Aguiar v. Carter et al

Filing 131

OPINION AND ORDER granting 123 Motion for Judgment on the Pleadings; denying 129 Motion to Stay and Abeyance. Signed by Judge William K. Sessions III on 2/13/2020. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
STEPHEN AGUIAR,

)
)
Plaintiff,
)
)
v.
)
)
RICHARD CARTER, JUSTIN
)
COUTURE, JARED HATCH,
)
ANDREW LAUDATE, MICHAEL
)
MORRIS, JOHN LEWIS, UNKNOWN
)
US DOJ GPS CONTRACTOR,
)
UNKNOWN GOVERNMENT AGENTS,
)
UNKNOWN GOVERNMENT EMPLOYEES, )
VERIZON WIRELESS, TRACFONE,
)
UNKNOWN COURT CLERKS,
)
UNKNOWN LEGAL ASSISTANTS,
)
EUGENIA A.P. COWLES, WENDY
)
FULLER, TIMOTHY DOHERTY,
)
PAUL J. VAN DE GRAAF,
)
KATHERINE MYRICK,
)
)
Defendants.
)

File No. 2:17-cv-121

OPINION AND ORDER
Plaintiff Stephen Aguiar, proceeding pro se, is currently
serving a 30-year prison term as a result of his 2011 conviction
for drug distribution and conspiracy.

In this civil action,

Aguiar claims that various parties involved in the investigation
and prosecution of his criminal case violated his rights.

Aguiar

previously contested the validity of his criminal conviction on
direct appeal and in a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2255.

Both challenges were unsuccessful.

Defendants in this case include local and federal law
enforcement officers, federal prosecutors, and two
telecommunications companies.

The federal defendants were

dismissed on the basis of, among other things, collateral
estoppel, Heck v. Humphrey, and qualified immunity.

The only

remaining named defendants, Burlington City Police Officers
Michael Morris and John Lewis, now move for judgment on the
pleadings on essentially those same bases.

For the reasons set

forth below, the pending motion (ECF No. 123) is granted.
Aguiar’s subsequently-filed motion to stay the case (ECF No. 129)
is denied.
Factual Background
Aguiar has been convicted of federal drug and/or firearm
offenses three times in the District of Vermont: first in 1995,
again in 2001, and a third time in 2011.

With respect to his

most recent conviction, Aguiar was indicted by a federal grand
jury in 2009 for conspiracy to distribute cocaine and for
distribution of cocaine.

In March 2010, his attorney filed a

motion to suppress: (1) wire communications intercepted pursuant
to Title III warrants issued by this Court; (2) evidence
discovered after an April 3, 2009 order authorized a pen register
and trap and trace devices; (3) evidence of data analysis of
Aguiar’s phone; and (4) evidence seized by installing GPS
tracking devices on Aguiar’s vehicles.

The Court denied the

motion to suppress initially and upon reconsideration.
After an eleven-day trial, the jury convicted Aguiar of one
count of conspiracy to distribute heroin and five kilograms or
2

more of cocaine, and six counts of distribution of cocaine.
Aguiar appealed his conviction.

On appeal, his arguments

included: (1) that the warrantless GPS tracking of his car
violated the Fourth Amendment; (2) that this Court erred in
denying him a Franks hearing regarding a discrepancy in an
affidavit supporting the April 3, 2009 pen register application;
(3) that the Court erred when it refused to suppress evidence
found pursuant to the warrantless search of Aguiar’s cell phone;
and (4) that the Court erred when it failed to hold an
evidentiary hearing based upon a missing page from the Title III
intercept memorandum for a July 2, 2009 application.

The Second

Circuit affirmed Aguiar’s conviction on December 13, 2013, and
denied rehearing.

United States v. Aguiar, 737 F.3d 251 (2d Cir.

