United States v. Cardona

12-4612-cr
United States v. Cardona
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 27th day of November, two thousand thirteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 BARRINGTON D. PARKER,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 12-4612-cr
16
17 ARMANDO CARDONA,
18 Defendant-Appellant,
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20
21 FOR APPELLANT: Cheryl J. Sturm; 387 Ring Rd.,;
22 Chadds Ford, PA.
23
24 FOR APPELLEES: S. Dave Vatti (with Robert M.
25 Spector on the brief), Assistant
26 United States Attorneys, for
27 Deirdre M. Daly, Acting United
28 States Attorney for the District
29 of Connecticut.
1
1
2 Appeal from a judgment of the United States District
3 Court for the District of Connecticut (Covello, J.).
4
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
6 AND DECREED that the judgment of the district court be
7 AFFIRMED.
8
9 Defendant-appellant Armando Cardona appeals from a
10 judgment entered on November 16, 2012 in the United States
11 District Court for the District of Connecticut (Covello,
12 J.), after a jury found the Cardona guilty of one count of
13 conspiracy to possess with the intent to distribute five
14 kilograms or more of cocaine and one count of possession
15 with intent to distribute five kilograms or more of cocaine.
16 We assume the parties’ familiarity with the underlying
17 facts, the procedural history, and the issues presented for
18 review.
19
20 Cardona challenges the denial of his motion to suppress
21 various pieces of evidence, and argues that his trial
22 counsel was ineffective for failing to make object to
23 certain jury instructions. We address these claims in turn.
24
25 A. The Suppression Motion
26
27 In reviewing the denial of a motion to suppress, we
28 view the evidence in the light most favorable to the
29 government. United States v. Jackson, 652 F.2d 244, 246 (2d
30 Cir. 1981). The factual findings of a district court on a
31 motion to suppress, including assessments of credibility,
32 cannot be disturbed unless shown to be clearly erroneous.
33 United States v. Villegas, 928 F.2d 512, 517 (2d Cir. 1991).
34
35 Cardona argues that his arrest and the ensuing search
36 of his vehicle lacked probable cause. We disagree.
37
38 “Probable cause to arrest exists when an officer has
39 knowledge of facts and circumstances ‘sufficient to warrant
40 a prudent man in believing’ that an offense is being or has
41 been committed.” United States v. Edmonds, 535 F.2d 714,
42 719 (2d Cir. 1976) (quoting Beck v. Ohio, 379 U.S. 89, 91
43 (1964)). Experience of the arresting officers is a relevant
44 factor in the probable cause inquiry. See, e.g., United
45 States v. Rosario, 638 F.2d 460, 462 (2d Cir. 1980).
46
2
1 Probable cause to arrest may be based in whole or in
2 part upon information obtained through the use of an
3 informant, in which case the court must “assess the
4 information by examining the ‘totality of the circumstances’
5 bearing upon its reliability.” United States v. Smith, 9
6 F.3d 1007, 1012 (2d Cir. 1993) (citation omitted). “[I]t is
7 established in this circuit that evidence sufficient to show
8 probable cause by corroborating even a previously unknown
9 informant may be found in circumstances which do not
10 actually establish the crime itself.” United States v.
11 Rueda, 549 F.2d 865, 870 (2d Cir. 1977). “An untested
12 informant’s story may be corroborated by other facts that
13 become known to the [arresting agent], even if they
14 corroborate only innocent aspects of the story.” United
15 States v. Sultan, 463 F.2d 1066, 1069 (2d Cir. 1972).
16
17 The federal agents had probable cause to arrest
18 Cardona even though they never saw him at the motel or
19 overheard him making unequivocal statements about criminal
20 conduct. First, the Government relied on information
21 provided by Javier Morales-Gomez, who claimed (upon being
22 arrested for drug possession) that he was to deliver the 30
23 kilograms of cocaine to Armando Cardona. The agents had not
24 previously worked with Morales-Gomez, but they verified many
25 detail sof his account, including his physical description
26 of Cardona, Cardona’s nationality, the specifics of
27 Cardona’s criminal record, as well as where Cardona lived
28 and what car he drove. The corroboration of these
29 “innocent” details gave sufficient reason to believe the
30 criminal aspects of the story. Sultan, 463 F.2d at 1069.
