1

The Honorable Ortrie D. Smith, United States District Court for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3246

___________

Steven L. Manning, *

*

 Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Michael Bowersox, Superintendent; *

Jeremiah (Jay) Nixon, *

Attorney General, State of Missouri. *

*

 Appellees. *

___________

Submitted: September 9, 2002

Filed: November 8, 2002 

___________

Before WOLLMAN, HEANEY and BYE, Circuit Judges.

___________

HEANEY, Circuit Judge.

Steven Manning appeals the district court’s1

 denial of his petition for a writ of

habeas corpus. We affirm in part and reverse in part.
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BACKGROUND

In February of 1984, Charles Ford and Mark Harris were kidnapped at gunpoint

and held for ransom. Once released, Ford and Harris did not immediately report the

crime because Ford, an admitted drug dealer, was concerned that law enforcement

might focus on his own criminal activity. When they did report the abduction several

months later, they stated they could not identify their captors because they were

blindfolded during the kidnapping. With no information pointing to suspects, the

case was not pursued.

In 1989, the investigation was reopened based on recent statements from a

person alleging to be the ringleader, Anthony Mammolito. Mammolito implicated

Manning, and Manning was formally charged in Clay County, Missouri Circuit Court

on July 20, 1990. 

Manning was arrested on the Missouri charges in Chicago on July 26, 1990,

and held in Cook County Jail awaiting extradition to Missouri. Because Manning

was also a suspect in an Illinois murder, the FBI planted a government informant in

his cell to try to collect evidence about the Illinois crimes. The informant’s

agreement specified that he was not to elicit any information about Manning’s

pending Missouri charges. However, the informant did talk about the Missouri

charges, and agreed to help Manning fabricate an alibi defense using the informant’s

girlfriend, Sylvia Herrera. The FBI then met with Herrera to go over what

information she should attempt to elicit from Manning. Pursuant to her agreement

with the FBI, Herrera began to record her conversations with Manning.

Manning was tried in October of 1991, but the jury locked, resulting in a

mistrial. He was tried again in January of 1992. At this trial, Herrera testified

extensively about her work as a government informant and the plan to fabricate an

alibi defense.
2

Although Heldebrand had previously picked Manning out of the photo lineups, she was not able to identify him as the kidnapper at either the pretrial deposition

in this matter or the first trial.

3

Our decision on Manning’s right to counsel claim is dispositive, but we still

address the precharging delay and pretrial identification claims because these issues

are likely to come up again if the government pursues a new trial. See United States

v. Cannon, 88 F.3d 1495, 1503 (8th Cir. 1996) (deciding non-dispositive issues that

may arise at second trial for sake of judicial economy). As to Manning’s claim that

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Also testifying at Manning’s trial was Carolyn Heldebrand, the sister of one of

the kidnapping victims. In 1990, as part of the investigation in this case, she was

shown two photo line-ups. Manning was included in each line-up, and he was the

only person whose picture appeared in both photo spreads. At trial, she testified that

she was the one who paid the ransom, and she saw the perpetrator–Manning–during

the ransom drop.2

On January 24, 1992, Manning was convicted of two counts of kidnapping and

two counts of armed criminal action. Based on Manning’s status as a prior offender,

the court imposed consecutive life sentences on each of the kidnapping convictions

and consecutive fifty-year sentences on each of the armed criminal action

convictions. Manning exhausted his state court remedies through direct appeals and

post-conviction proceedings. He then filed a petition for a writ of habeas corpus.

The district court denied relief, but granted a certificate of appealability on essentially

four issues: 1) whether the use of government informants after Manning was charged

violated his constitutional right to counsel; 2) whether the government’s pretrial

identification tactics were impermissibly suggestive; 3) whether the substantial delay

between the commission of the crime and the trial deprived Manning of due process;

and 4) whether the government knowingly elicited perjured testimony at Manning’s

trial. Finding that Manning’s right to counsel was violated by the government’s use

of informants, we reverse the district court on that ground, and affirm the district

court regarding the identification and pretrial delay issues.3
the government used perjured testimony at trial, the district court did not hold an

evidentiary hearing on the matter, leaving our record incomplete. We believe the trial

court, perhaps benefitted by an evidentiary hearing, will be in a better position to

consider this claim than our court.

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DISCUSSION

I. STANDARD OF REVIEW

In habeas corpus cases, we are directed to issue a writ of habeas corpus where

the lower court decision was, inter alia, “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254 (d)(1) (2002).

II. THE GOVERNMENT’S USE OF INFORMANTS

Manning claims that the government’s use of Sylvia Herrera as an informant

violated his constitutional right to counsel. Criminal defendants are guaranteed the

right to counsel at all critical stages of criminal proceedings. Massiah v. United

States, 377 U.S. 201, 205 (1964). “[T]he prosecutor and police have an affirmative

obligation not to act in a manner that circumvents and thereby dilutes the protection

afforded by the right to counsel.” Maine v. Moulton, 474 U.S. 159, 171 (1985).

