1 10-4398-cv Jovanovic v. City of New York



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
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**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 20 th** **day of June, two thousand twelve.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **JOHN M. WALKER, JR.,** 8 **RICHARD C. WESLEY,** 9 **Circuit Judges**

**.** 10 11
- - - - - - - - - - - - - - - - - - - -X 12 **DR. OLIVER JOVANOVIC,** 13 **Plaintiff-Appellant ,**  14 15 **-v.- 10-4398-cv** 16 17 **CITY OF NEW YORK, MILTON BONILLA,** 18 **SHIELD NO. 61, individually and in his** 19 **official capacity, LINDA FAIRSTEIN,** 20 **NEW YORK COUNTY ASSISTANT DISTRICT** 21 **ATTORNEY, individually and in her** 22 **official capacity,** 23 24 **Defendants-Appellees ,**  25 26 **GAIL HEATHERLY, NEW YORK COUNTY** 27 **ASSISTANT DISTRICT ATTORNEY,** 282 **individually and in her official** 1 **capacity,** 2 3 **Defendant**

**.** 4
- - - - - - - - - - - - - - - - - - - -X 5 6 **FOR APPELLANT:** Diarmuid White (Brendan White, 7 on the brief ), White & White, 8 New York, NY. 9 10 **FOR APPELLEES:** Karen M. Griffin (Francis F. 11 Caputo, Arthur G. Larkin, on the 12 brief ), for Michael A. Cardozo, 13 Corporation Counsel of the City 14 of New York, New York, NY. 15 16 Appeal from a judgment of the United States District 17 Court for the Southern District of New York (Crotty, J. ). 18 19 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 20 **AND DECREED**that the judgment of the district court be 21
**AFFIRMED**

. 22 23 Plaintiff Oliver Jovanovic appeals from a judgment 24 entered by the United States District Court for the Southern 25 District of New York (Crotty, J. ), dismissing on summary 26 judgment his civil rights claims against a police officer, a 27 prosecutor, and the City of New York. We assume the 28 parties’ familiarity with the facts, procedural history, and 29 issues presented on appeal. 30 31 In the fall of 1996, Jovanovic, a PhD candidate at 32 Columbia University, spent the night with a 20-year-old 33 Barnard College student, Jamie Rzucek, who later accused him 34 of tying her up, pouring hot candle wax on parts of her 35 body, and sodomizing her with a baton-like object. 36 Defendant Milton Bonilla, a New York City police detective 37 assigned to the Manhattan Special Victims Unit, led the 38 police investigation; defendant Linda Fairstein was the 39 assistant district attorney in charge of prosecuting the 40

case. 41 42 A grand jury indicted Jovanovic on December 13, 1996 43 and added charges on December 19, 1996. Only Rzucek and 44 Bonilla testified before the grand jury. Subsequently 453 Jovanovic was convicted of kidnapping, sexual abuse, and 1 assault, and sentenced to fifteen years to life in prison. 2 3 On December 21, 1999--after Jovanovic had spent nearly 4 twenty months in prison--the Appellate Division, First 5 Department, of the New York Supreme Court vacated the 6 conviction because the trial court had excluded evidence 7 that disabled Jovanovic from proving that he “had reason to 8 believe, prior to their meeting, that they both had intended 9 to participate in consensual, non-violent sadomasochism that 10 night.” People v. Jovanovic , 700 N.Y.S.2d 156, 164 (1st 11 Dep’t 1999). The excluded evidence included emails and 12 chats suggesting that Ruczek was seeking such an encounter. 13 Id. 14 15 After the state declined to retry Jovanovic, he filed 16 this civil rights action pursuant to 42 U.S.C. § 1983, 17 alleging that his prosecution violated his civil rights. He 18 appeals the district court’s grant of summary judgment in 19 favor of defendants on claims that: (1) Bonilla maliciously 20 prosecuted him; (2) Bonilla deprived him of his right to a 21 fair trial through the use of fabricated evidence and a 22 deeply flawed investigation; (3) Fairstein deprived him of a 23 fair trial by making inflammatory public statements that 24 both prejudiced the grand jury and caused witnesses to come 25 forward and give false testimony; and (4) the City failed to 26 properly train police regarding false rape claims. 27 28 Malicious Prosecution (Bonilla). An element of any 29 malicious prosecution claim is the absence of probable 30 cause. SeeSavino v. City of New York , 331 F.3d 63, 72 (2d 31 Cir. 2003). The detailed account given by Rzucek--without 32 any obvious reason for skepticism--provided sufficient 33 probable cause. SeeCurley v. Vill. of Suffern , 268 F.3d 34 65, 70 (2d Cir. 2001) (“When information is received from a 35 putative victim or an eyewitness, probable cause exists 36 unless the circumstances raise doubt as to the person’s 37 veracity.” (citation omitted)). The circumstances of this 38 case did not require further investigation to support 39 probable cause. SeePanetta v. Crowley , 460 F.3d 388,396 40 (2d Cir. 2006); Ricciuti v. N.Y.C. Transit Auth. , 124 F.3d 41 123, 128 (2d Cir. 1997). 42 43 Fair Trial (Bonilla). Jovanovic claims that he was 44 deprived of a fair trial by Bonilla’s alleged lie that 45 corroborative evidence had been removed from Jovanovic’s 46 apartment between the time of his arrest and the time 471In a pair of footnotes, Jovanovic also argues that Bonilla deprived him of a fair trial by creating a misleading video tape in which he opened up Jovanovic’s futon with a “flick of the wrist.” Assuming that Jovanovic properly raised the argument, and assuming that Bonilla’s production of the video could be considered misleading, it was not material to the jury’s decision and therefore could not have caused a deprivation of liberty.

