White v. Wright , 150 F. App'x 193 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1934
MICHAEL WHITE,
Plaintiff - Appellant,
versus
JAMES STEVEN WRIGHT,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-02-3522-AW)
Argued: May 26, 2005 Decided: September 23, 2005
Before TRAXLER and DUNCAN, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Joseph John D’Erasmo, Rockville, Maryland; Martha L.
Handman, Gaithersburg, Maryland, for Appellant. Roann Nichols,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Thomas M.
DiBiagio, United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael White appeals the dismissal of his civil rights action
against Lieutenant James Steven Wright ("Lt. Wright") stemming from
the investigation, indictment, prosecution, and ultimate acquittal
of White on mail fraud charges. For the reasons set forth below,
we affirm.
I.
White, formerly employed as a Maryland State Trooper,
conducted vehicle salvage inspections for automobile dealers in
Prince George’s County, Maryland, from 1992 to 1995. White
performed a number of vehicle inspections for Clinton Auto Sales
(“Clinton Auto”), a used car dealership owned by Basem Najjar. A
portion of the vehicles sold by Clinton Auto were “salvage”
vehicles Najjar purchased at auctions to rebuild and sell. Under
Maryland law, salvage vehicles include automobiles that have been
damaged to the point that repair costs exceed fair market value of
the automobile, automobiles that have been obtained by an insurance
company as part of a claim settlement, and automobiles acquired for
rebuilding or for parts. See Md. Code, Transportation,
§ 11-152(a). Also included are stolen vehicles that have been
recovered by an insurance company. See Md. Code, Transportation,
§ 13-507(c)(1).
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Maryland law requires anyone who acquires ownership of a salvage
vehicle to apply for a salvage certificate from the Maryland Motor
Vehicle Administration (“MVA”). See Md. Code, Transportation,
§ 13-506. Before the holder of a salvage certificate may apply for
a certificate of title, he must obtain a “certificate of inspection
issued by a county police department.” Md. Code, Transportation,
§ 13-507(a)(2). The MVA may not issue a certificate of title if
the salvage certificate does not bear a signature indicating the
completion of an “inspection by a police officer in [Maryland] who
is authorized to inspect salvage vehicles.” Code of Md. Regs.
11.15.14.04.
After performing the inspection, the officer signs the salvage
certificate under the following printed block:
CERTIFICATION OF INSPECTION BY POLICE AGENCY
I, THE UNDERSIGNED AUTHORIZED REPRESENTATIVE OF THE
POLICE AGENCY NAMED BELOW, HEREBY STATE THAT I HAVE
INSPECTED THE VEHICLE DESCRIBED ABOVE AND VERIFIED THE
VEHICLE IDENTIFICATION NUMBER.
J.A. 158.
Najjar’s operation of Clinton Auto came under investigation and
eventually led to his indictment and conviction on federal mail
fraud, possession, transportation, and money laundering charges.
See United States v. Najjar, 300 F.3d 466 (4th Cir. 2002). We
described his scheme as follows:
[Najjar’s] mode of business was to steal expensive, late
model cars . . . and strip them of parts. The cars would
then be abandoned for the police to find. The insurance
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companies holding the policies on the cars would declare
them total losses, and sell the recovered vehicles for
salvage. Najjar and his agents would then buy the
salvaged cars at insurance auctions and use them for
reassembly . . . [S]ometimes stolen parts were used on
the very same cars from which they were stolen. Najjar
and his cohorts would sell the reassembled cars at . . .
Clinton Auto Sales.
Id. at 471.
After learning that White was doing salvage inspections at
Clinton Auto, Lt. Wright, then head of the Maryland State Police
(“MSP”) auto theft unit, opened an internal investigation file on
White. Lt. Wright eventually took the case to federal prosecutors,
for whom he continued to serve as a primary investigator, having
been specially deputized as a federal agent.
