In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-1762

STEVEN MANNING,

Plaintiff-Appellee,

v.

GARY MILLER, Federal Bureau of Investigation

Agent, and ROBERT BUCHAN, Federal Bureau

of Investigation Agent,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 C 372—Matthew F. Kennelly, Judge.

____________

ARGUED SEPTEMBER 26, 2003—DECIDED JANUARY 21, 2004

____________

Before FLAUM Chief Judge, and BAUER and MANION,

Circuit Judges.

BAUER, Circuit Judge. This case raises the question of

how far immunity extends for Federal Bureau of Investigation (FBI) agents accused of “framing” a defendant.

Steven Manning was tried and convicted for kidnaping

and murder; he later had those convictions overturned.

Manning now brings suit against, among others, the FBI

agents involved in his investigation. The FBI agents,

Buchan and Miller, moved for summary judgment based

on their absolute and qualified immunity from the charges.
2 No. 03-1762

The district court denied these motions. Buchan and Miller

bring these interlocutory appeals. For the reasons stated

below, we affirm.

I. Background

Manning was employed as a Chicago police officer and

later as an FBI informant. In 1986 after Manning ceased

to be an informer for the FBI he fell under suspicion for

a variety of crimes. These crimes included the 1984 kidnaping of two drug dealers, the 1985 murder of Chuckie

English, and the 1990 murder of James Pellegrino. Manning was arrested and tried for the kidnaping charges,

found guilty and sentenced, effectively, to life in prison. In

1993 Manning was also charged and convicted of the

murder of Pellegrino and sentenced to death. In 1998

Manning’s murder conviction was overturned; the prosecutor declined to retry him on that charge. Later, in 2002

Manning’s kidnaping conviction was overturned.

Manning states the following, which we take as true

for the purposes of this appeal. He contends that these

charges were a result of retaliatory action by the FBI taken

because he ceased to do work for them as an informer.

Although discovery has not yet proceeded, Manning points

to several actions taken by Agents Buchan and Miller

during the course of their investigations that were done

with the intention of “framing” him. Specifically, Manning states that in 1990 Agent Buchan re-opened the

kidnaping case after the FBI had closed its investigation in

order to frame him for this unsolved crime. During the

course of the kidnaping investigation Manning states that

the agents conducted a “highly suggestive photographic

line-up” to induce a witness to identify him as the perpetrator. (Appellee’s Br. at 5). Based solely on this witness’s

identification of Manning, he was arrested; he was later
No. 03-1762 3

tried and, after an initial mistrial, convicted on the kidnaping charges.

When he was arrested for the kidnaping, Manning was

placed in a cell with jailhouse informant Tommy Dye.

Manning states that Agents Buchan and Miller intentionally chose to use Dye as the informant because they knew

Dye had previously falsified information and perjured

himself, and hence would be willing to lie about Manning

in exchange for a reduction in his sentence. Manning asserts that Buchan and Miller provided Dye with information and details regarding the kidnaping and the murders of Pellegrino and English, and told Dye that they

wanted to connect Manning to those crimes.

Dye told the agents that Manning had confessed to the

kidnaping and the murder of English. The agents then

“wired” Dye and sent him back into the cell with Manning.

Dye told the agents that Manning again confessed to the

murder of English during an August 24, 1990 conversation, however, the tape of the conversation revealed no

such confession. Further, it was physically impossible for

Manning to have murdered English as he was in jail at

the time of that murder. Undeterred by their initial lack

of success, the agents wired Dye for a September 24, 1990

conversation. This time Dye claimed that Manning confessed to the Pellegrino murder. Unfortunately, the tape

of the conversation again did not contain this confession;

later, Agents Buchan and Miller determined that the

recording equipment had malfunctioned and Manning’s

confession must have occurred during a two-second gap in

the recorded conversation.

A description of these confessions was presented to a

Cook County grand jury; the grand jury indicted Manning. At trial Dye testified against Manning. Agents

Buchan and Miller also testified. Manning was convicted

and sentenced to death. Dye later received a reduction in
4 No. 03-1762

his sentence by more than half and had other criminal

charges against him dropped as a result of his cooperation in this matter.

Manning, now having had these sentences overturned,

brings a Bivens claim against Agents Buchan and Miller

for violation of his constitutional right to a fair trial, and

a claim under 42 U.S.C. § 1983 for conspiracy to deprive Manning of his constitutional rights. Buchan and

Miller raised the defenses of absolute and qualified immunity and moved for summary judgment. The district court

judge denied their motions; Buchan and Miller appeal.

