PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 18-1881
______
UNITED STATES OF AMERICA
v.
MICHAEL LUDWIKOWSKI,
Appellant
______
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
______
Argued June 18, 2019
Before: AMBRO, RESTREPO and FISHER, Circuit Judges.
(Filed: December 5, 2019)
Lisa A. Mathewson [ARGUED]
Suite 810
123 South Broad Street
Philadelphia, PA 19109
Counsel for Appellant
Mark E. Coyne, Assistant United States Attorney
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Craig Carpenito, United States Attorney
Norman Gross, Assistant United States Attorney [ARGUED]
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101
Counsel for Appellee
______
OPINION OF THE COURT
______
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
2
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.
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,
3
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.
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,
4
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.
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
5
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
6
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 a group of somebodys that are willing to do
harm against you and your family. . . .
App. 548. Ludwikowski said, “I’m very, like I said, very naïve
and, and trusting. . . .” App. 549. Detective Knecht responded,
“You . . . say naïve and trusting . . . and I’ll change it to
greedy.” Id. Ludwikowski responded, “Okay.” Id. A few
minutes later, the detective told Ludwikowski, “I find it hard
to believe an educated guy . . . you went to college for how
long . . . you run a business . . . I find it very hard to believe
that . . . flags didn’t go up and say . . . these . . . people are
coming here for a reason?” App. 564-65.
Detective Knecht also told Ludiwkowski that “taking
these scripts, you know, and not doing the . . . checks that you
should’ve done? It’s not criminal. I’m not gonna arrest you for
it, okay?” App. 589. Eventually, Agent Montgomery said,
“We’ll be right back, alright?” App. 604. As the officers left,
Ludwikowski asked for another glass of water, which
Detective Knecht brought about ten minutes later.
The second break lasted ninety minutes. Then Detective
Knecht returned alone and resumed the interview without any
explanation for the delay. He asked, “Anything else you
thought about while you’re sittin’ in here for the last little bit
7
that we were out there?” App. 607. Ludwikowski answered,
“I’m just freezing and I gotta go to the bathroom.” Id. He
smiled and laughed a little as he said it, then continued to
answer Detective Knecht’s questions in a relaxed body posture
for a half hour before asking about the bathroom again.
The tone of the interview shifted again after the second
break. Ludwikowski made a series of lengthy statements about
his circumstances and motivations, becoming emotional at
times. He said he stopped filling narcotics prescriptions
because “the constant, every day, people comin’ in . . . was
relentless.” App. 610. He said that “when my dad passed I had
two hundred and some people that owed me money,” and
added, “I trusted too many people and it’s definitely[] a
lesson.” App. 611-12. He said the oxycodone business was
“the trend of what the pharmacy was about. You know,
pharmacies were doin’ it and doin’ it and, you know . . . I just
followed suit and I guess . . . I just didn’t change quick
enough.” App. 624.
The third break began abruptly; an unidentified
detective opened the door just as Ludwikowski was tearing up
while saying, “I want my kids to be safe. . . .” App. 636.
Detective Knecht said, “I’ll be right back,” and walked out. Id.
He brought Ludwikowski more water and then left for nearly
an hour. Upon his return, he again gave no explanation, but
said he was ready to go to the pharmacy with Ludwikowski, as
they had discussed. The two men left the station, and
Ludwikowski drove himself to the pharmacy.
Ludwikowski called Agent Hyland the next day to
report several more text messages, and Agent Hyland went to
Ludwikowski’s house to help him text with the unknown
extorter. Ludwikowski also signed a form that day authorizing
8
the FBI to record his telephone communications. The extortion
was eventually solved: Dontees Jones and Matthew Lawson
were charged and pled guilty.
Procedural History
In November 2016, over three years after the interview
at the police station, Ludwikowski was indicted on six counts
of drug distribution (21 U.S.C. § 841), two counts of
maintaining premises for drug distribution (id. § 856), and
conspiracy to distribute drugs (id. § 846). He filed a motion to
suppress the statements he made after the first break during the
June 24, 2013 interview, arguing that he was in custody and
should have received Miranda warnings, and that his
statements were involuntary. After a day-long evidentiary
hearing, the District Court denied the motion.
