OJO v. LUONG et al
Filing
32
OPINION. Signed by Judge Jose L. Linares on 4/5/2016. (seb)
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
OLUKAYODE DAVID OJO,
Civil Action No. 14-4347 (JLL)
Plaintiff,
v.
:
OPINION
AN N. LUONG, et al.,
Defendants.
LINARES, District Judge:
Presently before the Court is Defendants’ motion to dismiss or in the alternative for
summary judgment, brought pursuant to Fed. R. Civ. P. 12(b)(6) and/or 56, seeking the dismissal
of the sole remaining claim presented in Plaintiffs complaint. (ECF No. 20). Petitioner filed a
response (ECF No. 24), to which Defendants replied. (ECF No. 27). Following this Court’s
grant of permission (ECF No. 30), Plaintiff also filed a sur-reply.
(ECF No. 31).
For the
following reasons, this Court will grant the motion to dismiss, and will dismiss Plaintiffs sole
remaining claim
—
that Defendants violated his Fifth Amendment rights by interrogating him in
the absence of Miranda warnings.
1. BACKGROUND
In this Court’s previous opinion screening Plaintiffs complaint pursuant to 28 U.S.C.
§
1915(e)(2)(B) and 1915A, this Court provided the following summary of the facts alleged in
Plaintiffs complaint:
The following facts are drawn from the allegations contained in
Plaintiff’s complaint. (ECF No. I). Plaintiff is a citizen ofNigeria
who, prior to his arrest, resided in Irvington New Jersey. (ECF No.
1 at ¶ 4). Plaintiff, at the time he filed his complaint, was
incarcerated in the Orange County Jail in Goshen, New York. (Id.).
Defendants Ann Luong, Brian Ennesser, Michael Bickings, Scott
Urben, Matthew Nahas, and Ray Miller are all FBI agents belonging
to Squad 42 out of the Bureau’s New York office who were involved
in Plaintiff’s arrest. (Id. at ¶ 5-10).
Defendants Anthony
Sardanopoli and Hugo Reibeiro are both New Jersey State Troopers
who initiated the traffic stop which led to Plaintiff’s arrest. (Id. at
¶11-12). The remaining John Does are all also alleged to be New
Jersey State Police officers who were involved in the search of
Plaintiff’s vehicle as detailed below. (Id. atlJl3-18).
Plaintiff’s claims arise out of the events which culminated in
his arrest, prosecution, and conviction on conspiracy to commit wire
fraud charges. (See United States v. Ojo, No. 13-334 (E.D.N.Y.
2013), Indictment at ECF No. 1, Jury Verdict at ECF No. 50).
Plaintiff alleges that, while at home on July 11, 2011, the FBI agent
defendants “illegally” used a tracking device to monitor and follow
him via his cell phone. (ECF No. 1 at ¶19). During that afternoon,
Plaintiff left his home, and while driving a car was pulled over by
Defendants Sardanopoli and Reibeiro. (Id. at ¶20-21). While the
troopers were engaged in the traffic stop, six more New Jersey State
Police cars arrived, out of which the John Doe Defendants exited
with weapons drawn. (Id.). While the two original troopers
questioned Plaintiff regarding the traffic stop, the other officers
surrounded his vehicle. (Id.). Plaintiff alleges that he was then
falsely cited for failure to wear a seatbelts by Defendants
Sardanopoli and Reibeiro[.j (Id. at 21). The original two troopers
then left the scene, while the remaining armed officers held Plaintiff
at the scene of the traffic stop, detaining him on the roadside while
the FBI Agent Defendants arrived on the scene. (Id. at ¶22-23).
Plaintiff specifically alleges that he was directed to “shut up and.
• sit barely on a very hot paved road at approximately 3:40 PM in
the Summer season with a very high degree temperature.” (Id. at
¶26). Plaintiff also alleges that the state policemen refused his
requests for a lawyer and to contact his sister via his cell phone to
2
request that she procure a lawyer for Plaintiff. (Id. at ¶22).
