come up with anything to incriminate Manning, whether truthful or not (an assertion that Buchan contests vigorously) (B. R.E. Add. St. ¶ 68).
Next Buchan and Quid turned to Carolyn Heldenbrand (" Heldenbrand" ), who had paid the kidnapping ransom (id. ¶ 69). Heldenbrand had seen the man who picked up the ransom, though she had viewed him only for a " few seconds" six years earlier (id. ¶ 72). Buchan conducted a photo lineup to allow Heldenbrand to identify the kidnappers. Although the lineup included pictures of Engel and Manning, it omitted photographs of McKillip or Mammolito, even though Mammolito had initially stated that it was he and McKillip who had picked up the ransom, rather than Manning or Engel (id. 71).
Buchan began by showing Heldenbrand a lineup that included a photograph of Engel, but she was unable to identify anyone. Buchan then provided a six-photo spread that included Manning (though Engel claims that the lighting and framing of Manning's photo differed significantly from the other photos in the array). Heldenbrand said that Manning's photo " look[ed] similar" to the man who had picked up the ransom. Buchan then laid down another four photos, one of which was a second photo of Manning. According to Buchan, at that point Heldenbrand stated without hesitation that the second Manning photo " appear[ed] identical" to the person who picked up the ransom (id. ¶ ¶ 73-77). Although FBI policy generally discourages such multiple displays of a suspect's photograph in a lineup, it does permit such displays if they are in furtherance of a legitimate law enforcement purpose (here Buchan claims, as such purposes, (1) the difficulty in finding a photo of Manning from the relevant time period and (2) the fact that Buchan was already in Minnesota for the interview and could not easily revise his lineup procedure).
Following Heldenbrand's identification, Mammolito changed his story to state that Manning had been the conspirator sent to pick up the ransom money (E. Add. St. ¶ 85). That revised account meshed conveniently with Heldenbrand's identification of Manning and in that way aided the investigators' efforts to convict Manning. Engel also emphasizes that the report documenting that reversal, which he appears to suggest occurred at the second Mammolito interview, is missing (id.).  At that second interview the investigators pressured Mammolito to testify, informing him that he was essential to the case (Q. Ex. GG, at 29-33).
In building their case, the investigators also conducted a search of the residence of Engel's then girlfriend, with whom he was staying. There they found handcuffs, a badge, blank Cook County search warrants, a bugging device and a book entitled " How to Rip Off a Drug Dealer" (B. St. ¶ 44).
Having completed the investigation, Buchan asked the Clay County, Missouri prosecutors if they would be willing to prosecute Manning and Engel for the kidnapping. With the FBI already having developed the " vast majority" of the evidence used to prosecute the kidnapping, Clay County agreed to prosecute Manning so long as the FBI footed the bill (E. Add. St. ¶ 95-98).
Manning and Engel were tried separately. Accordingly their travels through the criminal justice system will also be dealt with here separately.
Manning's first trial ended in a jury deadlock, after which Quid, Buchan and the Clay County prosecutors met to critique the trial and brainstorm about what steps to take to win the retrial (id. ¶ 101). Manning was convicted at his second trial, after which the prosecutor in the case noted that " Bob Buchan literally dedicated two years of his career to convicting Mr. Manning" (id. ¶ 102). 
As for Engel, before going forward with his case Clay County prosecutor Rex Gabbert (" Gabbert" ) instructed Kansas City police to re-interview witnesses. Based on information provided by Buchan, Quid and Del Re, as well as those re-interviews, the Clay County prosecutor's office made its determination that there was probable cause to charge Engel (B. R.E. Add. St. ¶ 104). Gabbert (along with Assistant Prosecuting Attorney Klopfenstein) was assigned to the prosecution (B. St. ¶ 45).
On July 26, 1990 Engel was arrested (E. Add. St. ¶ 94).  He was charged with two counts of criminal action for his participation in the Missouri kidnapping. At a preliminary hearing in which the state judge found probable cause, Ford, Mark Harris and Dugan testified (B. Ex. 71).
Engel was tried in June 1991 (see Missouri v. Engel, No. 190-1698), and he was ...