Witnesses at Ludwikowski’s subsequent 22-day jury
trial included law enforcement officers, doctors whose
prescription forms had been stolen to forge prescriptions,
employees and others who were familiar with the operation of
Ludwikowski’s pharmacies, drug dealers and drug users who
had filled prescriptions there, and an expert in the practice of
pharmacy. A redacted version of the video of Ludwikowski’s
June 24, 2013 interview was entered into evidence and played
for the jury.
The jury found Ludwikowski guilty of five of the six
drug distribution charges and one of the two premises charges.
It acquitted him of conspiracy. At sentencing, the District
Court found by a preponderance of the evidence that
Ludwikowski had acted in concert with others. It sentenced
him based on hundreds of fraudulent prescriptions, rather than
the five associated with the counts of conviction. By
Ludwikowski’s calculation, the consideration of the additional
prescriptions put his sentence in the 151-188-month range,
9
rather than the 51-63-month range. The court ultimately
sentenced him to 180 months. He appeals.
Analysis1
Ludwikowski argues that the District Court erred in
denying his motion to suppress the statements he made during
his June 24, 2013 interview. He contends that his statements
are inadmissible because he was in custody and therefore
needed Miranda warnings, which he did not receive. We
review de novo the question of “[w]hether a person was ‘in
custody’ for the purposes of Miranda,” and we review the
underlying factual findings for clear error. United States v.
Jacobs, 431 F.3d 99, 104 (3d Cir. 2005). Under the clear-error
standard, we accept the District Court’s findings unless we are
“left with the definite and firm conviction that a mistake has
been committed.” United States v. Howe, 543 F.3d 128, 133
(3d Cir. 2008) (citation omitted).
Under the Miranda rule, “the privilege against self-
incrimination is jeopardized”—and warnings are required—
“when an individual is taken into custody or otherwise
deprived of his freedom by the authorities in any significant
way and is subjected to questioning.” 384 U.S. at 478-79.
“‘[C]ustody’ is a term of art that specifies circumstances that
are thought generally to present a serious danger of coercion.”
Howes v. Fields, 565 U.S. 499, 508-09 (2012). To determine
1
The District Court had jurisdiction over
Ludwikowski’s offenses against the laws of the United States.
18 U.S.C. § 3231. This Court has jurisdiction over the District
Court’s final judgment and its judgment of sentence. 28 U.S.C.
§ 1291; 18 U.S.C. § 3742.
10
whether an individual was in custody, we first establish “the
circumstances surrounding the interrogation.” Jacobs, 431
F.3d at 105 (quoting Yarborough v. Alvarado, 541 U.S. 652,
663 (2004)). Then we ask, as an objective matter, whether “a
reasonable person [would] have felt that he or she was not at
liberty to terminate the interrogation and leave.” Id. (emphasis
omitted) (quoting Yarborough, 541 U.S. at 663). In other
words, was there a “restraint on freedom of movement of the
degree associated with a formal arrest”? Id. (emphasis omitted)
(quoting Yarborough, 541 U.S. at 663). This “freedom-of-
movement test,” however, “identifies only a necessary and not
a sufficient condition for Miranda custody.” Howes, 565 U.S.
at 509 (quoting Maryland v. Shatzer, 559 U.S. 98, 112 (2010)).
We must “ask[] the additional question whether the relevant
environment presents the same inherently coercive pressures
as the type of station house questioning at issue in Miranda.”
Id.
We are aided at the first step—establishing the
circumstances surrounding Ludwikowski’s interview—by the
fulsome factual record created during the day-long hearing on
the suppression motion. At that hearing, Detective Knecht and
FBI Agents Montgomery and Hyland testified. In addition, the
seven-hour video and transcript of Ludwikowski’s interview
were in evidence. At the end of the hearing, the District Court
delivered extensive oral findings that were not clearly
erroneous—that is, they do not leave us with the firm
impression that there has been a mistake. See Howe, 543 F.3d
at 133.
