Petition for Writ of Certiorari — Vennes v. An Unknown Number of Unidentified Agents

Supreme Court, U.S.

FILED

94 461 SEP 1 3 1994

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1994

+

FRANK E. VENNES, JR.,

Petitioner,

AN UNKNOWN NUMBER OF

UNIDENTIFIED AGENTS OF THE

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Eighth Circuit

*

PETITION FOR WRIT OF CERTIORARI

*

IrvIN B. NopLAND

IrvIN B. Nop.anop, P.C.

Attorney for Petitioner

P.O. Box 640

Bismarck, ND 58502-0640

701-222-3030

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION ?RKESENTED FOR REVIEW

If Agents of the Federal Government commit torts of

assault, extortion and intentional infliction of emotional

harm upon a citizen in order to get him to commit a

crime, is the citizen/victim estopped from bringing a civil

tort action for damages because he pled guilty to the

crimes the agents caused him to commit?

PARTIES TO THE PROCEEDING.

The parties to these proceedings include an unknown

number of unidentified agents of the United States of

America.

iii

TABLE OF CONTENTS

Question Presented For Review.................... i

Es ii

ere Ons Vicsescccesccsccceccess iii

ET re a eee iv

Official Reports of Opinions Relevant to This

ERR ois Vin cece eis ebb iccccescecces 1

EE eer er eee 1

The Constitutional Provisions Involved in This Case

REG CUS showed ns boccs-becssebseccses 1

Sec ec en ec cee ncceiceccess 3

Argument in Support of Petition................... 8

ES ESE BP ole ae 11

iv

TABLE OF AUTHORITIES

Page

CAsEs:

Allen v. McCurry, 499 U.S. 89 (1980)................. 10

Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971)...... 8

Gunderson v. Schlueter, 904 F.2d 407 (8th Cir 1990) ...8, 9

Hampton v. United States, 425 U.S. 484 (1976)......... 8

Rochin v. California, 342 U.S. 165 (1952)............... 8

LS. « Reseell, 443 US. Gas CGF oe a sce ence scdwsxeies 8

UnitepD States Cope:

OE I Be ou oe cn kv annnces sees Aaa 8

Tie Te. Re eink ohne 5 ccc 89 <9 ance eek ba 8

yo Fe. ome Bel 0 | ee rerepe en 8

os ONC SARE GN a 8

gutta atime a ee ES ee Be Se OF ER EF ey SO aI OE PR Ce ee ae L [J SS ae ee

po on . 2 -

OFFICIAL REPORTS OF OPINIONS

RELEVANT TO THIS PETITION

a. Original decision of Honorable United States Federal

District Judge Patrick A. Conmy, District of North

Dakota, dated January 13, 1993 (Unreported).

b. Original decision of the United States Court of

Appeals for the 8th Circuit, dated December 17, 1993.

Reported at 26 F.3d 1448.

c. Order in response to Petition for Rehearing en banc of

the United States Court of Appeals for the 8th Circuit,

dated August 10, 1994.

JURISDICTIONAL GROUNDS

The Jurisdiction of the United States Supreme Court

is provided by 28 USC 1254 and Rule 12 of US. S.Ct.

a. The Judgment of the 8th Circuit Court of Appeals for

which this review is requested is dated June 16, 1994.

b. The Order of the 8th Circuit Court of Appeals deny-

ing rehearing en banc is dated August 10, 1994.

c. The statute conferring jurisdiction upon the United

States Supreme Court to review the decision of the

8th Circuit Court of Appeals in this case is 28 USC

1254.

¢

THE CONSTITUTIONAL PROVISIONS INVOLVED

IN THIS CASE INCLUDE

a. Fourth Amendment:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

Fifth Amendment:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

withow! “ue process of law; nor shall private property

be taken for public use, without just compensation.

Sixth Amendment:

in all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defense.

Eighth Amendment:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

STATEMENT OF THE CASE

In mid-year of 1985 Agents of the Federal Govern-

ment suspected that a number of Western North Dakota

automobile dealers were engaging in illegal drug traffick-

ing. The Agents devised a plan toenlis —_¢ assistance of

an unsuspecting private citizen to infiltrate the suspected

drug rings in order to obtain information on money laun-

dering that might lead to indictments.

The Agents settled on one Frank Vennes as their man.

Vennes had never committed a crime and was a law-

abiding family man. He recently had been the victim of a

crime himself in which $95,000 he had obtained from the

sale of a business was embezzled from him. When the

Federal Agents first approached Vennes, they held them-

selves out to be businessmen, from out of state, who were

looking for a young, ambitious businessman located in

Western North Dakota. Given the loss he had just suf-

fered personally, he was vulnerable.

The Federal Agents pursued Vennes over a number

of months with many entreaties and solicitations that he

become involved with them. Of the 111 taped telephone

conversations later disclosed by the Government pur-

suant to Freedom of Information demands, more than 100

were initiated by the Federal Agents. Eventually Vennes

agreed to travel to Switzerland with $100,000 cash pro-

vided to him by the Federal Agents. He was to be paid

for doing this. At their direction he did so without com-

plying with United States Custom reporting laws. There

exists no evidence Mr. Vennes had any predisposition to

commit this crime.

This first consignment of money was shortly recalled

by the Agents. Vennes was able to have it returned to

them immediately. Again there was no compliance with

United States Custom reporting laws. The Agents then

again provided $100,000 cash to Vennes with a request he

deposit it into a Swiss bank account. Vennes again trav-

eled to Switzerland and made arrangements for the

deposit. Again there was no compliance with reporting

laws. This time, however, the persons with whom the

money was entrusted in Switzerland “borrowed” it for a

few days and were subsequently unable to repay it. When

Vennes returned to advise the Agents the $100,000 had

been misappropriated, the Agents were in deep profes-

sional trouble themselves. They told Vennes that indeed

they were not the out-of-state businessmen they had held

themselves out to be, but instead were aligned with the

Chicago mafia. Vennes was advised that unless he some-

how came up with the money, he and his wife and

children would be dismembered and killed.

Vennes had no means for recouping this large

amount of money in the time allotted to him. The Agents

suggested and assisted in planning the commission of a

series of crimes that hopefully would yield the funds

necessary to recoup the $100,000. The crimes suggested

by the Agents included drug activity and illegal gun

sales. The crimes proved to be unsuccessful as a fund-

raising program. Threats of death and dismemberment

continued over the course of the following two years, and

Vennes continued to work with his mafia tormentors in

attempting to recoup the $100,000 through additional

criminal activity. The Agents suggested © « es of crimes to

him and assisted in the arrangement.of times, places and

people, where successful criminal activity might generate

the money needed to replace the Agent-lost funds.