31 Moreover, Morales-Gomez participated directly in the sting
32 operation that culminated in Cardona’s arrest. This matters
33 because an informant is more reliable if he meets with the
34 police face-to-face because he runs a greater risk that he
35 will be held accountable if his information proves false.
36 United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991).
37
38 Cardona’s own actions further corroborated Morales-
39 Gomez’s account. The agents heard and recorded two calls in
40 which Cardona and Morales-Gomez arranged a meeting (i.e., a
41 delivery of the cocaine to Cardona) at a room in a
42 particular motel, which they referred to familiarly as “the
43 house.” Shortly after that call, Cardona’s co-defendant,
44 Andres Alvarez, arrived at the designated room at the motel
45 and told Morales-Gomez that he had been sent to retrieve
46 “Papi’s stuff.” Upon taking possession of the cocaine,
47 Alvarez was arrested.
3
1
2 The agents inferred, based on their experience, that
3 Alvarez had been sent by Cardona as a courier (an
4 arrangement previously alluded to in conversations between
5 Cardona and Morales-Gomez). Moreover, within minutes of
6 Alvarez’s arrest, agents surveilling the home of Cardona’s
7 wife observed Cardona drive at high speed into the parking
8 area. They moved in when he parked and arrested him.
9
10 The totality of the circumstances provided probable
11 cause for Cardona’s arrest. Cf. United States v. Gagnon,
12 373 F.3d 230, 240 (2d Cir. 2004) (holding that probable
13 cause existed to search defendant’s tractor trailer, where
14 confidential informant who was detained at border with a
15 trailer full of marijuana told agents that he was driving to
16 meet the defendant to exchange trailers, and defendant
17 subsequently arrived at the location described, at the time
18 described, in a tractor with an empty trailer that matched
19 informant’s description); Rueda, 549 F.2d at 870 (holding
20 that probable cause existed where “DEA agents were given an
21 accurate description of Rueda, and several specific details
22 given them occurred exactly as [informant] had recounted or
23 predicted”). The use of a courier is not enough to render
24 Cardona’s arrest unlawful, given Morales-Gomez’s reliable
25 information and Cardona’s own involvement up to the time of
26 his arrest.
27
28 The same information that established probable cause to
29 arrest the defendants also established probable cause to
30 believe that Cardona’s vehicle contained evidence of the
31 cocaine distribution conspiracy. United States v. Gaskin,
32 364 F.3d 438, 456 (2d Cir. 2004) (“Under the ‘automobile
33 exception’ to the Fourth Amendment warrant requirement,
34 police may conduct a warrantless search of a readily mobile
35 motor vehicle if probable cause exists to believe the
36 vehicle contains contraband or other evidence of a crime.”).
37 In particular, there was a fair probability that items
38 needed to conduct the transaction–-such as money, cellular
39 phones, or weapons--were in Cardona’s car. Indeed, a cell
40 phone bearing the number that Morales-Gomez dialed to
41 contact Cardona was visible on the seat of the car.
42
43 Because both Cardona’s arrest and the subsequent search
44 of his car were supported by probable cause, the district
45 court did not err in denying defendants’ motion to suppress.
46
4
1 Next, Cardona claims that the protective sweep of his
2 wife’s residence performed after his arrest was invalid.
3 Law enforcement officers may conduct a protective sweep of a
4 residence during the course of an arrest if they possess “a
5 reasonable belief based on specific and articulable facts
6 that the area to be swept harbors an individual posing a
7 danger to those on the arrest scene.” Maryland v. Buie, 494
8 U.S. 325, 110 S. Ct. 1093, 1099-1100, 108 L. Ed. 2d 276
9 (1990). This standard was satisfied because Cardona had
10 been using the residence to arrange the meeting with
11 Morales-Gomez; Cardona was seen coming and going frequently;
12 the arrest took place directly in front of the residence,
13 and the officers had reason to believe that Cardona’s wife
14 (who owned the residence) or associates of Cardona were
15 present in the residence and posed a threat to the officers
16 or to the preservation of any evidence therein. See United
17 States v. Mickens, 926 F.2d 1323, 1328 (2d Cir. 1991)
18 (upholding protective sweep where “the arresting officers
19 had reason to believe that defendant-appellant Kearney and
20 her mother--both of whom resided in the house--were on the
21 premises”). Moreover, the scope of the agents’ protective
22 sweep did not extend beyond the “cursory inspection” deemed
23 proper by the Supreme Court. Buie, 110 S. Ct. at 1099. The
24 district court did not err in holding that the agents
25 lawfully entered Mrs. Cardona’s residence to perform a
26 protective sweep.