The District Court noted two “basic considerations”:
first, that “it was [Ludwikowski’s] choice and not someone
else’s to answer the questions so that the crime . . . could be
solved,” and second, that the extortion was in fact solved
because of Ludwikowski’s answers. App. 261-62. The court
11
also found that “Ludwikowski certainly knew, before being
interviewed on June 24th, that he would be asked for his
interpretation of the threats he was reporting as well as
exploring who could be issuing such threats.” App. 259. The
court “credit[ed] the testimony of Detective Knecht and
Special Agent Montgomery, namely, they weren’t laying some
sort of trap to induce [Ludwikowski] to incriminate himself but
rather they were trying to solve an ongoing and serious
extortion.” App. 260.
The court found that there were never more than two
questioners in the room with Ludwikowski; no one blocked his
exit; and officers used some “salty language,” but nothing out
of the ordinary for a police department. App. 260-61. The
meeting, overall, was “businesslike” in tone. App. 262. “There
was no posturing or shouting or pounding fists on the table or
any display of emphatic behavior.” App. 261. The court noted
that seven hours is “a long time,” but added that there were two
breaks, and that Ludwikowski had his cell phone and his
normal clothes. App. 262. Finally, the court observed that
Ludwikowski “never indicated once that he did not want to
answer questions. Instead he gave hesitant answers or
inconsistent answers. His demeanor on tape was that of a
person who was deflecting the questions or pretending not to
know the answers.” App. 262-63.
With “the scene . . . set,” Jacobs, 431 F.3d at 105
(quoting Yarborough, 541 U.S. at 663), we move to the second
step of the Miranda analysis and ask whether a reasonable
person in Ludwikowski’s circumstances would have felt free
to go. Numerous factors help answer 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
12
the interviewee was released when the questioning was over.
Id.; United States v. Willaman, 437 F.3d 354, 359-60 (3d Cir.
2006). We also consider 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. Jacobs, 431 F.3d at 105-06. However, the “freedom-
of-movement test” delineated by these factors “identifies only
a necessary and not a sufficient condition for Miranda
custody.” Howes, 565 U.S. at 509 (quoting Shatzer, 559 U.S.
at 112). We must “ask[] the additional question whether the
relevant environment presents the same inherently coercive
pressures as the type of station house questioning at issue in
Miranda.” Id.
Ludwikowski argues that the District Court applied the
wrong rule when analyzing whether a reasonable person would
have felt free to leave. He points to the court’s statement that
“there’s an objective and subjective element of [the custody
analysis].” Appellant’s Br. 36 (quoting App. 243).
Ludwikowski is correct that the custody test is objective. See
Jacobs, 431 F.3d at 105. The District Court may have been
referring to the fact that some of the factors are framed in a
subjective fashion, such as what the officers believed about the
individual’s guilt or innocence. See id. Regardless, it applied
the test correctly, carefully considering the custody factors in
light of the evidence before it. As we now explain, we agree
with its conclusion that Ludwikowski was not in custody.
To start, Ludwikowski was not physically restrained.
Howes, 565 U.S. at 509, 515. He did not feel “obligated to
come to . . . the questioning,” Jacobs, 431 F.3d at 105; rather,
he went to the station to discuss the extortion because he feared
for his family’s safety. At the end of the interview, he was
released and left in his own car. See Howes, 565 U.S. at 509;
13
see also Jacobs, 431 F.3d at 106-07 (unhindered release at end
of questioning can be “an indicator of what the circumstances
during the questioning would have made a reasonable person
believe”). And, given the circumstances, we agree with the
District Court’s finding that Ludwikowski knew he would be
questioned about the reasons behind the extortionate threats,
including his own possibly criminal activities at the pharmacy.
See id. at 106. All of these factors tend to show he was not in
custody.
Other factors seem, initially, to weigh in the opposite
direction. But upon deeper consideration, these factors, too,
demonstrate that Ludwikowski was not in custody. For
example, Ludwikowski was interviewed at the station house,
where the pressures associated with custodial interrogation are
“most apt to exist.” Jacobs, 431 F.3d at 105 (quoting Steigler
v. Anderson, 496 F.2d 793, 799 (3d Cir. 1974)). Even so, he
was not “whisked” to the station after an arrest, as in the classic
Miranda scenario. Howes, 565 U.S. at 511. Rather, he arranged
to go to the station voluntarily and had three days to think about
the coming encounter with law enforcement. And, while the
door to the interview room was kept closed after the first break,
it was not locked. In these circumstances, the station-house
location does not weigh in favor of custody.