Defendants Luong and Ennesser then approached Plaintiff
and requested Plaintiff’s consent to search his vehicle, which
Plaintiff refused. (Id. at ¶23). Following his refusal, Defendants
summoned another State Police car, which brought a police dog to
the scene. (Id. at ¶24). The dog was then used to search the car,
both within and without the vehicle and its trunk. (Id.). Following
the dog search, Defendants again approached Plaintiff and requested
his consent to search the car, which Plaintiff refused, again
requesting that he be permitted to acquire counsel. (Id. at ¶25).
Plaintiff was also again informed that he was not to use his cell
phone while detained, including to call his family in attempts to
acquire a lawyer. (Id.). Plaintiff also alleges that he began to
request that passers-by obtain a lawyer for him and that in response
the state policemen again pointed their weapons at him and
instructed Plaintiff to remain quiet and seated on the roadside. (Id.
atJ26).
Plaintiff claims that he was thereafter approached by
Defendant Ennesser who “coerced” him into signing a consent to
search form. (Id. at ¶28). Specifically, Plaintiff alleges that
Ennesser told him that “this is how use to do it in America, they
were just trying to give you a chance, in America it is give and take,
if it is given to you and you refused we will take it back, and if you
cooperate it will be good for you.” (Id.). Plaintiff also alleges that
he was “threatened and coerced” into signing the statement. (Id.).
Following the consent to search form, Plaintiff was directed
to empty his pockets and was patted down by the officers. (Id. at
¶29). The FBI and John Doe Defendants then searched the vehicle,
in which they found four IDs. (Id.). Plaintiff alleges that the FBI
defendants then led him to their van and questioned him without
providing him a Miranda warning. (Id.). Plaintiff alleges that he
was then questioned, threatened, and coerced into admitting that he
had been sent the IDs so as to collect money from Western Union.
(Id.). Plaintiff alleges that he was told that he would be turned over
to the state troopers if he did not cooperate, but “if you cooperate.
the armed troopers will be excused from the scene and [the FBI]
will help you.” (Id.). Plaintiff alleges that he was then transported
to various Western Union locations and directed to withdraw the
money, but was unable to do so as no money was available. (Id. at
¶30).
3
Plaintiff states that he was then taken to the FBI office in
New York, where he continued to be interrogated “in the absence of
counsel and without being given certain warnings for more than
eight hours.” (Id. at ¶31). At 11:15 p.m. that night, Plaintiff was
presented with another consent to search form which he was told
was a duplicate of the one he’d signed on the road side, which he
apparently signed. (Id. at ¶3 2). Plaintiff was also provided with a
Miranda warning form which he signed at which point he alleges he
‘chose the option of being represented by an attorney.” (Id.).
Plaintiff was then searched a final time, and had his belt removed
before being transported to detention. (Id.).
Plaintiff was thereafter indicted for conspiracy to commit
wire fraud on August 11, 2011. (See United States v. Ojo, No. 11570 (E.D.N.Y.), Indictment at ECF No. 6). On May 14, 2013,
Plaintiff was charged by way of superseding indictment with
conspiracy to commit wire fraud and conspiracy to commit fraud in
connection with identification documents. (See United States v.
Ojo, No. 11-570 (E.D.N.Y.), Superseding Indictment at ECF no.
74). On June 5, 2013, upon motion by the Government, the
indictment was dismissed without prejudice based on a one day
Speedy Trial Act violation. (See United States v. Ojo, No. 11-570
(E.D.N.Y.), Order at ECF No. 82). Plaintiff was thereafter re
indicted on that same day and charged again with conspiracy to
commit wire fraud and conspiracy to commit fraud in connection
with identification documents. (See United States v. Ojo, No. 13334 (E.D.N.Y. 2013), Indictment at ECF No. 1). Prior to trial,
Plaintiff filed a petition for a writ ofhabeas corpus which was denied
on August 6, 2013. (ECF No. 1 at ¶36, see Ojo v. United States,
No. 13-4 153 (E.D.N.Y.)). Plaintiff was thereafter found guilty on
both counts following ajury trial on August 8, 2013.{j (ECF No. 1
atJ35; See United States v. Ojo, No. 13-334 (E.D.N.Y. 2013), Jury
verdict at ECF No. 50).