White was indicted by a federal grand jury as a participant in
Najjar’s scheme. The government alleged in the indictment that
White performed the inspections Najjar needed in violation of
internal MSP rules for conducting salvage inspection. According to
the government, White signed off on vehicles that were rebuilt with
stolen parts or were not adequately restored or “road worthy” as
required by MSP rules, conducted inspections at improper times and
places, and concealed his activity by failing to follow standard
procedures for disclosing information about the inspections.
White voluntarily turned himself in after the indictment was
returned. He had his picture taken, was fingerprinted, and then
was released subject to conditions in a bond. Prior to White’s
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trial, MSP suspended his police powers. Ultimately, White was
acquitted by a jury on all charges.
White thereafter initiated this action against Lt. Wright. In
*
his amended complaint , White alleged that Lt. Wright deliberately
presented false information to and concealed exculpatory
information from prosecutors and the grand jury regarding White’s
involvement with Najjar and Clinton Auto, and that prosecutors and
the grand jury relied on Lt. Wright’s investigation in indicting
and prosecuting White. Additionally, White alleged that MSP
authorities suspended him as a result of the indictment and
criminal proceedings brought about by Lt. Wright’s investigation.
Of the false information that Lt. Wright is alleged to have
intentionally provided prosecutors and MSP officials, White
highlights the following as the most significant: (1) that salvage
inspectors were required to examine salvage vehicles for stolen
parts and that, by signing a salvage certificate, White was
certifying that the vehicle had not been restored with stolen
*
Earlier in the proceedings, the district court granted Lt.
Wright’s motion to dismiss White’s original complaint but afforded
White leave to amend his complaint to allege facts that would
support cognizable claims. In so doing, the court noted that “a
significant amount of the allegations involving investigation,
prosecution and testimony appear to fall within the protection of
absolute and qualified immunity.” J.A. 15. The district court
also noted “reservations whether much if any of the allegations .
. . set forth in the Complaint make out a cognizable claim.” J.A.
15. Nonetheless, the court afforded White the “opportunity to
present his claims with greater details and particulars.” J.A. 15.
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parts; (2) that White was ordered in 1993 by his superiors to stop
performing salvage inspections; (3) that White signed a salvage
certificate for an unrestored Nissan 300ZX; (4) that White failed
to comply with MSP salvage inspection procedures regarding off-duty
inspections and the required location for inspections; (5) that
White failed to file required salvage inspection incident reports
in order to conceal his work for Clinton Auto; and (6) that White
signed off on salvage vehicles that were unrestored. White also
alleged that Lt. Wright concealed from prosecutors and MSP
officials the fact that White first approached Lt. Wright, and not
the other way around, about the possibility that Najjar might be
engaged in illegal activity. White asserts that Lt. Wright
purposely destroyed an audio taped interview during which Lt.
Wright acknowledged that fact.
Based on the foregoing allegations, White contended that Lt.
Wright violated his Fourth Amendment rights by “caus[ing],
institut[ing], and continu[ing] a criminal proceeding against
[White] without probable cause” and by causing White to be seized
and detained without probable cause. J.A. 46. Second, White
argues that his Fifth Amendment right “not to be deprived of his
liberty or property without due process” was violated by Lt.
Wright’s conduct. To the extent that Lt. Wright was acting as a
federal agent when he engaged in this alleged conduct, White
asserted these claims under Bivens v. Six Unknown Named Agents of
6
the Federal Bureau of Narcotics, 403 U.S. 388 (1971). To the
extent Lt. Wright was acting under state law, White asserted the
claims under 42 U.S.C.A. § 1983 (West 2003).
Lt. Wright moved to dismiss the complaint or, alternatively, for
summary judgment, contending that White failed to state a
constitutional claim against him and that he was protected by
qualified immunity. After oral argument, the district court ruled
from the bench, granting the defendant’s motion to dismiss or for
summary judgment in the alternative. The district court observed
that
[nothing in the record] suggest[s] that what [Lt. Wright]
was doing was deliberate . . . [I]n the absence of any
warrant [or] any arrest in this case, and the grand jury
having acted – having found probable cause . . . I think
there is no seizure. [As for White] being papered and
fingerprinted and somewhat restricted for hours or
whatever, that’s, at best, de minimis injury . . . .
