In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14‐3747 and 14‐3772
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
STEVEN MANDELL,
Defendant‐Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 12 CR 842‐1 — Amy J. St. Eve, Judge.
____________________
ARGUED APRIL 1, 2016 — DECIDED AUGUST 17, 2016
____________________
Before POSNER, EASTERBROOK, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. Steven Mandell was convicted for
conspiring to kidnap, and for conspiring and attempting to
extort, a wealthy businessman. His plan involved a gun, and
so he was also convicted for possessing a gun in furtherance
of a crime of violence, and for possessing a gun as a convicted
2 Nos. 14‐3747 and 14‐3772
felon. The evidence included videos from hidden cameras
that the FBI installed at the site of the planned extortion. As
required by statute, a federal court authorized the installation
of the cameras. Arguing that the court only did so because the
FBI’s application was misleading due to certain omissions,
Mandell moved to suppress the video evidence. The district
judge denied that motion and we affirm because the omis‐
sions Mandell complains about are not material.
Mandell also moved for a new trial, arguing that the gov‐
ernment had withheld important exculpatory information
about the source of the gun. We affirm because we agree with
the district judge that the information is irrelevant and the ev‐
idence supporting Mandell’s gun convictions was over‐
whelming.
I. BACKGROUND
A. Mandell’s History
Defendant Steven Mandell, formerly known as Steven
Manning, is familiar to us. We discuss his unusual history be‐
cause it is relevant to his current appeal. As we have previ‐
ously described: “[Mandell] was employed as a Chicago po‐
lice officer and later as an FBI informant. In 1986 after [he]
ceased to be an informer for the FBI he fell under suspicion
for a variety of crimes.” Manning v. Miller, 355 F.3d 1028, 1030
(7th Cir. 2004) (Manning III).
1. Missouri Kidnapping
In 1990, Mandell and a man named Gary Engel were
charged for a kidnapping that occurred in Missouri in 1984.
See Manning v. Bowersox, 310 F.3d 571, 574 (8th Cir. 2002) (Man‐
ning II). What happened next is noteworthy:
Nos. 14‐3747 and 14‐3772 3
Because [Mandell] was also a suspect in an Illi‐
nois murder, the FBI planted a government in‐
formant in his cell to try to collect evidence
about the Illinois crimes. The informant’s agree‐
ment specified that he was not to elicit any in‐
formation about [Mandell’s] pending Missouri
charges. However, the informant did talk about
the Missouri charges, and agreed to help [Man‐
dell] fabricate an alibi defense using the inform‐
ant’s girlfriend, Sylvia Herrera. The FBI then
met with Herrera to go over what information
she should attempt to elicit from [Mandell]. Pur‐
suant to her agreement with the FBI, Herrera be‐
gan to record her conversations with [Mandell].
Id.
Mandell was convicted but the Eighth Circuit granted his
habeas petition, holding that the government’s use of inform‐
ants, after charges had been filed, violated his constitutional
right to counsel. Id. at 577. Missouri declined to retry him. See
Manning v. United States, 546 F.3d 430, 431 (7th Cir. 2008) (Man‐
ning IV). Gary Engel was tried separately and convicted, but
his conviction was vacated because the government failed to
disclose that one of its witnesses had been paid to testify. See
Engel v. Buchan, 710 F.3d 698, 700–01 (7th Cir. 2013).
2. Illinois Murder
In 1993, Mandell was charged for a murder that occurred
in Illinois in 1990. See Manning III, 355 F.3d at 1030. Mandell
tried to pin the murder on Engel, “who had ties to both [Man‐
dell] and the victim.” People v. Manning, 182 Ill.2d 193, 204
(1998) (Manning I). Mandell was convicted but this conviction
4 Nos. 14‐3747 and 14‐3772
was vacated too—this time because the trial judge admitted
inadmissible evidence. Id. at 215–18.
3. Civil Suit
In 2002, Mandell sued the government for maliciously
prosecuting him, and two FBI agents for fabricating evidence
against him. See Manning III, 355 F.3d at 1030–31; Manning IV,
546 F.3d at 431. A jury found against the agents and awarded
Mandell $6.5 million. Id. at 431–32; Engel, 710 F.3d at 701. But
a judge found that even without the fabricated evidence, the
government had probable cause to prosecute. See Manning IV,
546 F.3d at 431–32; Engel, 710 F.3d at 701. For technical reasons
not pertinent here, the upshot is that Mandell recovered noth‐
ing. Manning IV, 546 F.3d at 438; see also Engel, 710 F.3d at 701.1
B. Events Leading to This Case
In the summer of 2012, Mandell was introduced to George
Michael, a real estate businessman. Though not on Mandell’s
level, Michael’s reputation was not unblemished. See Michael
v. FDIC, 687 F.3d 337 (7th Cir. 2012) (affirming civil penalties
and order barring Michael from participating in the affairs of
any FDIC‐insured bank). Unbeknownst to Mandell, Michael
was an FBI informant. Michael recorded several of their con‐
versations, including discussions about two criminal plots,
discussed below.
