Petition for Writ of Certiorari — Scherer v. Balkema

espe irmnereriieaaectae

87-1675

Supreme Court, U.S.

FILED

In Che APR 1| 1308

m , g . |. UOSEPH F, SPANIOL, UR.

Supreme Court of the Wnitgd St:

(October Cerm, 1987

ANTHONY J. SCHERER JR.,

Petitioner,

DAVID J. BALKEMA, et al.

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

CARL M. WALSH

39 South La Salle Street

Suite 820

Chicago, I] 60603

(312) 332-7374

LONNY BEN OcuS

39 South La Salle Street

Suite 820

Chicago, Illinois 60603

(312) 332-7374

Attorneys for Petitioner

Pandick Technologies, Inc., Chicago @ (312) 236-0200

i

QUESTIONS PRESENTED

1. Whether or not the doctrine of collateral estoppel

applies in this lawsuit when:

a) It was not ruled upon by the District Court?,

and

b} Tne standard of proof in the prior cases was

higher than in this case and thus could be met

now?, 2ad

c) The prior cases specifically eld that its ruling

is because of the standard of proof?

2. Whether or not the Complaint alleges exhaustion of

remedies under FOIA?

il

TABLE OF CONTENTS

Page

OPTNION HAIN oh Aes ee ee ee 1

FUORGRET KIN ee eee 1

STATUTES UNVOUVER 5s sas. 6 ee 2

STATEMENT OF THE CASE ...............0.. 2

REASONS FOR GRANTING THE WRIT .......... 2

ARGUMENT © oc sb 3h ee eee eee 3

CONCEAIOQIN 6. siya ee 5

APPENDICES:

APPENDIX A - OPINION OF THE U.S. COURT

OF APPEALS FOR THE

SEVENTH CIRCUIT.......... A-1

APPENDIX B - CERTAIN PARTS OF AMENDED

COMPLAGHIE i case eres A-13

APPENDIX C - UNPUBLISHED OPINION, U.S.

V. SCHERER, 79-1342 (May 21,

1980) U.S. COURT OF APPEALS

(Tt Cle) oda cde ae eses A-16

ill

TABLE OF AUTHORITIES CITED CASES

Page

UNITED STATES v. ONE ASSORTMENT OF 89

FIREARMS, 104 S.Ct. 1099, 465 U.S. 354, 79

ee cee ee eb eent aber 4

UNITED STATES v. SCHER&Kk (1), Unpublished

order, No. 79-1342, (7th Cir. May 21, 1980), Cert.

Denied, 449 U.S. 873 (1980) (Appendix C) ........ 3

UNITED STATES v. SCHERER (11), 673 F.2d 176

a Ee ee ee ee ee ee ae ee 3,4

No.

In The

Supreme Court of the United States

@ctober Cerm, 1987

ANTHONY J. SCHERER JR.,

Petitioner,

v.

DAVID J. BALKEMA, et al.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

OPINION BELOW

The opinion of the United States Court of Appeals

for the Seventh Circuit will be published at __ F.2d__

(Feb. 9, 1988, No. 87-1240), and is printed as an Appendix

to this Petition, Appendix A.

JURISDICTION

The Order of the Court of Appeals was entered on

February 9, 1988. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254.

2

STATUTES INVOLVED

All Writs Act, 28 U.S.C. § 1651

a) The Supreme Court and all courts established by

Act of Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions

and agreeable to the usages and principles of law.

b) An alternative writ or rule nisi may be issued by

a justice or judge of a court which has jurisdiction.

STATEMENT OF THE CASE

This case involves allegations that governmental

agents, mostly agents of the United States Department of

the Treasury's Bureau of Alcohol, Tobacco and Firearms

(BATF), conspired “to deprive Petitioner of his constitu-

tional rights by engaging in a pattern of attempted entrap-

ment, illegal searches and seizures, perjury, the destruc-

tion of evidence, and the withholding of documents.” (Ap-

pendix A, p. 2). The District Court dismissed the entire

lawsuit holding that the amended complaint failed to state

a cause of action and the statute of limitations barred most

of the allegations, and that the rest of the allegations failed

to sufficiently allege a conspiracy to deprive him of his con-

stitutional rights.

The Court of Appeals did not decide whether or not the

complaint stated a cause of action. It ruled that the District

Court erred when it held that the statute of limitations had

run, but Affirmed the dismissal of the complaint based on

the doctrine of collateral estoppel, a ground not ruled upon

by the District Court.

REASONS FOR GRANTING THE WRIT

The Court of Appeals’ decision holds that the District

Court was wrong but still upholds the ultimate decision

dismissing the Complaint. The District Court never ruled

on the issue relied upon by the Court of Appeals. Funda-

mental fairness requires the granting of the Writ so that

3

the Court can see that it needed a more complete record to

decide the issue it based its Affirmance upon. A complete

record will show that Court’s decision to be factually and

legally incorrect.

ARGUMENT

The Seventh Circuit ruled that prior lawsuits and

decisions preclude, by the doctrine of collateral estoppel,

Scherer’s timely claims. The District Court did not rule on

this issue.

The Seventh Circuit looked to two (2) other lawsuits

to reach its decision. In the first U.S. v. Scherer, No. 79-

1342 (7th Cir.), (Unpublished Order, May 21, 1980), Cert.

Denied, 449 U.S. 873 (1980) (Appendix C), in Scherer’s

attempt to reverse his criminal conviction, under 28 U.S.C.

§ 2255, the Court ruled that the record “precludes consid-

erations of his claim...” and that “nor has the Defendant

met his burden of alleging and showing specific, actual

prejudice and conflict of interest. This burden is particu-

larly heavy...”

