### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 14

‐ 3747 and 14

‐ 3772

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee,

v.

S TEVEN M ANDELL

, Defendant

‐ Appellant.

____________________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 12 CR 842

‐ 1

— Amy J. St. Eve

, Judge

.

____________________

A RGUED A PRIL 1, 2016

— D ECIDED A UGUST 17, 2016

____________________

Before P OSNER

, E ASTERBROOK

, and W ILLIAMS

, Circuit

Judges

.

W ILLIAMS

, Circuit Judge

. Steven Mandell was convicted for

conspiring to kidnap, and for conspiring and attempting to

extort, a wealthy businessman. His plan involved a gun, and

so he was also convicted for possessing a gun in furtherance

of a crime of violence, and for possessing a gun as a convicted2 Nos. 14

‐ 3747 and 14

‐ 3772

felon. The evidence included videos from hidden cameras

that the FBI installed at the site of the planned extortion. As

required by statute, a federal court authorized the installation

of the cameras. Arguing that the court only did so because the

FBI’s application was misleading due to certain omissions,

Mandell moved to suppress the video evidence. The district

judge denied that motion and we affirm because the omis

‐

sions Mandell complains about are not material.

Mandell also moved for a new trial, arguing that the gov

‐

ernment had withheld important exculpatory information

about the source of the gun. We affirm because we agree with

the district judge that the information is irrelevant and the ev

‐

idence supporting Mandell’s gun convictions was over

‐ whelming.

I. BACKGROUND

A. Mandell’s History

Defendant Steven Mandell, formerly known as Steven

Manning, is familiar to us. We discuss his unusual history be

‐

cause it is relevant to his current appeal. As we have previ

‐ ously described: “[Mandell] was employed as a Chicago po

‐

lice officer and later as an FBI informant. In 1986 after [he]

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

for a variety of crimes.” Manning v. Miller

, 355 F.3d 1028, 1030

(7th Cir. 2004) ( Manning III ).

1. Missouri Kidnapping

In 1990, Mandell and a man named Gary Engel were

charged for a kidnapping that occurred in Missouri in 1984.

See Manning v. Bowersox

, 310 F.3d 571, 574 (8th Cir. 2002) ( Man

‐ ning II ). What happened next is noteworthy:Nos. 14

‐ 3747 and 14

‐ 3772 3

Because [Mandell] was also a suspect in an Illi

‐

nois murder, the FBI planted a government in

‐

formant in his cell to try to collect evidence

about the Illinois crimes. The informant’s agree

‐

ment specified that he was not to elicit any in

‐

formation about [Mandell’s] pending Missouri

charges. However, the informant did talk about

the Missouri charges, and agreed to help [Man

‐ dell] fabricate an alibi defense using the inform

‐

ant’s girlfriend, Sylvia Herrera. The FBI then

met with Herrera to go over what information

she should attempt to elicit from [Mandell]. Pur

‐

suant to her agreement with the FBI, Herrera be

‐

gan to record her conversations with [Mandell].

Id

.

Mandell was convicted but the Eighth Circuit granted his

habeas petition, holding that the government’s use of inform

‐

ants, after charges had been filed, violated his constitutional

right to counsel. Id

. at 577. Missouri declined to retry him. See

Manning v. United States

, 546 F.3d 430, 431 (7th Cir. 2008) ( Man

‐ ning IV ). Gary Engel was tried separately and convicted, but

his conviction was vacated because the government failed to

disclose that one of its witnesses had been paid to testify. See

Engel v. Buchan

, 710 F.3d 698, 700–01 (7th Cir. 2013).

2. Illinois Murder

In 1993, Mandell was charged for a murder that occurred

in Illinois in 1990. See Manning III

, 355 F.3d at 1030. Mandell

tried to pin the murder on Engel, “who had ties to both [Man

‐ dell] and the victim.” People v. Manning

, 182 Ill.2d 193, 204

(1998) ( Manning I ). Mandell was convicted but this conviction4 Nos. 14

‐ 3747 and 14

‐ 3772

was vacated too—this time because the trial judge admitted

inadmissible evidence. Id

. at 215–18.

