Marcus Dukes v. Catherine Pappas , 405 F. App'x 666 ( 2010 )

ALD-068 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3380
___________
MARCUS DUKES,
Appellant
v.
CATHERINE E. PAPPAS, Senior Trial Counselor, Securities and Exchange
Commission; AMY GREER, (Securities and Exchange Commission); KATY CODY,
(Securities and Exchange Commission); KEVIN DELACY, (Securities and Exchange
Commission); LUCY CARDWELL, Assistant Attorney General of Maryland
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 09-3869)
District Judge: Honorable William H. Yohn Jr.
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 16, 2010
Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges
(Filed: December 28, 2010)
_________
OPINION OF THE COURT
_________
PER CURIAM.
Pro se appellant Marcus Dukes appeals the District Court’s dismissal of his
complaint under 28 U.S.C. § 1915(e). We have jurisdiction pursuant to 28 U.S.C. § 1291and exercise plenary review over the District Court’s order. See Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000). Because this appeal presents no substantial question, we
will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P.
10.6.
Dukes co-founded the Financial Warfare Club and Covenant EcoNet, Inc., which
sold memberships in a purported investment club to African Americans. The FBI and
SEC investigated Dukes and ultimately instituted civil and criminal actions against him.
The criminal action proceeded first, and Dukes was convicted of mail fraud and money
laundering and sentenced to 108 months’ imprisonment. Dukes’s attempts to challenge
the conviction — both on appeal and in a proceeding under 28 U.S.C. § 2255 — were
unsuccessful. At the conclusion of the criminal action, the civil action resumed, and the
United States District Court for the Eastern District of Pennsylvania granted summary
judgment to the SEC on its claims that Dukes committed fraud and violated the Securities
Act.
Dukes then filed this action. In his second amended complaint, which is at issue in
this appeal,1 he asserted claims arising under 42 U.S.C. § 1983 and Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971). More specifically, he raised two claims:
(1) several attorneys and an accountant employed by the SEC (“the SEC defendants”)
1
It is unclear whether Dukes continues to assert claims that he included in his first
amended complaint but omitted from his second amended complaint. To the extent that
those claims have not been waived, see United States ex rel. Atkinson v. Pa. Shipbuilding
Co., 473 F.3d 506, 516 (3d Cir. 2007), we conclude, for essentially the reasons provided
by the District Court, that the claims fail as a matter of law.
2
created a spreadsheet for the criminal prosecution cataloging Dukes’s companies’
financial transactions and violated his rights under Brady v. Maryland, 373 U.S. 83(1963), by refusing to disclose the spreadsheet to the prosecution or Dukes; and (2) an
SEC defendant and Maryland’s assistant attorney general made and continue to make
defamatory statements about Dukes’s businesses, thus undermining his efforts to recover
lost money.2
The District Court permitted Dukes to proceed in forma pauperis, but then rejected
both claims and dismissed the complaint sua sponte pursuant to 28 U.S.C. § 1915(e). The
Court concluded that any amendment would be futile and thus dismissed the complaint
without providing leave to amend.
We discern no error in the District Court’s ruling that Dukes’s Brady claim fails.
While Brady claims are typically directed against prosecutors, we have suggested that
other government actors may be liable for failing to disclose exculpatory information to
the prosecutor, see Yarris v. County of Delaware, 465 F.3d 129, 141 (3d Cir. 2006), and
we assume here that the SEC defendants represent a proper target. Nevertheless, a
meritorious Brady claim, by definition, implies the invalidity of the attendant criminal
conviction. See Strickler v. Greene, 527 U.S. 263, 281 (1999) (“[T]here is never a real
‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable
probability that the suppressed evidence would have produced a different verdict.”).
2
Dukes’s claims against the SEC defendants are properly brought under Bivens, while his
claim against Maryland’s assistant attorney general is properly brought under § 1983.
See Lora-Pena v. Fed. Bureau of Investigation, 529 F.3d 503, 504 n.1 (3d Cir. 2008). The
legal analysis detailed below applies with equal force to both species of claims.
3
Dukes’s Brady claim is therefore barred by the rule of Heck v. Humphrey, 512 U.S. 477(1994). See, e.g., Amaker v. Weiner, 179 F.3d 48, 51 (2d Cir. 1999) (holding that Brady
claims implicate the validity of the resulting conviction and are thus barred by Heck).
Dukes seeks to avoid this result by arguing that while this spreadsheet would have
been helpful to him, further proceedings are necessary before it can be determined
whether its suppression was sufficiently prejudicial to call his criminal verdict into
question. However, this argument cuts both ways. If there is not a “reasonable
probability that his conviction or sentence would have been different had these materials
been disclosed,” then there has been no Brady violation, Strickler, 547 U.S. at 296, and
Dukes has failed to plead the underlying constitutional violation necessary to make out a
Bivens claim, see Bivens, 403 U.S. at 397. Accordingly, under either scenario, Dukes’s
claim cannot succeed.
We also affirm the District Court’s alternative holding that there was no Brady
violation because the information Dukes claims the government withheld was known by
and available to him. “[T]he rationale underlying Brady is not to supply a defendant with
all the evidence in the Government’s possession which might conceivably assist the
preparation of his defense, but to assure that the defendant will not be denied access to
exculpatory evidence only known to the Government.” United States v. Zackson, 6 F.3d
911, 918 (2d Cir. 1993) (internal quotation marks omitted, emphasis added). Therefore,
“Brady does not compel the government to furnish a defendant with information which he
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already has or, with any reasonable diligence, he can obtain himself.” United States v.
Pelullo, 399 F.3d 197, 213 (3d Cir. 2005) (internal quotation marks omitted).
Dukes does not allege that he was unaware of or unable to obtain information
concerning the financial transactions cataloged in the spreadsheet; to the contrary, as the
District Court noted, in his criminal appeal he acknowledged that he had access to
relevant bank records before trial. See United States v. Dukes, 242 F. App’x 37, 49 (4th
Cir. 2007); see also United States v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997) (no Brady
violation when government seized defendants’ financial records because defendants
either knew or should have known about this information). While Dukes may have found
it more convenient to work from the government’s spreadsheet than from the raw
financial information that he either already had or could have acquired with reasonable
diligence, Brady does not require the government “to facilitate the compilation of
exculpatory material that, with some industry, defense counsel could marshal on their
own.” United States v. Runyan, 290 F.3d 223, 246 (5th Cir. 2002).
We likewise agree with the District Court that Dukes’s defamation claim lacks
merit. “The Supreme Court has made clear that federal courts are not to view defamatory
acts as constitutional violations.” Boyanowski v. Capital Area Intermediate Unit, 215
F.3d 396, 400 (3d Cir. 2000). This bar applies even where the plaintiff claims that the
defamatory statement caused financial injury. See Kelly v. Borough of Sayreville, 107
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F.3d 1073, 1078 (3d Cir. 1997). Therefore, Dukes’s defamation claim fails as a matter of
law.3
Finally, we are satisfied that further amendment to Dukes’s complaint would be futile,
and therefore conclude that the District Court properly dismissed the complaint without
providing leave to amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d
Cir. 2002). We will thus summarily affirm the District Court’s order dismissing Dukes’s
second amended complaint. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
3
To the extent that Dukes asserts claims against SEC employees Kevin Delacey and Katy
Cody for creating false evidence for use at his 2005 criminal trial, these claims are also
barred by Heck. See, e.g., Perez v. Sifel, 57 F.3d 503, 505 (7th Cir. 1995). Even if they
were not, the claims would still fail because, as the District Court correctly held, they are
barred by the applicable statute of limitations.
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