Eventually the consequence to the Agents of having

lost $100,000 of government funds in a butched sting

could not be avoided. Someone in the government deter-

mined a necessary response to this loss included the need

to indict and destroy Frank Vennes. He was indicted and

arrested for money laundering, drug activity, illegal gun

sales and conspiracy. In addition, he was served with an

I.R.S. tax levy alleging he owed $250,000 in back taxes

related to all of this criminal activity he had been

engaged in.

Vennes and his court-appointed lawyer were

unaware he was a victim of an elaborate government

plot. Vennes thought he had been engaging in criminal

activity with members of the mafia. His lawyer did no

discovery and under a situation that looked hopeless to

defend, worked out a plea bargain for Vennes. It was not

until he stood before the United States Federal Judge to

enter a plea of guilty that Vennes might have realized his

victim status. In all likelihood he never would have

learned the truth had the presiding Judge not asked the

United States Attorney why that office was being so

lenient in its plea agreement given the seriousness of the

charges. The U.S. Attorney responded:

During this period of time as I alluded to before,

the defendant had lost control of the money

over in Europe, the last $100,000. About this

time he thought he was dealing with people

from the underworld or organized crime out of

Chicago.

And he, what we think could make a fair case,

was trying to recoup his losses and as a result he

had an offer again through the undercover agent

of the sale of firearms because the defendant did

have a firearms license. He did sell an automatic

weapon. He also sold a pistol that the serial

number had been obliterated on, as was charged

in the indictment.

Along with that, about the same period of time,

in was — there was discussion about the sale of

drugs in which Mr. Hanson’s case we stated

briefly the other day as to what transpired there

and there was a lot of conversations between the

defendant and Mr. Jovonovich (a government

agent) who was posing as a drug dealer and

who had control of a large quantity of drugs.

And the defendant through this period of time

was attempting to set up a purchase that, but he

was never able to raise the money and we also

believe contrary to what he said in the conversa-

tion he was not able to — did not have a distribu-

tion for the drugs.

So as a result of that we felt that they were all

interrelated and it’s a question whether or not the

defendant on his own would have entered into these

if not for the shortage of the $100,000 and that’s why

we thought this would be a just decision or just

result of these as far as acceptance of the plea.

(Emphasis added.)

Transcript of Hearing on Change of Plea,

August 10, 1987, Page 10, Line 23 through Page

11, Line 21.

As these words were being spoken, Vennes did not appre-

ciate the significance of what was being said. He was the

victim of an incompetent defense and of an emotional

state created by two years of mafia-type terrorism to him

and his family. His property and resources with which he

might have defended himself had all been confiscated.

His wife had left with his children and had divorced him.

He was humiliated and frightened.

Upon advice of his lawyer he pled guilty to conspir-

acy to launder money (that provided to him by the

Agents). He also pled nolo contendre to illegal firearms

transactions (suggested and arranged by the Federal

Agents). Finally he pled no contendre to use of a telephone

for a drug transaction (calls made to persons whose

names were provided by the Federal Agents).

He received a five-year sentence to prison which he

served. While in prison, Vennes brought a series of Free-

dom of Information Act lawsuits which were aggressively

resisted by the Government. In the materials that were

ordered by the Courts to be delivered to him, he first

learned and understood the information recited herein

and the truth of what had happened to him. He also

engaged the services of a CPA and challenged the

$250,000 tax levy. The end result of that effort was that it

was determined he owed no tax, and indeed the Federal

Government may very well owe him a few thousand

dollars to this day.

Upon his release from prison he engaged the services

of a lawyer to commence this civil action against the

agents for their tortious conduct of assault, extortion and

intentional infliction of emotional harm.

Jurisdiction in U. S. District Court was invoked pur-

suant to the 4th, 5th, 6th, and 8th Amendments to the

Constitution of the United States of America, as well as

28 USC 1331; 28 USC 1332 (a)(1); 28 USC 1343(1)(2) and

(4); 28 USC 1391 (e)(1) and (2); and Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 404,

91 S.Ct. 1999 (1971).

The Trial Court granted a government motion for

summary judgment holding that (1) Vennes was estopped

from making these claims because he had pled guilty to

criminal charges involving the facts of this case, and (2)

his exclusive remedy as against any I.R.S. agents who

may have wronged him was to be found in the Internal

Revenue Code.

On appeal the 8th Circuit affirmed the District Court

with Judge Heaney in dissent. Upon suggestion for

rehearing en banc the petition was denied with four

judges indicating they would have granted same.

+

ARGUMENT IN SUPPORT OF PETITION

The complaint in this action clearly stated a cause of

action under the law and in accord with Bevins, supra. The

action was commenced in reliance of the 8th Circuit

Court of Appeals’ decision in Gunderson v. Schlueter, 904

F.2d 407 (8th Cir. 1990). In Schlueter, the 8th Circuit said

injury to reputation alone without proof of loss of busi-

ness or employment would not give rise to a constitu-

tional tort. However, the Court said a series of cases

including Rochin v. California, 342 U.S. 165; U.S. v. Russell,

411 U.S. 423; and Hampton v. United States, 425 U.S. 484;

establish the due process clause of the U.S. Constitution

can be violated even in the absence of a procedural

violation by law enforcement authorities who go to far in

manufacturing a crime and in inducing an otherwise law-

abiding citizen into committing that crime. The 8th Cir-

cuit then warned:

The level of “outrageousness” needed to prove

such a due process violation, however, is quite

high. Gunderson, supra.

The Court further advised, “The police conduct becomes

the proper point of inquiry only in the rare situation

where it is too outrageous to be overlooked.” Gunderson,

supra. The Court noted there had never been a case

brought before them where a plaintiff had successfully

established a sufficient level of outrageousness, but that -

the case when such proof would be successful would be

one where the government agents themselves actually

conceived and initiated the crime and the defendant

merely fell into place with carrying out the government's

scheme. The plaintiff in Gunderson was said to have fallen

short of this proof requirement because, “THE OFFICERS

DID NOT APPLY ANY EXTRA-ORDINARY PRESSURE

ON GUNDERSON TO CONVINCE HIM TO JOIN THEIR

SCHEME.” (Emphasis added.)

The proof in Frank Vennes’ case exactly meets the

requirements of proof outlined by the 8th Circuit in Gun-

derson. Threat of death and dismemberment of an entire

family has to meet this burden. The case was summarily

dismissed by the District Court, however, and affirmed

by the Appellate Court upon a claim that Vennes’ plea of

guilty to the crimes he committed under duress somehow

deny him access to the Civil Courtroom for a redress of

his grievances.

10

The point has been missed, or overlooked, or ignored

that this is a civil action founded in tort against individ-

ual agents of the Federal Government for their outra-

geous assault, extortions and intentional inflictions of

emotional harm. It is not a belated challenge to the crimi-

nal charges. There should be no connection between the

two. The criminal aspects of this case are long over and

irreversibly concluded.