2013), cert. denied, 134 S. Ct. 400 (Oct. 20, 2014), rehearing
denied, 135 S. Ct. 886 (Dec. 15, 2014).
In September 2015, Aguiar filed a motion to vacate pursuant
to 28 U.S.C. § 2255, arguing ineffective assistance of counsel.
His Section 2255 motion claimed that defense counsel had failed:
(1) to argue that this Court lacked jurisdiction to authorize
installation of pen register and trap and trace devices and to
disclose records under Fed. R. Crim. P. 41; (2) to move for
suppression of evidence because the cell phones, wiretap
installations and intercepted calls were rerouted and acquired
outside the Court’s territorial jurisdiction; (3) to move for

3

suppression of the Title III warrants under Franks, or to argue
that the government did not meet the necessity requirement under
18 U.S.C. § 2518; (4) to present sufficient exculpatory evidence
in arguing the motion to suppress evidence obtained pursuant to
the April 3, 2009 pen/trap order; (5) to make an appropriate
motion or objection when the government allegedly failed to
provide Aguiar with a complete copy of June 3, 2009 and July 9,
2009 Title III applications, affidavits and orders; (6) to argue
outrageous government conduct when the government failed to
include a complete DOJ authorization memo before the Court signed
the July 2, 2009 Title III wiretap warrant; (7) to move the Court
to recuse itself with respect to arguments pertaining to the July
2, 2009 wiretap warrant; and (8) to argue on appeal that Aguiar
was denied a fair trial due to prosecutorial misconduct, insofar
as prosecutors allegedly withheld exculpatory GPS-related
discovery evidence.

Magistrate Judge Conroy issued a Report and

Recommendation recommending that the Section 2255 motion be
denied, and the Court accepted that recommendation.

Aguiar

appealed, and on July 18, 2017 the Second Circuit dismissed the
appeal, finding that Aguiar had not made a substantial showing of
the denial of a constitutional right.
In the instant case, Aguiar accuses Officers Morris and
Lewis of violating his constitutional rights by falsifying
evidence, leading federal agents to his vehicle so that they

4

could install a GPS tracking unit, and engaging in a broad
conspiracy against him.

Specifically, the Complaint alleges in

Count 9 that Officer Morris presented false evidence to the state
court in order to obtain search warrants.

That evidence

reportedly included a statement by Officer Morris that certain
cooperating individuals had been arrested, when in fact they had
not been not taken into custody.

ECF No. 3, ¶¶ 19, 21.

Count 10

alleges that Officers Morris and Lewis led DEA agents to Aguiar’s
vehicle so that the agents could affix a GPS tracking device in
violation of Vermont law.

Finally, Count 16 asserts a claim

against all Defendants claiming that they conspired to violate a
host of Aguiar’s constitutional rights, as well as his rights
under the Stored Communications Act and the ECPA/Wiretap Act.
Discussion
I.

Defendants’ Motion is Not Premature
Aguiar opposes the motion for judgment on the pleadings,

arguing in part that the motion is premature because the
pleadings are “not yet closed.”

ECF No. 126 at 5.

Federal Rule

of Civil Procedure 12(c) states that “[a]fter the pleadings are
closed but within such time as not to delay the trial, any party
may move for judgment on the pleadings.”

Fed R. Civ. P. 12(c).

“[Federal Rule of Civil Procedure] 7(a) provides that the
pleadings are closed upon the filing of a complaint and an
answer.”

5C Charles Alan Wright & Arthur R. Miller, Federal
5

Practice and Procedure § 1367 (3d ed. 2004); see also Healthcare
Ass’n of New York State, Inc. v. Pataki, 471 F.3d 87, 94 (2d Cir.
2006) (“it would be impossible to treat their motion as one for
judgment on the pleadings, since the State has not filed an
answer and the pleadings therefore are not closed”).
Officers Morris and Lewis are the only named defendants
remaining in this case.
Aguiar’s Complaint.

They have both filed an answer to

ECF No. 19.

Aguiar notes that other

defendants did not file answers to the Complaint, yet those
defendants were each dismissed after filing dispositive motions
under Federal Rule of Civil Procedure 12(b)(6).

Accordingly, the

pleadings are closed and the motion for judgment on the pleadings
is proper.
II.

Legal Standard
Motions for judgment on the pleadings under Federal Rule of

Civil Procedure 12(c) are assessed according to the same standard
as a motion to dismiss under Rule 12(b)(6).

L-7 Designs, Inc. v.

Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011).

“To survive a

motion to dismiss pursuant to Rule 12(b)(6), a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim for relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

A claim is plausible on its

face when it contains sufficient factual content to “allow[ ] the
6

court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
U.S. at 556).

Id. (citing Twombly, 550

Although “[t]he plausibility standard is not akin

to a ‘probability requirement,’” pleading “facts that are ‘merely
consistent with’ a defendant’s liability” does not suffice to
establish plausibility.