II. Discussion

We review appeals based on immunity de novo. Elder

v. Holloway, 510 U.S. 510, 516 (1994). Because discovery

has not yet occurred in this case, we will treat the motion as a motion to dismiss, rather than a motion for

summary judgment. Accordingly, such a motion should

not be granted unless it appears “beyond a reasonable

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley

v. Gibson, 355 U.S. 41, 46 (1957).

A. Absolute Immunity

For plaintiffs seeking redress for being “framed” for a

crime it is a difficult task to form the complaint. This

and other courts have struggled with issues regarding

whether an appropriate cause of action exists and how

immunity factors in where a claim does exist. In the past,

plaintiffs have unsuccessfully styled their “framing” claims

as perjury, conspiracy to commit perjury, malicious prosecution, false arrest, and violation of due process rights,

among other things. Ultimately, in this case, whether
No. 03-1762 5

1 Brady v. Maryland, 373 U.S. 83, (1963) (stating that defendant’s due process rights are violated when the defendant requests exculpatory evidence from the prosecutor, and the prosecutor knowingly withholds it). Manning brings this claim against

federal investigators under the authority of Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Although this Circuit has not explicitly recognized that Bivens may be employed

to bring a Brady claim, we have recognized that Bivens may be

used to bring claims for violations of procedural and substantive

due process. See Alejo v. Heller, 328 F.3d 930 (7th Cir. 2003);

Hoosier Bancorp of Ind. v. Rasmussen, 90 F.3d 180 (7th Cir.

1996). We have also entertained the use of a Bivens cause of

action where the plaintiff complains that law enforcement officers created false evidence to be used at trial. Hammond v.

Kunard, 148 F.3d 692, 694-95 (7th Cir. 1998).

Agents Buchan and Miller are entitled to absolute immunity depends on how this court allows Manning to

characterize his claim. On one hand, Agents Buchan and

Miller believe this is merely a dressed-up claim of perjury

and conspiracy to commit perjury (and therefore want

absolute immunity). On the other hand, Manning characterizes this as a Brady claim1

, that is, a claim for the

withholding of exculpatory evidence (and claims there is

no absolute immunity). The facts of this case are unique,

after considering them closely we feel that Manning’s

claim may properly be brought under Brady and the

agents are not entitled to absolute immunity.

The law regarding immunity is very fact dependent, and

the various facts courts have considered reveal a spectrum of behavior that has ultimately been categorized

as immune or not immune. On the end of the spectrum

where behavior is solidly considered to be immune from

civil liability is perjury. In Brisco v. LaHue, the Supreme

Court explained that when a witness commits perjury, he

or she is granted absolute immunity from civil liability.
6 No. 03-1762

2 Such immunity also applies to judges and attorneys who are

“integral parts of the judicial process.” Id. at 335.

3 “Now [the defendant] contends that testimonial immunity

should be extended to non-witnesses who assisted in the testimony’s preparation. We rejected that extension in Ienco v. Chicago . . . and see no reason to revisit that issue . . . .” Newsome

v. McCabe, 319 F.3d 301, 304 (7th Cir. 2003).

460 U.S. 325, 331-32 (1983). In these instances, immunity

is granted to encourage witnesses to testify fully without

fear of recrimination for his or her role in the proceedings. Id. at 332-33. Further, when police officers testify

as witnesses, they have the same protections. Id. at 340.2

Within this Circuit, we have considered variations on

the holding in Briscoe, finding that some, but not all perjury claims merit absolute immunity. In House v.

Belford, we held that both a witness and a prosecutor

are immune from civil liability when they “conspire”

together to commit perjury—that is, when the prosecutor

knows a witness will lie on the stand. 956 F.2d 711, 720

(7th Cir. 1992). Conversely, in Newsome v. McCabe, we

declined to extend immunity to non-witnesses who assisted in the preparation of another’s testimony.3

On the other end of the spectrum are cases where prosecutors withhold exculpatory evidence; in these cases they

are not immune. We examined this issue in Newsome

v. McCabe, 256 F.3d 747 (7th Cir. 2001). Newsome involved a claim by a plaintiff that the police should be

liable for their failure to alert the prosecutor to the fact

that the fingerprints from the crime scene did not match

Newsome’s, and that the police encouraged witnesses to

pick him out of a line-up. Id. at 749. Newsome brought

actions for “malicious prosecution.” Id. The court dismissed the immediate malicious prosecution claim. Id. at

750; see also McCullah v. Gadert, 344 F.3d 655, 657 (7th
No. 03-1762 7

4 There we stated, “[n]either the withholding of exculpatory

information nor the initiation of constitutionally infirm criminal proceedings is protected by absolute immunity.” Ienco v.

