# Petition for Writ of Certiorari — Scherer v. Balkema

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 486 U.S. 1043

## Text

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APPENDIX C - UNPUBLISHED OPINION, U.S.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UNITED STATES v. SCHER&Kk (1), Unpublished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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1600%3A1. Public record. Not legal advice.