United States v. Cardona

12-4612-cr
United States v. Cardona
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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 2nd day of December, 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; Chadds Ford,
22 Pennsylvania.
23
24 FOR APPELLEE: 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, Hartford,
30 Connecticut.
1
1 Appeal from a judgment of the United States District
2 Court for the District of Connecticut (Covello, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Defendant-appellant Armando Cardona appeals from a
9 judgment entered on November 16, 2012 in the United States
10 District Court for the District of Connecticut (Covello,
11 J.), after a jury found the Cardona guilty of one count of
12 conspiracy to possess with the intent to distribute five
13 kilograms or more of cocaine and one count of possession
14 with intent to distribute five kilograms or more of cocaine.
15 We assume the parties’ familiarity with the underlying
16 facts, the procedural history, and the issues presented for
17 review.
18
19 Cardona challenges the denial of his motion to suppress
20 various pieces of evidence, and argues that his trial
21 counsel was ineffective for failing to object to certain
22 jury instructions. We address these claims in turn.
23
24 A. The Suppression Motion
25
26 In reviewing the denial of a motion to suppress, we
27 view the evidence in the light most favorable to the
28 government. United States v. Jackson, 652 F.2d 244, 246 (2d
29 Cir. 1981). The factual findings of a district court on a
30 motion to suppress, including assessments of credibility,
31 cannot be disturbed unless shown to be clearly erroneous.
32 United States v. Villegas, 928 F.2d 512, 517 (2d Cir. 1991).
33
34 Cardona argues that his arrest and the ensuing search
35 of his vehicle lacked probable cause. We disagree.
36
37 “Probable cause to arrest exists when an officer has
38 knowledge of facts and circumstances ‘sufficient to warrant
39 a prudent man in believing’ that an offense is being or has
40 been committed.” United States v. Edmonds, 535 F.2d 714,
41 719 (2d Cir. 1976) (quoting Beck v. Ohio, 379 U.S. 89, 91
42 (1964)). Experience of the arresting officers is a relevant
43 factor in the probable cause inquiry. See, e.g., United
44 States v. Rosario, 638 F.2d 460, 462 (2d Cir. 1980).
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). And
16 “where law enforcement authorities are cooperating in an
17 investigation . . . , the knowledge of one is presumed
18 shared by all.” Illinois v. Andreas, 463 U.S. 765, 771 n.5
19 (1983).
20
21 The law enforcement officers had probable cause to
22 arrest Cardona even though they never saw him at the motel
23 or overheard him making unequivocal statements about
24 criminal conduct. First, the Government relied on
25 information provided by Javier Morales-Gomez, who claimed
26 (upon being arrested for drug possession) that he was to
27 deliver the 30 kilograms of cocaine to Cardona. The
28 officers had not previously worked with Morales-Gomez, but
29 they verified many details of his account, including his
30 physical description of Cardona, Cardona’s nationality, the
31 specifics of Cardona’s criminal record, as well as where
32 Cardona lived and what car he drove. The corroboration of
33 these “innocent” details gave sufficient reason to believe
34 the criminal aspects of the story. See Sultan, 463 F.2d at35 1069. Moreover, Morales-Gomez participated directly in the
36 sting operation that culminated in Cardona’s arrest. This
37 matters because an informant is more reliable if he meets
38 with the police face-to-face because he runs a greater risk
39 that he will be held accountable if his information proves
40 false. See United States v. Salazar, 945 F.2d 47, 50-51 (2d
41 Cir. 1991).
42
43 Cardona’s own actions further corroborated Morales-
44 Gomez’s account. The officers heard and recorded two calls
3
1 in which Cardona and Morales-Gomez arranged a meeting (i.e.,
2 a delivery of the cocaine to Cardona) at a room in a
3 particular motel, which they referred to familiarly as “the
4 house.” Shortly after a subsequent call, Cardona’s co-
5 defendant, Andres Alvarez, arrived at the designated room at
6 the motel and told Morales-Gomez that he had been sent to
7 retrieve “Papi’s stuff.” Upon taking possession of the
8 cocaine, Alvarez was arrested.