(ECF No. 9 at 2-5).
On April 21, 2015, this Court issued an order and opinion which screened Petitioner’s
complaint and dismissed all of his claims save for his claim that the FBI Defendants violated his
Fifth Amendment rights by interrogating him in absence of Miranda warnings and using the
4
statements derived therefrom against Petitioner at trial. (Id. at 10-12; ECF No. 10). In permit
ting
that claim to proceed, however, this Court made the following observations:
The final type of claim Plaintiff seeks to bring is a claim that his
Miranda rights were violated when he was questioned without being
read his rights and without being provided an attorney after he
repeatedly requested one. The failure of a government agent to
provide proper Miranda warnings during custodial interrogation, or
to provide a lawyer during interrogation once one is requested, does
not, in and of itself, give rise to a claim under [42 U.S.C.) 1983 or
§
Bivens [v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971)). Chavez v. Martinez, 538 U.S.
760, 773 (2003); see Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir.
1994) (“violations of the prophylactic Miranda procedures do not
amount to violations of the constitution itself
the ‘right to
counsel’ during custodial interrogation recognized in Miranda.
is merely a procedural safeguard, and not a substantive right”); see
also Renda v. King, 347 F.3d 550, 557 (3d Cir. 2003) (upholding
Giuffre). A Miranda claim only becomes actionable under 1983
§
or Bivens when a statement elicited in the absence of those warnings
is used at a Plaintiffs criminal trial. Chavez, 538 U.S. at 773; see
also Large v. Cnty. OfMontgomeiy, 307 F. App’x 606, 607 (3d Cir.
2009). Thus, to state a claim for relief, Plaintiff must allege that the
FBI agents not only violated Miranda, but then introduced the
evidence obtained from that violation at trial, thus violating
Plaintiffs right against self-incrimination. Large, 307 F. App’x at
607; Renda 347 F.3d at 559.
.
(ECF No, 9 at 10-11).
.
.
Based on this recitation of the relevant caselaw, this Court permitted
Plaintiffs Bivens claim based on the violation of his Fifth Amendment rights to procee
d only
because Petitioner had specifically alleged that the statements “elicited from him during
.
.
interrogation [were] used against him during his criminal trial.” (Id. at 11).
Defendants now move to dismiss this final claim based on the assertion that no statem
ents
made by Plaintiff during his interrogation were actually used against him at trial. (ECF
No. 20).
In support of this contention, Defendants have attached to their motions the transcr
ipts of
5
Petitioner’s trial in the Eastern District of New York. (Documents 2-5 attached to ECF No. 20).
Upon reviewing the transcripts it is clear that no statements made by Plaintiff to law enforcement
were admitted during his trial. A review of the record also indicates that most, if not all, of the
instances where the fact that Plaintiff talked with the FBI was mentioned at trial occurred during
the cross examination of FBI agents by Plaintiff’s own attorney. (See, e.g., Document 2 attache
d
to ECF No. 20 at 23 1-33; Document 3 attached to ECF No. 20 at 3 10-11).
Indeed, the
Government specifically objected to an attempt by defense counsel at trial to bring Plaintiff’s
allegedly non-Mirandized statement into evidence during cross examination.
(Document 3
attached to ECF No. 20 at 310-11).
II.
DISCUSSION
A.
Legal Standard
In deciding a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether under any reasonable reading of the complaint, the plaintiff may be entitled
to
relief.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n. 3 (3d Cir. 2014) (quotin
g
Phillips v, Cnty. ofAllegheny, 515 F.3d 224, 233 (3d Cir. 2008)). According to the Suprem
e
Court’s decision in Ashcroji v. Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.” 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to
dismiss for failure to state a claim, a complaint must allege “sufficient factual matter to
” show
that its claims are facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir.
6
2009) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Dempster, 764 F.3d at 308 (quoting lqbal, 556 U.S. at 678). Finally,
while pro se pleadings are liberally construed, “pro se litigants still must allege sufficient facts in
their complaints to support a claim” to survive a motion to dismiss. Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted) (emphasis added).
B.