1 Engel filed his own civil suit, which was carried on by his estate after
he died in jail in 2012. His estate received a $3 million settlement from
some defendants and voluntarily dismissed the claims against others. See
Engel v. Buchan et al., No. 1:10‐CV‐3288 (N.D. Ill.).
Nos. 14‐3747 and 14‐3772 5
1. Plot One: Steven Campbell
In one plot, Mandell was to kidnap, torture, extort, and kill
Steven Campbell, a wealthy businessman. Mandell planned
to kidnap Campbell, take him to a remote location, torture
him until he turned over cash and property, and then kill him.
Michael helped Mandell rent a building to serve as the torture
site, which they nicknamed “Club Med.” Although Mandell
said that he had an accomplice, he refused to identify that per‐
son.
Seeking to install hidden cameras at Club Med, the FBI
asked a federal court to authorize a wiretap. Special Agent
Richard Tipton submitted an affidavit in support of the appli‐
cation. Tipton explained that Mandell had an accomplice
whom he refused to identify, and whom the FBI had been un‐
able to identify by traditional means. Tipton stated that video
was required for two reasons: to identify the accomplice, and
to gather evidence to prove both Mandell and the accomplice
guilty beyond a reasonable doubt. The court approved the ap‐
plication and the FBI installed the cameras.
The cameras served both intended purposes. First, the vid‐
eos revealed that the accomplice was Gary Engel—the same
Gary Engel who was charged with Mandell in the 1984 Mis‐
souri kidnapping, and the same Gary Engel on whom Man‐
dell had tried to pin the 1990 Illinois murder. Second, the evi‐
dence gathered was devastating to the defendants. As Man‐
dell’s opening brief on appeal admits, the videos show Man‐
dell and Engel “discuss[ing] in graphic detail the alleged kid‐
napping, extortion, and murder of Campbell.”
6 Nos. 14‐3747 and 14‐3772
2. Plot Two: Anthony Quaranta
Mandell and Michael also discussed a second plan (and
this plan, too, involved Mandell killing someone). Michael
was a part‐owner of a local strip club, and Mandell agreed to
murder Anthony Quaranta, one of the other owners, to in‐
crease Michael’s ownership and control. In furtherance of this
plan, Mandell tried to locate Quaranta using the services of a
company named Covert Track.
C. Procedural History
Mandell and Engel were arrested on their way to kidnap
Campbell. A loaded gun was found in the subsequent search
of Club Med. While in pre‐trial custody, Mandell called his
wife and asked her to move and destroy some evidence re‐
lated to the Steven Campbell plot.
Mandell was charged with: (i) conspiring to kidnap Steven
Campbell; (ii) conspiring to extort Steven Campbell; (iii) at‐
tempting to extort Steven Campbell; (iv) possessing a gun in
furtherance of a crime of violence; (v) possessing a gun as a
convicted felon; (vi) attempting to obstruct justice; and (vii)
conspiring to murder Anthony Quaranta. See 18 U.S.C.
§ 922(g)(1); § 924(c)(1)(A); §§ 1201(a)(1), (c); § 1512(b)(2)(B);
§ 1951(a); § 1958(a).
Mandell moved to suppress the wiretap evidence. He ar‐
gued that, even without the wiretap, the FBI knew that Engel
was the accomplice—so the wiretap was unnecessary and the
supporting affidavit was false. That motion was denied. Man‐
dell testified at trial and admitted to devising and discussing
both criminal plots, but said he never intended to carry them
out. Instead, he said that Michael was paying him about
Nos. 14‐3747 and 14‐3772 7
$1,000 a week, so he played along just to feed Michael’s fanta‐
sies and continue getting paid. Mandell was acquitted of con‐
spiring to kill Quaranta, but convicted on all other counts—
which all related to the Steven Campbell plot—and sentenced
to life in prison. He re‐raised his wiretap argument in a mo‐
tion for a new trial, which was denied, and he presses that
argument on appeal.