City of Chicago, 286 F.3d 994, 1000 (7th Cir. 2002).

Cir. 2003). In the alternative, the court considered that

Newsome might have framed his argument as a Brady

claim for withholding of exculpatory evidence. The court

considered this in light of the detective’s claim for qualified

immunity and held that Newsome could proceed with a

Brady claim uninhibited by qualified immunity. Newsome,

256 F.3d at 751-52. Similarly, in Ienco v. City of Chicago,

plaintiff-Ienco filed a Brady claim against Chicago police

officers for withholding exculpatory evidence and lying to

prosecutors. We held that whether a true Brady claim

existed was a question for the district court, but the officers were not entitled to absolute immunity.4

Recently, we ruled on one additional case that touched

briefly on this issue. In Gauger v. Hendle, the plaintiff sued

county detectives for providing a false account of his

interrogation. 349 F.3d 354, 358 (7th Cir. 2003). We

considered the merits of Gauger’s claims of perjury,

false arrest, and Brady violations in light of the recent

Newsome decision. Regarding the Brady claim, we did not

address immunity, but determined that Gauger’s claim fell

outside of Brady since Gauger was present during his

interrogation and hence the prosecution was not withholding any information from him, they were simply

providing false testimony.

In light of these cases, it falls upon us to determine

whether Manning’s claim is a true Brady claim or merely

a dressed-up claim for conspiracy to commit perjury. The

FBI agents are correct when they assert that part of Manning’s claim is based on the perjury of Dye, Buchan and

Miller. Indeed, without this testimony it is doubtful that
8 No. 03-1762

5 See McCullah v. Gadert, 344 F.3d 655, 661 (7th Cir. 2003)

(considering that the distinguishing factor between perjury

and withholding of exculpatory evidence could be the proximity

of the government agent’s behavior to trial).

6 In Jones v. City of Chicago, 856 F.2d 985, 995 (7th Cir. 1988)

we noted that “information undermining the credibility of a government witness is within the scope of Brady’s rule.”

7 Appellee’s Brief states,

Some of Miller’s reports went beyond what Dye reported to

him . . . . On August 24, 1990, for example, Miller created a

written ‘302 Report’ stating falsely that Manning had

supposedly confessed to Dye about having committed all

three crimes referenced above even though Dye did not in

fact report any confession to Miller about the Pellegrino

Murder.

Appellee’s Br. at 6.

Manning would have been convicted. However Manning’s

allegations in this case go beyond the perjury or even the

conspiracy between the agents and Dye to commit perjury.

Specifically, Manning points to actions taken over the

course of years that set the stage for his trial; the timing of

some of these claimed actions well before trial lends some

credence to Manning’s theory that this behavior goes

beyond perjury.5

 Such actions included inducing a witness to falsely identify Manning in a line-up, selecting

Dye to be the jailhouse informant,6

 and inducing Dye to

create a false story. Manning argues that the agents

failed to tell prosecutors that they had done these things.

Further, Manning believes the agents created and submitted false written reports stating that Manning had confessed when they knew he had not,7

 and destroyed or

tampered with the physical evidence, namely the tapes of

the purported confessions. Unlike House’s conspiracy to

commit perjury fact pattern, here we are dealing with

investigators creating false evidence rather than a prosecu-
No. 03-1762 9

8 See Imbler v. Pachtman, 424 U.S. 409,431 n. 34 (1976) (discussing the difficulty of differentiating claims against prosecutors for perjury and withholding exculpatory evidence).

tor examining a witness. The facts here closely resemble

those in Ienco where the plaintiff complained of both

perjury and withholding of evidence that would have

revealed the search and seizure to be unlawful. The fact

that Ienco complained of perjury does not foreclose his

Brady claim. The court addressed this issue and explained,

“no absolute testimonial immunity attaches to the actions

of the officers outside of trial.” Ienco, 286 F.3d at 1000.