But Vennes’ right to use the Civil Courtroom for a

redress of the tortious conduct committed against him

should not be estopped because of the unfortunate failure

to properly defend against the criminal charges that were

brought against him. If a police officer cuts off the leg of

the bank robber he has nabbed, red handed, the robber’s

subsequent plea of guilty should not vitiate the tort or the

right to damages against the officer for the tort commit-

ted.

In Allen v. McCurry, 449 U.S. 89 (1980), the U.S.

Supreme Court said, “Collateral estoppel does not apply

where the party against whom an earlier court decision is

asserted did not have a full and fair opportunity to liti-

gate the claim or issue decided by the first court”. Cer-

tainly as Vennes stood before the Federal Judge to be

sentenced and when he might have understood for the

first time that he was the victim of entrapment and

duress, the issue was not before the Court of how much

money a number of Federal Agents owed him for ter-

rorizing him and his family for two years with threats of

dismemberment and death. In fact, those agents were not

ever before the Court.

11

Estoppel requires mutuality of parties. The United

States of America is not a party to this action. It can

hardly be said Vennes was given a full and fair oppor-

tunity-at his sentencing to waive his right to bring a civil

lawsuit against Federal Agents for terrorizing him and

his family for the previous two years.

The Trial Court in this case found that any remedy

Vennes might have had against the LR.S. agents who

assisted in these tortious actions would have to be found

in the pages of the Internal Revenue Code. As we told the

Trial Court and 8th Circuit, we have searched that Code

in vain for some statutory, administrative or case law

process whereby one may collect money damages against

an I.R.S. agent for threatening a citizen and his family

with dismemberment and death. We can find nothing.

+

CONCLUSION

Ali Frank Vennes has asked for is a jury trial in civil

court to request money damages from a number of agents

of the Federal Government who held him and his family

in a state of terror over an extended two-year period. The

8th Circuit has set down requirements for bringing suit

against federal agents for outrageous conduct but has

denied to this citizen access to the Court and to a jury to

establish his entitlement under those announced require-

ments.

It is too late to do anything about the great injustice

that was inflicted upon Vennes by an entrapment that

was not defended, investigated, discovered or utilized to

defeat the criminal charges that were brought against

12

him. But it is not too late to give him his day in court for

having been tortiously assaulted, extorted and inten-

tionally inflicted with emotional harm.

Respectfully submitted this 12th day of September,

1994.

IrvIN B. NopLAND

Irvin B. NopLanp, P.C.

Attorney for Petitioner

P.O. Box 640

Bismarck, ND 58502-0640

701-222-3030

App. 1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 93-1737

Frank E. Vennes, Jr., * Appeal from the

ay : United States

Plaintiff - appellant, y District Court

v. * for the District

An Unknown Number of ‘ of North Dakota

Unidentified Agents of the 5

United States of America, :

Defendants - Appellees. *

Submitted: December 17, 1993

Filed: June 16, 1994

Before LOKEN, Circuit Judge, HEANEY, Senior Circuit

Judge, and HANSEN, Circuit Judge.

LOKEN, Circuit Judge.

After pleading guilty and nolo contendere to money

laundering, firearm, and drug offenses and serving a

lengthy prison sentence, Frank E. Vennes, Jr., commenced

this action against unnamed federal agents seeking dam-

ages in excess of $10,000,000 under Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). Vennes alleged that the agents had conspired to

violate his rights under the Fourth, Fifth, Sixth, and

App. 2

Eighth Amendments by coercing and entrapping him into

committing the charged crimes, thereby causing “an ille-

gal indictment” to issue, and by seizing his business

through an unlawful Internal Revenue Service (“IRS”)

jeopardy assessment. The district court! dismissed

Vennes’s claims against the IRS agents, concluding that

his remedies under the Internal Revenue Code preclude

this type of Bivens action. The court granted summary

judgment in favor of the remaining defendants on the

ground that Vennes “has had his day in court, and on that

day entered pleas of guilty or nolo contendere to the

charges arising in part from the allegedly coerced activ-

ity.” Vennes appeals. We affirm.

I.

In August 1986, IRS agents investigating suspected

money laundering by certain North Dakota car dealers

were told that Vennes, a Bismarck pawnshop owner, had

made numerous trips to Switzerland and might have

experience in transferring funds to a foreign country. An

undercover agent, posing as a Chicago investor, con-

tacted Vennes and asked for help in transferring cash

abroad. Vennes later admitted that in the next three

months he and his codefendants received $370,000 from

the-undercover agent and transferred it, minus their sub-

stantial commissions, to the Bahamas, the Isle of Man,

and Switzerland without complying with federal cur-

rency transaction reporting laws. In the last transaction,

1 The HONORABLE PATRICK A. CONMY, United States

District Judge for the District of North Dakota.

App. 3

Vennes personally delivered $100,000 to Switzerland,

where his associates lost or stole it.

In May 1987, Vennes was charged in three indict-

ments with numerous money laundering, firearm, and

drug offenses. Acting on the advice of his attorney, whom

he now accuses of ineffective assistance, Vennes entered

into a plea agreement under which he pleaded guilty to

one count of the money laundering indictment, and also

pleaded nolo contendere to one count of illegally selling a

firearm in violation of 18 U.S.C. § 922(b)(3) and to an

information charging that he used a telephone to facili-

tate distribution of cocaine in violation of 21 U.S.C.

§ 843(b).

At the change-of-plea hearing, the district court spec-

ifically questioned Vennes and counsel about the unusual

nolo contendere pleas. Defense counsel explained that

Vennes was “prepared to defend himself on the basis of

entrapment [and] outrageous government conduct” but

wished to plead no contest because those defenses are

“extremely difficult” to prove. The Assistant United

States Attorney responded that the government had not

insisted on a plea of guilty because Vennes “could make a

fair case” that he entered into the illegal firearm and drug

transactions in an attempt to recoup $100,000 for the

undercover agent, whom Vennes feared was an organized

crime figure. The district court accepted these pleas after

confirming that they were knowing and voluntary, that

Vennes was in fact guilty of the money laundering

charge, and that he understood that his nolo pleas would

be treated at sentencing as pleas of guilty.

oan

App. 4

At sentencing, Vennes’s attorney stated that the pre-

sentence report was complete, fair, and “thoroughly pro-

fessional.” He further stated that he was not “in any way

indicating that these government agents acted in an

improper fashion,” but urged that Vennes be sentenced to

only two years in prison because he became “involved in

the drugs and the guns” out of fear that he and his family

would suffer if he did not recoup the $100,000. After a

lengthy hearing, the district court sentenced Vennes to

five years in prison, three years for the money laundering

offense and one consecutive year for each of the other

two offenses.

