52 F.3d 1139 (2nd Cir. 1995), 572, Pinaud v. County of Suffolk

Docket Nº:572, Docket 94-7416.
Citation:52 F.3d 1139
Party Name:Peter J. PINAUD, Plaintiff-Appellant, v. COUNTY OF SUFFOLK, James Catterson, Patrick Henry, David Freundlich, John Holownia, Kevin Fitzgerald, Patrick J. O'Connell, and Mark Cohen, Defendants-Appellees.
Case Date:April 06, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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52 F.3d 1139 (2nd Cir. 1995)

Peter J. PINAUD, Plaintiff-Appellant,


COUNTY OF SUFFOLK, James Catterson, Patrick Henry, David

Freundlich, John Holownia, Kevin Fitzgerald,

Patrick J. O'Connell, and Mark Cohen,


No. 572, Docket 94-7416.

United States Court of Appeals, Second Circuit

April 6, 1995

Argued Nov. 21, 1994.

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Jared J. Scharf, White Plains, NY, for plaintiff-appellant.

Snitow & Pauley, New York City, for defendants-appellees Catterson, Henry, Holownia, Fitzgerald, O'Connell, and Cohen.

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Perini & Hoerger, Hauppauge, NY, for defendant-appellee David R. Freundlich.

Robert J. Cimino, Suffolk County Atty., Hauppauge, NY (Robert H. Cabble on the brief), for defendant-appellee County of Suffolk.

Before: OAKES, JACOBS, and CALABRESI, Circuit Judges.

Judge JACOBS concurs in part and dissents in part in a separate opinion.

CALABRESI, Circuit Judge:

Peter J. Pinaud's odyssey through the criminal justice system cannot be a source of pride to us or to that system. He served a 28-month sentence on a state conviction that was subsequently vacated, and for which the charge was eventually dismissed. And though he was led to believe when he pleaded guilty to this state charge that a contemporaneous federal sentence would be reduced by 828 days that he ultimately served on the vacated state conviction, Pinaud was in fact denied any federal credit for that time.

Attributing his hardships to others' ill will and not to bad luck, Pinaud filed this lawsuit claiming that his travails were the result of an "out-of-court" plot among a group of district attorneys for the County of Suffolk. Pinaud's amended complaint alleged that these prosecutors conspired to deny him his civil rights and to imprison him unlawfully. Accordingly, he sought damages from the district attorneys and the County of Suffolk based on 42 U.S.C. Sec. 1983 and on New York state law.

The United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge) dismissed Pinaud's action, and he has appealed. Judge Wexler ruled that absolute prosecutorial immunity shielded the individual district attorney defendants--James Catterson, Patrick Henry, David Freundlich, John Holownia, Kevin Fitzgerald, Patrick J. O'Connell, and Mark Cohen--as to all but one claim, which Pinaud later withdrew. The District Court also found that many of Pinaud's other claims were barred by the statute of limitations, and that he had failed to state a claim for malicious prosecution--a cause of action that had survived the other rulings.

Though we believe that Pinaud's misfortunes are lamentable, we conclude that almost all of Pinaud's causes of action cannot be maintained and were properly dismissed. We do find that one of his allegations might form the basis of a viable claim under Sec. 1983. Consequently, we affirm in part, reverse in part, and remand for further proceedings.


Pinaud's troubles with the law began in 1982, when a federal investigation indicated that Pinaud had committed certain federal tax crimes. Strangely, he was not indicted on charges stemming from this federal investigation until February 1985.

In the meantime, a warrantless search by the Suffolk County police found stolen cars and parts in a salvage yard adjoining an autobody shop where Pinaud worked. As a result of this state investigation, Pinaud was indicted in August 1983 on state stolen property charges and on other related offenses.

Before his trial on these state charges, Pinaud moved to suppress the evidence seized from the salvage yard, and a contemporary decision by a New York appellate court in a separate case apparently made suppression likely. Pinaud claims that concerns over the possible exclusion of key evidence led the Suffolk County District Attorney's Office to ask Pinaud to plead guilty to only one count of possession of stolen property. At first, Pinaud says, he refused to accept such a plea agreement.

Shortly after, on May 3, 1984, defendants O'Connell, Freundlich, and Henry asked for an increase in Pinaud's bail from $10,000 to $250,000. Pinaud claims that the defendants had long known the facts on the basis of which they sought this increase, and only raised these facts on May 3rd in order to coerce a guilty plea from Pinaud. The bail application was granted, and because Pinaud could not meet the higher bail, he was immediately jailed.