4 Bonilla executed a search warrant. 1He raises the issue in 1 only a perfunctory manner on appeal; but even if it were 2 properly raised it would be unavailing. A person suffers a 3 constitutional violation if an (1) investigating official 4 (2) fabricates evidence (3) that is likely to influence a 5 jury’s decision, (4) forwards that information to 6 prosecutors, and (5) the plaintiff suffers a deprivation of 7 liberty as a result. SeeJocks v. Tavernier , 316 F.3d 128, 8 138 (2d Cir. 2003); Ricciuti , 124 F.3d at 130. Probable 9 cause is not a defense. SeeRicciuti , 124 F.3d at 129-130. 10 Jovanovic cannot show causation--i.e., that the alleged 11 fabrication of evidence led to a deprivation of his liberty. 12 That is because the only avenue by which the testimony could 13 reach the jury was through Bonilla’s testimony, for which he 14 enjoys absolute immunity under Briscoe v. LaHue , 460 U.S. 15 325, 335-336 (1983); see alsoRehberg v. Paulk , 132 S. Ct. 16 1497, 1505 (2012) (extending Briscoeto grand jury 17 proceedings). The cases relied upon by Jovanovic are not to 18 the contrary. Ricciuti addressed only whether qualified 19 immunity was available to police offers who willfully 20 fabricated evidence. Ricciuti , 124 F.3d at 130. 21 Furthermore, the allegedly fabricated admissions in Ricciuti 22 caused the plaintiffs to be charged with a more serious 23 crime and delayed their opportunity to be freed on bail. 24 Seeid. at 126. In Jocks , the statement at issue was a 25 written admission that was forwarded to prosecutors. Jocks

, 26 316 F.3d at 138. 27 28 Fair Trial (Fairstein). Jovanovic contends that 29 Fairstein deprived him of his right to a fair trial by 30 making inflammatory public statements. In order to succeed 31 on such a claim, a plaintiff must prove (1) the prosecutor 32 made improper public statements or leaks (i.e., those that 33 contravene the canons of ethics or other standards for 34 prosecutorial conduct); (2) the improper disclosure in fact 35 deprived the defendant of a fair trial; and (3) other 365 remedies like the use of voir dire and peremptory challenges 1 were either unavailable or ineffective to remedy the leaked 2 information. SeePowers v. Coe , 728 F.2d 97, 105-06 (2d 3 Cir. 1984). 4 5 As to the impact on the grand jury, summary judgment 6 was appropriate. A less searching scrutiny of procedural 7 protections is warranted for grand jury proceedings than for 8 a criminal trial. SeeUnited States v. York , 428 F.3d 1325, 9 1331 (11th Cir. 2005); cf. United States v. Calandra , 414 10 U.S. 338, 349 (1974) (rejecting use of exclusionary rule in 11 grand jury proceedings and noting that “the grand jury does 12 not finally adjudicate guilt or innocence, it has 13 traditionally been allowed to pursue its investigative and 14 accusatorial functions unimpeded by the evidentiary and 15 procedural restrictions applicable to a criminal trial”). 16 Jovanovic has not sustained his burden of addressing 17 evidence of prejudice. And it matters that the prosecutor 18 instructed the grand jury to disregard all media coverage 19 and that the law required it to base its conclusion solely 20 on the evidence presented. 21 22 Summary judgment was also appropriate on Jovanovic’s 23 claim that the pretrial publicity caused a witness to come 24 forward and perjure herself at trial. Jovonavic must be 25 able to prove that the injury complained of “was not too 26 remote a consequence of the improper leaks to the press.” 27 Powers , 728 F.2d at 105 (internal quotation marks omitted). 28 The witness’s perjury--accepting Jovanovic’s allegations-- 29 was too remote of a consequence of Fairstein’s statements. 30 31 Finally, because we found that Bonilla’s investigation 32 was not so deficient as to render him potentially liable for 33 malicious prosecution, Jovanovic’s municipal liability claim 34 necessarily fails. SeeWray v. City of New York , 490 F.3d 35 189, 196 (2d Cir. 2007); see alsoCity of Los Angeles v. 36 Heller , 475 U.S. 796, 799 (1986). 37 38 Finding no merit in Jovanovic’s remaining arguments, we 39 hereby **AFFIRM** the judgment of the district court. 40 41 FOR THE COURT: 42 CATHERINE O’HAGAN WOLFE, CLERK 43 44