Mandell also moved for a new trial based on evidence he
discovered after trial concerning the source of the gun that
was found at Club Med. He appeals the district judge’s denial
of that motion. Finally, the district judge denied in part Man‐
dell’s post‐trial motion for a return of property, and Mandell
filed an appeal. But Mandell said nothing about that issue in
his briefs so we summarily affirm that part of this consoli‐
dated appeal.
II. ANALYSIS
A. Not Clear Error to Deny Motion to Suppress Without
Holding Evidentiary Hearing
Before using a wiretap to gather evidence of crimes, the
government must apply for court authorization and its appli‐
cation must meet certain statutory requirements. 18 U.S.C.
§§ 2516, 2518(1). The statute also specifies facts that the judge
must find before authorizing the wiretap. Id. § 2518(3). If ei‐
ther the application or the authorization is lacking, any result‐
ing evidence is inadmissible. Id. § 2515. Further, the authori‐
zation is invalid if it was procured through the government’s
deliberate or reckless omission of material information from
its application. See United States v. McMurtrey, 704 F.3d 502,
504 (7th Cir. 2013).
8 Nos. 14‐3747 and 14‐3772
1. Wiretap Application Met Requirements
A wiretap application must state “the identity of the per‐
son, if known, committing the offense and whose communi‐
cations are to be intercepted.” 18 U.S.C. § 2518(1)(b). The dis‐
trict judge found this requirement met, and we review that
finding for clear error. United States v. Fudge, 325 F.3d 910, 917
(7th Cir. 2003). Under what is known as the “necessity” re‐
quirement, an application must also include a “full and com‐
plete statement as to whether or not other investigative pro‐
cedures have been tried and failed or why they reasonably
appear to be unlikely to succeed if tried or to be too danger‐
ous.” 18 U.S.C. § 2518(1)(c). The necessity requirement binds
judges too: before approving an application, the judge must
find that “normal investigative procedures have been tried
and have failed or reasonably appear to be unlikely to succeed
if tried or to be too dangerous.” Id. § 2518(3)(c).
Despite its name, the necessity requirement “was not in‐
tended to ensure that wiretaps are used only as a last resort in
an investigation, but rather that they are not to be routinely
employed as the initial step in a criminal investigation.”
United States v. McLee, 436 F.3d 751, 763 (7th Cir. 2006) (cita‐
tions and internal quotation marks omitted). Accordingly,
“the government’s burden … is not great” and “the require‐
ment of exhausting other investigative procedures prior to ob‐
taining a wiretap is reviewed in a practical and common‐
sense fashion.” Id. (internal quotation marks omitted). The
district judge found the requirement met, and we review that
determination for an abuse of discretion. United States v.
McLee, 436 F.3d 751, 763 (7th Cir. 2006).
The FBI’s application, including Special Agent Tipton’s af‐
fidavit, detailed the traditional investigatory methods that
Nos. 14‐3747 and 14‐3772 9
had been attempted, explained why other traditional efforts
would be futile or too dangerous, and urged that the wiretap
was necessary in part to identify Mandell’s accomplice in the
Campbell plot. See McLee, 436 F.3d at 763 (noting that we have
upheld the “necessity” of wiretaps on the basis that investiga‐
tors were having trouble identifying other members of the
conspiracy) (citing United States v. Farmer, 924 F.2d 647, 652
(7th Cir. 1991)). Mandell argues that the FBI already knew that
Engel was the accomplice, so the wiretap was invalid both be‐
cause the application failed to list Engel as someone “commit‐
ting the offense and whose communications are to be inter‐
cepted,” and because the necessity requirement was not met.
Mandell urges that, before it submitted its application, the
government was aware of substantial ties between himself
and Engel, including:
Mandell met with Engel and Engel inspected the
car that was later used in the Steven Campbell plot.
The meeting was less than two weeks before the FBI
submitted its application.
Mandell and Engel used the same Covert Track ac‐
count to track people.
Mandell and Engel made many phone calls to each
other between August and October 2012.
Mandell and Engel were both tried and convicted
for the 1984 kidnapping; both had their convictions
vacated; and both filed related civil suits.
Mandell’s argument is entirely hindsight. He lists all the
known connections between himself and Engel and then
backdates them to argue that the FBI should have known En‐
10 Nos. 14‐3747 and 14‐3772
gel was his accomplice. But Mandell could list extensive con‐
nections with numerous people (including his wife, relatives,
neighbors, and so on). Even focusing on suspected criminals,
Mandell had substantial connections with many such people,
as his lawyer acknowledged at oral argument.
