Filed: Feb. 09, 2011
Latest Update: Feb. 21, 2020
Summary: NOT PRECEDENTIAL IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ NO. 09-3905 _ FRANK MOBILIO Appellant v. THE DIVISION OF LAW AND PUBLIC SAFETY OF THE STATE OF NEW JERSEY; THE DIVISION OF NEW JERSEY STATE POLICE; DETECTIVE LONG; JOHN DOE 1-5; MARY DOE 1-5 _ On Appeal from the United States District Court For the District of New Jersey (D.C. Civil No. 2-07-cv-03945) District Judge: Hon. William H. Walls _ Submitted Pursuant to Third Circuit LAR 34.1(a) February 7, 2011 BEFORE: JORDA
Summary: NOT PRECEDENTIAL IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ NO. 09-3905 _ FRANK MOBILIO Appellant v. THE DIVISION OF LAW AND PUBLIC SAFETY OF THE STATE OF NEW JERSEY; THE DIVISION OF NEW JERSEY STATE POLICE; DETECTIVE LONG; JOHN DOE 1-5; MARY DOE 1-5 _ On Appeal from the United States District Court For the District of New Jersey (D.C. Civil No. 2-07-cv-03945) District Judge: Hon. William H. Walls _ Submitted Pursuant to Third Circuit LAR 34.1(a) February 7, 2011 BEFORE: JORDAN..
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________________
NO. 09-3905
______________________
FRANK MOBILIO
Appellant
v.
THE DIVISION OF LAW AND PUBLIC
SAFETY OF THE STATE OF NEW JERSEY;
THE DIVISION OF NEW JERSEY STATE POLICE;
DETECTIVE LONG; JOHN DOE 1-5; MARY DOE 1-5
_____________________
On Appeal from the United States District Court
For the District of New Jersey
(D.C. Civil No. 2-07-cv-03945)
District Judge: Hon. William H. Walls
_____________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 7, 2011
BEFORE: JORDAN, GREENAWAY, JR., and
STAPLETON, Circuit Judges
(Opinion Filed February 9, 2011 )
______________________
______________________
OPINION OF THE COURT
______________________
STAPLETON, Circuit Judge:
The District Court granted summary judgment to defendant Detective Brian Long
of the New Jersey State Police (“the Police”) on plaintiff Frank Mobilio‟s § 1983 and
state law malicious prosecution claims. Mobilio appeals. We will affirm.
I.
A.
Mobilio, Albert Bosma, Raymond Eagles, a ten-year-old girl (“M.F.”), and a
thirteen-year-old girl (“K.A.”) attended a football game together. The next day, K.A.
gave a sworn statement to the Police that Mobilio had sexually assaulted her at and on the
car ride home from the game. K.A.‟s stepmother also gave a sworn statement regarding
what K.A. and M.F. told her about the assault, stating that M.F. “said she saw [Mobilio]
trying to hold [K.A.‟s] hand, . . . rubbing her leg[,] . . . touching [her, and] . . . making
excuses to sit near [her].” App. at 163. K.A.‟s stepmother also gave the Police the jeans
that K.A. wore to the game, because K.A. said that Mobilio had “unzipped his pants[,]
exposed his penis[,] . . . grabbed her hand[,] and placed same on his penis,” and K.A. “felt
something „wet‟ on her hand . . . and wipe[d] her hand on her jeans.” Id. at 36.
2
After taking these statements, the Police asked Mobilio to come in for an
interview. He did so, and the Police advised him that one of the girls alleged that he
touched her inappropriately. Mobilio denied having done so. Detective Long was then
assigned to the case, and he obtained sworn, taped statements from Bosma and Eagles.
The District Court ably recounted the substance of these two statements:
On tape, [the Police] read Mr. Bosma his Miranda warnings and placed him
under oath. Mr. Bosma then gave the following testimony in his taped sworn
statement: . . . Mr. Bosma and Mr. Eagles drove to the football stadium with
[Mobilio] and the two juvenile girls. In the parking lot before the game
started, [Mobilio] commented to Mr. Bosma that M.A. “had big breasts . . . she
was a hot looking number and . . . he wouldn‟t mind doing her.” Mr. Bosma
observed [Mobilio] “hugging” K.A. before they had entered the stadium, and
“rubbing her leg a little bit now and then . . . [on] her thigh area” during the
game. On the car ride home, [Mobilio] was initially in the front right
passenger seat, but after a rest-room break, [Mobilio] switched seats with Mr.