In the second lawsuit used to apply collateral estop-

pel, United States v. Scherer, 673 F.2d 176 (7th Cir. 1982),

Scherer sought to overturn his conviction via a petition

for a writ of error coram nobis. The Court noted that

the writ “will not lie for every error discovered after

judgment. It is an extraordinary remedy ... for errors of

fact ... Where the errors [are] of the most fundamental

character, that is, such as render the proceeding itself

irregular and invalid . . . the burden is on the petitioner, to

demonstrate ...a complete miscarriage of justice ... that

due diligence could not have revealed the evidence prior to

trial ... that, if known at trial, it would have allowed the

defendant to present his case in a manner which would

have likely led to a different result.” Scherer, supra, 673

F.2d at 178.

‘ieee aaa

+

The Seventh Circuit only found that newly discovered

evidence “brings no new significant facts to this case and

does not warrant coram nobis relief” and that it “does not

lead to the conclusion that Scherer’s trial was so funda-

mentally flawed as to constitute a miscarriage of justice.”

Scherer, supra, 673 F.2d at 179. Other documents relied

upon by Scherer also failed to convince the Court that “ his

conviction amounted to a complete miscarriage of justice.”

Scherer, supra, 673 F.2d at 188.

In all the prior cases the Courts required Scherer to

prove, not merely allege, a complete miscarriage of justice

or actual prejudice. In a civil rights complaint, which is

the underlying issue in this appeal, Scherer must, upon a

motion to dismiss which is the procedure relied upon by

defendants, only allege that his civil rights were violated.

The complaint is taken as true and need not allege

a miscarriage of justice or show that a different result in

the criminal trial was likely. As in every other civil case,

Plaintiff must merely prove his allegation by a preponder-

ance of the evidence.

Scherer no longer must meet that heavy burden nor

is it presumed the criminal proceedings were correct. The

fact that Scherer could not meet the extraordinarily high

burden of proof for coram nobis relief or for a writ of habeas

corpus does not lead to the legal conclusion that he should

not be given his day in court to prove that he can meet the

normal! burdens that all Plaintiffs in a civil lawsuit must

meet. As this Court recently held, “It is clear that the dif-

ference in the relative burdens of proof in the... actions

precludes that application of th doctrine of collateral estop-

pel.” United States v. One Assortment of 89 Firearms, 104

S.Ct. 1099, 1104, 465 U.S. 354, 360, 79 L.Ed.2d 361 (1984).

The Seventh Circuit ignores this fundamental statement

of law.

The last part of the Court’s opinion herein held that

the other timely allegations concerning FOIA do not allege

5

that FOIA remedies were exhausted nor does this allega-

tion identify a violation of constitutional rights. Scherer

did allege that his FOIA remedies were exhausted and

these acts did violate his constitutional rights. (Amended

Complaint, App. B., see No. 158-168, especially No. 166).

The decision by the Court of Appeals denies litigants

their day in Court. It confuses burdens of proof and

equated higher burdens with lesser ones. The amended

complaint was timely, specific and not barred by other law-

suits. The District Court should be required to review the

case based in the Court of Appeals decision.

CONCLUSION

For the foregoing reason, the Petitioner respectfully

submits that this Petition for Writ of Certiorari be granted.

Respectfully submitted,

/s/ Cart M. WALSH

Carl M. Walsh

39 South La Salle Street

Suite 820

Chicago, Illinois 60603

(312) 332-7374

/s/ LONNY Ben Ocus

Lonny Ben Ogus

39 South La Salle Street

Suite 820

Chicago, Illinois 60603

(312) 332-7374

Attorneys for Petitioner

APPENDICES

la

APPENDIX A

3n the

United States Court of Appeals

For the Seventh Circuit

No. 87-1240

ANTHONY J. SCHERER, JR.,

Plaintiff-Appellant,

Vv.

Davip J. BALKEMA, et al.,

Defendants-A ppellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 79 C 3686—Prentice H. Marshall, Judge.

ARGUED OctToBerR 29, 1987—DeEcIDED FEBRUARY 9, 1988

Before BAUER, Chief Judge, CUDAHY and POSNER, Cir-

cuit Judges.

BAUER, Chief Judge. Anthony J. Scherer, Jr. was a

federally licensed firearms dealer in the 1960s and early

1970s. The subject of government surveillance for a num-

ber of those years, he was convicted in 1974 for violating

federal laws and regulations governing firearms dealers.

See United States v. Scherer, 523 F.2d 371 (7th Cir. 1975),

cert. denied, 424 U.S. 911 (1976). During and since that

period, Scherer persistently challenged in federal court

his treatment by government officials, particularly by

agents of the United States Department of the Treasury’s

eT

2a

No. 87-1240

Bureau of Alcohol, Tobacco, and Firearms (BATF).! This

action is Scherer’s latest challenge. Scherer’s amended

complaint? alleges that fort--nine federal agents, most

from the BATF, conspired fi »m 1963 to 1979 to deprive

him of his constitutional rights by engaging in a pattern

of attempted entrapment, illegul searches and seizures,

perjury, the destruction of evidence. and the withholding

of documents. Scherer seeks compensatory and punitive

damages under 42 U.S.C. §§ 1983, 19853), and 1986, and

the second, fourth, fifth, eighth, ninth, and fourteenth

amendments.