Vennes did not appeal, but he later sought post-

conviction relief under 28 U.S.C. § 2255. His first petition

alleged ineffective assistance of counsel because his trial

attorney did not seek dismissal of the indictments on the

grounds of entrapment and outrageous government con-

duct. We denied relief, concluding:

Although Vennes now alleges that counsel was

ineffective, he has failed to show any prejudice

resulting from counsel's alleged deficiencies. In

particular, Vennes does not make any showing

that he would have been willing to stand trial

on any of the multitudinous charges on which

he was indicted. We observe that his plea bar-

gain resulted in the dismissal of many of those

charges and in a sentence that is far lighter than

the maximum sentence for the crimes to which

he pled either guilty or no contest.

Vennes v. United States, No. 88-5057 (8th Cir. Oct. 27,

1988). In a second § 2255 petition, Vennes claimed that the

App. 5

government breached his plea agreement because infor-

mation he provided while cooperating with federal inves-

tigators found its way into his presentence report, which

ultimately affected his eligibility for parole. The district

court denied this § 2255 petition after an evidentiary

hearing, and we affirmed. Vennes v. United States, No.

89-5459 (8th Cir. Aug. 10, 1990).

Following his release from prison, Vennes com-

menced this Bivens action, seeking damages from

unnamed? agents for entrapment, outrageous conduct,

and willful violation of the tax laws. The government

appeared and moved to stay discovery — a motion Vennes

did not contest - and to dismiss the complaint on

grounds of failure to state a claim and qualified immu-

nity. In response, Vennes alleged that he had personally

delivered $100,000 to Switzerland for the undercover

agent, where this money was lost or stolen. According to

Vennes, the undercover agent then advised that he was

not a Chicago investor, but a member of the Chicago

underworld, and Vennes must recoup this loss or the

Mafia would kill him and his family. Prompted by these

2 Vennes failed to name or serve any agent, even though

many of the undercover investigators were named in his indict-

ments or identified elsewhere in the record of his criminal case.

On appeal, the government argues that this is a sham Bivens

action, a disguised claim against the United States that should

be barred by sovereign immunity. Vennes’s conclusory, over-

broad complaint lends considerable credence to this contention.

However, it was not raised in the district court, so we do not

consider it on appeal.

App. 6

threats, Vennes agreed to sell firearms illegally to under-

cover agents of the Bureau of Alcohol, Tobacco and Fire-

arms, and to sell cocaine to undercover agents of the

Drug Enforcement Administration. He claims that, as a

result of this outrageous government conduct, he was

prosecuted and imprisoned and lost his business, his

reputation, and, due to a divorce, his family.

The district court granted summary judgment dis-

missing the claims against the criminal investigators on

the ground that those claims were barred by Vennes’s

pleas of guilty and nolo contendere in his criminal case.

The court dismissed the claims against the IRS agents

involved in the tax levy on the ground that such Bivens

claims are precluded by the remedies provided in the

Internal Revenue Code. We review both aspects of the

district court’s decision de novo. See Concerned Citizens of

Neb. v. United States Nuclear Regulatory Comm’n, 970 F.2d

421, 425 (8th Cir. 1992). The government also argued to

the district court, and asserts on appeal, that all defen-

dants are entitled to qualified immunity because they did

not violate “clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The district

court did not reach this issue, and neither do we.

II.

The unique issue raised by this appeal is whether the

district court erred in granting summary judgment dis-

missing Vennes’s claim that the undercover agent’s

alleged death threats were outrageous government con-

duct that violated his due process rights. Vennes clearly

App. 7

has no procedural due process claim. In response to the

three 1987 indictments, he raised the defenses of entrap-

ment and outrageous conduct and then bargained away

those defenses, exchanging guilty and nolo contendere

pleas for a relatively light sentence. He never moved to

withdraw those pleas and did not appeal his conviction

or sentence. His § 2255 petition alleged ineffective assis-

tance of counsel and outrageous government conduct; the

district court denied that petition on the merits, and we

affirmed.

Vennes instead argues that the agent’s outrageous

conduct violated his right to substantive due process, and

that this claim survived his guilty plea and unsuccessful

§ 2255 petition. Vennes relies primarily on our decision in

Gunderson v. Schlueter, 904 F.2d 407 (8th Cir. 1990). In

Gunderson, a resort owner acquitted of criminal charges

filed a 42 U.S.C. § 1983 due process claim against a state

conservation officer who allegedly contrived the criminal

case. We affirmed the grant of summary judgment dis-

missing this claim but observed that, “we may some day

be presented with a situation in which the conduct of law

enforcement agents is so outrageous that due process

principles [are violated].” 904 F.2d at 410, quoting United

States v. Russell, 411 U.S. 423, 431-32 (1973).3 Vennes

argues that this is the “some day” foreshadowed in Gun-

derson — if he can prove that “[a]gents of the federal

government threatened to kill Frank Vennes and his fam-

ily if he refused to engage in criminal conduct, so he

3 In Hampton v. United States, 425 U.S. 484 (1976), a majority

of the Supreme Court adhered to the outrageous-conduct due

process principle articulated in Russell.

App. 8

did,” he will be entitled to damages under Bivens and

Gunderson. Like the district court, we disagree. There are

a number of factors that persuade us that Vennes cannot

establish a right to relief under Bivens.

First, it is significant that Vennes is asserting this due

process claim, not in defending the criminal charges that

grew out of his dealings with the undercover agents, but

in a civil damage action commenced after he pleaded

guilty and served a prison sentence for those crimes. A

Bivens action may be brought on due process grounds. See

Davis v. Passman, 442 U.S. 228, 245-48 (1979). But courts

must always determine that a new type of Bivens claim

“involves no special factors counselling hesitation in the

absence of affirmative action by Congress.” Bivens, 403

U.S. at 396. We conclude there are such special factors

here. In Gunderson, we rejected the substantive due pro-

cess claim in part because, “[f]linding a due process viola-

tion here would bring us too close to converting every

successful entrapment defense into a section 1983 action

for damages.” 904 F.2d at 411. Vennes of course proposes

and even greater conversion, for he did not prove his

entrapment and outrageous conduct defenses, he pleaded

guilty or no contest to some of the allegedly coerced

criminal offenses. Expanding Bivens in this fashion would

have a chilling effect on law enforcement officers and

would flood the federal courts with constitutional dam-

age claims by the many criminal defendants who leave

the criminal process convinced that they have been pros-

ecuted and convicted unfairly.

Second, the government argues that this claim should

be collaterally estopped by Vennes’s pleas of guilty and

nolo contendere. We doubt that these pleas may be given

App. 9

such sweeping collateral estoppel effect. See Haring v.

Prosise, 462 U.S. 306, 322 n.11 (1983). However, they are

highly relevant to the merits of this due process claim.

