                             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 Investi-
gation (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 kid-
naping of two drug dealers, the 1985 murder of Chuckie
English, and the 1990 murder of James Pellegrino. Man-
ning 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 prosecu-
tor 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, Man-
ning 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 perpetra-
tor. (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 kid-
naping 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 intention-
ally 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 as-
serts that Buchan and Miller provided Dye with informa-
tion and details regarding the kidnaping and the mur-
ders 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 conversa-
tion, 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 con-
fessed 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 Man-
ning. 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 coopera-
tion 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 de-
prive Manning of his constitutional rights. Buchan and
Miller raised the defenses of absolute and qualified immu-
nity 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 mo-
tion 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 sup-
port 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 pros-
ecution, false arrest, and violation of due process rights,
among other things. Ultimately, in this case, whether
No. 03-1762                                                    5

Agents Buchan and Miller are entitled to absolute im-
munity 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 charac-
terizes 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 spec-
trum 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.


1
  Brady v. Maryland, 373 U.S. 83, (1963) (stating that defen-
dant’s due process rights are violated when the defendant re-
quests exculpatory evidence from the prosecutor, and the prosecu-
tor knowingly withholds it). Manning brings this claim against
federal investigators under the authority of Bivens v. Six Un-
known Named Agents, 403 U.S. 388 (1971). Although this Cir-
cuit 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 offi-
cers created false evidence to be used at trial. Hammond v.
Kunard, 148 F.3d 692, 694-95 (7th Cir. 1998).
6                                                    No. 03-1762

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 proceed-
ings. 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 per-
jury 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 as-
sisted in the preparation of another’s testimony.3
  On the other end of the spectrum are cases where prose-
cutors 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 in-
volved 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 dis-
missed the immediate malicious prosecution claim. Id. at
750; see also McCullah v. Gadert, 344 F.3d 655, 657 (7th


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 testi-
mony’s preparation. We rejected that extension in Ienco v. Chi-
cago . . . and see no reason to revisit that issue . . . .” Newsome
v. McCabe, 319 F.3d 301, 304 (7th Cir. 2003).
No. 03-1762                                                  7

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 offi-
cers 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 with-
holding 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 Man-
ning’s claim is based on the perjury of Dye, Buchan and
Miller. Indeed, without this testimony it is doubtful that


4
  There we stated, “[n]either the withholding of exculpatory
information nor the initiation of constitutionally infirm crim-
inal proceedings is protected by absolute immunity.” Ienco v.
City of Chicago, 286 F.3d 994, 1000 (7th Cir. 2002).
8                                                    No. 03-1762

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 wit-
ness 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 submit-
ted false written reports stating that Manning had con-
fessed 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-


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 gov-
ernment 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.
No. 03-1762                                                    9

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 Man-
ning 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. Consid-
ered from a different view, one could argue that appel-
lants 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 be-
lieve 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


8
  See Imbler v. Pachtman, 424 U.S. 409,431 n. 34 (1976) (dis-
cussing the difficulty of differentiating claims against prosecu-
tors for perjury and withholding exculpatory evidence).
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 ar-
gue 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 in-
fringement when plaintiff was held at gunpoint). Finally, in
addition to complaining about Buchan and Miller’s im-
proper 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 clear-
ly 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 previ-
ously 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 obliga-
tions 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 proc-
ess right was “clearly established” at the time he asserts
it was violated. Buchan and Miller assert that this be-
havior was not clearly prohibited at the time of its oc-
currence 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 estab-
lished that investigators who withhold exculpatory evi-
dence from defendants violate the defendant’s constitu-
tional 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