Agents Buchan and Miller worry that permitting Manning to style his cause of action as a Brady claim rather

than a perjury claim will “perform an effective end run

around” testimonial immunity. (Appellant’s Br. at 23).

We agree that in some cases it may be hard to distinguish

the two.8

 However, in this case Manning is accusing the

agents of behavior that goes well beyond testimony given

at trial. Additionally, while we must certainly be careful

not to diminish testimonial immunity, we must also be

cautious of eroding the viability of Brady claims. Considered from a different view, one could argue that appellants ask us to create a rule that would eliminate the

availability of Brady claims any time perjury is involved.

In short, based on the specific facts of this case, we believe that Manning has presented a Brady claim and as

such, Agents Buchan and Miller do not have absolute

immunity. Whether Manning will ultimately succeed

will depend on the merits of his Brady claim.

B. Qualified Immunity

In the alternative, Buchan and Miller believe they

should not have to go forward with this trial based on a
10 No. 03-1762

claim of qualified immunity. In determining whether a

public official is entitled to qualified immunity, we make a

two-prong inquiry. First, we determine whether Manning

has asserted a violation of a constitutional right, and

second, we look to see whether that right was “clearly

established” at the time it was violated. Delaney v. DeTella,

256 F.3d 679, 682 (7th Cir. 2001); Wilson v. Layne, 526

U.S. 603, 609-10 (1999).

The first prong of this inquiry is easily satisfied. Through

his Brady claim, Manning has alleged a violation of a

constitutional right, specifically, his due process right to

a fair trial. Brady, 373 U.S. at 87. Buchan and Miller argue that, because he was already incarcerated at the time

of his murder conviction, Manning has not suffered a

deprivation of his liberty; without such a loss, Manning

cannot assert a due process violation. This reasoning is

flawed. First, the due process violation occurred when

Manning was deprived his right to a fair trial, it cannot

be circumvented simply because he was serving time

on another sentence at that time. Second, as a result of

Manning’s murder conviction, he was sentenced to

death—a penalty different from and more serious than

life in prison. We have held that the threat of impending

death can cause considerable mental anguish, and as

such, deprive a person of liberty. See Wilkins v. May, 872

F.2d 190, 195 (7th Cir. 1989) (considering a liberty infringement when plaintiff was held at gunpoint). Finally, in

addition to complaining about Buchan and Miller’s improper involvement in the murder case, Manning also

complains about their involvement in the kidnaping case,

for which, incidently Manning was serving the prison

sentence. For these various reasons, Manning has a clearly stated claim for a violation of his constitutional rights.

Buchan and Miller also argue that Brady should not

be extended to cover the actions of police or investigators,

but rather, only prosecutors. This assertion, while elo-
No. 03-1762 11

quently argued, is flatly contradicted by existing case law.

In Kyles v. Whitley, the Supreme Court found that the

Brady duty of turning over exculpatory evidence includes

not only the prosecutor, but the investigating officers as

well. 514 U.S. 419, 438 (1995). Similarly, although previously established in the Seventh Circuit, our recent

Newsome decision reiterates the same rule. Newsome v.

McCabe, 260 F.3d 824, 824 (7th Cir. 2001) (noting, “police

who deliberately withhold exculpatory evidence, and thus

prevent the prosecutors from complying with the obligations articulated in Brady, violate the due process clause.”).

Similarly, Manning is able to meet the second prong of

the qualified immunity test: his constitutional due process right was “clearly established” at the time he asserts

it was violated. Buchan and Miller assert that this behavior was not clearly prohibited at the time of its occurrence because no decision had dealt with a Brady

claim that matched the facts in Manning’s Brady claim.

Following this logic, all Brady violations would receive

qualified immunity because the facts of every case are

unique. Instead, we hold that it is enough that, prior to

the actions that gave rise to this case, it was well established that investigators who withhold exculpatory evidence from defendants violate the defendant’s constitutional due process right. See, e.g., United States ex rel.

Smith v. Fairman, 769 F.2d 386, 391 (7th Cir. 1985). It is

immaterial whether Manning complains that Agents

Buchan and Miller withheld exculpatory information

regarding fabricated testimony or fingerprint analysis.

Because Manning is able to show that he is asserting

a violation of a constitutional right and that the right

was clearly established at that time, Agents Buchan and

Miller cannot prevail on their qualified immunity claim.

For the above stated reasons, we AFFIRM.
12 No. 03-1762

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-21-04