3. Civil Suit

In 2002, Mandell sued the government for maliciously

prosecuting him, and two FBI agents for fabricating evidence

against him. See Manning III

, 355 F.3d at 1030–31; Manning IV

,

546 F.3d at 431. A jury found against the agents and awarded

Mandell $6.5 million. Id

. at 431–32; Engel

, 710 F.3d at 701. But

a judge found that even without the fabricated evidence, the

government had probable cause to prosecute. See Manning IV

,

546 F.3d at 431–32; Engel

, 710 F.3d at 701. For technical reasons

not pertinent here, the upshot is that Mandell recovered noth

‐ ing. Manning IV

, 546 F.3d at 438; see also Engel

, 710 F.3d at 701. 1

B. Events Leading to This Case

In the summer of 2012, Mandell was introduced to George

Michael, a real estate businessman. Though not on Mandell’s

level, Michael’s reputation was not unblemished. See Michael

v. FDIC

, 687 F.3d 337 (7th Cir. 2012) (affirming civil penalties

and order barring Michael from participating in the affairs of

any FDIC

‐ insured bank). Unbeknownst to Mandell, Michael

was an FBI informant. Michael recorded several of their con

‐

versations, including discussions about two criminal plots,

discussed below.

1 Engel filed his own civil suit, which was carried on by his estate after

he died in jail in 2012. His estate received a $3 million settlement from

some defendants and voluntarily dismissed the claims against others. See

Engel v. Buchan et al.

, No. 1:10

‐ CV

‐ 3288 (N.D. Ill.).Nos. 14

‐ 3747 and 14

‐ 3772 5

1. Plot One: Steven Campbell

In one plot, Mandell was to kidnap, torture, extort, and kill

Steven Campbell, a wealthy businessman. Mandell planned

to kidnap Campbell, take him to a remote location, torture

him until he turned over cash and property, and then kill him.

Michael helped Mandell rent a building to serve as the torture

site, which they nicknamed “Club Med.” Although Mandell

said that he had an accomplice, he refused to identify that per

‐

son.

Seeking to install hidden cameras at Club Med, the FBI

asked a federal court to authorize a wiretap. Special Agent

Richard Tipton submitted an affidavit in support of the appli

‐

cation. Tipton explained that Mandell had an accomplice

whom he refused to identify, and whom the FBI had been un

‐

able to identify by traditional means. Tipton stated that video

was required for two reasons: to identify the accomplice, and

to gather evidence to prove both Mandell and the accomplice

guilty beyond a reasonable doubt. The court approved the ap

‐ plication and the FBI installed the cameras.

The cameras served both intended purposes. First, the vid

‐

eos revealed that the accomplice was Gary Engel—the same

Gary Engel who was charged with Mandell in the 1984 Mis

‐

souri kidnapping, and the same Gary Engel on whom Man

‐

dell had tried to pin the 1990 Illinois murder. Second, the evi

‐

dence gathered was devastating to the defendants. As Man

‐

dell’s opening brief on appeal admits, the videos show Man

‐

dell and Engel “discuss[ing] in graphic detail the alleged kid

‐ napping, extortion, and murder of Campbell.”6 Nos. 14

‐ 3747 and 14

‐ 3772

2. Plot Two: Anthony Quaranta

Mandell and Michael also discussed a second plan (and

this plan, too, involved Mandell killing someone). Michael

was a part

‐ owner of a local strip club, and Mandell agreed to

murder Anthony Quaranta, one of the other owners, to in

‐

crease Michael’s ownership and control. In furtherance of this

plan, Mandell tried to locate Quaranta using the services of a

company named Covert Track.

