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United States v. Ludwikowski

United States Court of Appeals, Third Circuit

December 5, 2019

UNITED STATES OF AMERICA
v.
MICHAEL LUDWIKOWSKI, Appellant

          Argued June 18, 2019

          On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 1-16-cr-00513-001) District Judge: Honorable Jerome B. Simandle

          Lisa A. Mathewson Counsel for Appellant

          Mark E. Coyne, Assistant United States Attorney Craig Carpenito, United States Attorney Norman Gross, Assistant United States Attorney Office of United States Attorney Camden Federal Building & CourthouseCounsel for Appellee

          Before: AMBRO, RESTREPO and FISHER, Circuit Judges.

          OPINION

          FISHER, CIRCUIT JUDGE

         After Michael Ludwikowski went to the police station to report that he was receiving extortionate threats, the police questioned him extensively about why he was vulnerable to extortion. As it turned out, Ludwikowski, a pharmacist, had been filling fraudulent oxycodone prescriptions. He was later tried for distribution of a controlled substance. He moved to suppress the statements he made at the police station, arguing that they were inadmissible because no one read him his Miranda rights. The District Court denied the motion, and he was ultimately convicted.

         Ludwikowski appeals the denial of his motion to suppress. After careful review, we conclude that he was not in custody and therefore no Miranda warnings were needed. We also conclude that his other arguments are unpersuasive: his statements at the police station were not involuntary, and there was no plain error in the admission of expert testimony on the practice of pharmacy. We will therefore affirm.

         I. Factual Background

         Ludwikowski was a pharmacist who owned two independent pharmacies in Medford, New Jersey. Around March 2013, Ludwikowski told two of his customers, Matthew Lawson and Dontees Jones, that he could no longer fill their oxycodone prescriptions. On June 18, 2013, Ludwikowski received a series of threatening text messages saying things like: "THINK ABOUT IT, [YOU'RE] IN TOO DEEP . . . LOYALTY IS THE KEY, [THERE'S] NO I IN TEAM PLEASE CONSIDER MY WISHES OR [I'M] FORCED TO TAKE OTHER ROUTES IT MAY BE VERY DETRIMENTAL"; and "I GUESS WE'RE PLAYING HARDBALL I REALLY THINK [YOU] SHOULD SIT AND THINK GOT [A LOT OF] DIRT ON YOU MIKE AND BOY YOU GOT [A LOT] GOING ON. . . ." App. 639-46. Ludwikowski also received a letter hand-delivered at his pharmacy that said, "No one is safe unless you meet our [list] of demands, not your kids, family, you or [your employee] Dave." App. 74, 666. The letter demanded thousands of oxycodone and Adderall pills (listing dosages and types) and $20, 000 in cash.

         Ludwikowski contacted his uncle, a New York FBI agent, who in turn called the FBI's Trenton office. Agent William Hyland, who picked up the case, spoke to Ludwikowski by phone on Friday and Saturday, June 21 and 22, 2013. Ludwikowski told Agent Hyland that "shady people . . . [came] to his pharmacy to pay cash to fill prescriptions for oxycodone," App. 75, and said his erstwhile customers Lawson and Jones might be the extorters. Agent Hyland also learned, from Detective Bill Knecht of the Medford Township Police Department, that there was an open investigation into possible criminal activity at Ludwikowski's pharmacy. Agent Hyland and Ludwikowski arranged that Ludwikowski would go to the Medford police station for an interview on Monday, June 24.

         As planned, Ludwikowski drove to the police department on June 24. He was interviewed beginning around 10:15 a.m and remained at the station until about 5:30 p.m. Because Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), requires us to determine whether Ludwikowski was in custody given the totality of the circumstances, we recount the interview in some detail.

         Detective Knecht and FBI Special Agent Stephen Montgomery interviewed Ludwikowski in a small eight-by-eight-foot room that contained a round table and three chairs. It had the atmosphere of a bare-bones conference room, with carpet on the floor and typical office furniture. Ludwikowski sat closest to the door and was not physically restrained. He was given water, which he drank, and offered pizza, which he refused. He went to the restroom, unaccompanied, at least three times. However, he asked permission before he went. Out of the seven hours Ludwikowski was at the station, he was interviewed for about four. The interview took place in three phases, punctuated by breaks.