The officers told Ludwikowski they thought he might
be filling fraudulent prescriptions—and when officers have
“more cause for believing the suspect committed the crime,”
there is a “greater tendency to bear down in interrogation and
create the kind of atmosphere of significant restraint that
triggers Miranda.” Jacobs, 431 F.3d at 105 (quoting Steigler,
496 F.2d at 799). Here, though, the officers were trying to get
to the bottom of the extortion, so they needed to question
Ludwikowski about the subject of the threats. Therefore, the
14
questions about oxycodone distribution do not show the
coercion associated with custody.
The interrogation was lengthy, whether we consider the
time of the active questioning (about four hours) or the total
time at the station (about seven). See Howes, 565 U.S. at 509.
This factor could indicate that Ludwikowski was in custody,
but, as the District Court found, “[m]uch of [the interview] was
devoted to trying to identify who was the extorter and why
[they would] be doing it,” so the interview would have been
shorter if Ludwikowski had been more responsive. App. 267.
Ludwikowski criticizes the District Court’s finding that the
two breaks reduced the length of the active questioning and
thus weighed against a finding of custody. He argues that the
breaks were actually coercive because the officers gave him no
warning before the breaks began, no indication of how long the
breaks might last, and no explanation when they returned.
However, Ludwikowski exaggerates or misreads these facts.
While the officers departed the room relatively abruptly, they
excused themselves before two of the breaks. App. 450 (“We’ll
be right back. Excuse me. Do you need to use the bathroom or
anything?”); App. 604 (“We’ll be back, alright?”).
Ludwikowski was left alone, but not incommunicado; unlike a
suspect, he had his phone, which he perused and used to make
a call. In sum, the length of the interrogation, including the
breaks, does not show that Ludwikowski was in custody.2
2
Ludwikowski argues that the final break was
gratuitous because the officers had no more questions for him
after they returned. Thus, he argues, the break was merely a
chance to “leav[e] [him] to contemplate his fears alone for
another hour.” Appellant’s Br. 28. Ludwikowski cites no
evidence to support his contention that the break was needless,
15
Along similar lines, Ludwikowski points out that he told
Detective Knecht, after the second break, that he was
“freezing” and had to go to the bathroom. App. 607. He asserts
that because he did “not feel[] free even to seek an escort to the
bathroom,” he also did not believe he was at liberty to end the
questioning and leave. Appellant’s Br. 27-28. But the video
shows that Ludwikowski smiled and laughed a little as he made
this comment, and that he continued to answer questions in a
relaxed body posture for a half hour before asking again about
the bathroom. Given that he did not appear at all distressed, his
argument about this exchange is unpersuasive.
Considering all these factors, the District Court did not
err in concluding that a reasonable person in Ludwikowski’s
situation would have felt free to go. But even if we concluded
the opposite, our analysis would not end there: constraints on
freedom of movement are a necessary but not sufficient
condition of custody. The individual must also be subject to
“the same inherently coercive pressures as the type of station
house questioning at issue in Miranda.” Howes, 565 U.S. at
509. In the “paradigmatic Miranda situation”—when an
individual is “arrested in his home or on the street and whisked
to a police station for questioning”—he is subject to “the shock
that very often accompanies arrest,” and he may feel pressured
to speak in the hope that doing so will lead to his release or,
down the road, to more lenient treatment. Id. at 511-12.
Ludwikowski, by contrast, needed to report and end the
extortion while simultaneously concealing his own bad acts.
The Constitution does not protect him from that kind of
pressure.
and it is equally possible that the officers were continuing their
investigative activities.