Eagles and sat between the two girls in the back of the car. During the car
ride, Mr. Bosma observed [Mobilio] “pulling down his pants and taking
[K.A.‟s] hand and rubbing it on his . . . private parts.” Afterward, Mr. Bosma
observed that K.A. “took her hand and rubbed it on her pants, on her upper
pant leg.” At that point, Mr. Bosma “imagined” that [Mobilio] had
“ejaculated” and that K.A. was taking his semen and rubbing it on her pants.
Mr. Bosma also observed [Mobilio‟s] hand to be touching K.A.‟s breasts. Mr.
Bosma saw [Mobilio] the night after the game, and Mr. Bosma “knew” that
[Mobilio] was “guilty.” Mr. Bosma stated that he was not threatened to
provide the information he gave in his statement, and that no promises were
made to him to give that information.
***
Mr. Eagles stated the following: . . . before entering the football stadium, Mr.
Eagles saw [Mobilio] and K.A. “briefly holding hands” which Mr. Eagles
thought was “kind of odd.” Also in the parking lot, Mr. Eagles heard
[Mobilio] comment that K.A. was “developed for her, a twelve year old.”
Near the beginning of the car ride home, Mr. Eagles saw [Mobilio] take a
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towel and lay it over K.A.‟s leg, which Mr. Eagles thought was “kind of
peculiar.”
Mobilio v. Dep’t of Law & Pub. Safety of N.J., No. 07-3945, 2009 U.S. Dist. LEXIS
84144, at *7-9 (D.N.J. Sept. 15, 2009).
The Police had K.A.‟s jeans tested, and the police laboratory issued a report stating
that no seminal material was found on the jeans. On the same day the lab report was
issued, Detective Long drafted an affidavit of probable cause to obtain warrants to arrest
Mobilio and search his home and car. The affidavit stated that: (1) K.A. and her
stepmother reported to the Police that K.A. was “sexually assaulted . . . by a Frank
Mobilio while she attended a . . . football game . . . and again while she was traveling . . .
back to her residence;” (2) K.A. gave a sworn, taped statement describing the assault; (3)
Bosma gave a sworn, taped statement that largely corroborated K.A.‟s account; and (4)
Eagles gave a sworn, taped statement “that he observed Frank Mobilio to hold K.A.‟s
hand outside of the stadium,” that Mobilio “commented on K.A.‟s breast and body,” and
that Mobilio “specifically indicated that she was very well built for a thirteen year old
girl.” App. at 208-10. Based on the affidavit, warrants were issued to arrest Mobilio and
search his property, and Detective Long and six other officers did so.
About sixteen months later, Bosma and his attorney met with the Police and state
prosecutor and informed them that Bosma wished to change his sworn statement. Bosma
stated that “he felt pressured to provide the statement he did,” and that in fact “he did not
see anything inappropriate between Mr. Mobilio and [K.A.] during the football game or
4
on the car ride home.” Id. at 247. Bosma then gave another sworn, taped statement that
“his initial statement was not completely accurate” because he “felt pressured to
cooperate with the criminal investigation and therefore stated that he witnessed certain
acts between Mr. Mobilio and [K.A.], which in fact he did not.”
Id. at 249.
Despite being told of Bosma‟s recantation and the results in the lab report, a grand
jury indicted Mobilio on charges of criminal sexual conduct and engaging in sexual
conduct which would impair or debauch the morals of a minor. Mobilio was tried before
a jury on these charges, and Bosma testified that he was “pressured in giving [his
original] statement [to the Police].”1 Id. at 322. Mobilio was acquitted.
1
Bosma testified as follows at Mobilio‟s criminal trial:
Q. [W]hen you arrived at the State Police station, they gave you your
Miranda warnings. Isn't that right?
A. Yes.
Q. And, Detective Long was in your face, wasn‟t he?
A. Yes.
Q. And you kept saying, that‟s not what I saw, and he made you say what
you said. Isn't that right?
A. Yes.
***
Q. Didn‟t [Detective Long] say that if you didn't say what -- if you didn‟t
say what he wanted you to say, you were going to be arrested. Isn‟t that
right?
5
B.
Thereafter, Mobilio filed the present action in the District Court for the District of
New Jersey, asserting claims of malicious prosecution, pursuant to 42 U.S.C. § 1983 and
under state law, against Detective Long in his individual capacity.2 During discovery,
Bosma gave deposition testimony indicating that he was not pressured into giving his
original statement to the Police:
Q. At the time you were placed under oath and gave your sworn statement,
did you observe any of the officers do anything or did you hear any of
the officers doing anything that you perceived to be a prompt to say
things that were not true?