C. Procedural History

Mandell and Engel were arrested on their way to kidnap

Campbell. A loaded gun was found in the subsequent search

of Club Med. While in pre

‐ trial custody, Mandell called his

wife and asked her to move and destroy some evidence re

‐

lated to the Steven Campbell plot.

Mandell was charged with: (i) conspiring to kidnap Steven

Campbell; (ii) conspiring to extort Steven Campbell; (iii) at

‐ tempting to extort Steven Campbell; (iv) possessing a gun in

furtherance of a crime of violence; (v) possessing a gun as a

convicted felon; (vi) attempting to obstruct justice; and (vii)

conspiring to murder Anthony Quaranta. See 18 U.S.C.

§ 922(g)(1); § 924(c)(1)(A); §§ 1201(a)(1), (c); § 1512(b)(2)(B);

§ 1951(a); § 1958(a).

Mandell moved to suppress the wiretap evidence. He ar

‐ gued that, even without the wiretap, the FBI knew that Engel

was the accomplice—so the wiretap was unnecessary and the

supporting affidavit was false. That motion was denied. Man

‐

dell testified at trial and admitted to devising and discussing

both criminal plots, but said he never intended to carry them

out. Instead, he said that Michael was paying him aboutNos. 14

‐ 3747 and 14

‐ 3772 7

$1,000 a week, so he played along just to feed Michael’s fanta

‐

sies and continue getting paid. Mandell was acquitted of con

‐ spiring to kill Quaranta, but convicted on all other counts—

which all related to the Steven Campbell plot—and sentenced

to life in prison. He re

‐ raised his wiretap argument in a mo

‐

tion for a new trial, which was denied, and he presses that

argument on appeal.

Mandell also moved for a new trial based on evidence he

discovered after trial concerning the source of the gun that

was found at Club Med. He appeals the district judge’s denial

of that motion. Finally, the district judge denied in part Man

‐

dell’s post

‐ trial motion for a return of property, and Mandell

filed an appeal. But Mandell said nothing about that issue in

his briefs so we summarily affirm that part of this consoli

‐

dated appeal.

II. ANALYSIS

A. Not Clear Error to Deny Motion to Suppress Without

Holding Evidentiary Hearing

Before using a wiretap to gather evidence of crimes, the

government must apply for court authorization and its appli

‐

cation must meet certain statutory requirements. 18 U.S.C.

§§ 2516, 2518(1). The statute also specifies facts that the judge

must find before authorizing the wiretap. Id

. § 2518(3). If ei

‐

ther the application or the authorization is lacking, any result

‐ ing evidence is inadmissible. Id

. § 2515. Further, the authori

‐

zation is invalid if it was procured through the government’s

deliberate or reckless omission of material information from

its application. See United States v. McMurtrey

, 704 F.3d 502,

504 (7th Cir. 2013).8 Nos. 14

‐ 3747 and 14

‐ 3772

1. Wiretap Application Met Requirements

A wiretap application must state “the identity of the per

‐

son, if known, committing the offense and whose communi

‐

cations are to be intercepted.” 18 U.S.C. § 2518(1)(b). The dis

‐

trict judge found this requirement met, and we review that

finding for clear error. United States v. Fudge

, 325 F.3d 910, 917

(7th Cir. 2003). Under what is known as the “necessity” re

‐ quirement, an application must also include a “full and com

‐ plete statement as to whether or not other investigative pro

‐

cedures have been tried and failed or why they reasonably

appear to be unlikely to succeed if tried or to be too danger

‐

ous.” 18 U.S.C. § 2518(1)(c). The necessity requirement binds

judges too: before approving an application, the judge must

find that “normal investigative procedures have been tried

and have failed or reasonably appear to be unlikely to succeed

if tried or to be too dangerous.” Id

. § 2518(3)(c).

Despite its name, the necessity requirement “was not in

‐

tended to ensure that wiretaps are used only as a last resort in

an investigation, but rather that they are not to be routinely

employed as the initial step in a criminal investigation.”