         A. The First Phase

         In the first portion of the interview, the officers obtained background information on Ludwikowski and learned about the threats he had been receiving. Ludwikowski told the officers that "the controlled substance thing"-by which he meant "[p]eople comin' in, trying to get drugs"-was "a long-term problem. We've been dealing with it for years." App. 326. He talked at length about a former employee, Krystal Wood, whom he had recently fired because of suspected drug abuse and theft. Discussion then turned to Jones and Lawson, the potential extorters. Ludwikowski described them coming in with prescriptions for different people and bringing in their friends. Ludwikowski said he and his employees were "naïve" and "filled [the prescriptions]." App. 426-27.

         Just before the first break, Detective Knecht and Agent Montgomery spoke to each other briefly, and Agent Montgomery said to Ludwikowski, "We'll be right back. Excuse me. Do you need to use the bathroom or anything?" App. 450. Ludwikowski asked for a drink of water, and then he left the room and re-entered with water.

         B. The Second Phase

         The officers returned twenty minutes later, at which point their style of questioning shifted. Rather than listening to Ludwikowski and asking clarifying questions, as they had during the first phase, they asked pointed questions and suggested that Ludwikowski knew more than he was saying.

         The officers went over the threatening text messages with Ludwikowski. Detective Knecht focused on the message that said, "I got a lot of dirt on you Mike." App. 469. When Ludwikowski posited that the "dirt" might be "a lie," Detective Knecht responded decisively, "No. Not a lie. . . . Mike. Mike. Stop. . . . Everybody's done somethin' [messed] up. Everybody's made mistakes. What goes through your mind immediately when they say, 'I got a lot of dirt on you, Mike'[?]" App. 470. Ludwikowski eventually answered, "[T]he only thing I kinda could've thought of was, was prescriptions." App. 471. Agent Montgomery replied, "Well, that's what we were thinking. . . . I mean we're all looking on this at its face." Id. Detective Knecht added, "It sounds like you might have been, you know, filling scripts for these guys; that would piss 'em off that you're not doin' it. . . . [Y]ou had been doing it for a couple of years. . . ." App. 472. Ludwikowski answered, "Probably. . . probably. . . probably." Id.

         A few minutes later, Agent Montgomery said, "So, it, it appears on the surface that, you know, to us, you could've been working with these guys. . . . Now, we're giving you an opportunity now to tell us the truth." App. 475-76. Ludwikowski answered, "I was not, I didn't have no involvement with anybody. . . ." App. 476. The officers also noted that Ludwikowski was making around $16, 000 a month filling oxycodone prescriptions for cash; they said, "[T]hat would cause a lot of people not to ask questions because it's very lucrative. Okay?" App. 484. Ludwikowski responded, "I, I'd have to agree. Yeah." Id. Ludwikowski continued to focus on his former employee, Wood. In response, Detective Knecht said that law enforcement was "willing to do. . . whatever we need to do to help you and try to keep you and your family. . . safe," but that Ludwikowski needed to "[c]ut the [nonsense]. Alright?" App. 499.

         The officers continued to probe whether Ludwikowski had been in business with his extorters, observing that they were "very specific . . . about what you've done." App. 524. The officers asked if anybody came in and said that Jones needed pills. When Ludwikowski said he did not know, Detective Knecht responded, "Well, that's, that doesn't seem like a very truthful answer. Okay?" App. 518.

         After some time, Detective Knecht told Ludwikowski, "September of 2010, I opened an investigation on you" that led to the arrests of several people. App. 544. Ludwikowski said, "I never knew anybody got arrested." App. 546. Detective Knecht responded, "That's contrary to what we . . . know." Id. He went on to emphasize that Ludwikowski was a subject of the investigation and that Ludwikowski's past activities had gotten him in trouble:

But the fact of the matter is, you're not aware of a lot of this Mike because you were a part of the investigation. You were somebody we were lookin' at and, and your involvement. Okay? Now, after you've been doin' this for the last two and a half, three years . . . it's come back to bite you in your ass because now you have somebody or ...

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