The district court, after reviewing various defendants’

motions to strike or dismiss Scherer’s allegations, along

with Scherer’s responses, dismissed the entire suit. The

court dismissed Scherer’s claims under 42 U.S.C. §§ 1983,

19853), and 1986, and 28 U.S.C. § 1348 because he failed

to allege sufficiently any state action or racial or class

discrimination. The court also dismissed Scherer’s Bivens

claims.* It first held that, because damages in a civil con-

1 See, e.g., Scherer v. Brennan, 266 F. Supp. 750 (N.D. Ill. 1966);

Scherer v. Brennan, 379 F.2d 609 (7th Cir. 1967); Scherer v. Mor-

row, 401 F.2d 204 (7th Cir. 1968), cert. denied, 89 S.Ct. 868 (1969);

Scherer v. Kelley, 584 F.2d 170 (7th Cir. 1978); United States v.

Scherer, 523 F.2d 371 (7th Cir. 1975), cert. denied, 424 U.S. 911

(1976); United States v. Scherer, 673 F.2d 176 (7th Cir.), cert.

denied, 457 U.S. 1120 (1982). This list is by no means exhaustive.

2 Scherer filed his original ——. on September 9, 1979. No

action was taken, however, pending resolution of another matter

before the same district court judge. Scherer filed his amended

complaint on November 19, 19865.

3 In Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court per-

mitted a damages action against federal defendants alleged to have

violated the fourth amendment. In Davis v. Passman, 442 U.S.

228 (1979), the Court extended Bivens to fifth amendment due

rocess claims. Although the Court has yet to decide whether

ivens applies to all the constitutional provisions — which

Scherer relied in his complaint, (cf. Gibson v. United States, 781

F.2d 1334, 1341-42 (9th Cir. 1985) (extending Bivens to first amend-

(Footnote continued or following page)

3a

No. 87-1240

spiracy iction run separately from each overt act (and not

from the mere continuance of the conspiracy) and that

each overt act therefore triggers its own limitations peri-

od, the applicable statute of limitations barred most of

Scherer’s allegations. It next held that Scherer failed

to allege sufficiently that the defendants fraudulently

concealed information from him, an allegation which, if

successful, would have tolled the statute of limitations.

Finally, the court held that Scherer’s remaining timely

allegations failed to allege sufficiently that the defendants

conspired to deprive him of his constitutional rights.

Scherer contends on appeal that the district court erred

in dismissing most of his Bivens allegations as time-

barred, and in holding that his remaining allegations failed

to allege sufficiently a conspiracy on the part of defen-

dants. We reject the former argument, accept the latter,

yet affirm the dismissal of his timely allegations on other

grounds.

I.

A.

Scherer’s first argument is that a civil conspiracy ac-

tion accrues in its entirety upon the occurrence of the last

act in furtherance of the conspiracy. He claims that be-

cause he alleged some overt acts in furtherance of defen-

dants’ conspiracy within the limitations period, he can

recover damages for alleged constitutional violations oc-

curring before this period, even though recovery would

3 continued

ment)), because Scherer alleged mostly fourth and fifth amendment

violations, the district court construed the amended complaint as

alleging a valid Bivens action for purposes of the defendants’ mo-

tions to dismiss.

* The distiict court, after an extensive analysis, applied a five-

year statute of limitations to Scherer’s allegations. Scherer does

not dispute that application on appeal.

4a

No. 87-1240

be time-barred if those violations were sued upon indi-

vidually.

The Ninth Circuit recently re; :cted this rent in

Gibson v. United States, 781 F.2d 1334 (9th Cir. 1988),

cert. denied, ___ U.S. ___, 107 S. Ct. 928 (1987), a civil

conspiracy action similar to this one. Applying what it

called the “‘last overt act doctrine” to the plaintiff's “‘far-

rago of allegations against numerous federal and local of-

ficials,”’ id. at 1340, the court in Gibson held that

‘{iInjury and damage in a civil conspiracy action flow

from the overt acts, not from ‘the mere continuance

of a conspiracy.’ Kadar Corp. v. Milbury, 549 F.2d

230, 234 (1st Cir. 1977) (quoting Hoffman v. Halden,

268 F.2d 280, 303 (9th Cir. 1959). Consequently, the

cause of action runs separately from each overt act

that is alleged to cause damage to the plaintiff, Law-

rence v. Acree, 665 F.2d 1319, 1324 (D.C. Cir. 1981)

(per curiam), and “[sleparate conspiracies may not be

characterized as a single grand conspiracy for proce-

dural advantage.” Fitzgerald v. Seamans, 553 F.2d

220, 230 (D.C. Cir. 1977). Accordingly, plaintiffs may

recover only for the overt acts .. . that they spe-

cifically alleged to have occurred within the. . . lim-

itations period. Multidistrict Vehicle Air Pollution,

591 F.2d 68, 71 (9th Cir.), cert. denied, 444 U.S. 900

(1979).

Id. Other circuits, as the district court below noted, also

apply this rule in civil conspiracy actions, see e.g., Law-

rence, 665 F.2d at 1324 (D.C. Cir. 1981) (per curiam); Sin-

gleton v. City of New York, 632 F.2d 185, 192-93 (2d Cir.