A. Like you are asking me if they were coaxing me to make a wrong
statement?
Q. Yes, right.
A. Yes.
***
Q. So, you were actually pressured in giving that statement, weren't
you?
A. Yes, I was.
App. at 321-22.
2
Mobilio asserted additional claims against Detective Long, against the “Division
of Law and Public Safety of the State of New Jersey,” and against the “Division of New
Jersey State Police.” The District Court either dismissed or granted summary judgment
on these other claims. Mobilio does not challenge those rulings in this appeal, and so we
need not discuss the additional claims.
6
A. No.
Q. When I say, “anything,” I mean did they move their eyes in a certain
way, did they throw their shoulders; did they make hand gestures; did
they lift their -- anything at all -- that was what you perceived to be a
prompt on their part, a direction for you to give a false statement?
A. Are you asking me if they did anything?
Q. Yes.
A. No, absolutely not.
***
Q. [The detectives] did not tell you what to say, did they?
A. No.
Q. And they didn‟t prompt you as to what to say either before you were
sworn in or after you were sworn in, did they?
A. No.
***
Q. Did you ever perceive . . . that they wanted you to testify in a false
manner in order to aid in the arrest and conviction of Mr. Mobilio?
A. No.
Q. The choice to give false statements, was that yours?
A. Yes.
App. at 283, 291-92.
In ruling on Detective Long‟s summary judgment motion, the District Court noted
first that because the absence of probable cause is a required element of a malicious
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prosecution claim under both § 1983 and New Jersey law, “[p]robable cause is an
absolute defense.” Mobilio, 2009 U.S. Dist. LEXIS 84144, at *22. The Court then stated
the two-part test that must be satisfied by “[a] section 1983 plaintiff who challenges the
validity of a search warrant by asserting that law enforcement agents submitted a false
affidavit to the issuing judicial officer,” Sherwood v. Mulvihill,
113 F.3d 396, 399 (3d
Cir. 1997), stating that:
The plaintiff must prove, by a preponderance of the evidence, “(1) that the
affiant knowingly or deliberately, or with a reckless disregard for the truth,
made false statements or omissions that create a falsehood in applying for a
warrant; and (2) that such statements or omissions are material, or necessary,
to a finding of probable cause.”
Mobilio, 2009 U.S. Dist. LEXIS 84144, at *23 (quoting
Sherwood, 113 F.3d at 399).
The District Court ruled that it need not determine whether the alleged
misstatements and omissions in Detective Long‟s affidavit were made knowingly,
deliberately, or with a reckless disregard for the truth, because the “alleged misstatements
and omissions . . . [were] not „material,‟” because a “reconstructed affidavit, constructed
by inserting [the] alleged omissions and excising [the] alleged inaccuracies, would still
establish probable cause.” Id. at *27 (quotations and citations omitted). The District
Court did state, however, albeit in dicta, that “a reasonable jury could not conclude . . .
that Detective Long required [Bosma] to provide false information . . . or knew he was
doing so,” because in light of Bosma‟s deposition testimony, “no reasonable jury could
8
rely on the [criminal trial] testimony and find that Mr. Bosma was forced to make a false
statement.” Id. at *31-32. Mobilio appeals.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court‟s grant of summary judgment de novo. DIRECTV
Inc. v. Seijas, 508 F.3d 123, 125 (3d Cir. 2007) (citing CAT Internet Servs. Inc. v.
Providence Washington Ins. Co.,
333 F.3d 138, 141 (3d Cir. 2003)). We apply the same
standard as the District Court in determining whether summary judgment was appropriate.
Congregation Kol Ami v. Abington Twp.,
309 F.3d 120, 130 (3d Cir. 2002). Thus,
summary judgment was proper if, viewing the record in the light most favorable to the
nonmoving party and drawing all inferences in that party‟s favor, there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. See
Abramson v. William Paterson Coll.,
260 F.3d 265, 276 (3d Cir. 2001); Fed. R. Civ. P.
56(c). “An issue of material fact is genuine „if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.‟” Troy Chem. Corp. v. Teamsters Union
Local No. 408,
37 F.3d 123, 126 (3d Cir. 1994).
III.
