The Third Circuit’s decision in United States v. Ludwikowski, Crim. No. 18-1881, really underscores the importance of seeking the advice of counsel before ever speaking to the government or any law enforcement officer. In this case, Ludwikowski was receiving extortionate threats relating to his pharmacy and while reporting these threats, he inculpated himself. He was subsequently prosecuted for drug distribution and a government expert testified at trial that the drugs were dispensed “outside the usual course of professional practice.” He was convicted by a jury, sentenced to 180 months imprisonment. The Third Circuit affirmed the conviction.
This case involves a pharmacist who owned two independent pharmacies in New Jersey that engaged in an extensive business filling oxycodone prescriptions. After telling two customers that he could no longer fill their prescriptions, Ludwikowski starting receiving a series of threatening text messages threatening him and his family. Worried about the extortionate threats, he contacted his uncle, a New York FBI agent, who in turn called the FBI’s Trenton office. The Trenton FBI agent learned of an open local investigation into Ludwikowski’s pharmacy and arranged for Ludwikowski to be interviewed at a local police station. Subsequently, Ludwikowski drove to the police station and was interviewed from around 10:15am to 5:30pm, without being given any Miranda warnings. His statements were later used to prosecute him for drug distribution.
On appeal, he argued that his interrogation statements should have been excluded because his Miranda rights were violated.
The Third Circuit engaged in a multi-step analysis before concluding that no Miranda warnings were necessary. First, the Third Circuit considered the question of whether Ludwikowski was in custody. The Court considered the following factors with respect to this question: (1) “the circumstances surrounding the interrogation;” (2)“whether ‘a reasonable person [would] have felt that he or she was not at liberty to terminate the interrogation and leave;’” and (3) “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Slip Opinion at p. 11 (citations omitted). In considering the “circumstances surrounding the interrogation,” the Third Circuit found relevant the fact that Ludwikowski chose to go to the station for interrogation for the purpose of solving the extortion and that he, therefore, knew that he would be questioned regarding his involvement. The Court also focused on the fact that there were never more than two questioners in the room, no one blocked his exit and that the meeting was “businesslike.” Next, in considering whether “a reasonable person [would] have felt that he or she was not at liberty to terminate the interrogation and leave,” the Third Circuit found that the following factors were evidentiary on this question: “the interview’s location, physical surroundings, and duration: whether he voluntarily participated: whether he was physically restrained; whether other coercive tactics were used, such as hostile tones of voice or the display of weapons; and whether the interviewee was released when the questioning was over.” Slip Opinion at pp. 12-13, citing Yarborough, 541 U.S.at 663; United States v. Willaman, 437 F. 354, 359-60 (3d Cir. 2006). Also relevant was ”whether the questioner believed the interviewee was guilty; whether the interviewee was specifically told he was not under arrest; and whether he agreed to meet knowing that he would be questioned about a criminal offense. Id. at 13.
The Third Circuit concluded that Ludikowski was not in custody, for a number of reasons. First, he was “not physically restrained.” Id. Rather, “he went to the station to discuss the extortion because he feared for his family’s safety,” and not because he felt “obligated to come to… the questioning.” Id. Also relevant was the fact that he left on his own volition, in his own car – i.e. unhindered release after questioning, and the fact that Ludwikowski knew that he would be questioned about the reasons behind the extortionate threats and his own possible criminal activities at the pharmacy.
Other factors that weighed in favor of a determination that a person is in custody were considered by the Third Circuit, but found factually not persuasive in Ludwikowski’s case. The fact that he was interviewed at the station house, while tending to implicate the pressures associated with custodial interrogation, was found in this case not to be applicable because Ludwikowski made arrangements to go to the station house voluntarily and the interview room door, though closed, was not locked. The second factor that weighs in favor of a finding of being in custody is that the officers told Ludwikowski that they suspected him of criminal wrongdoing – i.e. filling fraudulent prescriptions. The Third Circuit found that telling a person that they are a suspect can “create the kind of atmosphere of significant restraint that trigger Miranda.” Slip Opinion at p. 14. (Citations omitted). Nonetheless , the Court excused this factor because the officers were also trying to get to the bottom of the extortion that Ludwikowski had come to report. Finally, the last factor that the Court considered was the length of the interrogation – active interrogation for four hours and total time at the station seven hours. Again, the Third Circuit found a way around this factor by finding the circumstances not coercive because he had his phone, was allowed to go to the bathroom and that he looked relaxed. For all of these reasons, the Third Circuit concluded that the District Court did not err in finding that ta reasonable person in Ludwikowski’s situation would have felt free to go.
Finally, the Third Circuit bolstered its conclusion by emphasizing that Ludwikowski went to the police station for the purpose of “simultaneously” trying “to get help and conceal his own wrongdoing.” Id. at 17. Therefore, the Court stated that this decision is limited to the facts of this case where “the defendant was the victim of one crime and the perpetrator of another, intertwined crime.” Id. at 18. Although the Court stated that “[o]ur analysis would have no bearing on a case lacking these facts,” in reality, the damage is done, in my view, for future cases.
In yet another blow to the defense, the Third Circuit went on to find no plain error in the admission of expert testimony about New Jersey pharmacy regulations, best practices and the expert’s personal practices. Unfortunately, his counsel did not object at trial. Acknowledging Ludwikowski’s argument that “an expert may ‘not testify as to the governing law of the case,’” the Third Circuit found that despite the likelihood that they would rule similarly to their sister Circuits in finding that the standard should be an objective one, not defined by the expert’s personal habits, the demanding plain-error standard was not met here.