1980), cert. denied, 450 U.S. 920 (1981); Kadar Corp., 549

F.2d at 234-35 (1st Cir. 1977); Mizell v. North Broward

Hospital Dist., 427 F.2d 468, 475 (5th Cir. 1970), and

district courts in still other circuits have done the same,

see McKelvey v. Marriot Corp., 488 F. Supp. 345, 346

(D. Md. 1980); Safeguard Mutual Insurance Co. v. Miller,

477 F. Supp. 299, 308 (E.D. Pa. 1979); see also Creative

Environments, Inc. v. Estabrook, 461 F. Supp. 547, 554

a

No. 87-1240

(D. Mass. 1980), affd., 680 F.2d 822 (1st Cir.), cert. denied,

459 U.S. 989 (1982).

Unfortunately, some courts have used the phrase “last

overt act” in different contexts and Scherer, as he did

in the district court, claims these cases support his inter-

pretation of the “last overt act” doctrine. For example,

Scherer professes to find an ally in Baker v. F & F In-

vestments, 420 F.2d 1191 (7th Cir. 1970), a civil conspiracy

action in which we stated that “the limitations periods

commence to run from the last overt act of the conspiracy,

permitting plaintiffs to recover ‘for damages suffered

within the damage period as a result of an overt act repe-

titious of the a all pre{limitation] period acts occurring

in the damage period.’”” Jd. at 1200 (quoting Hazeltine

Research, Inc. v. Zenith Radio Corp., 418 F.2d 21, 25 (7th

Cir. 1969)). In Baker, however, we focused on a series

of continuing contractual relationships between the plain-

tiffs and defendants. Because of the “continuing nature”

of the installment purchase contracts involved there, we

held that the termination, not the execution, of the con-

tracts was the last overt act for limitations purposes. We

still applied the limitations period to each individual con-

tract. See id. Baker, therefore, does not support Scherer’s

position, nor, as the district court concluded, do any of

the other cases he offers.’

Ss For example, in Hazeltine, the case we quoted in the Baker

passage upon which Scherer relies, we held that where oe

and measurable invasion of a plaintiff's mghts occurs both out-

ee ee iod and also within it, the fact that some

of the injury an demage cocerved outaide the satuery pared

does not affect the plaintiff's right to recover for the separate in-

vasion of its rights which occurred within the period.’ 418 F.2d

at 25 (quoting Hanover Shoe, Inc. v. United Shoe Machinery Corp.

377 F.3d 776 (3d Cir. 1967)). How this supports Scherer is a mys-

tery to us. Similarly, in Fiswick v. United States, 329 U.S. 211

(1946), the Supreme Court held that the “last overt act” triggered

the statute of limitations in a criminal conspiracy action in-

volved no other charges of substantive crimes. Fiswick, therefore

(Footnote continued on following page)

7

6a

No. 87-1240

A rule allowing plaintiffs in civil conspiracy actions to

recover only for overt acts alleged to ha e occurred within

the applicable limitations period makes sense. The func-

tion of statutes of limitations is “‘ ‘to pull the blanket of

peace over acts and events which have themselves already

slept for the statutory period, thus barring proof of

wrongs imbedded in time-passed events.’ Jn re Multi-

district Vehicle Air Pollution, 591 F.2d 68, 72 (9th Cir.

1979) (quoting Poster Exchange, Inc. v. National Screen

Service Corp., 517 F.2d 117, 127 (5th Cir. 1975), cert. de-

nied, 423 U.S. 1054 (1976)). Thus, characterizing the defen-

dants’ separate wrongful acts as having been committed

in furtherance of a “continuing” conspiracy should not

postpone accrual of damage claims based on individual

wrongful acts.* As the Second Circuit has noted,

S continued

does not apply to a civil conspiracy action to recover damages.

In Newman v. Wanland, 651 F. Supp. 20 (N.D. Ill. 1986), the court

cited Baker in holding that “the limitations period begins to run

from the last overt act of the conspiracy” in a RICO ge se!

claim. Jd. at 22. The court then found that the complaints alleged

overt acts within the two-year statute of limitations applicable to

the claim. It is unclear in Newman, however, whether ail of the

alleged overt acts occurred within the two-year limitations period

and, therefore, whether the district court concluded that acts al-

leged to have occurred outside the limitations period were none-

theless not time-barred because the complaints asserted a “‘con-

tinuing conspiracy.” It is, therefore, no help to Scherer. Buford

v. Trenayne, 747 F.2d 445 (8th Cir. 1984), also is unpersuasive.

The Eighth Circuit in that case determined which Missouri statute

of limitations applied to a civil conspiracy action under section 1983

and found that even the last overt act alleged by eng = voy oc-

curred outside the limitations period. Although the Eighth Cir-

cuit cited Fiswick, , in stating that “the statute of limita-

tions begins to run from the occurrence of the last overt act

resulting in damage to the plaintiff,” id. at 448, the court did not

consider the issue we face here, and we do not read it as support-

ing Scherer’s rim Finally, United States v. President, 591

F. Supp. 1313 (N.D. Ill. 1984), is outdated. The authority upon

which it relies has been overruled by the Gibson case.

6 Unless, as with the installment contracts in B. ker, the wrongful

acts themselves are of a continuing nature, which Scherer cannot

and does not claim here.

7a

No. 87-1240

the crucial time fo accrual purposes is when the

plaintiff becomes aware that he is suffering from a

wrong for which damages may be recovered in a civil

action. To permit him to wait and toll the running

of the statute simply by asserting that a series of

separate wrongs were committed pursuant to a con-

spiracy would be to enable him to defeat the pur-

pose of the time bar, which is to preclude the re-

suscitation of stale claims.

Singleton, 632 F.2d at 192.7 We agree.

B.

Scherer next argues that the statute of limitations was

tolled with respect to his otherwise time-barred allegations

because the defendants fraudulently concealed information

from him and thereby prevented him from realizing he

was injured. He claims that until he obtained documents

under the Freedom of Information Act (FOLA), he did not

know that certain letters mailed to him were from BATF

agents, that undercover BATF agents offered to buy guns

from him in an illegal manner, and that documents were

withheld from him.

The district court found that Scherer’s amended com-

plaint failed to allege adequately the necessary elements

of a fraudulent concealment claim,* and we agree with

its analysis and conclusion that

7 Indeed, the logical extreme of Scherer’s argument is that “a

conspiracy action could not be maintained—since no cause of ac-

tion would have accrued—until it could be told with certainty that

the final overt act in furtherance of the conspiracy had been com-

mitted.” Kadar, 549 F.2d at 235.