The alleged deprivation of Vennes’s rights occurred dur-

ing the criminal investigation and resulted in his being

charged with multiple crimes. By pleading guilty, Vennes

elected to forego the post-deprivation process best suited

to determining whether the agents in fact violated his

due process rights — the criminal trial. Any procedural

due process claims are therefore barred. See Parratt v.

Taylor, 451 U.S. 527 (1981). Although Vennes claims a

substantive due process violation, we have held that,

when procedural due process claims under § 1983 are

barred by Parratt, “claims based on the same actions but

alleging denial of substantive due process should be

barred as well.” Weimer v. Amen, 870 F.2d 1400, 1406 (8th

Cir. 1989). The same principle should apply in a Bivens

action, the federal law analog to § 1983.

Third, although we have often noted that “outra-

geous police conduct” may give rise to a substantive due

process defense to a criminal prosecution, in no case have

we found government conduct sufficiently outrageous to

establish this defense.4 We have recognized that law

4 See United States v. Kummer, 15 F.3d 1455, 1459-60 (8th Cir.

1994); United States v. Gleason, 980 F.2d 1183, 1187 (8th Cir. 1992);

United States v. Huff, 959 F.2d 731, 734-35 (8th Cir.), cert. denied,

113 S. Ct. 162 (1992); Gunderson, 904 F.2d at 410 & n.8 (collecting

cases); United States v. Johnson. 767 F.2d 1259, 1275 (8th Cir.

1985); United States v. Reifsteck, 535 F.2d 1030, 1034-35 (8th Cir.

1976). Compare United States v. Lard, 734 F.2d 1290, 1296-97 (8th

Cir. 1984) (agent’s conduct “in conceiving and contriving the

crimes” “approached” the boundaries of substantive due pro-

cess in a criminal prosecution).

App. 10

enforcement officers “are required to resort to tactics

which might be highly offensive in other contexts . . . and

agents may go a long way in concert with the individual

in question without being deemed to have acted so outra-

geously as to violate due process.” United States v. Quinn,

543 F.2d 640, 648 (8th Cir. 1976). Granted, we would not

endorse the use of death threats to coerce a defendant to

commit charged offenses, but we are properly skeptical of

such claims and may reasonably require that the defen-

dant prove allegations of outrageous coercive conduct in

the most timely and relevant proceeding, his criminal

trial.

Fourth, we find fundamental, insurmountable flaws

in Vennes’s damage claims. Vennes seeks damages for the

time he spent in prison and the indirect consequences of

that imprisonment, his divorce and the failure of his

business. Yet Vennes was imprisoned because he pleaded

guilty or no contest to serious crimes. And three of his

five years in prison were attributable to the money laun-

dering offense that was committed before the alleged

threats that form the core of his outrageous conduct

claims. To the extent that the alleged outrageous govern-

ment conduct was not the proximate cause of Vennes’s

injuries, his damage claims must fail as a matter of law.

In these circumstances, we conclude that the district

court properly granted summary judgment dismissing

Vennes’s substantive due process claims. We do not con-

done undercover agents who pose as dangerous criminals

and coerce others to commit crimes. But if Vennes was in

fact the victim of such threats, he had many opportunities

to seek redress before serving five years in prison for the

“resulting crimes. He could have complained to state or

App. 11

federal authorities about the threats; instead, he commit- —

ted multiple firearm and drug offenses.> He could have

raised entrapment, coercion, and outrageous conduct

defenses at his criminal trial; instead, he pleaded guilty

or no contest to three different crimes. He raised the

outrageous conduct issue in his first § 2255 petition; that

petition was dismissed on the merits. Under our deci-

sions in Gunderson and Weimer, a post-conviction Bivens

damage action will not lie.

III.

There remains to be considered the district court’s

dismissal of Vennes’s vague and conclusory tax claims,

summarized in his brief on appeal as follows:

The agents alleged [that Vennes owed] $250,000

in tax liability, instituted a jeopardy assessment,

confiscated his business, forced a total asset sale

and put him out of business when in fact he

owed not a dime.

The district court dismissed these claims on the ground

that a taxpayer’s remedies under the Internal Revenue

Code preclude such a Bivens action. Vennes cites us to no

contrary authority, and we have found none. Though the

Supreme Court has not addressed this precise question, it

has strongly suggested that the district court correctly

applied Bivens:

5 The record reveals that at one point, Vennes purchased

cocaine from his own source in Florida after haggling with an

undercover agent supplier about price and speed of delivery.

This is not the conduct of one coerced or entrapped into crime.

ees

2a

' App. 12

When the design of a Government program sug-

gests that Congress has provided what it con-

siders adequate remedial mechanisms for

constitutional violations that may occur in the

course of its administration, we have not created

additional Bivens remedies.

Schweiker v. Chilicky, 487 U.S. 412, 423 (1988). See McIntosh

v. Turner, 861 F.2d 524, 526 (8th Cir. 1988) (“The result [of

Chilicky] is a sort of presumption against judicial recogni-

tion of direct actions for violations of the Constitution by

federal officials or employees.”). Since Chilicky, at least

three circuits have upheld the dismissal of Bivens actions

against IRS agents for tax assessment and collection activ-

ities. See McMillen v. United States Dep’t of Treasury, 960

F.2d 187, 190-91 (1st Cir. 1991); Wages v. Internal Revenue

Service, 915 F.2d 1230, 1235 (9th Cir. 1990), cert. denied, 498

U.S. 1096 (1991); National Commodity & Barter Ass’n v.

Gibbs, 886 F.2d 1240, 1248 (10th Cir. 1989). See also Bad-

dour, Inc. v. United States, 802 F.2d 801, 808 (5th Cir. 1986);

Cameron v. Internal Revenue Service, 773 F.2d 126, 129 (7th

Cir. 1985). We agree with those decisions.

Congress has provided specific and meaningful

remedies for taxpayers who challenge overzealous tax

assessment and collection activities. A taxpayer may chal-

lenge a jeopardy assessment both administratively and

judicially, see 26 U.S.C. § 7429, and may sue the govern-

ment for a tax refund, see 26 U.S.C. § 7422. Since Novem-

ber 10, 1988, 26 U.S.C. §§ 7432 and 7433 have authorized

taxpayer actions against the United States to recover lim-

ited damages resulting from specific types of misconduct

by IRS employees. These carefully crafted legislative

App. 13

remedies confirm that, in the politically sensitive realm of

taxation, Congress’s refusal to permit unrestricted dam-

age actions by taxpayers has not been inadvertent. See

Cameron. 773 F.2d at 129 (“it would make the collection

of taxes chaotic if a taxpayer could bypass the remedies

provided by Congress simply by bringing a damage

action against [IRS] employees”). Thus; the district court

correctly dismissed Vennes’s Bivens claims against IRS

agents for their tax assessment and collection activities.