. . . [H]e was never picked up but he turned himself
in once . . . the grand jury handed down that indictment,
. . . I don’t believe there is a Fourth Amendment
violation.
The Fifth Amendment [claim] . . . is very . . .
vague. We don’t know whether he’s claiming procedural or
substantive. . . [W]here there’s been a finding by the
grand jury that there was . . . probable cause . . .
[there is no] Fifth Amendment violation.
J.A. 146-48.
The district court then indicated that it was dismissing the
complaint under a Rule 12(b)(6) standard, but, alternatively,
stated that there was a basis to grant summary judgment as well.
It appears that the district was applying its ruling to the first
7
step in the qualified immunity analysis –- a determination of
whether a constitutional violation had been alleged. White
appeals.
II.
Our evaluation of Lt. Wright’s qualified immunity claim involves
a two-step process. The first step requires us to decide whether
Lt. Wright’s alleged conduct violated a constitutional right; if
so, then the second step requires a determination of whether the
constitutional right was clearly established at the time of Lt.
Wright’s actions. See Saucier v. Katz, 533 U.S. 194, 201 (2001).
We need only go as far as the first step in considering
White’s Fourth Amendment claim. In the amended complaint, White
alleges that Lt. Wright violated his rights under the Fourth
Amendment by “caus[ing], initiat[ing], and continu[ing] a criminal
proceeding against [White] without probable cause.” J.A. 46. As
an initial matter, to the extent White contends that Lt. Wright
violated the Fourth Amendment by continuing White’s prosecution in
the absence of probable cause, or by failing to attempt to
terminate the proceedings, this claim fails. In Brooks v. City of
Winston-Salem, 85 F.3d 178, 184 (4th Cir. 1996), we rejected a
Fourth Amendment claim that an officer is subject to liability for
not attempting to have a criminal proceeding halted when the
officer knows the accused is innocent. As we observed, “the Fourth
8
Amendment provides all of the pretrial process that is
constitutionally due to a criminal defendant in order to detain him
prior to trial.” Id.The heart of White’s Fourth Amendment claim, however, is that
Lt. Wright intentionally submitted to prosecutors false evidence
that, in turn, resulted in White’s seizure. White argues that in
the absence of Lt. Wright’s fabricated information, there was no
probable cause and, therefore, his seizure was unconstitutional.
The district court’s primary basis for rejecting this claim
appears to have been its conclusion that White was never
technically seized. Although White was not forcibly taken into
custody following the issuance of his indictment, he voluntarily
surrendered to authorities and was detained briefly for
fingerprinting and processing. White contends that this sequence
satisfied the seizure requirement of the Fourth Amendment, and we
agree. See Albright v. Oliver, 510 U.S. 266, 271 (1994) (noting
that “surrender to the State’s show of authority constituted a
seizure for purposes of the Fourth Amendment”); see also Whiting v.
Traylor, 85 F.3d 581, 585 n.6 (11th Cir. 1996) (explaining that a
seizure occurs when the accused “subject[s] himself physically to
the force of the state in response to an arrest warrant”).
That White successfully alleges a seizure, however, does not end
the matter. White cannot make out a Fourth Amendment claim unless
he also demonstrates that Lt. Wright’s wrongful acts resulted in
9
his being seized without probable cause. “It is well-established
that a false or misleading statement in a warrant affidavit does
not constitute a Fourth Amendment violation unless the statement is
necessary to the finding of probable cause.” Wilkes v. Young, 28
F.3d 1362, 1365 (4th Cir. 1994) (internal quotation marks omitted).