Analysis
1. This Court can consider the trial court transcripts in addressing Defendants’ motion
to
dismiss, and need not convert this matter to a motion for summary judgment
Initially, this Court must address the question of whether it can properly consider the trial
transcripts provided by Defendants in deciding this motion to dismiss, or whether it would
be
necessary to convert the motion to one for summary judgment.
As the Third Circuit has
explained,
“To decide a motion to dismiss, courts generally consider only the
allegations contained in the complaint, exhibits attached to the
complaint and matters of public record.” Pension Benefit Guar.
Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993); see also Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.
2010). “However, an exception to the general rule is that a
‘document integral to or explicitly relied upon in the complaint’ may
be considered ‘without converting the motion to dismiss into one for
summary judgment.” In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997) (quoting Shaw v. Digital Equip.
Corp., 82 F.3d 1194, 1220 (1st Cir. 1996), superseded on other
grounds by PSLRA, 15 U.S.C. § 78u-4(b)(2)). “The rationale
underlying this exception is that the primary problem raised by
looking to documents outside the complaint lack of notice to the
plaintiff is dissipated ‘[wjhere the plaintiff has actual notice
—
—
.
7
.
and has relied upon these documents in framing the complaint.” Id.
(quoting Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993)).
“[Wjhat is critical is whether the claims in the complaint are ‘based’
on an extrinsic document and not merely whether the extrinsic
document was explicitly cited.” Id.
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). Publically available court transcripts which
have a bearing on the controversy at issue are one such type of document which may be considered
without converting a motion to dismiss into one for summary judgment. See, e.g., Sands v.
McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
Here, Defendants seek to make use of the transcripts of Plaintiff’s trial, which are
publically available through PACER, to show that no Fifth Amendment violation occurred. This
Court may properly consider these transcripts for several reasons.
First, they are publically
available court transcripts which clearly have a bearing on the claims Plaintiff has presented. Id.
Second, as Plaintiff’s sole remaining claim arises directly out of his claim that his statements to
law enforcement were used against him at trial, he has implicitly relied upon what occurred at his
trial and in turn the transcripts of that trial are extrinsic documents upon which his complaint is
based. Schmidt, 770 F.3d at 249. Finally, because Petitioner references his Eastern District of
New York criminal matters explicitly in his complaint, and it would therefore it appears that
Plaintiff has incorporated those docket sheets by reference into his complaint, the documents on
those docket sheets are properly available in a motion to dismiss as they have been incorporated
by reference. Id. Ultimately, it is clear that Plaintiff certainly had notice that his trial transcripts
would he central to his contentions, and as such the underlying rationale for requiring that extrinsic
documents not be considered in a motion to dismiss is inapplicable here. Id. As such, this Court
may consider the transcripts in deciding Defendants’ motion to dismiss without converting
this
8
matter into a motion for summary judgment. Id.
2.
Plaintiff’s Fifth Amendment claims
Following this Court’s sua sponte screening, only a single claim remains in this matter
:
Plaintiffs claim that his Fifth Amendment rights were violated by the use of non-Mirandized
statements against him during his criminal trial. The provided transcripts however, compl
etely
refute Plaintiffs factual allegations because they indicate that no such statements were
used
against Plaintiff in his criminal trial. As this Court explained in its screening opinion, the failure
of police to give Miranda warnings to a criminal suspect in and of itself does not amoun
t to a
constitutional violation actionable under
§ 1983 or Bivens. See Renda, 347 F.3d at 557-59. “[I]t
is the use of coerced statements during a criminal trial.
.
.
that violates the Constitution.” Id. at
559. It is thus clear that, regardless of whether Plaintiff was not given proper Miranda warnin
gs,
because his statements were not used against him at trial based upon the provided transcr
ipts, no
violation of Plaintiff s Fifth Amendment rights occurred which would be actionable under Bivens
.
Id.
In response to Defendants’ motion to dismiss, Plaintiff in essence presents two argum
ents:
first, that his statements were used against him as part of pre-trial proceedings in his crimin
al cases,
and second, that the Government used evidence derived from his statements against him
at trial.
PlaintitT’ s first argument is without merit.