Further, without hindsight, the connections that Mandell
highlights were not obviously related to the plot to kidnap,
torture, extort, and kill Steven Campbell. For example, Man‐
dell makes much of the fact that Engel inspected a car, and
that car was later used in the Campbell plot. Mandell neglects
to mention that the car was also used to conduct surveillance
of Anthony Quaranta. More fundamentally, Mandell does not
explain how the subsequent use of the car in the Campbell plot
would have informed the FBI at the time Engel was observed in‐
specting the car, that Engel was tied to the Campbell plot. (To
see the argument’s flaw clearly, imagine Mandell had made
the absurd argument that Engel was obviously involved in the
Campbell plot because Engel shook Mandell’s hand, and that
is the same hand that Mandell planned to use to torture Camp‐
bell.)
Arguably, the evidence of an in‐person meeting (right af‐
ter Mandell conducted surveillance of Quaranta), car inspec‐
tion, and joint use of a Covert Track account connected Engel
to the plot to kill Quaranta. (We say “arguably” because the
district court found the evidence tying Engel to that plot to be
“slim, at best,” and Mandell has not called that characteriza‐
tion into question.) But the Quaranta and Campbell plots
were entirely separate. Indeed, even with the wiretap evi‐
dence, the jury acquitted Mandell of the counts related to
Quaranta. So even if the FBI suspected that Engel might be
involved in the Quaranta plot, it does not follow that the
Nos. 14‐3747 and 14‐3772 11
agency must have known he was the Campbell accomplice.
Similarly, the fact that Engel and Mandell had phone conver‐
sations does not suggest that Engel was planning to kidnap,
torture, extort, and kill someone. And we agree with the gov‐
ernment that it would be preposterous for the FBI to have con‐
cluded that Engel was the accomplice based on the vacated
convictions and civil suits stemming from the 1984 Missouri
kidnapping prosecution. The district court did not clearly err
in finding that the FBI did not know, at the time of its applica‐
tion, that Engel was the accomplice in the Campbell plot.
Moreover, even if the FBI did know that Engel was the ac‐
complice, the application also urged that the wiretap was
needed to: (i) ascertain each defendant’s role in the plot, see
United States v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995); and
(ii) obtain evidence to prove each defendant guilty beyond a
reasonable doubt, see United States v. Campos, 541 F.3d 735, 748
(7th Cir. 2008); Fudge, 325 F.3d at 919. The wiretap served
those purposes. Mandell argues that the government did not
need the video evidence because it already had recordings of
Mandell’s conversations with George Michael. But remember,
Mandell told the jury that he was role playing, to feed Mi‐
chael’s fantasies and continue getting paid. The recorded con‐
versations are consistent with that story. In contrast, the vid‐
eos from Club Med, in which Mandell and Engel discuss their
plans in gruesome and tedious detail even though Michael is
not present, are not consistent with “fantasies.”2
2 Mandell said that the videos are consistent with his story because he
assumed he was being watched by Michael, who Mandell assumed had
installed hidden cameras at Club Med. The jury was entitled to reject that
unlikely story, especially given the level of detail of the videotaped prep‐
arations.
12 Nos. 14‐3747 and 14‐3772
The necessity is even clearer in relation to Engel. “[T]he
government’s burden of proof at trial is substantially higher
than its burden in obtaining an indictment,” so a wiretap can
be necessary “even if the government [has] enough evidence
to indict.” Campos, 541 F.3d at 748 (citing McLee, 436 F.3d at
763). We have already discussed the dearth of evidence iden‐
tifying Engel as the accomplice. Especially considering the in‐
creased burden of proof at trial, it is clear that the district
judge did not abuse her discretion in finding the necessity re‐
quirement met.