* To invoke the fraudulent concealment doctrine, a plaintiff must:

(1) “plead with particularity the circumstances surrounding the con-

cealment”’; (2) “ ‘state facts showing his due diligence in trying

to uncover the facts’’’; and (3°: allege facts showing affirmative

misconduct on the part of deferdants. Gibson, 781 F.2d at 1345

(quoting Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d

248, 250 (9th Cir. 1978)); see also Baker, 420 F.2d at 1100.

8a

No. 87-1240

(Scherer’s] assertions . . . are not specific enough to

merit relief under the fraudulent concealment doc-

trine. Plaintiff fails to allege any affirmative miscon-

duct by defendants. Nor his general statement

that he still seeks information, without particular

facts showing, for instance, that he has exhausted his

remedies under the Freedom of Information Act,

demonstrate concealment. Furthermore, plaintiff ad-

mits that he knew “certain of the acts” of defendants

ws the limitations period had expired, Plf. Re-

nses at 8; pre ly, he nad have litigated

em then. The four later-discovered incidents, since

they merely amplify the dozens of other all

in the amended complaint, would not have

the litigation. Therefore, concluding that plaintiff

could have sued on each claim while it was timely,

we shall not consider any acts that occurred beyond

the limitations period.

We find no error in the district court’s dismissal of

Scherer’s pre-September 9, 1974 allegations.

IT.

Scherer also argues that the district court erred when

it found that his remaining timely Bivens claims (those

based on acts all to have occurred within the limita-

tions period) failed to allege sufficiently a conspiracy on

the part of the defendants. The district court found that

(Scherer’s] timely claims include one a

charges of perjury; interference with an se

of a defense witness; destruction of evidence

property; and refusal to disclose materials sought

under the Freedom of Information Act. Amended

Complaint, {4 152, 155-57, 160-69. At least some of

these acts might violate plaintiff's constitutional

rights; thus plaintiff may have met the second ele-

ment of a prima facie case (of conspiracy]. Nowhere,

however, does he allege any agreement, either among

the defendants or even among others named as per-

9a

No. 87-1240

petrators but not as defendants. Nor could a jury in-

fer such an agreement from plaintiff's mere identifica-

tion of certain individuals with isolated acts. Thus,

we conclude that these allegations fail to allege a civil

conspiracy, and we dismiss the amended complaint.

Scherer i ‘sists that his amended complaint should be read

in its ent ‘ety, and that it “shows a continui t

and pattern of acts between agents of the ‘eee govern-

ment to unlawfully interfere with Plaintiff's mail, and at-

tempts to get him to commit unlawful acts.”” He

that a jury could infer a conspiracy among defendants

a his numerous allegations dating back to the early

l .

In Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979),

rev'd in part on other grounds, 446 U.S. 754 (1980), reh’g

denied, 448 U.S. 913 (1980), we explained that a civil

conspiracy

is a combination of two or more persons acting in

concert to commit an unlawful act, or to commit a

lawful act by unlawful means, the principal element

of which is an agreement between the parties to in-

flict a wrong against or injury upon another, and an

overt act that results in damage.

Id. at 620-21. Thus, to establish a prima facie case of a

civil conspiracy, a plaintiff must show (1) an express or

implied po among defendants to deprive plaintiff

of his or her constitutional rights and (2) actual depriva-

tions of those rights in the form of overt acts in further-

ance of the agreement. As noted, because the plaintiff's

damages in a civil conspiracy flow from the overt acts,

the statute of limitations analysis applies to the latter ele-

ment, ing recovery for acts alleged to have occurred

outside the limitations period.

It does not follow, however, that the statute of limita-

tions excludes those same allegations from the determina-

tion of whether an ment existed. To permit the stat-

ute of limitations to bar consideration of all ions from

which a jury could infer an agreement would prevent re-

rere

10a

No. 87-1240

covery for damages suffered within the limitations period

merely because the defendants formed their agreement

too early. Indeed, crafty conspirators could agree to in-

jure and then wait out the statutory limitations period

before inflicting the injury to avoid civil liability for their

conduct. This is wrong. If a plaintiff is injured within the

applicable limitations period by an act committed in fur-

therance of a civil conspiracy entered into outside that

period, he should be able to recover for that injury. See

Hazeltine, 418 F.2d at 25. Necessarily, he must be able

to prove the agreement. In short, the agreement anc the

overt acts —s damage are separate components of a

civil conspiracy. The statute of limitations applies to the

latter; the district court erred in applying it to the former.

ITI.

Nevertheless, dismissal of Scherer’s remaining Bivens

allegations is warranted. The defendants have raised a

number of other grounds for dismissal both in the district

court and on appeal, none of which Scherer finds worthy

of reply. We, however, find them persuasive.®

First, some of Scherer’s timely claims are precluded by

the doctrine of collateral estoppel, which forecloses reliti-

tion of a matter that has n litigated and decided.

Migra v. Warren City School Dist. Ba of Ed., 465 U.S.