The judgment of the district court is affirmed.

HEANEY, Senior Circuit Judge, concurring and dissent-

ing.

Unable to affirm the district court on the only two

issues presented —- collateral estoppel and qualified

immunity — the court today pieces together a series of

rationales why Vennes should not be allowed to continue,

labels them “special factors” under Bivens, and believes

that by so doing the whole will somehow exceed the sum

of its parts. There are no “special factors counselling

hesitation in the absence of affirmative action by Con-

gress” present in this case that were not present in Bivens;

_ the only difference is that Bivens stated a Fourth Amend-

ment claim and Vennes seeks to recover under substan-

tive due process. Rather than reverse the district court

and allow Vennes to proceed, as existing law compels, the

majority shapes a basis for affirmance out of rationales

that are already accounted for under the existing doc-

trines of qualified immunity and collateral estoppel or

that are simply inapplicable and irrelevant. Consequently,

I dissent.

App. 14

If we are to believe the facts alleged and testified to

by Vennes - and for purposes of this appeal we must -

the defendants engaged in absolutely outrageous behav-

ior. Vennes tells us that IRS agents posing as Chicago

businessmen approached Vennes through a business

acquaintance and solicited his participation in a scheme

to launder money. These businessmen offered Vennes a

share of the proceeds if he would launder the “dirty”

money through his European connections. At the prompt-

ing of these “businessmen,” Vennes made two trips to

Switzerland to launder money provided to him by the

agents. Vennes successfully laundered $100,000 on the

first trip, but on the second trip, associates of Vennes

made off with the other $100,000. (These “associates”

have apparently since been prosecuted for theft.)

When Vennes returned without the money, the Chi-

cago businessmen revealed themselves to be members of

the mafia and threatened, inter alia, to dismember his

children if he failed to recoup this money (perhaps sus-

pecting that their superiors would be none too pleased at

the loss of $100,000 of government money). These newly-

revealed mobsters then suggested that Vennes engage in

illegal drug and firearms transactions in an effort to

recoup this money and thereby avoid serious bodily harm

to him and his family. Vennes did so, the efforts to recoup

the money were unsuccessful, and Vennes was eventually

charged with a panoply of crimes. He was given an offer

he could not refuse, which caused the district judge who

accepted Vennes’ guilty plea to question the govern-

ment’s reason for offering such a generous bargain. The

government told the court that Vennes “could make a fair

case” that he “was trying to recoup” the lost $100,000,

App. 15

that he believed he was “dealing with people from the

underworld or organized crime out of Chicago,” and that

as a result he engaged in the drug and firearms transac-

tions. App. at 67. “So as a result of that,” the assistant

U.S. attorney continued, “we felt that they were all inter-

related and it’s a question whether or not the defendant

on his own would have entered into these [crimes] if not

for the shortage of the $100,000 and that’s why we

thought that this would be a just decision or just result of

these as far as the acceptance of the plea.” Id. at 6768.

What the government did not mention at the hearing

on the acceptance of the plea, but which was alluded to

by the district court in this case, is the embarrassing

spectacle that would be created if this case went to trial.

See Vennes v. Unknown Number of Unidentified Agents of the

United States of America, No. A1-9284, slip op. at 1 (D.N.D.

Jan. 13, 1993) (nereinafter Vennes) (“The court acknowl-

edges that the underlying factual situation . . . is

wondrously bizarre. Especially fascinating is speculating

about the scene which occurred when the undercover

agents tried to explain the loss of the $100,000.00... . ”).

Were Vennes, Bivens action to go to trial, or even were

discovery to proceed and any of Vennes’ claims to be

borne out, it is likely that the government would face

significant embarrassment. The district court avoided

such a possibility when it declared that Vennes is collat-

erally estopped by his guilty plea from pursuing this

claim against the agents. Vennes, supra, slip op. at 2.

Although this might well be a convenient way to dispose

of this case, it is, as the majority notes, foreclosed by the

Supreme Court’s decision in Haring v. Prosise, 462 U.S.

306 (1983). See supra slip op. at 7. In that case the Court

App. 16

specifically noted that both the “prospect of a favorable

plea agreement” and “the expectation or hope of a lesser

sentence” are valid reasons why a defendant might

choose not to pursue possible defenses at trial, see Haring,

462 U.S. at 319 (internal quotation marks and citation

omitted), but that because an acceptance of a guilty plea

involves “no adjudication whatsoever of any issues that

may subsequently be the basis of a § 1983 claim,” collat-

eral estoppel is “simply inapplicable.” Id. at 322 n.11. This

holding is equally applicable to what the court correctly

labels the “analog” to § 1983, the Bivens action.

The only other basis for affirmance offered by the

defendants is qualified immunity, but it fails as certainly

as does the collateral estoppel argument. Although the

court chooses not to address this issue, because, it says,

the district court did not address it, see supra slip op. at 5,

the failure of this argument to carry the day can come as

no surprise to the defendants. The district court, although

not expressly ruling on qualified immunity, stated that

even the most zealous law enforcement agent would

understand that coercion applied through threats of dis-

memberment of children is prohibited conduct.” Vennes,

supra, slip op. at 2. Likewise, when defendants, counsel

lingered on this issue during oral argument, another

member of the panel informed him in no uncertain terms

that this court would “not. . . affirm on qualified immu-

nity.”

The unavailability of the two argued bases for affir-

mance leads the court into uncharted territory. Rather

than reverse the district court and remand this case for

further proceedings, the court gathers together several

_ reasons why, it believes, Vennes’ case should not be

App. 17

allowed to proceed and then labels these reasons (none of

which standing alone would suffice as a basis for affir-

mance) “special factors counselling hesitation” under

Bivens. That none of these factors has ever before been

considered a Bivens “special factor” is apparently of no

consequence.

The Supreme Court has defined two situations in

which a possible Bivens action may be defeated:

The first is when defendants demonstrate spe-

cial factors counselling hesitation in the absence

of affirmative action by Congress. The second is

when defendants show that Congress has pro-

vided an alternative remedy which it explicitly

declared to be a substitute for recovery directly

under the Constitution and viewed as equally

effective.

Carlson v. Green, 446 U.S. 14, 18-19 (1980) (internal quota-

tion marks and citations omitted). The second exception

is what prevents Vennes from proceeding with a Bivens

action regarding the tax levy — as discussed in part III of

the court’s opinion, which I join — but it is the first

exception that the majority purports to find applicable to

Vennes’ claim involving outrageous conduct.