After spending four days in jail, Pinaud agreed to plead guilty in state court to one count of possessing stolen property. According

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to Pinaud, his plea agreement included promises from the prosecution to recommend a limited sentence. The sentence was to be made concurrent with his anticipated federal sentence and was to be served in a federal corrections facility. To facilitate this, the prosecution agreed to a delay in Pinaud's sentencing; this would permit Pinaud to work out the federal tax charges against him and enable the state court to impose a state sentence concurrent to Pinaud's expected federal sentence. The state court was informed of these aspects of the plea agreement and accepted Pinaud's guilty plea.

The record reveals that the state court scheduled sentencing for some six weeks later, on June 15, 1984, and explained that at that time it planned only to obtain a probation report and to adjourn the proceedings until November 1984. The court further stated that Pinaud did not need to appear in court on June 15, 1984; Pinaud's bail was reduced so he could be free pending sentencing.

Pinaud asserts that, in order to violate the terms of this plea agreement, the defendants soon after manufactured a "bogus" bail jumping charge. Though the court had said that Pinaud need not be in court on June 15, 1984, when Pinaud failed to appear at that time the court directed his attorney to tell him to appear on July 16, 1984. Pinaud failed to appear in court either on July 16 or on the adjourned dates of July 17 and 18. A bench warrant was issued, and Pinaud's bail was forfeited. He was ultimately arrested on the warrant on October 16, 1984. Defendants then informed a grand jury that Pinaud had failed to appear in court as required, and an indictment charging one count of bail jumping was handed down. The prosecutors did not tell the grand jury of the state court's initial statement that Pinaud did not need to appear on June 15, 1984.

When he was captured, on October 16, 1984, Pinaud was immediately brought into state court for sentencing on the stolen property charge. The court indicated that, because of his bail jumping, Pinaud had forfeited his right to the benefits agreed to by the state in his plea agreement. Pinaud then expressed reservations about his initial guilty plea on the stolen property charge, and suggested that he had not entered it voluntarily. As a result, the state court vacated his plea.

The next day, Pinaud told the court that he was willing to reinstate his initial guilty plea and to proceed immediately to sentencing on the stolen property charge, if this would lead to the dismissal of the other state charges pending against him. Defendant O'Connell consented to this arrangement, and the state court again accepted Pinaud's guilty plea to one stolen property charge. The state court imposed a sentence of two-and-one-third to seven years' imprisonment on the stolen property charge, dismissed the bail jumping indictment, and remanded Pinaud immediately to state prison.

In late 1984 and early 1985, while serving his state sentence, Pinaud was finally indicted, separately, in the Northern and Eastern Districts of New York on a series of federal tax charges. Pinaud pleaded guilty to two counts in the Northern District and was sentenced to 44 months' imprisonment, consecutive to his state sentence. Later, Pinaud pleaded guilty to two counts in the Eastern District and was sentenced to three years' additional imprisonment, consecutive to both his state sentence and the Northern District sentence. 1

In March of 1986, Pinaud moved in state court to vacate his state conviction on the ground that the terms of his plea agreement had been violated. Though his motion was initially denied, Pinaud was ultimately successful, and the state Appellate Division vacated his conviction in July 1987. See People v. Pinaud, 132 A.D.2d 580, 517 N.Y.S.2d 560 (2d Dep't), leave to appeal denied, 70 N.Y.2d 802, 522 N.Y.S.2d 120, 516 N.E.2d 1233 (1987). Unfortunately for Pinaud, by the time this happened, he had finished serving the full 28-month sentence on the state

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charge and had been transferred to federal custody to serve his federal sentences.

Pinaud claims that he believed that he was to receive federal credit for time he had served on the vacated state conviction, and in fact the U.S. Bureau of Prisons initially awarded Pinaud credit for 828 of the 848 days he had spent in prison on that charge. The Bureau of Prisons subsequently rescinded this award, however, and said that it had erred when it had found that Pinaud was to get this credit. According to Pinaud, this change was due, in part at least, to defendant Cohen's deceptive representations to the Bureau of Prisons concerning the likelihood that Pinaud's conviction and sentence would be reinstated. 2

In February 1988, while Pinaud was still serving his federal sentence, defendant O'Connell decided to reprosecute the state stolen property and bail jumping charges, which had been remitted to the state trial court after Pinaud's initial conviction had been vacated. According to Pinaud, it was not necessary for him to appear personally in state court in...

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