Cauley v. United States

Filing 29

ORDER ADOPTING REPORT OF MAGISTRATE JUDGE (D.E. 25); DENYING MOTION UNDER 28 U.S.C. SECTION 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE (D.E. 1); AND DISMISSING CASE WITH PREJUDICE. Signed by Judge Joan A. Lenard on 10/23/2008. (lc2)

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 06-21426-CIV-LENARD/WHITE (R E L A T E D CRIMINAL CASE: 03-20294-CR-LENARD) D W E L L Y CAULEY, M o v a n t, vs. U N I T E D STATES OF AMERICA, Respondent. ________________________________/ O R D E R ADOPTING REPORT OF MAGISTRATE JUDGE (D.E. 25); DENYING M O T I O N UNDER 28 U.S.C. SECTION 2255 TO VACATE, SET ASIDE, OR C O R R E C T SENTENCE (D.E. 1); AND DISMISSING CASE WITH PREJUDICE

T H I S CAUSE is before the Court on U.S. Magistrate Judge Patrick A. White's R e p o rt ("Report," D.E. 25), issued on November 8, 2007, recommending denial of Movant D w e lly Cauley's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (" M o tio n ," D.E. 1), filed on June 5, 2006. On December 9, 2007, Movant, through hired c o u n se l, filed Objections to the Report ("Objections," D.E. 28). The Court has conducted a d e novo review of the Motion, the Report, the Objections, and the record, and finds as f o l lo w s : I. B a c k gro u n d

The facts surrounding Movant's underlying conviction are taken from the Report and th e Eleventh Circuit opinion denying his appeal from his conviction and are as follows. C o n f id e n tia l informant, Omar Somonte, was arrested for drug trafficking and cooperated

w ith the Drug Enforcement Agency. He used his past smuggling experience to coordinate a reverse sting operation in which no real drugs were used. He was introduced to Movant by P e d ro Navarro, who wanted Movant to conduct a drug deal with Somonte in order to collect a debt which Movant owed Navarro from a previous deal. Navarro was later cut out of the d e a l. Somonte met with Movant several times, during which he wore a wire and recorded th e ir conversations. They discussed details of the off loading process, including how to p o s itio n the shipping container which held the drugs so that its doors could be easily opened. A t the first meeting in February 1999, Somonte observed an unidentified white M e rc e d e s repeatedly circle the area where the meeting took place. Movant also gave the n a m e s of port workers he would use in the deal, but said that he would not advise the w o rk e rs about the deal prior to the transaction. He later agreed to hire a crew, and indicated in July that he was ready to go. Two days before the deal was to be executed, Somonte e x p re ss e d concern about the reliability of the crew, which Movant assured him was tru s tw o rth y and would not steal the cocaine. O n August 14, 1999, Somonte met Movant, who was accompanied by two cars which a rriv e d and left with him. Somonte gave Movant keys to a van and the number of the c o n ta in e r containing the drugs. Movant called him later that morning and informed him that th e crew did not want to work because of the heavy rain. Somonte responded that the deal w o u ld be easier to execute in inclement weather, but Movant refused to work until the w e a th e r cleared. That evening after the deal fell through, Somonte and DEA agent Rick

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L o h s e went to the port and found that the container which housed the sham cocaine had been s p e c ia lly positioned so that the doors could be easily accessed. M o v a n t was indicted and charged with conspiracy to import five or more kilograms o f cocaine and conspiracy to possess with intent to distribute five or more kilograms of c o c a in e . He proceeded to trial by jury and did not testify. He called two witnesses on his b e h a lf . A jury found him guilty as charged. The Court sentenced him to 262 months im p ris o n m e n t, followed by five years of supervised release. M o v a n t appealed, arguing that the court improperly denied his motion for judgment o f acquittal based on insufficiency of the evidence. On March 4, 2005, the Court of Appeals a f f irm e d the conviction in a written but unpublished opinion. This timely motion to vacate e n su e d . II. R e p o r t and Objections

In his Motion, Movant makes ten claims for relief: 1. Counsel was ineffective for not presenting evidence that the shipping c o n ta in e r containing the sham cocaine was never offloaded at the Port of M iam i. 2. Counsel was ineffective for not objecting to the admission of FRE 4 0 4 (b ) evidence. 3. Counsel was ineffective for failing to request a jury instruction on w ith d ra w a l from the conspiracy and not arguing withdrawal as an alternate th e o ry of defense. 4. Counsel was ineffective for failing to object to testimony that violated th e Confrontation Clause.

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5. Counsel was ineffective for failing to move to sever the indictment and f a ilin g to challenge the redacted indictment and the joinder of the defendants. 6. Counsel was ineffective for failing to advise him of his right to testify.

