June 18, 2019
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
A. Mathewson Counsel for Appellant
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.
FISHER, CIRCUIT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?"
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