9
10 The officers inferred, based on their experience, that
11 Alvarez had been sent by Cardona as a courier (an
12 arrangement previously alluded to in conversation between
13 Cardona and Morales-Gomez). Moreover, within minutes of
14 Alvarez’s arrest, officers surveilling the home of Cardona’s
15 wife observed Cardona drive at high speed into the parking
16 area. They moved in when he parked and arrested him.
17
18 The totality of the circumstances provided probable
19 cause for Cardona’s arrest. Cf. United States v. Gagnon,
20 373 F.3d 230, 240 (2d Cir. 2004) (holding that probable
21 cause existed to search defendant’s tractor trailer, where
22 confidential informant who was detained at border with a
23 trailer full of marijuana told officers that he was driving
24 to meet the defendant to exchange trailers, and defendant
25 subsequently arrived at the location described, at the time
26 described, in a tractor with an empty trailer that matched
27 informant’s description); Rueda, 549 F.2d at 870 (holding
28 that probable cause existed where “DEA agents were given an
29 accurate description of Rueda, and several specific details
30 given them occurred exactly as [informant] had recounted or
31 predicted”). The use of a courier is not enough to render
32 Cardona’s arrest unlawful, given Morales-Gomez’s reliable
33 information and Cardona’s own involvement up to the time of
34 his arrest.
35
36 The same information that established probable cause to
37 arrest the defendants also established probable cause to
38 believe that Cardona’s vehicle contained evidence of the
39 cocaine distribution conspiracy. See United States v.
40 Gaskin, 364 F.3d 438, 456 (2d Cir. 2004) (“Under the
41 ‘automobile exception’ to the Fourth Amendment warrant
42 requirement, police may conduct a warrantless search of a
43 readily mobile motor vehicle if probable cause exists to
44 believe the vehicle contains contraband or other evidence of
4
1 a crime.”). In particular, there was a fair probability
2 that items needed to conduct the transaction–-such as money,
3 cellular phones, or weapons--were in Cardona’s car. Indeed,
4 a cell phone bearing the number that Morales-Gomez dialed to
5 contact Cardona was visible on the seat of the car.
6
7 Because both Cardona’s arrest and the subsequent search
8 of his car were supported by probable cause, the district
9 court did not err in denying defendant’s motion to suppress
10 the resulting evidence.
11
12 Next, Cardona claims that the protective sweep of his
13 wife’s residence performed after his arrest was invalid.
14 Law enforcement officers may conduct a protective sweep of a
15 residence during the course of an arrest if they possess “a
16 reasonable belief based on specific and articulable facts
17 that the area to be swept harbors an individual posing a
18 danger to those on the arrest scene.” Maryland v. Buie, 494
19 U.S. 325, 337 (1990). This standard was satisfied because
20 the officers had reason to believe that at least one other
21 person (Cardona’s wife, whom they had seen during
22 surveillance) was likely to be in the residence and that
23 Cardona (who had been coming from and going to the
24 residence) may well have had additional associates in a
25 transaction involving 30 kilograms of cocaine, and because
26 the residence’s windows overlooked the scene of Cardona’s
27 arrest. The officers reasonably believed that associates in
28 the residence could pose a threat to the officers or to the
29 preservation of any evidence therein. See United States v.
30 Mickens, 926 F.2d 1323, 1328 (2d Cir. 1991) (upholding
31 protective sweep where “[t]he arresting officers had reason
32 to believe that defendant-appellant Kearney and her
33 mother--both of whom resided in the house--were on the
34 premises”). Moreover, the scope of the officers’ protective
35 sweep did not extend beyond the “cursory inspection” deemed
36 proper by the Supreme Court. Buie, 494 U.S. at 335. The
37 district court did not err in holding that the officers
38 lawfully entered Mrs. Cardona’s residence to perform a
39 protective sweep.
