United States v. Cardona

Opinion

12-4612-cr United States v. Cardona

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SECOND 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 3rd 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; remanded for clerical correction of the judgment. 7 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 object to certain 23 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).

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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 45 in which Cardona and Morales-Gomez arranged a meeting (i.e., 46 a delivery of the cocaine to Cardona) at a room in a 47 particular motel, which they referred to familiarly as “the

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1 house.” Shortly after a subsequent call, Cardona’s co- 2 defendant, Andres Alvarez, arrived at the designated room at 3 the motel and told Morales-Gomez that he had been sent to 4 retrieve “Papi’s stuff.” Upon taking possession of the 5 cocaine, Alvarez was arrested. 6 7 The officers inferred, based on their experience, that 8 Alvarez had been sent by Cardona as a courier (an 9 arrangement previously alluded to in conversation between 10 Cardona and Morales-Gomez). Moreover, within minutes of 11 Alvarez’s arrest, officers surveilling the home of Cardona’s 12 wife observed Cardona drive at high speed into the parking 13 area. They moved in when he parked and arrested him. 14 15 The totality of the circumstances provided probable 16 cause for Cardona’s arrest. Cf. United States v. Gagnon, 17 373 F.3d 230, 240 (2d Cir. 2004) (holding that probable 18 cause existed to search defendant’s tractor trailer, where 19 confidential informant who was detained at border with a 20 trailer full of marijuana told officers that he was driving 21 to meet the defendant to exchange trailers, and defendant 22 subsequently arrived at the location described, at the time 23 described, in a tractor with an empty trailer that matched 24 informant’s description); Rueda, 549 F.2d at 870 (holding 25 that probable cause existed where “DEA agents were given an 26 accurate description of Rueda, and several specific details 27 given them occurred exactly as [informant] had recounted or 28 predicted”). The use of a courier is not enough to render 29 Cardona’s arrest unlawful, given Morales-Gomez’s reliable 30 information and Cardona’s own involvement up to the time of 31 his arrest. 32 33 The same information that established probable cause to 34 arrest the defendants also established probable cause to 35 believe that Cardona’s vehicle contained evidence of the 36 cocaine distribution conspiracy. See United States v. 37 Gaskin, 364 F.3d 438, 456 (2d Cir. 2004) (“Under the 38 ‘automobile exception’ to the Fourth Amendment warrant 39 requirement, police may conduct a warrantless search of a 40 readily mobile motor vehicle if probable cause exists to 41 believe the vehicle contains contraband or other evidence of 42 a crime.”). In particular, there was a fair probability 43 that items needed to conduct the transaction–-such as money, 44 cellular phones, or weapons--were in Cardona’s car. Indeed, 45 a cell phone bearing the number that Morales-Gomez dialed to 46 contact Cardona was visible on the seat of the car.

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1 Because both Cardona’s arrest and the subsequent search 2 of his car were supported by probable cause, the district 3 court did not err in denying defendant’s motion to suppress 4 the resulting evidence. 5 6 Next, Cardona claims that the protective sweep of his 7 wife’s residence performed after his arrest was invalid. 8 Law enforcement officers may conduct a protective sweep of a 9 residence during the course of an arrest if they possess “a 10 reasonable belief based on specific and articulable facts 11 that the area to be swept harbors an individual posing a 12 danger to those on the arrest scene.” Maryland v. Buie, 494 13 U.S. 325, 337 (1990). This standard was satisfied because 14 the officers had reason to believe that at least one other 15 person (Cardona’s wife, whom they had seen during 16 surveillance) was likely to be in the residence and that 17 Cardona (who had been coming from and going to the 18 residence) may well have had additional associates in a 19 transaction involving 30 kilograms of cocaine, and because 20 the residence’s windows overlooked the scene of Cardona’s 21 arrest. The officers reasonably believed that associates in 22 the residence could pose a threat to the officers or to the 23 preservation of any evidence therein. See United States v. 24 Mickens, 926 F.2d 1323, 1328 (2d Cir. 1991) (upholding 25 protective sweep where “[t]he arresting officers had reason 26 to believe that defendant-appellant Kearney and her 27 mother--both of whom resided in the house--were on the 28 premises”). Moreover, the scope of the officers’ protective 29 sweep did not extend beyond the “cursory inspection” deemed 30 proper by the Supreme Court. Buie, 494 U.S. at 335. The 31 district court did not err in holding that the officers 32 lawfully entered Mrs. Cardona’s residence to perform a 33 protective sweep. 34 35 Finally, Cardona challenges the subsequent search of 36 his wife’s residence, during which moneys belonging to 37 Cardona were seized, on the ground that the consent given by 38 his wife was involuntary. “[T]he question whether a consent 39 to a search was in fact ‘voluntary’ or was the product of 40 duress or coercion, express or implied, is a question of 41 fact to be determined from the totality of all the 42 circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 43 227 (1973). The district court found that Mrs. Cardona is a 44 fluent English speaker and a “mature, intelligent and 45 resourceful woman”; that she had the authority to consent; 46 and that she was at all times calm and cooperative during 47 the professional and brief discussion. She also testified