Consequently, the government may not, either directly or through its agents,

deliberately elicit incriminating information from suspects without counsel present.

Id. at 173-74.

It is undisputed that Herrera was acting as a government agent here, pursuant

to her agreement with the FBI. However, the government suggests that no right to

counsel attached because Manning was only charged by complaint, rather than

indictment, when he spoke with Herrera. Our cases make no such distinction. See
4

We note that the listening post in Kuhlmann was the defendant’s jailhouse

cellmate. Kuhlmann, 477 U.S. 439-40. While this fact is not dispositive, a fellow

inmate certainly has a greater opportunity to simply “keep his ears open,” id. at 439,

than does an outsider who often must affirmatively initiate the contact with the jailed

defendant.

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Chewning v. Rogerson, 29 F.3d 418, 420 (8th Cir. 1994) (holding filing of charges

is a critical stage for sixth amendment purposes); Smith v. Lockhart, 923 F.2d 1314,

1318 (8th Cir. 1991) (listing criminal stages at which right to counsel attaches,

including filing of complaint). The right to counsel attaches to interrogations

conducted after the initiation of adversarial criminal proceedings against the

defendant; it is of no import whether the proceedings were initiated by complaint or

indictment. Moulton, 474 U.S. 159, 170 (1985); see also Gilmore v. Armontrout,

861 F.2d 1061, 1070 (8th Cir. 1988) (recognizing sixth amendment applies to

“interrogation activities conducted ‘at or after the initiation of adversary criminal

proceedings–whether by way of formal charge, preliminary hearing, indictment,

information or arraignment’”) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).

The right to counsel attaches not only to direct confrontations by known government

officers, but also “indirect and surreptitious interrogations” by covert government

agents and informants. United States v. Henry, 447 U.S. 264, 272-73 (1980) (quoting

Massiah, 377 U.S. at 206).

The district court recognized that the government is not involved in

interrogation where a government agent merely acts as a listening post.4

 Kuhlmann

v. Wilson, 477 U.S. 436, 458-59 (1986). However, that is not the case here. Rather,

similar to Moulton, the government here deliberately created a circumstance ripe for

its agents to elicit incriminating statements from Manning.

In Moulton, one codefendant agreed to work as a government informant against

the other codefendant. The informant wore a recording device in a meeting with the

defendant. The police claimed that the recording device was worn not to elicit
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incriminating information, but instead for the informant’s own safety. The Supreme

Court found this argument unpersuasive: “knowing exploitation by the State of an

opportunity to confront the accused without counsel being present is as much a

breach of the State’s obligation . . . as is the intentional creation of such an

opportunity.” Moulton, 474 U.S. at 176.

In Manning’s case, the government employed two informants to elicit

incriminating information from Manning after he was charged. First, the government

planted an informant in Manning’s cell. Although the FBI told the informant to limit

conversation to the Illinois investigation, rather than the charged Missouri crimes, he

did not follow suit. The FBI sanctioned this activity through its continued use of the

informant, and eventually encouraged him to get more information on the Missouri

crimes. The informant then involved his girlfriend, Sylvia Herrera, by suggesting that

Manning use her to create an alibi. Herrera then entered into an agreement with the

FBI herself, whereby she began recording her conversations with Manning. These

conversations took place by telephone and in person. Because Manning was in jail,

Herrera initiated the personal visits by traveling to Cook County Jail. By using

Herrera and her boyfriend as informants, the government exploited its opportunity to

interrogate Manning in the absence of counsel. Any statements from these informants

related to Manning’s charged crimes should not have been admitted at trial.

The government contends that even if it was error to admit Herrera’s statements

at trial, Manning did not properly preserve this claim. The record indicates that

Manning’s trial counsel attempted to exclude Herrera’s testimony by way of a motion

in limine, but failed to renew the objection when Herrera’s testimony was admitted

at trial. 

A motion in limine standing alone does not normally preserve an issue for

appellate review. United States v. Lee, 274 F.3d 485, 493 (8th Cir. 2001). However,

when an issue has been defaulted by trial counsel, the defendant may overcome this
5

 Manning now asserts that part of trial counsel’s deficiency rests in the fact

that he filed a motion in limine, where the more appropriate procedure would have

been to file a suppression motion. Because we find that trial counsel was ineffective

for not objecting to Herrera’s testimony at trial, we need not address whether trial

counsel’s choice of pretrial motion was constitutionally deficient.

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procedural bar by showing cause for the default and resulting prejudice. Coleman v.

Thompson, 501 U.S. 722, 750 (1991). Cause, in this respect, can include a showing

of ineffective assistance of counsel. Id. at 753-54. Accordingly, we apply the familiar

test of Strickland v. Washington, 466 U.S. 668 (1984), in order to determine if the

performance of Manning’s trial attorney was inadequate, and whether Manning was

prejudiced by counsel’s shortcomings.