Of course, in this case, the probable cause determination was made
by the grand jury when it returned the indictment, rather than a
magistrate issuing a warrant based upon an affidavit. See Kalina
v. Fletcher, 522 U.S. 118, 129 (1997). White cites Lt. Wright’s
grand jury testimony, alleging that Lt. Wright deceived the grand
jury and, by his false testimony, misled the grand jury into
indicting White. Lt. Wright, however, is not subject to liability
based on his testimony before the grand jury. See Lyles v. Sparks,
79 F.3d 372, 378 (4th Cir. 1996) (extending absolute immunity under
Briscoe v. LaHue, 460 U.S. 325 (1983), to government witnesses in
grand jury proceedings). Perhaps realizing that Lt. Wright enjoys
immunity for his grand jury testimony, White’s brief includes the
categorical assertion that “Wright’s non-testimonial acts caused
White’s seizure.” Brief of Appellant at 46. He does not, however,
support this statement with a citation to the record or any
specific reference to supporting facts. In short, the record does
not disclose, other than a few snippets of Lt. Wright’s testimony,
what information was presented to the grand jury with respect to
the mail fraud charges against White. We are thus unable to
10
determine what exactly the grand jury considered in making its
probable cause determination.
Accordingly, we affirm the district court’s conclusion that
White failed to establish a question of fact as to whether his
Fourth Amendment rights were violated by Lt. Wright.
III.
Turning to White’s due process claim under the Fifth and
Fourteenth Amendments, we must first identify the particular right
that White claims has been violated. To date, White’s due process
claim remains vague; indeed, the district court indicated that it
was unable to ascertain whether White was asserting a substantive
or procedural due process claim. White alleges in the complaint
that Lt. Wright “purposely fabricat[ed] evidence [and] presented
[it] to prosecutors and conceal[ed] or destroy[ed] exculpatory and
impeaching evidence” which “deprived [White] of his liberty or
property without due process of law.” J.A. 47. White contends
that Lt. Wright’s fabrication and concealment of evidence resulted
in a liberty deprivation–-the suspension of White’s police powers
by the MSP–-and a property deprivation--lost employment benefits,
including salary, during part of the time White was on suspension.
At a general level, the right at stake here, as alleged by
White, is the right not to be deprived of liberty or property based
on the deliberate use of evidence fabricated by or known to be
11
false to a law enforcement official. We have recognized that an
officer who violates this right may be subject to civil liability.
See Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005); see
also Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000)
(recognizing the right “not to be deprived of liberty as a result
of the fabrication of evidence by a government officer acting in an
investigating capacity”). This claim is rooted in substantive due
process. See Moran v. Clarke, 296 F.3d 638, 643-45 (8th Cir. 2002)
(en banc) (concluding that “evidence that [the plaintiff] was
investigated, prosecuted, suspended without pay, demoted and
stigmatized by falsely-created evidence” reflected conscience-
shocking behavior prohibited by substantive due process); see also
Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004) (“[I]f any
concept is fundamental to our American system of justice, it is
that those charged with upholding the law are prohibited from
deliberately fabricating evidence and framing individuals for
crimes they did not commit. . . Actions taken in contravention of
this prohibition necessarily violate due process.”).
As noted earlier, although the district court granted the motion
to dismiss and actually entered an order dismissing the complaint,
the court alternatively granted the motion pursuant to the summary
judgment standard. See Fed. R. Civ. P. 56. Because the parties
submitted, and the district court considered, matters outside of
the complaint, White’s motion should be treated as one for summary
12
judgment. See Fed. R. Civ. P. 12(b) (“If, on a motion asserting
the defense numbered (6) to dismiss . . ., matters outside the
pleading are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed of as
provided in Rule 56. . . .”).
In order for White to survive summary judgment, he must adduce
evidence showing that Lt. Wright deliberately fabricated or
falsified information in the investigation of White. White cannot
support his claim with unsupported allegations and speculation of
fabrication. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001); see also Myers v. Morris, 810 F.2d 1437, 1460-61 (8th Cir.
1987) (requiring “a specific affirmative showing of dishonesty”).
Moreover, White must adduce evidence demonstrating that Lt.