75, 77, n.1 (1984). sy —, collateral estoppel, which

may be applied in civil trials to issues previously deter-

mined in a criminal conviction, Otherson v. Department

of Justice, 711 F.2d 267, 271 (D.C. Cir. 1983), precludes

relitigation of issues when “(1) the party against whom

the doctrine is asserted was a to the earlier pro-

ceeding; (2) the issue was actually litigated and decided

on the merits; (3) the resolution of the particular issue

was necessary to the result; and (4) the issues are iden-

* We. of course, may rely on these grounds for affirmance,

whether or not deg - a wee oe by the district court. City of

Milwaukee v. , 704 (7th Cir. 1976).

ee

lla

No. 87-1240

tical.” Kunzelman v. Thompson, 799 F.2d 1172, 1176 (7th

Cir. 1986). The policy underlying the doctrine is that “one

fair opportunity to litigate an issue is enough.” Bowen

v. United States, 570 F.2d 1311, 1822 (7th Cir. 1978).

This once-is-enough doctrine applies to some of Scherer’s

timely allegations. First, Scherer alleges that on or about

November, 1975, a Mr. Rivard, who is not a defendant,

falsely testified that he (Rivard) had made no written re-

ports of his dealings with Scherer, but that BATF had copies

of such reports which were not made available to Scherer

at trial. In United States v. Scherer, No. 79-1342 (7th Cir.)

(Unpublished Order, May 21, 1980), cert. denied, 449 U.S.

873 (1980), we addressed this same contention and found

that there was “no basis for (Scherer’s] allegations of

perjury or failure to disclose evidence.” Second, Scherer

alleges that a statement used as evidence at his trial,

identified as Exhibit 30, said to have been made by defen-

dant Jorgenson on October 5, 1972, “‘was found in May,

1979 to have been made at a different date and the con-

tents of the statements were changed.” In United States

v. Scherer, 673 F.2d 176, 179 (7th Cir.), cert. denied, 473 U.S.

1120 (1982), we dealt with the same allegation concerning

the very same exhibit and found that it could not —.

a perjury claim, nor could it prejudice Scherer’s ability

to conduct his defense. Finally, Scherer alleges that on or

about 1976, BATF agents destroyed evidence that would

have shown the illegality of a search warrant. Scherer

does not identify the all destroyed evidence or the

relevant search warrant, he merely asserts this conclu-

sion of law based upon his characterization of an unknown

object. In any case, Scherer made this same allegation

in his complaint filed in 1979. In United States v. Scherer,

673 F.2d 176 (7th Cir.), cert. denied, 457 U.S. 1120 (1982),

we considered, three years later, all of Scherer’s illegal

search and seizure arguments and rejected them. /d. at

178-80, 180-82. In addition, if Scherer is attempting to viti-

ate the search warrant in his criminal case, we have al-

ready held on direct appeal that probable cause existed

to support that search warrant. See Scherer, 673 F.2d at

12a

No. 87-1240

181. Each of these allegations thus were fully litigated

in prior proceedings in this court involving the same par-

ties and therefore cannot be relitigated under the doc-

trine of collateral estoppel.

The butk of Scherer’s remaining timely allegations con-

cern his attempts to obtain information from the defen-

dants under FOIA. Scherer, however, does not allege that

he exhausted his remedies under FOIA. In the absence

of such an allegation, f : states no claim upon which relief

can be granted. Hedley v. United States, 594 F.2d 1043

(5th Cir. 1979). Nor does this allegation identify a viola-

tion of a constitutional right. See Fendler v. U.S. Parole

Commissioner, 774 F.2d 975, 980 (9th Cir. 1985). Scherer’s

sole remaining timely allegation, that BATF agents in

1976 destroyed property belonging to Scherer, despite a

hold on this property, is moot because it is subject to a

Hold Harmless Agreement entered into by Scherer as

part of his settlement in United States v. Miscellaneous

Firearms, No. 74 C 877 (N.D. Ill.).

For these reasons, we hold that that dismissal of the en-

tire amended complaint was appropriate because Scherer

has failed to state a claim upon which relief can be

granted.

The district court is

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 79004--Midwest Law Pninting Co., Inc., Chicago—2-9-88—475

13 a

APPENDIX B

155. On information and belief, UNKNOWN

AGENTS on or about November 14, 1975, interfered with

and searched a person who was to be a witness for

SCHERER at trial.

156. On information and belief, on or about 1976

the BUREAU OF ALCOHOL, TOBACCO and FIREARMS

destroyed evidence that would show the illegality of a

search warrant.

157. On information and belief on or about

1976, B.A.T.F. Agents destroyed property belonging to

SCHERER. This was done despite a U.S. Marshall’s hold

on this property and on orders of WELCH. Others involved

in this action were Agents KLINE, SCOTT, SILVERMAN,

RICHARDSON, WESOKY and SHELTON.

158. On information and belief, other officials of the

DEPARTMENT OF TREASURY have wrongfully used the

nondisclosure sections of the Freedom of Information Act, 5

U.S.C. 552, to deny SCHERER documents which will make

this conspiracy more evident.

159. On information and belief, documents which

SCHERER was entitled to and eventually received under

the Freedom of Information Act were initially denied to

him by the DEPARTMENT OF TREASURY resulting in

further delay and further expense to SCHERER and were

part of the conspiracy.

160. On information and belief, the U.S. SECRET

SERVICE, wrote on October 28, 1975, to SCHERER refus-

ing to disclose certain materials sought by SCHERER

under the Freedom of Information Act, thereby upholding

an administrative decision of GOFF.

161. On information and belief, RANTA withheld

documents on or about October 9, 1975, sought by

SCHERER under the Freedom of Information Act.

l4a

162. On information and belief, LEE withheld doc-

uments sough by SCHERER under the Freedom of

Information Act on or about April 9, 1976.

163. On information and belief, the BUREAU

OF ALCOHOL, TOBACCO and FIREARMS, wrote to

SCHERER on March 31, 1976, denying SCHERER mate-

rial sought under the Freedom of Information Act.

164. On information and belief, on or about May 17,

1976, Interpol withheld documents sought by SCHERER

under the Freedom of Information Act.