Id. (citing and quoting Twombly, 550

U.S. at 556-57).
When, as here, the plaintiff is proceeding pro se, the Court
must construe the complaint liberally “to raise the strongest
arguments that [it] suggest[s].”

Pabon v. Wright, 459 F.3d 241,

248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
III. Collateral Estoppel
Officers Morris and Lewis first move to dismiss on the basis
of collateral estoppel.

Like the other law enforcement

defendants, Morris and Lewis argue that Aguiar raised his present
allegations previously in the course of his conviction, appeal,
and/or Section 2255 proceeding.

Aguiar submits that his claims

are new and thus not barred as previously-raised.
Federal principles of collateral estoppel require that: “(1)
the identical issue was raised in a previous proceeding; (2) the
issue was actually litigated and decided in the previous
proceeding; (3) the party had a full and fair opportunity to
litigate the issue; and (4) the resolution of the issue was
7

necessary to support a valid and final judgment on the merits.”
Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir. 2006).
Collateral estoppel applies to civil rights lawsuits brought
pursuant to 42 U.S.C. § 1983.
(1980).

Allen v. McCurry, 449 U.S. 90, 101

The Second Circuit has also held that a party other than

the Government may assert collateral estoppel based on a criminal
conviction.

Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 43 (2d

Cir. 1986).
The claims against Officer Morris in Count 9 are that he
fabricated and falsified evidence and presented such evidence to
the state court.

While Count 9 does not specifically reference

any supporting facts, Aguiar alleges elsewhere in his Complaint
that Officer Morris characterized certain informants as having
been arrested when, in fact, they were merely interviewed and not
taken into custody.
Officer Morris relies upon the collateral estoppel arguments
set forth in the briefing submitted by the defendant Assistant
United States Attorneys (“AUSAs”).

However, the allegations

against those defendants were different.

Aguiar accused the

Defendant AUSAs of fabricating and falsifying evidence by listing
the wrong phone number in an affidavit to this Court.

While the

validity of the federal affidavits was addressed in previous
proceedings, Officer Morris has not cited any findings by either
this Court or the Second Circuit Court of Appeals addressing

8

state court affidavits.

The Court therefore declines to apply

collateral estoppel to Count 9.
In Count 10, Aguiar claims that Officers Morris and Lewis
helped federal agents place a GPS tracking device on Aguiar’s
vehicle.

Questions regarding the legality of that device have

been addressed at trial in the context of a motion to suppress,
on direct appeal, and again in the denial of Aguiar’s Section
2255 motion.

Collateral estoppel bars any further consideration

of that issue here, and Count 10 is dismissed.
Officers Morris and Lewis also argue that collateral
estoppel bars Aguiar’s conspiracy claims in Count 16.

The Court

previously dismissed Count 16 against other defendants because
the allegations were overly-vague and expansive.
19-20.

ECF No. 115 at

The cause of action does not single out individual

defendants, but instead accuses the entire group of conspiring.
Accordingly, the same analysis applies here.

The Court further

finds that Aguiar’s wide-ranging allegations of a conspiracy
among federal prosecutors, law enforcement officers and
telecommunications companies are frivolous.
therefore dismissed.

Count 16 is

See Fitzgerald v. First E. Seventh St.

Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (holding that
district courts may dismiss a frivolous claim sua sponte).
IV.

Heck v. Humphrey
Officers Morris and Lewis next argue that finding in
9

Aguiar’s favor would necessarily undermine his conviction.

In

Heck v. Humphrey, 512 U.S. 477, 487 (1994), the Supreme Court
held that “when a state prisoner seeks damages in a § 1983 suit,
the district court must consider whether a judgment in favor of
the plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be
dismissed.”

It is well established that Heck’s bar applies to

Bivens claims.

Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995)

(“Given the similarity between suits under § 1983 and Bivens, we
conclude that Heck should apply to Bivens actions as well.”).
Courts must proceed cautiously when applying Heck, as the
Supreme Court has warned against overly-broad applications,
particularly in the event of an allegedly-unreasonable search.
[A] suit for damages attributable to an allegedly
unreasonable search may lie even if the challenged
search produced evidence that was introduced [at
trial]. . . . Because of doctrines like independent
source and inevitable discovery, and especially
harmless error, such [an action], even if successful,
would not necessarily imply that the plaintiff’s
conviction was unlawful.
Heck, 512 U.S. at 487 n.7.
After application of collateral estoppel, the remaining
allegation in this case is the claim that Officer Morris
falsified an affidavit.