16
Our conclusion is bolstered by examining a Fourth
Circuit case where the defendant, like Ludwikowski,
simultaneously tried to get help and conceal his own
wrongdoing. In that case, the defendant, Jamison, wanted to
hide that he had accidentally shot himself because he was a
felon who was not permitted to possess a firearm. United States
v. Jamison, 509 F.3d 623, 625 (4th Cir. 2007). The police
began investigating in the emergency room, and when Jamison
changed his story about how he had been injured, they
questioned him closely and repeatedly about what had
happened. Id. at 626. Jamison was later charged with being a
felon in possession in violation of 18 U.S.C. § 922(g). He
moved to suppress the statements he made at the hospital,
arguing (like Ludwikowski) that he was in custody and should
have received Miranda warnings. Id. at 627-28.
The Fourth Circuit began by pointing out that Miranda
itself did not purport to make any rule governing “general
questioning of citizens in the factfinding process.” Id. at 631
(quoting Miranda, 384 U.S. at 477). Thus, the Court observed,
“Miranda and its progeny do not equate police investigation of
criminal acts with police coercion. This distinction is
especially salient when the victim or suspect initiates the
encounter with the police.” Id. The Court held that “a
reasonable person,” “after providing shifting explanations” of
the crime he was reporting, “would expect the police to
question him further, lest they expend energy investigating
false leads.” Id. at 632. The Court ruled that the “most
substantial restrictions of Jamison’s freedom of movement”
were “[t]he fact of [his] injury, the trappings of his treatment,
and the routine aspects of the investigation he initiated.” Id. at
633. These restrictions “far outstripp[ed] whatever additional
impingement on his freedom to leave was presented by the
officers during the ongoing police investigation into his
17
shooting.” Id. Therefore, a reasonable person would have felt
free to terminate the police encounter; Jamison was not in
custody and no Miranda warning was needed. Id. at 632.
Although Jamison is not exactly like this case, there are
important parallels. Jamison was restricted by his need for
emergency medical treatment; Ludwikowski was constrained
by the need to involve law enforcement to keep his family safe.
Both Jamison and Ludwikowski, having initiated police
investigations, could have reasonably expected the officers to
investigate diligently and question them closely. Therefore,
like Jamison, Ludwikowski was not in custody.
We emphasize that we apply the law only to the precise
facts before us: the defendant was the victim of one crime and
the perpetrator of another, intertwined crime; he reached out to
police for help; and he engaged with the police in both an
offensive and a defensive posture, reporting one crime while at
the same time trying to conceal the other. Our analysis would
have no bearing on a case lacking these facts.
Ludwikowski next argues that his incriminating
statements should have been suppressed because he did not
make them voluntarily. The issue is not resolved by virtue of
our conclusion that Ludwikowski was not in custody. In
“special circumstances,” a confession might be involuntary
even if the person giving it is not in custody. Beckwith v. United
States, 425 U.S. 341, 347-48 (1976); see also United States v.
Swint, 15 F.3d 286, 288-89 (3d Cir. 1994) (treating custody and
voluntariness as separate inquiries). This case, however, is not
the outlier contemplated in Beckwith; Ludwikowski’s
statements were voluntary.
The Government has the burden to prove, by a
preponderance of the evidence, that Ludwikowski’s statements
18
were voluntary—that is, “the product of an essentially free and
unconstrained choice.” Swint, 15 F.3d at 289 (quoting U. S. ex
rel. Hayward v. Johnson, 508 F.2d 322, 326 (3d Cir. 1975)).
There can be no involuntary confession absent “coercive police
activity.” Jacobs, 431 F.3d at 108. We consider the officers’
tactics, including “the length of detention; the repeated and
prolonged nature of questioning; and the use of physical
punishment such as the deprivation of food or sleep.” Halsey
v. Pfeiffer, 750 F.3d 273, 303 (3d Cir. 2014) (quoting Miller v.