165. On information and belief, HURLEY for the

U.S. CUSTOMS SERVICE wrote to SCHERER on

June 15, 1976, denying SCHERER material sought under

the Freedom of Information Act.

166. On information and belief, McCONNELL in

a letter of September 12, 1975, to SCHERER for the

BUREAU OF ALCOHOL, TOBACCO and FIREARMS

stated that there were 5,500 pages of documents concern-

ing SCHERER in its files. A lawsuit under the Free-

dom of Information Act seeking the release of these doc-

uments was started in 1976, Scherer v. Kelly, No. 76-C

1052 and No. 76-C-1953 (N.D. of [ll., E.D.). The BUREAU

OF ALCOHOL, TOBACCO and FIREARMS on or about

November 14, 1975, found that there were an additional

130 pages of documents in its files concerning SCHERER.

This fact was concealed from SCHERER until May of 1978,

and was concealed from the United States District Court

for the Northern District of Illinois, Eastern Division and

the Seventh Circuit Court of Appeals.

167. On information and belief, TYLER for the

FEDERAL BUREAU OF INVESTIGATION wrote to

SCHERER on September 27, 1976, and refused to release

documents sought under the Freedom of Information Act.

So

15a

168. On information and belief, MIRIANA withheld

documents sought by SCHERER under the Freedom of

Information Act on or about April 15, 1977.

169. On information and belief, a statement used as

evidence at SCHERER’s trial (Exhibit 30), said to have

been made by Jorgensen on October 5, 1972, was found

in May, 1979, to have been made at a different date and

the contents of the statement were changed. This differing

document was in the possession of the government.

‘i

l6a

APPENDIX C

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

(ARGUED JANUARY 7, 1980)

May 21, 1980.

Before

Hon. LUTHER M. SWYGERT, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

UNITED STATES OF >

Appeal from the United

AMERICA, el

Plaintiff-Appellee, for the Northern

District of Illinois,

No. 79-1342 vs. S Eastern Division.

ANTHONY J. SCHERER, | No. 74 CR 99

7” | James B. Parsons,

Defendant-Appellant. ~/ Judge.

ORDER

Defendant-appellant Anthony J. Scherer appeals from

the order of the district court denying his petition for a

writ of habeas corpus under 28 U.S.C. § 2255, in which

he moved the court to vacate the judgment and sentence

entered upon his conviction for violations of the Gun Con-

trol Act of 1968, 18 U.S.C. § 922(m). We affirm.

en

17a

I

On January 31, 1974, a federal grand jury returned

an eleven count indictment charging that Scherer, as a

dealer in firearms, knowingly and unlawfully failed to

record the disposition of certain firearms in violation of

Title 18, United States Code, Section 922(m) (counts one

through nine and eleven). The indictment further charged

that Scherer knowingly and unlawfully received and pos-

sessed a certain firearm not registered to him in violation

of Title 26, United States Code, Section 5861(d) (count ten).

On November 4, 1974, the defendant waived his right

to trial by jury and proceeded to an eleven day bench trial

before Chief Judge Parsons. On November 19, 1974, the

trial court entered a finding of guilty on counts one through

nine and not guilty on count eleven (count ten was dis-

missed previously). On December 13, 1974, Scherer was

sentenced to a concurrent term of two years in custody on

each of counts one through nine. This Court affirmed the

conviction on November 19, 1975. United States v. Scherer,

523 F.2d 371 (7th Cir. 1975), cert. denied, 424 U.S. 911

(1976).

On March 12, 1976, the trial court reviewed the defen-

dant’s motion for a reduction of sentence and reduced

the sentence to seven months in custody, to be followed

by three years’ probation. On May 26, 1976, the court

granted the defendant’s second motion for reduction of

sentence and reduced the period of incarceration to time

served.

On July 7, 1978, the defendant filed the instant

petition, alleging three ground for federal habeas relief:

(1) that his Sixth Amendment right to adequate repre-

sentation was violated by an alleged conflict of interest on

the part of his retained counsel; (2) that his Fifth Amend-

ment right to due process was violated by the government

in knowingly permitting false or perjured testimony by

their informant witness and by wilfully refusing to disclose

ileal

18a

evidence favorable to the defendant; and (3) that the gov-

ernment employed illegal electronic surveillance against

him in violation of his Fourth Amendment rights. On

December 18, 1978, the district court found each of these

grounds to be without merit and accordingly denied the

petition. The defendant now appeals from that adverse

decision to this Court.

II

In his first argument on appeal, the defendant asserts

that he was denied adequate assistance of counsel because

his privately retained counsel also served as counsel for a

witness called by the defense at a pretrial hearing on a

motion to suppress physical evidence. Citing that portion

of the record where, during cross-examination of the wit-

ness by the government, Scherer’s counsel instructed the

witness to assert his Fifth Amendment privilege, Scherer

contends that his counsel was “attempting to serve two

masters,” that the conflict appeared clearly on the record,

and that the trial court declined to invoke remedial meas-

ures when the situation arose. Scherer accordingly argues

that he established a showing of inadequate assistance of

counsel sufficient to require that his conviction be vacated.

We disagree.

As a threshold matter, it is axiomatic that a motion

attacking a judgment and sentence is not cognizable under

Section 2255 where used as a substitute for direct appeal,

and even where, as here, a constitutional issue is raised,

the defendant’s deliberate circumvention of direct review

precludes consideration of his claim of inadequate assis-

tance of counsel. Davis v. United States, 411 U.S. 233, 240

(1973). Although Scherer’s arguments in support of this

claim are based entirely upon facts set forth in the trial

court record, he did not present these arguments either in

the trial court or in the direct appeal of his conviction to

this Court. See United States v. Scherer, 523 F.2d 371 (7th

Cir. 1975).

ee

19a

Moreover, the defendant’s reliance on Holloway v.

