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 11 - - - - - - - - - - - - - - - - - - - -X 12 UNITED STATES OF AMERICA, 13 Appellee, 14 15 -v.- 12-4612-cr 16 17 ARMANDO CARDONA, 18 Defendant-Appellant, 19 - - - - - - - - - - - - - - - - - - - -X 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.
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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).
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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 at 35 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
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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
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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
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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.
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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