United States v. McLee

, 436 F.3d 751, 763 (7th Cir. 2006) (cita

‐

tions and internal quotation marks omitted). Accordingly,

“the government’s burden

... is not great” and “the require

‐

ment of exhausting other investigative procedures prior to ob

‐ taining a wiretap is reviewed in a practical and common

‐

sense fashion.” Id

. (internal quotation marks omitted). The

district judge found the requirement met, and we review that

determination for an abuse of discretion. United States v.

McLee

, 436 F.3d 751, 763 (7th Cir. 2006).

The FBI’s application, including Special Agent Tipton’s af

‐

fidavit, detailed the traditional investigatory methods thatNos. 14

‐ 3747 and 14

‐ 3772 9

had been attempted, explained why other traditional efforts

would be futile or too dangerous, and urged that the wiretap

was necessary in part to identify Mandell’s accomplice in the

Campbell plot. See McLee

, 436 F.3d at 763 (noting that we have

upheld the “necessity” of wiretaps on the basis that investiga

‐

tors were having trouble identifying other members of the

conspiracy) (citing United States v. Farmer

, 924 F.2d 647, 652

(7th Cir. 1991)). Mandell argues that the FBI already knew that

Engel was the accomplice, so the wiretap was invalid both be

‐

cause the application failed to list Engel as someone “commit

‐ ting the offense and whose communications are to be inter

‐ cepted,” and because the necessity requirement was not met.

Mandell urges that, before it submitted its application, the

government was aware of substantial ties between himself

and Engel, including:

 Mandell met with Engel and Engel inspected the

car that was later used in the Steven Campbell plot.

The meeting was less than two weeks before the FBI

submitted its application.

 Mandell and Engel used the same Covert Track ac

‐

count to track people.

 Mandell and Engel made many phone calls to each

other between August and October 2012.

 Mandell and Engel were both tried and convicted

for the 1984 kidnapping; both had their convictions

vacated; and both filed related civil suits.

Mandell’s argument is entirely hindsight. He lists all the

known connections between himself and Engel and then

backdates them to argue that the FBI should have known En

‐10 Nos. 14

‐ 3747 and 14

‐ 3772

gel was his accomplice. But Mandell could list extensive con

‐

nections with numerous people (including his wife, relatives,

neighbors, and so on). Even focusing on suspected criminals,

Mandell had substantial connections with many such people,

as his lawyer acknowledged at oral argument.

Further, without hindsight, the connections that Mandell

highlights were not obviously related to the plot to kidnap,

torture, extort, and kill Steven Campbell. For example, Man

‐

dell makes much of the fact that Engel inspected a car, and

that car was later used in the Campbell plot. Mandell neglects

to mention that the car was also used to conduct surveillance

of Anthony Quaranta. More fundamentally, Mandell does not

explain how the subsequent use of the car in the Campbell plot

would have informed the FBI at the time Engel was observed in

‐ specting the car

, that Engel was tied to the Campbell plot. (To

see the argument’s flaw clearly, imagine Mandell had made

the absurd argument that Engel was obviously involved in the

Campbell plot because Engel shook Mandell’s hand

, and that

is the same hand that Mandell planned to use to torture Camp

‐ bell.)

Arguably, the evidence of an in

‐ person meeting (right af

‐

ter Mandell conducted surveillance of Quaranta), car inspec

‐

tion, and joint use of a Covert Track account connected Engel

to the plot to kill Quaranta. (We say “arguably” because the

district court found the evidence tying Engel to that plot to be

“slim, at best,” and Mandell has not called that characteriza

‐

tion into question.) But the Quaranta and Campbell plots

were entirely separate. Indeed, even with the wiretap evi

‐

dence, the jury acquitted Mandell of the counts related to

Quaranta. So even if the FBI suspected that Engel might be

involved in the Quaranta plot, it does not follow that theNos. 14

‐ 3747 and 14

‐ 3772 11

agency must have known he was the Campbell accomplice.