Arkansas, 435 U.S. 475 (1978) is misplaced. In Holloway,

the Supreme Court held that the trial judge’s failure to

appoint separate counsel for the co-defendants or to take

adequate measures to ascertain whether the risk of a

conflict of interest was too remote to warrant separate

counsel constituted a violation of the Sixth Amendment

guarantee of assistance of counsel, where the attorney

requested appointment of separate counsel based upon his

representations regarding a conflict of interest in jointly

representing co-defendants. Jd. at 484. The Supreme

Court also held in Holloway that joint representation of co-

defendants or hostile witnesses by a single attorney, absent

a specific showing of a conflict of interest is not per se viola-

tive of the constitutional guarantee of effective assistance

of counsel. Jd. at 482. However, the considerations found

controlling in Holloway are not present in the case at bar.

Scherer’s counsel represented Matthew Smytkowski, a co-

defendant with Scherer in another case. Thus, Smytkowski

was neither a co-defendant in the present case nor a hostile

party or witness. He was called by the defense for the lim-

ited purpose of testifying that the government informant

was aware that certain defense exhibits were toy repli-

cas and not genuine weapons. During cross-examination

of Smytkowski by the government, Scherer’s counsel fore-

closed a line of government cross-examination by advising

Smytkowski, as his attorney, to assert his Fifth Amend-

ment privilege.

Nor has the defendant met his burden of alleging and

showing specific, actual prejudice and conflict of interest.

This burden is particularly heavy since the record shows

that he was aware of counsel’s dual representation before,

during and long after the trial. See, e.g., United States v.

Di Carlo, 575 F.2d 952, 957 (1st Cir. 1978). Furthermore,

even the fact that a defense attorney may be unable to

pursue one line of inquiry does not render the defendant’s

representation inadequate. United States v. Jeffers, 520

20a

F.2d 1256, 1266 (7th Cir. 1975). The mere possibility that

some item of favorable evidence was undisclosed because of

the dual representation of defense counsel is insufficient to

require that a conviction be vacated on grounds of conflict

of interest. See, e.g., United States v. Corr, 434 F. Supp.

408, 414 (S.D. N.Y. 1077). Where, as here, the defen-

dant does not even allege such a possibility and the line

of inquiry that was precluded was the government’s cross-

examination, the absence of any actual prejudice or conflict

of interest is manifest on the face of the record.

Finally, we find the defendant’s further assertion that

the trial court failed to take appropriate action when

defense counsel’s dual representation became known to be

patently meritless. The cited portions of the transcript

showed only the fact of dual representation without any

evidence of actual prejudice or conflict of interest. Neither

the decisions of the Supreme Court nor this Court place

any affirmative duty on the trial judge to terminate dual

representation in the absence of any indication of actual

prejudice and conflict of interest and without any request

from a defendant or defense counsel to do so. Holloway

v. Arkansas, 435 U.S. 475, 483-84 (1980); United States v.

Gaines, 529 F.2d 1038, 1043 (7th Cir. 1976). We therefore

conclude that the defendant has failed to establish a viola-

tion of his Sixth Amendment right to assistance of counsel.

Ill

The defendant next contends that his Fifth Amend-

ment right to due process was violated in that the govern-

ment knowingly allowed either false or perjured testimony

by its informant-witness, George J. Rivard, to be intro-

duced at trial and that it failed to disclose evidence favor-

able to the defendant prior to trial. In support of this con-

tention Scherer cited Rivard’s trial testimony that he did

make a written record of his dealings with the defendant

and then cites a two-page hand-written document signed

by the informant which Scherer asserts was purportedly

| ee

2la

prepared by the informant and which was never provided

to the defendant at trial. We find this contention devoid of

merit.

Rivard testified at trial that after each meeting with

the defendant, he would report to ATF agents who would

record in handwritten form what he had told them con-

cerning his contacts with the defendant. These statements

to the agents were compiled in a seven-page typewritten

document which was tendered to Scherer’s counsel prior to

cross-examination and was marked as Defense Exhibit A-

1. It is apparent from and examination of that exhibit that

it recorded the information contained in the handwritten

document which Scherer now contends he never received.

It is also apparent from the testimony at trial and from the

face of the two-page document that it was handwritten by

ATF agents to record what the informant had told them

and that it was merely signed by the informant. Accord-

ingly, there is no basis for the defendant’s allegations of

perjury or failure to disclose evidence.

IV

In his petition for federal habeas corpus relief, the

defendant alleged that his Fourth Amendment rights had

been violated by the government’s use of illegal electronic

surveillance against him. Scherer requested that the gov-

ernment be required to respond by affidavit whether such

surveillance had been employed and further requested a

hearing on the legitimacy of that surveillance. This alle-

gation is apparently abandoned by the defendant on appeal

from the denial of his petition, although we observe that

the government did file an affidavit that there had been no

electronic surveillance of the defendant or any premises

known to be owned, leased or licensed by him. Howev-

er, the defendant now contends that he was deprived of

his Fourth Amendment rights when the proceeds of a war-

rantless search were used to obtain his conviction. As this

issue was not presented for review by the district court in

22a

the defendant’s Section 2255 petition, we decline to address

it on appeal. Holmes v. United States, 323 F.2d 430 (7th

Cir. 1963).

For the foregoing reasons, the judgment appealed from

is affirmed and the Clerk of this Court is directed to enter

judgment accordingly.

AFFIRMED.