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1 that multiple officers told her that she was not in any 2 trouble. 3 4 In making these findings, which are supported by the 5 record, the district court credited the officers’ testimony 6 that there was no coercive conduct, and cited internal 7 contradictions in Mrs. Cardona’s competing versions of 8 events and the fact that her testimony at the suppression 9 hearing that she had refused consent was contradicted by her 10 prior sworn affidavit. Cardona has failed to show that the 11 district court committed clear error in crediting the 12 officers’ testimony rather than Mrs. Cardona’s. See United 13 States v. Mendez, 315 F.3d 132, 135 (2d Cir. 2002) (“Where 14 the district court’s factual findings are premised upon 15 credibility determinations, we grant particularly strong 16 deference to those findings.”). Thus, although the consent 17 was given after the officers performed a protective sweep of 18 the residence, which did involve a substantial show of 19 authority, the district court did not clearly err in finding 20 that Cardona’s wife gave valid consent for the search. Cf. 21 United States v. Ceballos, 812 F.2d 42, 46, 51 (2d Cir. 22 1987) (holding that consent was voluntarily given even 23 though the police forcibly arrested the defendant prior to 24 his consent to search). 25 26 Accordingly, the district court properly denied 27 Cardona’s motion to suppress. 28 29 2. Ineffective Assistance of Counsel 30 31 Cardona next raises various claims of ineffective 32 assistance of counsel based on his trial counsel’s failure 33 to challenge specific jury instructions. 34 35 “[T]his Court has expressed a base-line aversion to 36 resolving ineffectiveness claims on direct review.” United 37 States v. Khedr, 343 F.3d 96, 99-100 (2d Cir. 2003) 38 (citation omitted). As the Supreme Court has explained, “in 39 most cases a motion brought under [28 U.S.C.] § 2255 is 40 preferable to direct appeal for deciding claims of 41 ineffective assistance” because the district court is “best 42 suited to developing the facts necessary to determining the 43 adequacy of representation during an entire trial.” Massaro 44 v. United States, 538 U.S. 500, 504, 505 (2003). “When an 45 ineffective-assistance claim is brought on direct appeal, 46 appellate counsel and the court must proceed on a trial 47 record not developed precisely for the object of litigating

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1 or preserving the claim and thus often incomplete or 2 inadequate for this purpose.” Id. at 504-05. 3 4 Cardona’s claims of ineffective assistance were not 5 raised in the district court and would be illuminated by 6 fact-finding. “[E]xcept in highly unusual circumstances,” 7 the attorney whose performance is challenged should be 8 afforded an “opportunity to be heard and to present 9 evidence, in the form of live testimony, affidavits or 10 briefs” to explain the decision-making process. Sparman v. 11 Edwards, 154 F.3d 51, 52 (2d Cir. 1998); see also Khedr, 343 12 F.3d at 99-100. 13 14 Accordingly, we decline to rule on Cardona’s claims 15 that his trial counsel rendered constitutionally ineffective 16 assistance. 17 18 For the foregoing reasons, and finding no merit in 19 Cardona’s other arguments, we hereby AFFIRM Cardona’s 20 conviction. However, we note nostra sponte that the 21 judgment from which Cardona has appealed states, 22 inaccurately, that he “pled guilty to count[s] One and Two 23 of the Indictment.” (Judgment at 1 (emphasis added).) 24 Accordingly, the matter is remanded for entry of an amended 25 judgment accurately stating that Cardona was found guilty on 26 those counts following a jury trial. 27 28 FOR THE COURT: 29 CATHERINE O’HAGAN WOLFE, CLERK 30 31