7. The government committed prosecutorial misconduct when it suggested th a t the jury could consider events that occurred prior to the conspiracy. 8. Counsel was ineffective for failing to object to sentencing entrapment re s u ltin g from the government's actions. 9. Counsel was ineffective for failing to raise Booker and Blakely a rg u m e n ts on appeal. 10. The combined effect of the above errors warrant vacating his c o n v ic tio n . A. T h e Report

T h e Magistrate Judge found that all ten of Movant's claims fail. A s to Movant's first claim, the Magistrate Judge found that, under the standard for inef fe ctiv e assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984), M o v a n t cannot establish prejudice resulting from counsel's alleged failure to present a d d itio n a l evidence that the cocaine was not offloaded, as the Eleventh Circuit considered th e evidence and found it to be sufficient to convict Movant; and, there is no reasonable p ro b a b ility that the jury would have acquitted Movant had such testimony been presented by c o u n se l in light of the totality of the evidence presented at trial. A s to Movant's second claim, the Magistrate Judge found that his claim was belied b y the record, which shows that counsel did, in fact, file a motion in limine to preclude c u m u la tiv e , unfair, prejudicial evidence regarding an alleged 404(b) incident, and the 4

g o v e rn m e n t proved that the evidence was relevant and similar to the conduct charged. F u rth er, "In light of the evidence against Cauley, including the confidential informant's te stim o n y and recorded conversations between the two of them, and the lawful introduction o f the 404(b) evidence, there is no reasonable probability that the result of the trial would h a v e been different but for counsel's performance." (D.E. 25 at 8.) A s to Movant's third claim, the Magistrate Judge noted that the Eleventh Circuit re je c te d Movant's argument on appeal that his crew's refusal to work in the rain on the s c h e d u le d date prevented formation of the conspiracy, because the government was not re q u ire d to prove that the parties completed the conduct that formed the basis of the a g r e e m e n t in order to prove the existence of the conspiracy. "Thus, Cauley cannot establish p re ju d ic e , because the Court of Appeals found the evidence to be sufficient even in light of th e failure to complete the conduct underlying the conspiracy." (Id. at 9.) A s to Movant's fourth claim, the Magistrate Judge found that there was neither d e f i c i e n t performance nor prejudice resulting from counsel's performance at trial because h is counsel objected to the testimony that allegedly violated the Confrontation Clause and th e re is little likelihood that the result of the trial or the appeal would have been different but f o r trial or appellate counsel's assistance. A s to Movant's fifth claim, the Magistrate Judge found persuasive the government's a rg u m e n t that neither co-defendant was tried with Movant and their names did not remain in the indictment presented to the jury. Thus his counsel was able to press his argument that

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M o v a n t did not conspire with any non-government conspirators and therefore the g o v e rn m e n t could not prove that a conspiracy occurred. Additionally, the Magistrate Judge f o u n d it significant that Movant's counsel requested and received a jury instruction advising th e jury that neither government agents nor confidential informants can be considered co -co n sp irato rs. The Magistrate Judge further found that if any error occurred with regard to the indictment, the evidence against him was substantial and he had not demonstrated a rea so n ab le probability that the result of his trial would have been different but for counsel's p e rf o rm a n c e or that his conviction would have been vacated on appeal. As to Movant's sixth claim, the Magistrate Judge found that an evidentiary hearing w a s not necessary to determine whether Movant was denied his constitutional right to testify o n his own behalf because he could not demonstrate a reasonable probability that the jury w o u ld have rejected the substantial evidence against him and acquitted him based upon the te stim o n y he proffered in the affidavit in support of the motion to vacate.1 The Magistrate Judge found the following facts weighing strongly against a finding of prejudice: The jury heard evidence that Cauley met with the confidential informant Somonte on several occasions over a period of several months concerning the importation of half a ton of cocaine into the United States through the Port of Miami. The jury heard transcripts of conversations and saw videotapes of meetings that Cauley and Somonte concerning the logistics of the transaction. Transcripts of the tape recordings were provided to the jury. The jury heard Cauley advise Somonte on several occasions that he had a crew available to assist him with offloading the cocaine and that the shipping container had been set up for easy access and offloading of the shipment. Additionally, the jury heard testimony about Cauley's prior drug smuggling ventures, which was introduced to show Cauley's intent to participate in the smuggling venture with Somonte, his knowledge of what was necessary to effectuate such a venture, and his plan on how to conduct the smuggling venture. Fifteen tapes were introduced into evidence. 6
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A s to Movant's seventh claim, the Magistrate Judge found that the prosecutor's r e m a r k s were a fair comment on the testimony and were made in rebuttal to defense c o u n s e l' s arguments. A s to Movant's eight claim, the Magistrate Judge found that, under Eleventh Circuit c a se law, a fictitious government-organized "reverse sting" operation involving a large q u a n tity of drugs does not constitute sentencing factor manipulation. As to Movant's ninth claim, the Magistrate Judge found that Movant's allegations re g a rd in g Booker and Blakely were bare and conclusory and thus insufficient to require a h e a rin g or further consideration. A s to Movant's tenth claim, the Magistrate Judge found that, as Movant's individual c la im s were without merit, any argument as to the combined effect of the claims was also w ith o u t merit. B. O b je c tio n s