40
41 Finally, Cardona challenges the subsequent search of
42 his wife’s residence, during which moneys belonging to
43 Cardona were seized, on the ground that the consent given by
44 his wife was involuntary. “[T]he question whether a consent
5
1 to a search was in fact ‘voluntary’ or was the product of
2 duress or coercion, express or implied, is a question of
3 fact to be determined from the totality of all the
4 circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218,
5 227 (1973). The district court found that Mrs. Cardona is a
6 fluent English speaker and a “mature, intelligent and
7 resourceful woman”; that she had the authority to consent;
8 and that she was at all times calm and cooperative during
9 the professional and brief discussion. She also testified
10 that multiple officers told her that she was not in any
11 trouble.
12
13 In making these findings, which are supported by the
14 record, the district court credited the officers’ testimony
15 that there was no coercive conduct, and cited internal
16 contradictions in Mrs. Cardona’s competing versions of
17 events and the fact that her testimony at the suppression
18 hearing that she had refused consent was contradicted by her
19 prior sworn affidavit. Cardona has failed to show that the
20 district court committed clear error in crediting the
21 officers’ testimony rather than Mrs. Cardona’s. See United
22 States v. Mendez, 315 F.3d 132, 135 (2d Cir. 2002) (“Where
23 the district court’s factual findings are premised upon
24 credibility determinations, we grant particularly strong
25 deference to those findings.”). Thus, although the consent
26 was given after the officers performed a protective sweep of
27 the residence, which did involve a substantial show of
28 authority, the district court did not clearly err in finding
29 that Cardona’s wife gave valid consent for the search. Cf.
30 United States v. Ceballos, 812 F.2d 42, 46, 51 (2d Cir.
31 1987) (holding that consent was voluntarily given even
32 though the police forcibly arrested the defendant prior to
33 his consent to search).
34
35 Accordingly, the district court properly denied
36 Cardona’s motion to suppress.
37
38 2. Ineffective Assistance of Counsel
39
40 Cardona next raises various claims of ineffective
41 assistance of counsel based on his trial counsel’s failure
42 to challenge specific jury instructions.
43
6
1 “[T]his Court has expressed a base-line aversion to
2 resolving ineffectiveness claims on direct review.” United
3 States v. Khedr, 343 F.3d 96, 99-100 (2d Cir. 2003)
4 (citation omitted). As the Supreme Court has explained, “in
5 most cases a motion brought under [28 U.S.C.] § 2255 is
6 preferable to direct appeal for deciding claims of
7 ineffective assistance” because the district court is “best
8 suited to developing the facts necessary to determining the
9 adequacy of representation during an entire trial.” Massaro
10 v. United States, 538 U.S. 500, 504, 505 (2003). “When an
11 ineffective-assistance claim is brought on direct appeal,
12 appellate counsel and the court must proceed on a trial
13 record not developed precisely for the object of litigating
14 or preserving the claim and thus often incomplete or
15 inadequate for this purpose.” Id. at 504-05.
16
17 Cardona’s claims of ineffective assistance were not
18 raised in the district court and would be illuminated by
19 fact-finding. “[E]xcept in highly unusual circumstances,”
20 the attorney whose performance is challenged should be
21 afforded an “opportunity to be heard and to present
22 evidence, in the form of live testimony, affidavits or
23 briefs” to explain the decision-making process. Sparman v.
24 Edwards, 154 F.3d 51, 52 (2d Cir. 1998); see also Khedr, 343
25 F.3d at 99-100.
26
27 Accordingly, we decline to rule on Cardona’s claims
28 that his trial counsel rendered constitutionally ineffective
29 assistance.
30
31 For the foregoing reasons, and finding no merit in
32 Cardona’s other arguments, we hereby AFFIRM the judgment of
33 the district court.
34
35 FOR THE COURT:
36 CATHERINE O’HAGAN WOLFE, CLERK
37
7