Wright’s alleged acts resulted in a deprivation of liberty or
property. In other words, White must create an issue of fact as to
the existence of a causal link between the alleged conduct
constituting the due process violation and the deprivation of a
liberty or property interest. See Landrigan v. City of Warwick,
628 F.2d 736, 744 (1st Cir. 1980) (“[W]e do not see how the
existence of a false police report, sitting in a drawer in a police
station, by itself deprives a person of a right secured by the
Constitution and laws.”). The proper inquiry is whether the
plaintiff’s loss of liberty or property “was a reasonably
foreseeable result of [the] initial act of fabrication--the police
13
report.” Wilmore, 407 F.3d at 283; see also Zahrey, 221 F.3d at
348 (explaining that “the due process violation [was] the
manufacture of false evidence” and the resulting “liberty
deprivation [was] the eight months [the plaintiff] was confined,
from his bail revocation (after his arrest) to his acquittal”).
White has not presented direct evidence of an intent to
fabricate any of the alleged false statements specifically
identified by White. White has not even offered evidence of a
motive for Lt. Wright to frame White for a crime he did not commit.
Accordingly, White must rely solely on circumstantial evidence to
raise an inference of intent. After reviewing the portions of the
record offered by White in support of his claim, we conclude that
he failed to raise a question of fact. White’s strongest evidence
of deliberate fabrication, for example, is probably Lt. Wright’s
statements, in his report and during his testimony at trial, that
White’s signature on a salvage certificate was verification that
the vehicle had not been restored with stolen parts. Lt. Wright
also misstated MSP regulations regarding the appropriate location
for salvage inspections. There is nothing to indicate, however,
that these misstatements were anything more than innocent or
careless mistakes. With respect to the other misrepresentations
alleged by White, Lt. Wright either corrected his own mistake or
had a reasonable basis for his statements.
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Furthermore, even if there was evidence suggesting that Lt.
Wright’s misstatements were deliberate fabrications, White failed
to produce evidence establishing a causal link between Wright’s
conduct and the alleged liberty or property deprivations. White
contends that he was deprived of liberty in that “he was unable to
engage in his profession for over four years” and that he was
deprived of property in that “he lost salary and other employment
benefits to which he was entitled.” Reply Brief of Appellant. In
November 1995, Lt. Wright filed a “Complaint Against Personnel
Report,” which initiated an internal MSP investigation of White’s
salvage inspections at Clinton Auto to determine whether White was
involved in illegal conduct. In March 1997, shortly after search
warrants were executed at Clinton Auto, the MSP suspended White.
His suspension continued through White’s trial. Apparently, even
after White’s acquittal in 1999, MSP continued the suspension but
reinstated pay. Finally, in October 2000, the Internal Affairs
Unit (IAU) closed the investigation with a recommendation to the
IAU commander, Captain Lawrence, that White be administratively
charged with misconduct, including violation of criminal mail fraud
laws. The administrative proceedings were later terminated by a
Maryland Circuit Court, finding that the formal charges were filed
beyond the statute of limitations.
Even assuming that the liberty or property interest at stake is
entitled to constitutional protection, see Moran, 296 F.3d at 645,
15
we find nothing in the record before us linking Lt. Wright’s
specific alleged misstatements or other alleged misconduct to his
administrative suspension. The only conclusion we can draw from
the scant evidence in the record related to the administrative
proceedings, including a transcript of an MSP hearing during which
White’s police powers were suspended, is that White was suspended
based on his general involvement with Clinton Auto and the fact
that “White had accepted money from the owner of Clinton Auto . . .
for the [salvage] certificate . . . when it was signed.” J.A. 470.
White does not challenge either fact. There is simply nothing
showing how or whether the information allegedly manufactured by
Lt. Wright affected the administrative proceedings.
Finally, White focuses a significant amount of attention on the
alleged destruction of an audio tape recording of Lt. Wright’s
interview of White. White claims that during the interview, Lt.
Wright acknowledged that White approached him and indicated a
concern that Najjar was involved in illegal activity. Even if this
information was exculpatory, White offers no evidence tending to
show that his alleged liberty deprivations resulted from Lt.
Wright’s alleged deliberate concealment of the information.
Accordingly, we conclude that White failed to establish a
constitutional violation by Lt. Wright, even if the facts are
viewed in a light most favorable to White for purposes of summary
judgment.
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IV.
For the foregoing reasons, we affirm the district court’s award
of summary judgment to Lt. Wright on each of White’s claims.
AFFIRMED
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