Similarly, the fact that Engel and Mandell had phone conver

‐

sations does not suggest that Engel was planning to kidnap,

torture, extort, and kill someone. And we agree with the gov

‐

ernment that it would be preposterous for the FBI to have con

‐

cluded that Engel was the accomplice based on the vacated

convictions and civil suits stemming from the 1984 Missouri

kidnapping prosecution. The district court did not clearly err

in finding that the FBI did not know, at the time of its applica

‐

tion, that Engel was the accomplice in the Campbell plot.

Moreover, even if the FBI did know that Engel was the ac

‐ complice, the application also urged that the wiretap was

needed to: (i) ascertain each defendant’s role in the plot, see

United States v. Plescia

, 48 F.3d 1452, 1463 (7th Cir. 1995); and

(ii) obtain evidence to prove each defendant guilty beyond a

reasonable doubt, see United States v. Campos

, 541 F.3d 735, 748

(7th Cir. 2008); Fudge

, 325 F.3d at 919. The wiretap served

those purposes. Mandell argues that the government did not

need the video evidence because it already had recordings of

Mandell’s conversations with George Michael. But remember,

Mandell told the jury that he was role playing, to feed Mi

‐

chael’s fantasies and continue getting paid. The recorded con

‐

versations are consistent with that story. In contrast, the vid

‐

eos from Club Med, in which Mandell and Engel discuss their

plans in gruesome and tedious detail even though Michael is

not present, are not consistent with “fantasies.” 2

2 Mandell said that the videos are consistent with his story because he

assumed he was being watched by Michael, who Mandell assumed had

installed hidden cameras at Club Med. The jury was entitled to reject that

unlikely story, especially given the level of detail of the videotaped prep

‐

arations.12 Nos. 14

‐ 3747 and 14

‐ 3772

The necessity is even clearer in relation to Engel. “[T]he

government’s burden of proof at trial is substantially higher

than its burden in obtaining an indictment,” so a wiretap can

be necessary “even if the government [has] enough evidence

to indict.” Campos

, 541 F.3d at 748 (citing McLee

, 436 F.3d at

763). We have already discussed the dearth of evidence iden

‐ tifying Engel as the accomplice. Especially considering the in

‐

creased burden of proof at trial, it is clear that the district

judge did not abuse her discretion in finding the necessity re

‐ quirement met.

2. No Hearing Was Required

The considerations discussed above also lead us to affirm

the denial of Mandell’s motion for an evidentiary hearing. Un

‐

der Franks v. Delaware

, 438 U.S. 154 (1978), and its progeny, a

wiretap order is invalid—even if the application and authori

‐

zation meet all the statutory requirements—if the order was

obtained by the government’s deliberate or reckless omission

of material information from its application. See McMurtrey

,

704 F.3d at 504; United States v. Carmel

, 548 F.3d 571, 577 (7th

Cir. 2008). A defendant is entitled to an evidentiary hearing to

prove his case, but only if he first makes a “substantial pre

‐ liminary showing.” McMurtrey

, 704 F.3d at 504. Mandell

asked for a hearing, complaining about the government’s fail

‐

ure to lay out all of the previously discussed connections be

‐

tween Mandell and Engel. The district court declined to hold

a hearing and we review that decision for clear error. Id

. at

508. But Mandell was not entitled to a hearing because he did

not (and could not) make a substantial preliminary showing

that the government’s application would have been denied if

it laid out those connections. See McMurtrey

, 704 F.3d at 509;

Whitlock v. Brown

, 596 F.3d 406, 411 (7th Cir. 2010); Carmel

, 548Nos. 14

‐ 3747 and 14

‐ 3772 13

F.3d at 577. As discussed above, the connections did not es

‐

tablish that Engel was Mandell’s accomplice, and even if they

did, the wiretap was still necessary to collect evidence needed

to prove each man guilty beyond a reasonable doubt. So the

district judge did not clearly err by refusing to hold a hearing.