Fenton, 796 F.2d 598, 604 (3d Cir. 1986)). We also consider
the defendant’s characteristics, including his “youth . . . ; his
lack of education or his low intelligence; the lack of any advice
. . . of his constitutional rights,” id. (quoting Miller, 796 F.2d
at 604), and his “background and experience, including prior
dealings with the criminal justice system,” Jacobs, 431 F.3d at
108. All these factors assist in answering “the ultimate
question[:] . . . ‘whether the defendant’s will was overborne
when he confessed.’” Halsey, 750 F.3d at 304 (quoting Miller,
796 F.2d at 604).
At the outset, the District Court did not erroneously shift
the burden of proof to Ludwikowski, as he argues. The court
stated, at the suppression hearing, “Well, there’s no per se rule
that says the defendant has to testify as to his feeling of
coercion . . . but I’m just thinking unless the agents say, yes,
we forced him . . . against his will to speak. . . , I just don’t
know how the defendant would prevail. . . .” App. 65. While
we do not agree with these musings,3 they did not lead to any
3
Defendants certainly can prevail on the voluntariness
issue without testifying. See, e.g., Jacobs, 431 F.3d at 108-12
(statements were involuntary; no indication that defendant
testified); Swint, 15 F.3d at 290-92 (same). The testimony of
law enforcement, the video of an interrogation, and a
19
error of law. The court later stated in its oral ruling that the
Government had the burden to show the confession was
voluntary, and it specifically ruled that the Government met
that burden.
Ludwikowski argues that his will was overborne
because he believed his freedom was constrained during the
questioning. As we have explained, we disagree with the
premise of this argument: a reasonable person would have
understood he could leave. Moreover, Ludwikowski’s calm
demeanor and calculated answers belie his argument that he
subjectively felt his freedom was constrained. Nor did the
situation bear the hallmarks of coercion: the officers’ conduct
was not physically threatening, the door to the conference
room was not locked, Ludwikowski was not deprived of food,
and he had his cell phone.
Ludwikowski next contends that he was particularly
vulnerable, as a victim of extortion, and that his questioners
exploited those vulnerabilities in a coercive fashion. We do not
doubt that Ludwikowski was genuinely fearful for his family’s
safety, and hence emotionally vulnerable. But we do not agree
that his questioners used the situation coercively. Rather, they
attempted to solve the extortion in the face of Ludwikowski’s
“hesitant” and “inconsistent” answers. App. 262-63 (finding
that Ludwikowski’s “demeanor on tape was that of a person
who was deflecting the questions or pretending not to know the
answers”).
Finally, Ludwikowski argues his statements were
involuntary because he did not know he was the focus of a
criminal investigation. He cites cases where officers misled
defendant’s background and characteristics could combine to
show—even without the defendant’s own testimony—that his
will was overborne.
20
defendants regarding the circumstances of their questioning,
but those cases are distinguishable. In Jacobs, the defendant
had been a confidential FBI informant for ten years when she
was summoned to the office by her handler, where she made a
series of statements. 431 F.3d at 102, 104. We concluded the
statements were involuntary because she was laboring under a
misapprehension: the handler did not tell her she had been
terminated as an informant. Id. at 107. Similarly, in Swint, the
defendant went to the district attorney’s office to “make an off-
the-record proffer” regarding a possible plea agreement, a
practice that was common in the county. 15 F.3d at 287. But
the Government baited and switched the defendant: federal
agents participated in the conversation, and discussion was not
limited to his proffer. Id. at 290. Ludwikowski, unlike the
Jacobs and Swint defendants, was not deceived or misled.4
We conclude by observing that Ludwikowski is mature
and educated, a sophisticated business owner who was in
sound mental and physical health at the time of the questioning.
See Halsey, 750 F.3d at 306 (concluding there was a genuine
issue of material fact regarding voluntariness where, among
other factors, defendant was “a man of limited intelligence and
little education”). Ludwikowski’s statements at the police
station were voluntary.
4
Ludwikowski argues that, as in Jacobs, his continuing
cooperation with law enforcement shows he did not know he
was the subject of a criminal investigation. Unlike the Jacobs
defendant, however, Ludwikowski continued to cooperate
because the extortion needed to be solved, not because he was
misled by law enforcement.
21
A medical professional like Ludwikowski may be
convicted under 21 U.S.C. § 841 if he dispenses a controlled
substance “outside the usual course of professional practice.”