ECF No. 3, ¶ 21.

Accepting the

allegations in the Complaint as true, two cooperating witnesses
met with Burlington police and identified Aguiar as being
involved in drug trafficking.

Id.
10

Officer Morris allegedly used

that information to obtain a warrant to record certain telephone
conversations.

Shortly thereafter, Drug Enforcement Agency

agents chose to “target” Aguiar as a drug trafficking suspect by,
among other things, tracking his vehicle by means of GPS
technology.

Id., ¶ 25.

Officers Morris and Lewis also allegedly

engaged in physical surveillance.

Id., ¶ 36.

The Complaint makes clear that surveillance efforts by local
and federal law enforcement resulted in Aguiar’s arrest and
conviction.

Although the Supreme Court warned in Heck that

reviewing courts should be aware of doctrines such as inevitable
discovery or harmless error, those principles have no application
here.

The investigative work by Officers Morris and Lewis

clearly contributed to a collective effort to obtain evidence
that would support a conviction.

To allow a lawsuit now based

upon those efforts would undermine the prosecution’s presentation
at trial and, consequently, call Aguiar’s conviction into
question.
Furthermore, Aguiar cannot show that the allegedly-erroneous
information in the warrant application caused him harm.

As the

Second Circuit reasoned with respect to a federal warrant
application, “even if the false statement were stricken from the
affidavits, the affidavits are replete with information . . .
which would satisfy the necessary grounds to issue” the warrant.
Aguiar, 737 F.3d at 263.

Count 9 is therefore dismissed.

11

V.

Qualified Immunity
Because all claims against Officers Morris and Lewis have

been dismissed, the Court need not address their arguments for
application of qualified immunity.1
VI.

Leave to Amend
The Second Circuit has held that a pro se complaint should

be read liberally, and district courts should grant leave to
amend if a “liberal reading” provides “any indication that a
valid claim might be stated.”

Cuoco v. Moritsugu, 222 F.3d 99,

112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795 (2d Cir. 1999)).

But where the issues with a

complaint are “substantive” and cannot be cured by more artful or
specific allegations, repleading would be “futile” and a request
for further amendment “should be denied.”

Id.

As determined in this and previous rulings, Aguiar’s claims
are barred on substantive grounds such as collateral estoppel,
the Heck doctrine, qualified immunity, and statute of limitations
provisions.

Those flaws cannot be cured by re-pleading.

Accordingly, the Court will not grant leave to amend.

1

As the Court determined previously, however, qualified
immunity applies to at least the GPS claim. As the Second
Circuit held on direct appeal, “sufficient Supreme Court
precedent existed at the time the GPS device was placed for the
officers here to reasonably conclude a warrant was not necessary
in these circumstances.” Id. at 262.
12

VII.

Motion for Stay and Abeyance
Also pending before the Court is Aguiar’s motion to stay

this case or hold it in abeyance while the Court considers postconviction motions filed in his three criminal cases.

According

to the motion to stay, those post-conviction filings focus
primarily on the effectiveness of Aguiar’s defense counsel.
“[T]he power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the causes
on its docket with economy of time and effort for itself, for
counsel, and for litigants. . . .

Only in rare circumstances

will a litigant in one cause be compelled to stand aside while a
litigant in another settles the rule of law that will define the
rights of both.”
(1936).

Landis v. N. Am. Co., 299 U.S. 248, 254-55

Aguiar has not made clear how resolution of his

ineffective assistance of counsel claims will define the rights
of the defendants in this case.

Moreover, this case has been

pending since 2017, and defendants are entitled to a final
resolution.

The motion for stay and abeyance is denied.
Conclusion

For the reasons set forth below, the pending motion for
judgment on the pleadings (ECF No. 123) is granted, the motion
for stay and abeyance (ECF No. 129) is denied, and this case is

13

dismissed.2
DATED at Burlington, in the District of Vermont, this 13th
day of February, 2020.
/s/ William K. Sessions III
William K. Sessions III
United States District Court Judge

2

All claims against the unknown defendants are dismissed
without prejudice. 28 U.S.C. § 1915(e)(2)(B)(ii).
14