There are few cases delineating the “special factors-

“mentioned in Bivens, and those cases that do address the

issue fall neatly into two categories. The first category

includes the military cases, United States v. Stanley, 483

U.S. 669 (1987), and Chappell v. Wallace, 462 US. 296

(1983), which hold that Bivens actions are not available to

those who suffer injury incident to military service, and

those cases in which defendants “enjoy such independent

Status in our constitutional scheme as to suggest that

A ed eS, ee ae PO Ee ORES a ee RENE

App. 18

judicially created remedies against them might be inap-

propriate.” Carlson, 446 U.S. at 19; see Davis v. Passman,

442 U.S. 228, 246 (1979) (finding that such special factors

counsel no greater protection for Congressmen than that

provided by the Speech and Debate Clause). The second

category involves concerns about “federal fiscal policy.”

See Bivens, 403 U.S. at 396; see also FDIC v. Meyer, 127

L.Ed.2d 308, 323 (1994) (refusing to allow Bivens action

against federal agency, in addition to federal agents, in

part because of the “potentially enormous financial bur-

den” such claims would impose on the federal govern-

ment); Bush v. Lucas, 462 U.S. 367, 380 (1983) (finding that,

similarly, questions of “federal personnel policy” are best

left for Congressional action).

The “factors” put forward by the court in the instant

case follow neither of these tracks. Neither of the existing

lines of cases supports the court’s holding - the defen-

dants are federal law enforcement agents, not military

men or Congressmen or anything else; and any financial

burden imposed would fall on the agents themselves -

leaving the court to invent “special factors” of its own. In

all relevant respects, this cause of action against federal

agents for violating Vennes’ substantive due process

rights is identical to Bivens’ action for violation of his

Fourth Amendment rights.

Furthermore, the “special factors” suggested by the

court cannot begin to bear the weight of the court’s

holding. The first and third factors — essentially that we

have never found conduct in this context sufficiently

outrageous to state a substantive due process claim and

that, were we to do so, it would have a chilling effect on

law enforcement officers and flood the courts - are

App. 19

already provided for by the doctrine of qualified immu-

nity. Taken together, they support allowing Vennes to go

forward precisely because the conduct he alleges is so

outrageous that it will rarely be duplicated, and, given

the existing precedents on substantive due process, vir-

tually every potential defendant will be immune from

suit.

The key to this case is that the conduct alleged does

go further than any of the previous cases this court has

addressed. Unlike the facts in Gunderson v. Schlueter, 904

F.2d 407, 411 (8th Cir. 1990), the defendants in this case

did apply “extraordinary pressure on [Vennes] to con-

vince him to join their scheme.” They did not “simply

ask[] him to commit the violations”; they threatened that

if he did not they would dismember his children. The

conduct alleged does “shock the conscience” and it cer-

tainly offends my “judicial notions of fairness.” Hall v.

Lombardi, 996 F.2d 954, 958 n.4 (8th Cir. 1993), cert. denied,

114 S. Ct. 698 (1994). Such facts are not likely to be

repeated with any frequency, but to the extent that they

are, plaintiffs are entitled to recover damages.

The fourth factor relied on by the court is the spec-

ulative nature of Vennes’ claim for damages. The problem

with the court’s analysis — beyond its utter irrelevance to

the question at hand - is that it assume Vennes is only

claiming damages for harm that resulted from his incar-

ceration. See supra slip op. at 8. As I read Vennes’ com-

plaint and briefs, however, he asserts damages that run

independently from the two-year period prior to his

guilty plea during which he was under constant threat

from the defendants to continue committing crimes in an

attempt to recoup the lost $100,000. Any reasonable jury

App. 20

could find harm to Vennes from this conduct independent

of Vennes’ incarceration, and any argument about the

degree of the stated harms caused by his incarceration is

best left for trial.

That leaves the court’s second argument, suggesting

that Parratt v. Taylor, 451 U.S. 527 (1981), has some bear-

ing on the validity of Vennes’ cause of action. The most

that can be said about this argument is that it misunder-

stands certain dicta from this court’s decision.in Weimer v.

Amen, 870 F.2d 1400, 1406 (8th Cir. 1989). In that case, the

court first dismissed Weimer’s substantive due process

claim on the ground that “none of our previous recogni-

tions of substantive due process come close to the right

asserted by Weimer.” Id. at 1406. The court thought “it

evident that Weimer [sought] to have Amen’s conduct

declared a violation of due process simply because it

violated state law,” which the court refused to do. Id. The

court then went on to state, as an alternative holding, that

“[i]n situations where procedural due process claims

alleging property deprivation are prohibited by Parratt,

claims based on the same actions but alleging denial of

substantive due process should be barred as well.”

Weimer, 870 F.2d at 1406.

Regardless of the validity of that statement (I have

found no subsequent decisions that rely on this rationale

in a manner essential to judgment), it has absolutely no

applicability to the facts of this case. It might be relevant

to Vennes’ claim involving the tax levy, but it has no

relevance to his claim that he was denied substantive due

process by the agents’ outrageous conduct. Parratt could

not bar a procedural due process claim in the latter case

because there is no procedural due process claim to be

App. 21

made, and this court has previously held (prior to

Weimer) that “Parratt does not bar claims based on sub-

stantive due process from being brought in federal court”

because the “violation of a substantive constitutional

right, including substantive due process, is complete irre-

spective of subsequent procedures accorded to the person

whose rights have been violated.” Williams v. City of St.

Louis, 783 F.2d 114, 118 (8th Cir. 1986). Furthermore, any

argument that Vennes passed up what process was his

due — the opportunity to present an entrapment or outra-

geous conduct defense at trial - is simply a rehashing of

the collateral estoppel argument rejected by Haring.

To the extent that any “special factors” are present in

this case, they counsel allowing Vennes to go forward. In

Carlson, the court noted that one reason for allowing

plaintiffs a Bivens action in addition to an action under

the Federal Tort Claims Act (FTCA) is the deterrent effect

of such an action for damages: “Because the Bivens rem-

edy is recoverable against individuals, it is a more effec-

tive deterrent than the FTCA remedy against the United

States. It is almost axiomatic that the threat of damages

has a deterrent effect, surely particularly so when the

individual official faces personal financial liability.” 446

U.S. at 21 (footnote and citation omitted). Were Vennes

simply to have pursued his entrapment or outrageous

conduct defenses, he might well have escaped conviction

(at least on the drug and firearms charges), but a success-

ful defense in a criminal trial will have far less deterrent

effect on this type of outrageous behavior than will a

damages action. Any fear about inhibiting vigorous law

enforcement is, as mentioned earlier, rectified by the

broad availability of qualified immunity.