M o v a n t's objections turn on his allegation that the DEA Special Agent in charge of th e investigation of his alleged crime fabricated testimony about the fact that the container w ith sham cocaine had actually been unloaded from the freighter at the Port of Miami on A u g u s t 14, 1999. Movant contends that, from this false fact, the agent then conjured a s e q u e n ce of events from which he urged the jury to conclude that Movant must have had u n k n o w n co-conspirators. Movant argues that the testimony of his co-defendants Humberto P a e z and Ricard Caldera - which Movant's trial counsel did not introduce at trial - would

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h a v e established that the container was, in fact, not unloaded. Movant relies on the transcript o f communications between Movant's co-defendants and the confidential source on the night o f August 14, 1999, and the confessions of the co-defendants three years later. In the tra n sc rip ts and the confessions, the co-defendants claim that they looked all over the Port of M ia m i that night and could not find the container. Based on these documents, Movant c o n te n d s that the Special Agent must have perjured himself as to the off-loading of the c o n tain e r. Movant also contends that the government's failure to definitively refute his a lle g a tio n must mean that it is true. Movant's conclusion appears to be that had this evidence b e e n introduced and had Movant's trial counsel done a better job of proving that the special a g e n t had perjured himself, there is a reasonable probability that he would have been a c q u itte d . Movant then argues that, as his conviction was based on perjured testimony, the re m a in d e r of his claims (specifically grounds two, four, five, six, and seven) gain added c re d ib ility and urgency. III. D is c u s s io n

A s an initial matter, in his Objections, Movant does not object to the Magistrate Ju d g e 's findings that he is not entitled to relief under his third, eighth, ninth, and tenth c la im s . Accordingly, the Court declines to address these claims. See 28 U.S.C. § 636(b)(1) (district court is only required to make "de novo determination of those portions of the report o r specified proposed findings or recommendations to which objection is made").

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R e g a rd in g Movant's Objection that his conviction was invalid because the Special A g e n t perjured himself, this argument has two fundamental flaws. First, Movant's claim that th e Special Agent perjured himself is highly speculative and not credible. The Special A g e n t's testimony was corroborated at trial by the confidential source, Somonte, who te s tif ie d that he participated in the offloading of the cocaine. (Trial Transcript at 276-81.) F u r th e r, Movant's co-defendants' testimony that they could not locate the container does not p ro v e that the special agent was lying; the only thing it proves is that his co-defendants claim th a t they were unable to find the container in the rain that night. As presented and argued, M o v an t's speculative claim of perjured testimony is insufficient to warrant an evidentiary h e a rin g on said claim. S e c o n d , even if Movant's claim of perjury were true, it is not clear how the absence o f this testimony, or the presentation of evidence that the containers had, in fact, not been u n lo a d e d , would have led to his acquittal. As found by the Eleventh Circuit, Somonte tes tifie d that Movant repeatedly indicated that he was working with other people who would f o rm his "crew" for the unloading of the drugs. (D.E. 121 at 8.) Movant told Somonte that e v e ryth in g was "ready to go" and that he had a "good crew" which could be trusted not to s te a l. (Id.) "From this testimony, the jury could reasonably infer that the defendant had e n ter e d into agreements with others to handle the drugs." (Id.) Additionally, the jury held e v id e n c e that Movant had conspired with Pedro Navarro, that he had been accompanied by u n k n o w n persons in the white Mercedes during his meeting with Somonte in February, and

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th a t he had been accompanied by unknown persons in two cars during the meeting Somonte in August. (Id. at 8-9.) Based on all of these facts, none of which have to do with whether th e drugs were actually unloaded, it was reasonable for the jury to infer that Movant had co n sp ired with at least one other person in assembling a crew to offload the drugs, and there is no reasonable probability that contrary evidence regarding the unloading of the cocaine w o u ld have led to his acquittal.2 A s the remainder of Movant's Objections rely on his claim of perjured testimony, the C o u rt finds that these Objections are similarly without merit. Accordingly, it is: O R D E R E D AND ADJUDGED that: 1. T h e Report of the Magistrate Judge (D.E. 25) is ADOPTED consistent with th is opinion. 2. M o v a n t's Motion under 28 U.S.C. Section 2255 to Vacate, Set Aside, or C o rre c t Sentence by a Person in Federal Custody (D.E. 1), filed on or about J u n e 5, 2006, is DENIED. 3. 4. A ll pending motions not otherwise ruled upon are DENIED AS MOOT. T h i s case is CLOSED.

It is also important to note that the allegedly perjured testimony was unnecessary to prove the government's claims of conspiracy: the government need not prove that the parties completed the conduct that formed the basis of the agreement to prove conspiracy. See United States v. Elledge, 723 F.2d 864, 866 (11th Cir. 1984). 10

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D O N E AND ORDERED in Chambers at Miami, Florida this 23rd day of October, 2008.

___________________________________ J O A N A. LENARD U N I T E D STATES DISTRICT JUDGE

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