B. Not Abuse of Discretion to Deny Motion for New

Trial Based on Gun Evidence

A search of Club Med turned up a loaded gun—a Ruger.

A year before trial, the government turned over a firearms

trace summary showing only one recorded transaction: “In

‐

dividual A” bought the gun in 1980. At trial, Mandell testified

that the gun was planted at Club Med, by George Michael,

without Mandell’s consent. The jury either did not believe

him, or found that story irrelevant, as it convicted him on two

relevant counts: possessing a gun in furtherance of a crime of

violence, and possessing a gun as a convicted felon. See 18

U.S.C. §§ 922(g)(1), 924(c)(1)(A).

In a pro se post

‐ trial motion, Mandell argued for a new

trial, urging that both George Michael and “Individual A”

were tied to the leader of a criminal organization in Chicago.

(As to Individual A, the connection was apparently based on

her last name, which was similar to the last name of the crime

leader.) Why such connections would warrant a new trial is

unclear. In any event, the government responded by saying it

had no evidence that the gun was traceable to either the crime

leader or George Michael. The government turned over two

reports of interviews conducted by the Internal Revenue Ser

‐

vice. The reports were redacted because they concerned an

unrelated matter, but they involved Individual A.14 Nos. 14

‐ 3747 and 14

‐ 3772

Mandell moved for a new trial, arguing that by not turning

the reports over earlier, the government had violated its obli

‐ gation to disclose exculpatory evidence. See Giglio v. United

States

, 405 U.S. 150 (1972); Brady v. Maryland

, 373 U.S. 83

(1963). The district judge denied that motion, and we review

that decision for an abuse of discretion. United States v. Smith

,

674 F.3d 722, 728 (7th Cir. 2012). “A Brady violation occurs

when the prosecution suppresses evidence favorable to the

defense and the evidence was material to an issue at trial.”

United States v. Mota

, 685 F.3d 644, 648 (7th Cir. 2012). A de

‐

fendant is entitled to a new trial “only when

... there is a rea

‐

sonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been dif

‐

ferent.” Id

. (citations omitted).

Mandell cannot meet this standard. His theory of the

Ruger’s connection to George Michael, based in part on the

IRS reports, is strange. He notes that Individual A bought the

Ruger in 1980, and in 2005, her ex

‐ spouse died and he owned

about one hundred guns. Also, from 1976 until 1982, that ex

‐

spouse had an ownership interest in a strip club, and at some

point, George Michael acquired an ownership interest in the

same strip club. Somehow Mandell says this all supports his

theory that George Michael acquired the Ruger and planted it

at Club Med. The district judge found otherwise and we can

‐

not see how that was an abuse of discretion.

Regardless, whether the gun was connected in some way

to George Michael is irrelevant. No matter how the gun ar

‐

rived at Club Med, Mandell was aware of its presence and its

planned use in the Campbell plot. Mandell and Engel are seen

on video discussing the gun, confirming the type of bullet be

‐ ing used, and complaining about how difficult it was to loadNos. 14

‐ 3747 and 14

‐ 3772 15

while wearing rubber gloves. As Mandell admits in his open

‐ ing brief on appeal, the videos reveal that “Engel loaded the

Ruger prior to departing for Michael’s office. Mandell asked

Engel why he was loading it. After Engel responded why

‘have it sitting around here unloaded,’ Mandell replied ‘good

answer.’” No matter who owned the gun, or who was respon

‐

sible for originally bringing it to Club Med, the evidence that

Mandell possessed it (as a convicted felon and in furtherance

of a crime of violence) was clear. So there is no “reasonable

probability that, had the [IRS reports] been disclosed to the

defense, the result of the proceeding would have been differ

‐

ent.” Mota

, 685 F.3d at 648. The district judge did not abuse

her discretion in denying Mandell’s motion for a new trial.

III. CONCLUSION

The judgment of the district court is A FFIRMED

.