United States v. Moore, 423 U.S. 122, 124 (1975). As part of
its proof of this charge, the Government called Anthony
Alexander as an expert witness on professional practice in the
pharmacy field. Ludwikowski argues that the District Court
erred by not excluding the expert’s testimony about New
Jersey pharmacy regulations, as well as his testimony about
best practices and his own practices. Ludwikowski did not
object at trial, so the plain-error standard applies: we will
exercise our discretion to address an error only if it is plain,
affects substantial rights, and “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461, 467 (1997) (internal
quotation marks, citations, and alterations omitted).
Ludwikowski is correct that an expert may “not testify
as to the governing law of the case.” Berckeley Inv. Grp., Ltd.
v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006). And, if we were
to explicitly rule upon the nature of the “usual course of
professional practice” standard, we would likely agree with our
sister Circuits that the plain language of the standard shows it
to be an objective one, not defined by a particular practitioner’s
habits. United States v. Smith, 573 F.3d 639, 647-48 (8th Cir.
2009); United States v. Hurwitz, 459 F.3d 463, 478-80 (4th Cir.
2006). But whatever the merits of his legal arguments,
Ludwikowski cannot meet the demanding plain-error standard.
First, the expert’s references to regulations did not
affect his substantial rights—that is, they did not affect the
outcome of the proceedings. See United States v. Olano, 507
U.S. 725, 734 (1993). The violation of professional standards
22
is so clear in this case that expert testimony is unnecessary. See
United States v. Pellmann, 668 F.3d 918, 926 (7th Cir. 2012)
(expert opinion unnecessary where doctor “personally
administered [painkillers] in multiple, private houses and hotel
rooms . . . for long-term treatment of a condition he was
unqualified to diagnose”); United States v. Word, 806 F.2d
658, 663-64 (6th Cir. 1986) (expert opinion unnecessary where
doctor “[wrote] prescriptions in return for sums of money
ranging from $200 to $1,000. . . ; [gave] a patient an option as
to what name a prescription for a powerful pain killer should
be written in; . . . [and wrote] prescriptions at service stations,
in a van, or in restrooms”).
Ludwikowski filled narcotics prescriptions without
verification or a log, including for customers who came to the
pharmacy high. When customers made mistakes on
prescriptions they forged, Ludwikowski helped them fix the
errors. A customer who described himself as a drug addict
obtained oxycodone from Ludwikowski six days a week—
usually twice a day, but on one noteworthy day, five times. The
prescriptions this customer brought to Ludwikowski bore
numerous different names. The jury did not need an expert to
explain that this conduct violated professional standards.
Therefore, the expert’s references to New Jersey regulations
did not affect the outcome of the proceedings.
Nor does the expert’s testimony about best practices, or
his own salutary habits, meet the plain-error standard, because
the testimony did not “seriously affect[] the fairness, integrity,
or public reputation of judicial proceedings.” Johnson, 520
U.S. at 467 (internal quotation marks, citations, and alterations
omitted). Ludwikowski’s trial strategy was to undermine the
expert by repeatedly highlighting where his best practices went
beyond what was required. See, e.g., App. 3637 (“I’m not
asking what you would do. Obviously you’re a meticulous guy.
23
. . . What do the pharmacy rules and regs require the pharmacist
to do . . . ?”). The strategy was successful: the expert admitted
numerous times that the regulations do not require the level of
diligence he himself would undertake. In other words, defense
counsel not only failed to object to the supposedly inadmissible
testimony—he reinforced and capitalized on the testimony to
further his trial strategy. Given his cross-examination of the
expert, the jury was well equipped to determine whether
Ludwikowski distributed substances outside the usual course
of professional practice. Under these circumstances, the
supposed error did not compromise the fairness or integrity of
the trial, and we therefore decline to reach the merits of
Ludwikowski’s arguments.5
Conclusion
For these reasons, we will affirm the denial of
Ludwikowski’s suppression motion and the admission of
expert testimony.
5
Ludwikowski also argues that the District Court erred
in basing his sentence partly on acquitted conduct. As he
concedes, we must affirm. United States v. Watts, 519 U.S.
148, 149 (1997) (reversing decisions holding that “sentencing
courts could not consider conduct of the defendants underlying
charges of which they had been acquitted”) (per curiam).
Ludwikowski offers this argument to preserve it should the
Supreme Court revisit the issue during the pendency of this
appeal.
24