Mobilio challenges the District Court‟s ruling regarding the reconstruction of
Detective Long‟s affidavit. Mobilio argues that: (1) despite Bosma‟s
9
deposition testimony, his criminal trial testimony shows that Detective Long
forced him to make a false statement; and (2) the fact that the police lab report
was issued the day the affidavit was submitted raises the inference that
Detective Long received the report before he submitted the affidavit. Thus,
Mobilio contends, the reconstructed affidavit would contain none of the
information provided by Bosma (because Detective Long knew that
information was false) and would include the results of the lab report (because
Detective Long had the report before submitting the affidavit). This
reconstructed affidavit, Mobilio urges, is insufficient to support a finding of
probable cause as a matter of law, because it would have contained only
“K.A.‟s statement, contradicted by a lab report, with no witnesses of the five
people in the van except K.A.” Appellant‟s Br. at 18.
Bosma‟s conflicting criminal trial and deposition testimonies appear to create
an issue of fact concerning whether he was intimidated into making his original
statement to the Police, and so we question the District Court‟s statement that
“no reasonable jury could rely on the [criminal trial] testimony and find that
Mr. Bosma was forced to make a false statement.” Mobilio, 2009 U.S. Dist.
LEXIS 84144, at *32. In addition, the dates of the lab report and the affidavit
appear to create an issue of fact regarding whether Detective Long saw the lab
results before submitting the affidavit. However, these issues are immaterial,
10
because even if these facts were found in Mobilio‟s favor, the reconstructed
affidavit, excising the information from Bosma and adding the results of the lab
report, would support a finding of probable cause as a matter of law.
As the District Court noted, “[t]he affidavit would still note that, in a taped
sworn statement, [K.A.] provided a very detailed account of the alleged sexual
assault [and] . . . clearly identified Plaintiff as the individual who assaulted
her,” and that K.A.‟s stepmother stated that “her [step]daughter told her she
was sexually assaulted by [Mobilio] . . . and . . . her stepdaughter‟s ten-year old
friend confirmed seeing [Mobilio] touching her stepdaughter inappropriately at
the football game.” Id. at *28-29. In addition, the reconstructed affidavit
would have Eagles‟s statement regarding Mobilio holding hands with K.A.,
commenting on her body, and specifically indicating that she was well built for
a thirteen year old.
Accordingly, even with Bosma‟s statement excised and the lab report included,
the foregoing “facts and circumstances within [Detective Long‟s] knowledge
[were] sufficient in themselves to warrant a reasonable person to believe that
an offense ha[d] been . . . committed by [Mobilio],” United States v. Cruz,
910
F.2d 1072, 1076 (3d Cir. 1990), because “[w]hen a police officer has received a
reliable identification by a victim of his or her attacker, the police have
probable cause to arrest.” Sharrar v. Felsing,
128 F.3d 810, 818 (3d Cir. 1997)
11
(citing Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th Cir. 1991); Grimm v.
Churchill, 932 F.2d 674, 675 (7th Cir. 1991)). Mobilio is correct that
“[i]ndependent exculpatory evidence or substantial evidence of the witness‟s
own unreliability that is known by the arresting officers could outweigh the
identification such that probable cause would not exist,” Wilson v. Russo, 212
F.3d 781, 790 (3d Cir. 2000), but no such circumstances are presented here.
While neither Eagles nor Bosma (according to his revised statement) saw actual
sexual contact between Mobilio and K.A., and the lab report indicated that no
seminal material was found on K.A.‟s jeans, both Eagles and M.F. saw Mobilio
touch K.A. inappropriately, and there is no indication from the record that
Detective Long had any reason to deem K.A. an unreliable witness.
In light of the foregoing, the District Court properly concluded that the
reconstructed affidavit supported a finding of probable cause as a matter of
law.3
3
Mobilio raises in the alternative a novel argument: that because Bosma‟s
criminal trial testimony raises the inference that Detective Long forced Bosma to make a
false statement, Detective Long‟s conduct “so permeates the case . . . that the notion of
probable cause is completely defeated,” and therefore “the only elements of malicious
prosecution that [Mobilio] must show would be that [Detective Long] initiated a criminal
proceeding, that the proceeding ended favorably to [Mobilio], that [Detective Long] acted
maliciously or for a purpose other than bringing [Mobilio] to justice[,] and that [Mobilio]
suffered deprivation of liberty.” Appellant‟s Br. at 20. Mobilio cites no case, from this
Court or any other, for the proposition that a defendant‟s conduct can relieve a plaintiff of
the burden of showing lack of probable cause, one of the required elements of a malicious
prosecution claim, and we are aware of no such authority. Thus, we need not address this
12
IV.
In light of the foregoing, we will AFFIRM the judgment of the District Court.
argument further.
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