As Renda makes clear, it is only when a non
Mirandized statement is used against a person in his criminal trial, as opposed to in
the pre-trial
context such as in the securing of an indictment, which violates the Fifth Amend
ment. Id.; see
also Murray v. Earle, 405 F.3d 278, 285 (5th Cir. 2005) (the “Fifth Amendment
privilege against
9
self-incrimination is a fundamental trial right which can be violated only at trial, even though pre
trial conduct by law enforcement officials may ultimately impair that right”).
As such, no
actionable constitutional violation occurs unless and until a statement is used against the crimin
al
defendant at trial in so much as the actual constitutional right at trial is one’s right against forced
self-incrimination. Renda, 347 F.3d at 559. Thus, to the extent that Petitioner now seeks
to
clarify his claim to assert violations of his Fifth Amendment rights in the pre-trial context, Plainti
ff
fails to state a claim for relief under Bivens.
Plaintiffs second argument, that evidence derived from his statement was allegedly used
against him at trial, fairs no better. The exclusionary rule, which permits the exclusion in
a
criminal case the fruits of a constitutional violation such as an illegal search, “is not ‘a person
al
constitutional right of the party aggrieved.” Hector v. Watt, 235 F.3d 154, 158 (3d Cir.
2000)
(quoting United States v. Peltier, 422 U.S. 531, 538 (1975)). Thus, the Third Circuit has
held in
cases based upon Fourth Amendment violations that the victims of such violations “canno
t be
compensated for injuries that result from the discovery of incriminating evidence and conseq
uent
criminal prosecution” which came about as a result of the alleged constitutional violati
on. Id. at
157 (quoting Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999) (holding that
§ 1983
does not provide redress for the discovery or use of evidence derived from an illegal search
)). It
is thus clear that, even where the exclusionary rule does apply and the suppression of
evidence
would be required in a criminal matter, it does not follow that damages may also be obtaine
d in a
civil suit based on that fact. It is only direct constitutional violations, and not the discov
ery of
evidence resulting therefrom, which is actionable under
Bivens, Id,
10
§ 1983 or its federal counterpart under
In any event, even were this not the case, the use of evidence allegedly derived from
Plaintiff’s statements to the FBI would not be actionable as the “fruit of the poisonous
tree”
exclusionary rule does not apply in this context.
As the Supreme Court has held, physical
evidence derived from a voluntary non-Mirandized statement is not subject to the exclusionary
rule,
United States v. Patane, 542 U.S. 630, 634, 637 (2004). As the Court made clear in that
case, there is “no reason to apply the ‘fruit of the poisonous tree’ doctrine” to those cases where
a
criminal defendant asserts a violation of Miranda. Id. at 642. Only where actual, rather
than
presumed, coercion is shown does that rule apply to the fruits of a statement given to police. Id.at
644,
Plaintiff makes no case for coercion other than the lack of Miranda warnings in his
complaint, and as such the exclusionary rule would not apply to derivative evidence in Plainti
ff’s
case in any event. If the exclusionary rule would not have required the exclusion of the alleged
fruits of Plaintiff’s alleged non-Mirandized statement, then neither Bivens or
§ 1983 is available
to provide him redress, either. See Hector, 235 F.3d at 157-60. Thus, Plaintiff’s arguments
1
do
not save his Miranda claim, which must be dismissed because Plaintiff’s alleged statements
were
not used against him at trial. Renda, 347 F.3d at 559.
III. CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss (ECF No. 20) will
be
Although the Court need not rely on it to decide this case, it is also worth noting that the
transcripts of Plaintiff’s criminal trial also suggests that the alleged fruits about which
Plaintiff
complains, specifically his phone number and the records associated therewith, were
apparently
already known to the FBI prior to Plaintiff’s stop, arrest, and statement. (See Docum
ent 2
attached to ECF No. 20 at 196). Thus, the extent to which they are “fruits” of his
statement is
dubious at best in any event.
11
GRANTED, and Plaintiff’s sole remaining claim shall be DISMISSED. An appropriate order
follows,
Jose L. Linares,
inited States District Judge
12
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