2. No Hearing Was Required
The considerations discussed above also lead us to affirm
the denial of Mandell’s motion for an evidentiary hearing. Un‐
der Franks v. Delaware, 438 U.S. 154 (1978), and its progeny, a
wiretap order is invalid—even if the application and authori‐
zation meet all the statutory requirements—if the order was
obtained by the government’s deliberate or reckless omission
of material information from its application. See McMurtrey,
704 F.3d at 504; United States v. Carmel, 548 F.3d 571, 577 (7th
Cir. 2008). A defendant is entitled to an evidentiary hearing to
prove his case, but only if he first makes a “substantial pre‐
liminary showing.” McMurtrey, 704 F.3d at 504. Mandell
asked for a hearing, complaining about the government’s fail‐
ure to lay out all of the previously discussed connections be‐
tween Mandell and Engel. The district court declined to hold
a hearing and we review that decision for clear error. Id. at
508. But Mandell was not entitled to a hearing because he did
not (and could not) make a substantial preliminary showing
that the government’s application would have been denied if
it laid out those connections. See McMurtrey, 704 F.3d at 509;
Whitlock v. Brown, 596 F.3d 406, 411 (7th Cir. 2010); Carmel, 548
Nos. 14‐3747 and 14‐3772 13
F.3d at 577. As discussed above, the connections did not es‐
tablish that Engel was Mandell’s accomplice, and even if they
did, the wiretap was still necessary to collect evidence needed
to prove each man guilty beyond a reasonable doubt. So the
district judge did not clearly err by refusing to hold a hearing.
B. Not Abuse of Discretion to Deny Motion for New
Trial Based on Gun Evidence
A search of Club Med turned up a loaded gun—a Ruger.
A year before trial, the government turned over a firearms
trace summary showing only one recorded transaction: “In‐
dividual A” bought the gun in 1980. At trial, Mandell testified
that the gun was planted at Club Med, by George Michael,
without Mandell’s consent. The jury either did not believe
him, or found that story irrelevant, as it convicted him on two
relevant counts: possessing a gun in furtherance of a crime of
violence, and possessing a gun as a convicted felon. See 18
U.S.C. §§ 922(g)(1), 924(c)(1)(A).
In a pro se post‐trial motion, Mandell argued for a new
trial, urging that both George Michael and “Individual A”
were tied to the leader of a criminal organization in Chicago.
(As to Individual A, the connection was apparently based on
her last name, which was similar to the last name of the crime
leader.) Why such connections would warrant a new trial is
unclear. In any event, the government responded by saying it
had no evidence that the gun was traceable to either the crime
leader or George Michael. The government turned over two
reports of interviews conducted by the Internal Revenue Ser‐
vice. The reports were redacted because they concerned an
unrelated matter, but they involved Individual A.
14 Nos. 14‐3747 and 14‐3772
Mandell moved for a new trial, arguing that by not turning
the reports over earlier, the government had violated its obli‐
gation to disclose exculpatory evidence. See Giglio v. United
States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83
(1963). The district judge denied that motion, and we review
that decision for an abuse of discretion. United States v. Smith,
674 F.3d 722, 728 (7th Cir. 2012). “A Brady violation occurs
when the prosecution suppresses evidence favorable to the
defense and the evidence was material to an issue at trial.”
United States v. Mota, 685 F.3d 644, 648 (7th Cir. 2012). A de‐
fendant is entitled to a new trial “only when … there is a rea‐
sonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been dif‐
ferent.” Id. (citations omitted).
Mandell cannot meet this standard. His theory of the
Ruger’s connection to George Michael, based in part on the
IRS reports, is strange. He notes that Individual A bought the
Ruger in 1980, and in 2005, her ex‐spouse died and he owned
about one hundred guns. Also, from 1976 until 1982, that ex‐
spouse had an ownership interest in a strip club, and at some
point, George Michael acquired an ownership interest in the
same strip club. Somehow Mandell says this all supports his
theory that George Michael acquired the Ruger and planted it
at Club Med. The district judge found otherwise and we can‐
not see how that was an abuse of discretion.
Regardless, whether the gun was connected in some way
to George Michael is irrelevant. No matter how the gun ar‐
rived at Club Med, Mandell was aware of its presence and its
planned use in the Campbell plot. Mandell and Engel are seen
on video discussing the gun, confirming the type of bullet be‐
ing used, and complaining about how difficult it was to load
Nos. 14‐3747 and 14‐3772 15
while wearing rubber gloves. As Mandell admits in his open‐
ing brief on appeal, the videos reveal that “Engel loaded the
Ruger prior to departing for Michael’s office. Mandell asked
Engel why he was loading it. After Engel responded why
‘have it sitting around here unloaded,’ Mandell replied ‘good
answer.’” No matter who owned the gun, or who was respon‐
sible for originally bringing it to Club Med, the evidence that
Mandell possessed it (as a convicted felon and in furtherance
of a crime of violence) was clear. So there is no “reasonable
probability that, had the [IRS reports] been disclosed to the
defense, the result of the proceeding would have been differ‐
ent.” Mota, 685 F.3d at 648. The district judge did not abuse
her discretion in denying Mandell’s motion for a new trial.
III. CONCLUSION
The judgment of the district court is AFFIRMED.