Here, there can be no doubt that the performance of Manning’s counsel was

deficient. Counsel attempted to attack the admission of Herrera’s testimony only

through a motion in limine.5

 The lack of a contemporaneous objection at trial

allowed the government to proffer Herrera’s testimony unfettered, despite being

constitutionally inadmissible.

The record in this case also establishes that Manning was prejudiced by his trial

attorney’s performance. As a result of counsel’s failure to object to Herrera’s

testimony, the government adduced evidence that Manning had attempted to create

a false alibi defense. The prosecutor recognized the importance of this point in his

closing, where he emphasized “[i]nnocent people don’t need to fabricate alibis.”

(Trial tr. at 657.)

Manning has established cause for his procedural default because his trial

counsel was ineffective. As for resulting prejudice, as discussed above, counsel here

allowed the jury to hear damaging, inadmissible testimony from Herrera that Manning

wanted to fabricate an alibi. Because there is a substantial likelihood that absent this
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testimony the trial result would have been different, Manning has shown prejudice

resulting from the procedural default.

The government’s use of informants here violated Manning’s constitutional

right to counsel. As a result, Herrera’s trial testimony should have been suppressed.

Manning is not procedurally barred from raising this claim because he has shown

sufficient cause for the default and resulting prejudice. Accordingly, the district court

erred in not granting Manning relief on this ground.

III. THE GOVERNMENT’S PRETRIAL IDENTIFICATION TACTICS

Manning argues that Carolyn Heldebrand’s in-court identification was the

product of an unduly suggestive pretrial identification procedure. In order to

determine if identification testimony is admissible, the trial court must first determine

if the pretrial identification technique was impermissibly suggestive. Manson v.

Brathwaite, 432 U.S. 98, 110 (1977). “If so, then the court must decide whether,

under the totality of the circumstances, the suggestive confrontation created a

substantial likelihood of irreparable misidentification.” Griffin v. Delo, 33 F.3d 895,

908 (8th Cir. 1994).

In 1990, Heldebrand was shown a photo spread of six people, one of whom

was Manning. She pointed to Manning as looking similar to the person who picked

up the ransom money from her, but said the person she saw had lighter hair. She was

then shown four individual pictures of people, including one of Manning. In this

picture, Manning had lighter hair. Manning claims the government’s method here

was unduly suggestive because his picture was the only one common to both photo

spreads.

Although Manning may be correct on this point, the photo spread nonetheless

did not create “a substantial likelihood of irreparable misidentification.” Id. In fact,
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Heldebrand was unable to identify Manning at her deposition, nor was she able to

identify him at the first trial. It was not until the second trial that she identified

Manning as the assailant. As such, Manning can hardly argue that the suggestive

photo line-up forever etched his image as the assailant in Heldebrand’s mind.

Heldebrand’s in-court identification at the second trial was the more likely the

product of her seeing Manning as the defendant time and again throughout these

extended criminal proceedings. Manning is not entitled to relief on this ground.

IV. THE DELAY BETWEEN THE CRIME AND FORMAL CHARGES

Manning next claims that the delay between the time of the crime and the

initiation of criminal proceedings against him was so long that he was deprived of due

process. To prevail on a claim that delay in charging violated his due process,

Manning must show that his defense has been substantially prejudiced by an

unreasonable delay. Bennett v. Lockhart, 39 F.3d 848, 851 (8th Cir. 1994). To

succeed on this claim, Manning must establish “actual prejudice,” by identifying with

specificity the evidence lost during the delay. Id. If Manning can show actual

prejudice from the delay, the burden shifts to the state to show that the delay was not

unreasonable. Id. A delay is not unreasonable if it is the result of a legitimate

purpose, such as investigation. Id.

Manning was prejudiced by the delay. In the six and a half year delay between

the crime and the filing of charges, three potential witnesses died. Two of these

witnesses were also suspects in the kidnapping, while the third was a government

informant. Certainly, Manning would have been better prepared had these witnesses

been available for questioning. Most notably, Manning would have been apprised of

the evidence against him, as well as the deficiencies in the state’s witnesses. The

presentation of Manning’s case was hindered by not having these witnesses available.
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Nonetheless, Manning is not entitled to relief on this claim. The delay between

the crime and the charges was based on investigation. Following the crime, neither

victim talked for several months. When they did, they were not able to identify any

assailants because both victims were blindfolded throughout the ordeal. There were

no further breaks in the case until Mammolito gave a statement in 1989. Following

Mammolito’s statement, investigation continued, and charges were ultimately brought

in July of 1990. Because delay based on further investigation is reasonable, no due

process violation occurred.

CONCLUSION

Manning’s due process rights were not violated by the lengthy precharging

delay, nor by the government’s pretrial identification procedures. However, the

government’s use of informants violated Manning’s constitutional right to counsel

and consequently, Sylvia Herrera’s testimony should have been excluded at trial.

Accordingly, we reverse the district court as to the right to counsel claim and remand

with instructions to conditionally grant the writ, subject to the right of Missouri to

retry Manning.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.