27
28 Finally, Cardona challenges the subsequent search of
29 his wife’s residence, during which money and cocaine
30 belonging to Cardona were seized, on the ground that the
31 consent given by his wife was involuntary. “The question
32 whether a consent to a search was in fact ‘voluntary’ or was
33 the product of duress or coercion, express or implied, is a
34 question of fact to be determined from the totality of all
35 the circumstances.” Schneckloth v. Bustamonte, 412 U.S.
36 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). The
37 district court found that Mrs. Cardona is a fluent English
38 speaker and a “mature, intelligent and resourceful woman”;
39 that she had the authority to consent; that she confirmed
40 her consent both orally and in writing; that she was not
41 treated as a suspect during the investigation; that no
42 weapons were drawn during her discussion with the agents;
43 and that she was at all times calm and cooperative during
44 the professional and brief discussion.
45
46 In making these findings, which are supported by the
47 record, the district court credited the officers’ testimony
5
1 that there was no coercive conduct, and cited internal
2 contradictions in Mrs. Cardona’s competing versions of
3 events and the fact that her testimony at the suppression
4 hearing that she had refused consent was contradicted by her
5 prior sworn affidavit. Cardona has failed to show that the
6 district court committed clear error in crediting the
7 agents’ testimony rather than Mrs. Cardona’s. See United
8 States v. Mendez, 315 F.3d 132, 135 (2d Cir. 2002) (“Where
9 the district court’s factual findings are premised upon
10 credibility determinations, we grant particularly strong
11 deference to those findings.”). Thus, although the consent
12 was given after the agents performed a protective sweep of
13 the residence, which did involve a substantial show of
14 authority, the district court did not clearly err in finding
15 that Cardona’s wife gave valid consent for the search. Cf.
16 United States v. Ceballos, 812 F.2d 42, 46, 51 (2d Cir.
17 1987) (holding that consent was voluntarily given even
18 though the police forcibly arrested the defendant prior to
19 his consent to search).
20
21 Accordingly, the district court properly denied
22 Cardona’s motion to suppress.
23
24 2. Ineffective Assistance of Counsel
25
26 Cardona next raises various claims of ineffective
27 assistance of counsel based on his trial counsel’s failure
28 to challenge specific jury instructions.
29
30 “[T]his Court has expressed a base-line aversion to
31 resolving ineffectiveness claims on direct review.” United
32 States v. Khedr, 343 F.3d 96, 99-100 (2d Cir. 2003)
33 (citation omitted). As the Supreme Court has explained, “in
34 most cases a motion brought under § 2255 is preferable to
35 direct appeal for deciding claims of ineffective assistance”
36 because the district court is “best suited to developing the
37 facts necessary to determining the adequacy of
38 representation dur-ing an entire trial.” Massaro v. United
39 States, 538 U.S. 500, 504, 505 (2003). “When an
40 ineffective-assistance claim is brought on direct appeal,
41 appellate counsel and the court must proceed on a trial
42 record not developed precisely for the object of litigating
43 or preserving the claim and thus often incomplete or
44 inadequate for this purpose.” Id. at 504-05.
45
6
1 Cardona’s claims of ineffective assistance were not
2 raised in the district court and would be illuminated by
3 fact-finding. “[E]xcept in highly unusual circumstances,”
4 the attorney whose performance is challenged should be
5 afforded an “opportunity to be heard and to present
6 evidence, in the form of live testimony, affidavits or
7 briefs” to explain the decision-making process. Sparman,
8 154 F.3d at 52; see also Khedr, 343 F.3d at 99-100.
9
10 Accordingly, we decline to rule on Cardona’s claims
11 that his trial counsel rendered constitutionally ineffective
12 assistance
13
14 For the foregoing reasons, and finding no merit in
15 Cardona’s other arguments, we hereby AFFIRM the judgment of
16 the district court.
17
18 FOR THE COURT:
19 CATHERINE O’HAGAN WOLFE, CLERK
20
7