App. 22

To sum up, the court rejects Vennes, substantive due

process claim under Bivens because of so-called “special

factors” — none of which have previously been relied on

as “special factors counselling hesitation in the absence of

affirmative action by Congress” to defeat a Bivens action,

and all of which, to the extent they have any merit

whatsoever, are already accounted for under the doc-

trines of qualified immunity and collateral estoppel. The

“special factors” analysis is not intended to “concern the

merits of the particular remedy that was sought. Rather,

[it] relate[s] to the question of who should decide

whether such a remedy should be provided.” Bush, 462

U.S. at 380. On that question, Vennes’ claim is indis-

tinguishable from Bivens’, and although some may dis-

agree with the judiciary inferring causes of action directly

from the Constitution, see Bivens, 403 U.S. at 311 (Burger,

CJ., dissenting), that battle has long since been fought,

and any concern about flooding the courts with frivolous

cases, see id. at 430 (Blackmun, J., dissenting), has been

similarly dealt with. See id. at 391 n.4.

In closing, I note one final matter about the court’s

decision that troubles me greatly. Only two bases appear

in the record before us for affirming the summary judg-

ment grant below and thereby thwarting Vennes’ efforts

to have his day in court. Neither of those two grounds for

affirmance, collateral estoppel or qualified immunity,

supports the district court’s decision. Nonetheless, the

court reaches ovt into the ether to shape a basis for

affirmance that neither side has had an opportunity. to

address. Rejection of Vennes’ claim that the defendants

violated his substantive due process rights by posing as

mobsters and threatening to dismember his children does

App. 23

him an injustice, but to do so on a novel legal basis, of

which Vennes has had no notice, only compounds the

error, and from this procedure I dissent as well.

A true copy.

Attest: /s/ Michael E. Gans

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

App. 24

UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

SOUTHWESTERN DIVISION

Frank E. Vennes, Jr.

Plaintiff,

-v- A1-92-84

An unknown number of

unidentified agents of

the United States of America,

Defendants.

MEMORANDUM AND ORDER

(Filed Jan. 13, 1993)

The United States of America, apparently acting on behalf

of the anonymous and unknown defendants, has moved

for dismissal or in the alternative for summary judgment.

The plaintiff entered a plea of guilty to a conspiracy to

launder money charge and nolo contendere pleas to a

weapons violation and use of a telephone in an attempt to

distribute cocaine.

During roughly the same time period, the IRS, claiming a

substantial tax liability, filed levies and participated in an

auction of defendant's assets. Plaintiff’s brief indicates

that no liability for taxes did in fact exist after completion

of “a competent audit”.

The Plaintiff served the prison term to which he was

sentenced. During the period of incarceration he chal-

lenged the validity of the guilty plea and nolo contendere

proceeding, alleging that the conduct of the investigating

officers was outrageous and that he was not afforded

App. 25

effective assistance of counsel. This challenge was not

successful.

The court acknowledges that the underlying factual situa-

tion as set out in the brief in opposition to the motion is

wondrously bizarre. Especially fascinating is speculating

about the scene which occurred when the undercover

agents tried to explain the loss of the $100,000.00 in

currency which they had delivered to the defendant for

alleged money laundering services.

The court approaches the problem in two phases. The

motion to dismiss is appropriate when applied to the

alleged misconduct or negligence of the IRS personnel.

The cases are clear that a “Bivens” type claim will not lie

against the personnel of the IRS as the tax code provides

remedies for relief from such conduct. There is no point

in rehashing the case and statutory law on the subject.

The file contains a substantial stack of documents with-

out identification or information regarding filing date.

Included therein are the transcripts of the original plea

hearing in the criminal case before Judge Benson and the

8th Circuit opinion and mandate affirming the District

Court's rejection of the challenge to the pleas entered. It

appears that no dispute exists regarding the fact that Mr.

Vennes, for whatever reason, did enter pleas of guilty or

nolo contendere to criminal charges resulting from the

activities of the “unidentified number of unknown agents

of the United States of America.” Also included in the

filed material is a copy of a “debriefing report” which

purports to describe the statements of Mr. Vennes confes-

sing to cocaine distribution activities, which, when

App. 26

included in the presentence report resulted in unfavor-

able action by the parole commission. The Court would

be offended by the inclusion of this report if the informa-

tion did not also appear in the published 8th Circuit

opinion. |

Again without replowing the case the statutory law anal-

ysis, it appears that the claims against the non-IRS agents

must also be dismissed, although as a granting of sum-

mary judgment to the government rather than a dismissal

for failure to state a claim.

There is no question that the agents were acting in their

official capacity as law enforcement officials, and are

cloaked with immunity for actions taken in connection

therewith, except as might be presented as a “Bivens”

action.

The alleged claim that the agents, after the loss of the

$100,00.00 in currency by the plaintiff, claimed to be

mafia representatives and that the plaintiff and his family

members were subject to torture or death unless he coop-

erated, forcing the plaintiff into other acts of crime

involving drugs and weapons may rise to the level of a

constitutional tort. One assumes that even the most

zealous law enforcement agent would understand that

coercion applied through threats of dismemberment of

children is prohibited conduct.

Counsel for plaintiff urges that plaintiff be given his “day

in court”. Plaintiff has had his day in court, and on that

day entered: pleas of guilty or nolo contendere to the

charges arising in part from the allegedly coerced activity.

App. 27

The court holds that as a matter of law, from the undis-

puted facts, the plaintiff is not estopped from raising the

claims presented in this action.

The motion to dismiss is granted as to the tax levy and

activities of the IRS agents. (doc. 9)

The motion for summary judgment is granted as to the

balance of the plaintiff’s claims. (doc. 9)

Dated this 13th day of January, 1993.

/s/ Pat A. Conmy

Patrick A. Conmy, District Judge

App. 28

UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

—- SOUTHWESTERN DIVISION

Frank E. Vennes, Jr. JUDGMENT IN

Vv A CIVIL CASE

An unknown number of (Filed

unidentified agents of Jan. 15, 1993)

the United States of

the United States of America, CASE NUMBER:

A1-92-84

[ ] Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury

has rendered its verdict.

[X] Decision by Court. This action came to trial or hear-

ing before the Court. The issues have been tried or

heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that pursuant to

Memorandum and Order filed on January 13, 1992; the

motion to dismiss is granted as to the tax levy and

activities of the IRS agents. The motion for summary

judgment is granted as to the balance of the plaintiff’s

claims.

January 15, 1993 EDWARD J. KLECKER

Date Clerk

/s/ Donald E. Emineth

(By) Deputy Clerk

App. 29

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 93-1737NDBI

Frank E. Vennes, Jr.

Appellant, Order Denying Petition

for Rehearing and

Suggestion for

Rehearing En Banc

we

United States of America,

An Unknown Number of

Unidentified Agents,

Appellees.

So @ & & @ 2 @ Se &

The suggestion for rehearing en banc is denied.

Judge McMillian, Judge Wollman, Judge Beam, and Judge

Morris Sheppard Arnold would grant the suggestion for

rehearing en banc.

The petition for rehearing by the panel is also denied.

August 10, 1994

Ordered Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit