In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2598

RAUL CARVAJAL,

Plaintiff-Appellee,

v.

LOUIS DOMINGUEZ, JR., in his individual capacity,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 2958—James F. Holderman, Chief Judge.

____________

ARGUED APRIL 8, 2008—DECIDED SEPTEMBER 5, 2008

____________

Before KANNE, WILLIAMS, and TINDER, Circuit Judges.

TINDER, Circuit Judge. The plaintiff/appellee, Raul

Carvajal, was prosecuted in the Southern District of

Florida for money laundering and was acquitted at the

conclusion of a jury trial. He then brought this civil suit

in the Northern District of Illinois against defendant/appellant Drug Enforcement Administration (“DEA”)

Task Force Officer Louis Dominguez, Jr. for damages,

alleging violations of his constitutional rights in connec-
2 No. 07-2598

tion with the criminal prosecution. The Illinois district

court granted Dominguez’s motion for summary judgment in part by dismissing several counts of Carvajal’s

amended complaint, but the court denied the motion with

respect to a count which asserted a Bivens cause of action

alleging a Brady violation. That decision also included a

denial of qualified immunity for Dominguez. This

appeal followed.

I. Background

The relevant facts revolve around Officer Dominguez’s

identification of Carvajal in two undercover money

pickups in Chicago. Chicago DEA Task Force Officer

Wayne Hunter was assisting in an investigation (called

“Operation Double Trouble”) of a Miami-based money

laundering operation in early April 2001. DEA Miami

asked for assistance in arranging two undercover money

pickups in Chicago. DEA Miami provided Hunter with a

cell phone number and a code to be used to arrange the

pickups. The first pickup was to occur on April 16, 2001.

Hunter asked agent Dominguez to do the job. Dominguez

used the cell number to arrange to meet two individuals;

he later identified them as German Matos Ruiz and Raul

Carvajal. Dominguez met with the men for about five

minutes in the midafternoon inside a Coconuts music

store, and he saw them in the parking lot where he

spoke with the man identified as Ruiz for a few minutes

and observed the man identified as Carvajal sitting in a

vehicle. A second transaction took place on April 21, 2001.

Dominguez again identified the men as Ruiz and Carvajal;
No. 07-2598 3

a woman was also with them. This meeting took place in

a Baker’s Square restaurant. The meeting lasted about

15 minutes. During the meeting Dominguez initially sat

next to the man identified as Carvajal with the man

identified as Ruiz across the table; later the men switched,

putting the supposed Carvajal across the table from

Dominguez. This meeting also occurred in the midafternoon.

It is unclear just when Hunter learned of Carvajal’s

name in connection with the money laundering investigation—he testified in a deposition in this civil action that he

may have gotten the name from DEA Miami or from a

Chicago field office intelligence analyst who traced the

cell number to Carvajal’s ex-wife. Either way, on April 9,

2001, an intelligence analyst in Chicago requested a

photo of Carvajal from the Illinois Secretary of State.

Hunter did not remember when he got the photo or

whether he had it before April 16, the date of the first

undercover pickup. Hunter said he knew Carvajal’s name

by April 15th and may have had the picture by the 16th.

Dominguez said that he did not see Carvajal’s photo or

have his name prior to the April 16th meeting. Dominguez

claims that he first saw Carvajal’s photo sometime between

the first meeting on April 16 and May 14, 2001, the date

of his written reports. He cannot recall whether he saw

another photo at the same time he saw Carvajal’s or not.

He never saw a formal lineup. Hunter testified that he

“possibly gave Carvajal’s name and photographic image

to Dominguez prior to the April 16, 2001, operation to

make sure that Dominguez had all the information about
4 No. 07-2598

the case and that Dominguez was not meeting with

someone he already knew.” It is agreed that Hunter

would have provided whatever information he had to

Dominguez, including the photo—doing so would have

been his “normal practice.”

A federal grand jury in Miami indicted Carvajal and

33 others in connection with a money laundering scheme;

in a superceding indictment he was charged only with

acting as a courier. Carvajal filed a motion to suppress

Dominguez’s identification of him as unduly suggestive

in light of the “one-photo procedure used.” The judge

denied the motion after an evidentiary hearing at which

Dominguez and another law enforcement officer (not

Hunter) testified. The judge began his ruling with the

assumption that the photo identification procedure used

by Dominguez was unduly suggestive, but he found that

“regardless of whether the procedure used was

impermissibly suggestive, there was not a substantial

likelihood of misidentification.” He noted that Dominguez

had an “excellent opportunity to view Carvajal at the

time of the two money pick ups” and that there was no

evidence that he was “pressured to select Carvajal’s

photograph.” That judge also made a finding that

during a separate undercover money pickup (in which

Dominguez was not involved), a vehicle was seen that

was registered to Carvajal’s ex-wife. Later, in a trial

with one co-defendant, who was found guilty, a jury

acquitted Carvajal.

This brings us to the instant case in which Carvajal

brought this civil suit in the Northern District of Illinois
No. 07-2598 5

1 The following, from Carroccia v. Anderson, another case from

the Northern District of Illinois, explains the rationale behind

this “prospective test”:

Brady and its progeny impose a duty on prosecutors and

police officers to produce evidence favorable to the accused

(continued...)

for damages against Dominguez. The district court

granted Dominguez’s motion for summary judgment on

Count One, a claim for false arrest and unlawful search

and seizure, and Count Two, a claim alleging a “deprivation of liberty.” The court also granted the motion

with respect to Count Four—a claim for perjury—noting

police witnesses are entitled to absolute immunity from

perjury claims for trials and pretrial proceedings and

found no evidence supporting an application of the

“complaining witness” exception to this rule. Count Three

claimed that Dominguez withheld favorable evidence

in violation of Brady v. Maryland, 373 U.S. 83 (1963). The

amended complaint alleged that he “knowingly and

falsely identified Carvajal as the perpetrator in a money

laundering conspiracy and wrote false police reports

about him.” The district court denied Dominguez’s motion

for summary judgment with respect to this claim. In its

decision, the court rejected the notion that an acquitted

defendant, such as Carvajal, cannot have a Brady claim

but noted that the question is an open one in this

circuit and that the district court is split on the question.

The court concluded that an acquittal “alone does not

show that the police officers complied with Brady or that

the defendant’s trial was fair” and applied the Brady

analysis “on a prospective basis.” Analyzing under 1
6 No. 07-2598

(...continued) 1

where the evidence is material either to guilt or punishment. To discharge this duty, law enforcement officials

must make prospective judgments regarding the materiality

of exculpatory evidence that comes to their attention. They

must decide in advance of trial, and without knowing

how the trial will come out, whether evidence favorable to

the accused has a “reasonable probability” of affecting the

outcome of the case. If courts prohibit a criminal defendant

from making a civil claim for concealment of material

exculpatory evidence simply because his trial resulted in

an acquittal, we tolerate law enforcement misconduct

simply because the defendant was able to overcome it by

other means.

Carroccia v. Anderson, 249 F. Supp. 2d 1016, 1023 (N.D. Ill. 2003)

(internal citations omitted).

Brady, the judge explained: “Carvajal identified as exculpatory Dominguez’s alleged failure to tell the prosecutor that he was given Carvajal’s name and photographic

image before the first transaction on April 16, 2001.” “This

evidence would have impeached Dominguez’s testimony at trial that he did not know Carvajal’s name or

see his photograph until after the April 16, 2001 transaction and undermined the credibility of Dominguez’s

post-April 16, 2001 identification of Carvajal.” According

to the district court, this was “material” because it “would

have changed the outcome of the suppression hearing, and

the withholding of evidence denied him a fair trial.” The

court also concluded that Dominguez was not entitled to

qualified immunity explaining that “the boundaries of

Brady as applied to this case have long been established.”
No. 07-2598 7

Dominguez now appeals.

II. Discussion & Analysis

This case comes to us from a denial of summary judgment—typically a case in such a posture is not immediately appealable to our court. We have jurisdiction, however, under 28 U.S.C. § 1291 and the “collateral order”

doctrine. An appeal of an order denying qualified immunity is a well-established application of this doctrine: “A

district court’s denial of a claim of qualified immunity,

to the extent that it turns on an issue of law is an

appealable final decision within the meaning of 18 U.S.C.

§ 1291, notwithstanding the absence of a final judgment.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

The Supreme Court recently clarified that the scope of

this doctrine includes jurisdiction over whether “to devise

a new Bivens damages action” and explained:

We recognized just last Term that the definition of an

element of the asserted cause of action was “directly

implicated by the defense of qualified immunity and

properly before us on interlocutory appeal.” Hartman

v. Moore, 547 U.S. 250, 257 n.5 (2006). Because the

same reasoning applies to the recognition of the

entire cause of action, the Court of Appeals had jurisdiction of this issue, as do we.

Wilkie v. Robbins, 127 S. Ct. 2588, 2597 & n.4 (2007). Thus,

we have jurisdiction over the questions presented by this

appeal. Our review is de novo. See Wernsing v. Thompson,

423 F.3d 732, 741 (7th Cir. 2005); Wade v. Hopper, 993 F.2d

1246, 1251 (7th Cir. 1993).
8 No. 07-2598

Determining whether a defendant law enforcement

officer is entitled to qualified immunity involves a twostep analysis. The first step is whether the facts alleged,

taken in the light most favorable to the plaintiff, amount

to a constitutional violation. If not, the inquiry ends, and

the officer has qualified immunity. If yes, then the second

step is whether the violated right was clearly established.

This is determined by looking at whether it would be

clear to a reasonable official that his or her conduct was

unlawful in the situation. E.g., Michael C. v. Gresbach, 526

F.3d 1008, 1012 (7th Cir. 2008). We begin with the first

prong and address whether the facts alleged show a

constitutional violation.

The constitutional violation alleged in this case was a

violation of due process for failure to turn over exculpatory/impeaching evidence to the defendant as constitutionally required—a so-called Brady violation. Brady v.

Maryland, 373 U.S. 83 (1963). While most commonly

viewed as a prosecutor’s duty to disclose to the defense,

the duty extends to the police and requires that they

similarly turn over exculpatory/impeaching evidence to

the prosecutor, thereby triggering the prosecutor’s disclosure obligation. See Youngblood v. West Virginia, 547 U.S.

867, 870 (2006) (“[A] Brady suppression occurs when

the government fails to turn over even evidence that is

‘known only to police investigators and not to the prosecutor . . . .’ ” (citing Kyles v. Whitley, 514 U.S. 419, 438 (1995)));

Strickler v. Green, 527 U.S. 263, 280-81 (1999); Steidl v.

Fermon, 494 F.3d 623, 628, 630-32 (7th Cir. 2007). A Brady

violation can be broken down into three basic elements:

(1) the evidence at issue is favorable to the accused, either
No. 07-2598 9

being exculpatory or impeaching; (2) the evidence must

have been suppressed by the government, either willfully

or inadvertently; and (3) there is a reasonable probability

that prejudice ensued—in other words, “materiality.” See

Youngblood, 547 U.S. at 869-70; United States v. Bland, 517

F.3d 930, 934 (7th Cir. 2008); Ienco v. Angarone, 429 F.3d 680,

683 (7th Cir. 2005). Evidence is “suppressed” when (1) the

prosecution failed to disclose the evidence in time for

the defendant to make use of it, and (2) the evidence

was not otherwise available to the defendant through the

exercise of reasonable diligence. Ienco, 429 F.3d at 683.

Evidence is “material” “if there is a reasonable probability

that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.”

Strickler, 527 U.S. at 280 (internal quotations omitted);

see also Bland, 517 F.3d at 934.

Specifically, Carvajal alleges that Dominguez failed to

disclose that he had Carvajal’s name and saw his photograph prior to the first undercover drug pickup on

April 16th. Dominguez’s version of the events is that he

did not see Carvajal’s photograph until sometime after

the first undercover pickup. Hunter’s deposition testimony, on the other hand, suggests that perhaps

Dominguez had the photo earlier, prior to the first pickup.

This can be inferred from the April 9th request to the

Illinois Secretary of State for a photograph of Carvajal and

Hunter’s deposition testimony in the civil case that he

was “sure” he would have a picture back from the Illinois

Secretary of State within a week. Hunter and Dominguez

also explained that, per the usual practice, if Hunter

indeed had the photograph of Carvajal before the April
10 No. 07-2598

16th undercover pickup he would have shown it to

Dominguez. Carvajal claims that this fact would have

been used to impeach Dominguez and would have

changed the outcome of the suppression hearing and that

perhaps Carvajal would not even have been subjected to

a trial. We simply cannot agree, however, that this

amounts to a Brady violation.

At the most (as we must assume from the conflicting

recollections of when the photo may have been viewed),

the facts could support an inference that Dominguez

did see the photo before the first pickup and that he

lied about when he saw the photograph. But a lying

witness is certainly not a Brady violation. It is already

established law that Brady does not extend so far as to

provide relief in a situation where “a police officer makes

a false statement to a prosecutor.” Harris v. Kuba, 486 F.3d

1010, 1017 (7th Cir. 2007) (“Harris essentially seeks an

extension of Brady to provide relief if a police officer

makes a false statement to a prosecutor by arguing that

an officer is ‘suppressing’ evidence of the truth by

making the false statement. This court has already foreclosed this extension.”); see also Sornberger v. City of Knoxville, 434 F.3d 1006, 1029 (7th Cir. 2006) (“The Constitution

does not require that police testify truthfully; rather the

constitutional rule is that the defendant is entitled to a

trial that will enable jurors to determine where the truth

lies.” (citations omitted)).

Moreover, both Hunter and Dominguez were accessible

to the defense for the hearing on the motion to suppress the identification in the criminal case. It is Carvajal’s
No. 07-2598 11

responsibility to probe the witnesses and investigate

their versions of the relevant events. There was nothing

preventing Carvajal from discovering and drawing out

this discrepancy between the officers’ stories during the

suppression hearing. Suppression does not occur when

the defendant could have discovered it himself through

“reasonable diligence.” Ienco, 429 F.3d at 683; cf. United

States v. Tadros, 310 F.3d 999, 1005 (7th Cir. 2002). Brady

does not require disclosure by one officer that he and

another officer, both called as witnesses, have slightly

different versions with respect to precisely which date

they saw Carvajal’s photograph or learned his name.

There is also a logical flaw in Carvajal’s argument. His

“claim is based on the fact that Dominguez failed to

disclose to the prosecutors that he was given Carvajal’s

name and shown his photograph prior to the first transaction . . . while insisting the opposite in his . . . police reports

and during his testimony . . . .” Appellee’s Br. at 10.

However, the fact that Dominguez saw the photograph or

had the name prior to the first meeting itself is not impeaching. Under Brady, the evidence suppressed must be

exculpatory or impeaching, not the fact that it was suppressed. Now, perhaps, one could, at least logically, argue

that the prosecutor’s failure to disclose that Dominguez

lied violated Brady (thus the suppressed impeaching

evidence was the fact that Dominguez lied and not the

fact that he saw a photo). Carvajal did not advance such

an argument, however, and regardless, it could not logically support a cause of action against Dominguez himself,

rather than the prosecutor.
12 No. 07-2598

And by itself the fact that he saw the photograph before

the first pickup is not exculpatory either—too many

inferences have to be made to reach that conclusion. See

Harris, 486 F.3d at 1016 (“None of the pieces of evidence

[the plaintiff] points to, when considered at face value, is

exculpatory. . . . [T]he evidence is arguably favorable

only after several inferences are made. . . . This stretches

the meaning of ‘favorable’ beyond that of Brady.”). Simply

because a trained officer viewed a photograph of

someone he might potentially encounter in an undercover investigation—to make sure it was not someone

he already knew, or someone who might know him—does

not amount to exculpatory evidence. This is regular

police practice—in fact, a sign of good police work. It

only makes sense that an officer going undercover

would gather information about the individuals he may

meet, if for no other reason, to preserve his undercover

status and ensure his (and others’) safety. As Hunter

and Dominguez testified, obtaining and looking at such

information was part of their regular practice. Frankly, it

is quite difficult to see at all how the regular police practice of checking a photograph before meeting someone

undercover amounts to exculpatory evidence.

Similarly, there is also no “reasonable probability” that

if Dominguez had disclosed that he had Carvajal’s name

and/or had seen the photograph prior to the April 16th

pickup that his identification of Carvajal would have

been suppressed or the charges dropped. See Strickler, 527

U.S. at 290 (“[T]he question is whether ‘the favorable

evidence could reasonably be taken to put the whole case

in such a different light as to undermine confidence in the
No. 07-2598 13

[outcome].’ ” (quoting Kyles, 514 U.S. at 435)). The judge at

the suppression hearing (in response to Carvajal’s challenge to the one-photo procedure used) assumed that a

suggestive identification procedure had been utilized, but

nevertheless concluded that there was “not a substantial

likelihood of misidentification.” Dominguez had an

“excellent opportunity to view [Carvajal] at the time

of the two money pick ups.” There was also other

evidence supporting the conclusion that Carvajal was

involved besides Dominguez’s identification—the cell

phone number and car links to his ex-wife, for instance.

So, even if there were something troubling about when

Dominguez saw the photo, Carvajal has not shown that

it would have made any difference in the outcome. If we

focus on the possible impeachment aspect, the best

Carvajal could have achieved is casting some doubt on

Dominguez’s credibility—however, he has presented no

persuasive explanation that Dominguez was motivated

by some malice or even that he purposefully lied. Thus

any impeachment value from the inconsistent testimony

between Hunter and Dominguez seems insignificant.

We cannot reasonably see how the discrepancy about

when a photo was seen would have caused the prosecution’s entire case to unravel or the suppression judge to

alter his ruling. Moreover, everyone agrees that the

photograph was seen at some point before the end of

the investigation. And the suppression hearing judge

explicitly determined that the one-photo method did not

undermine the reliability of the identification. See also

United States v. Brown, 471 F.3d 802, 804-05 (explaining that

a trained officer viewing photographs is not the same as a
14 No. 07-2598

witness “trying to separate a culprit from a crowd”); id. at

805 (“The officers approached the photo not as victims

open to persuasion by officialdom, but as skeptics trying

to check up on their new source.”). Carvajal has not

established a “reasonable probability” that the suppression result or the decision to go to trial would have

been altered by the desired disclosure.

To conclude on this point—inconsistent police testimony does not a Brady violation make. Carvajal comes

up short on all three elements of a Brady claim. Inference

upon inference is needed to explain how the evidence

is favorable to Carvajal. Most obviously, it is also not

rightly considered “suppressed” evidence because

Carvajal could have discovered Dominguez’s and

Hunter’s inconsistent testimony himself: the hearing

allowed on the identification challenge was his vehicle

for doing so. And lastly, Carvajal has not established the

third requirement—materiality or prejudice—because there

is no reasonable probability that the failure to disclose

would have altered the outcome of the suppression or

caused the prosecutor to forego the trial.

Since there was no Brady violation, we conclude, under

the first step in the qualified immunity analysis, that

the facts, taken in the light most favorable to Carvajal, do

not establish a constitutional violation on the part of

defendant Dominguez. Therefore, the district court erred

in failing to find that Dominguez was entitled to

qualified immunity. As such, his motion for summary

judgment should have been granted.
No. 07-2598 15

Three other matters deserve brief comments.

The district court reached the second step of qualified

immunity analysis in concluding that the obligation to

disclose impeaching or exculpatory information would

have been clear to a reasonable law enforcement officer.

Given our conclusion that no Brady violation occurred

here, we do not need to evaluate that aspect of the ruling. Nonetheless, a more careful examination of this

question should have produced a different result. The

question at this step, if reached, would not be whether

a law enforcement officer would clearly know that he

had to disclose impeaching or exculpatory information.

That assumed the result. Rather, the question should

have been whether it was clear that a law enforcement

officer would have been expected to disclose whether

he had seen a photo of a suspect before he went to a

potentially dangerous undercover meeting with that

individual. As noted, good police practices and common

sense would suggest that an officer ought to prepare in

that way. We are aware of no case which clearly

indicates, or even hints, for that matter, that a law enforcement officer would be expected to disclose that he had

undertaken such preparation. It is about the equivalent

of strapping on a concealed weapon or reviewing a suspect’s prior criminal history before attending such an

undercover encounter. Unless clear guidance is given

that such a practice must be disclosed as potentially

impeaching or exculpatory, the broad protection of qualified immunity should protect a law enforcement officer

from liability for failure to mention viewing a suspect’s

photo before meeting with him.
16 No. 07-2598

The plaintiff, as well as Illinois district judges in similar cases, 2

pointed to Carey v. Piphus, 435 U.S. 247 (1978), in support. We

find this reliance misplaced. In addressing a high school stu-

(continued...)

We also pause briefly to consider, and express our

doubts, about some other aspects of Carvajal’s claim. First

we are doubtful, in addition to the specific reasons explained supra, that an acquitted defendant can ever establish the requisite prejudice for a Brady violation. The

district court’s “prospective” test does not seem to accurately capture what Brady protects and misunderstands

the “materiality” requirement in a true Brady violation.

We find the following from the Supreme Court to be

instructive on this point:

[T]he term “Brady violation” is sometimes used to

refer to any breach of the broad obligation to disclose

exculpatory evidence—that is, to any suppression of

so-called “Brady material”—although strictly

speaking, there is never a real “Brady violation” unless

the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence

would have produced a different verdict.

Strickler, 527 U.S. at 290. “[T]he question is whether the

favorable evidence could reasonably be taken to put the

whole case in such a different light as to undermine

confidence in the verdict.” Id. at 289. Therefore, while a

prosecutor has to make decisions about what is Brady

material prospectively, so to speak, a true constitutional

violation is measured with the outcome in mind.

2
No. 07-2598 17

(...continued) 2

dent’s suspension without a hearing, the Court concluded

that “the denial of procedural due process should be actionable

for nominal damages without proof of actual injury.” Id. at 266.

In doing so, the Court was focusing on fair process and was

not holding that there was any actual damage or harm

resulting from the insufficient process. Therefore, there is not a

parallel from Carey’s holding to the materiality/prejudice

requirement of Brady, which requires more in order to establish the constitutional violation at issue. Additionally, unlike

the instant case, Carey was a § 1983 action.

The Supreme Court outlined, in Wilkie, 127 S. Ct. at 2598, the 3

two step analysis for whether there is a Bivens cause of action:

(1) “whether any alternative, existing process for protecting

the interest amounts to a convincing reason for the Judicial

Branch to refrain from providing a new and freestanding

remedy in damages”; and (2) “even in the absence of an alternative, a Bivens remedy is a subject of judgment: ‘the federal

courts must make the kind of remedial determination that

is appropriate for a common-law tribunal, playing particular

heed, however, to any special factors counseling hesitation

before authorizing a new kind of fed eral litigation.’”

We are equally doubtful, given the considerations in

deciding whether to recognize a Bivens cause of action,3

that such an action exists for a Brady violation. Most

specifically it seems that there is an “alternative, existing

process for protecting the interest”: namely, the disclosure obligation put on the prosecution under Brady

itself protects the defendant’s interest in a fair trial, and,

the fact that if a criminal defendant does establish a

Brady violation he already has a remedy in getting his
18 No. 07-2598

conviction overturned (of course, an acquittal from the

outset, as the defendant received here, is even better).

However, we need not labor over these points any longer

because it was abundantly clear, as we explained supra,

that the allegedly suppressed evidence on these facts

simply does not rise to the level of a Brady violation,

and Dominguez is entitled to qualified immunity on that

claim.

III. Conclusion

For the foregoing reasons, we REVERSE the denial of

summary judgment on Count Three of Carvajal’s Amended

Complaint.

9-5-08