Brito v. United States of America

Filing 6

MEMORANDUM AND ORDER: Brito's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Clerk is directed to close the case captioned Brito v. United States, 16 Civ. 5585 (PKC). Brito has not made a s ubstantial showing of the denial of a constitutional right and, accordingly, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Blackman v. Ercole, 661 F.3d 161, 163-64 (2d Cir. 2011). His motion was not filed in forma pauperis, and the Court therefore makes no finding pursuant to 28 U.S.C. § 1915(a)(3). (As further set forth in this Order.) (Signed by Judge P. Kevin Castel on 7/24/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
JOSE ARAMIS BRITO,
Petitioner,
-against-

16-cv-5585 (PKC)
13-cr-589 (PKC)
MEMORANDUM
AND ORDER

UNITED STATES OF AMERICA,
Respondent.
-----------------------------------------------------------x
CASTEL, U.S.D.J.
Petitioner Jose Aramis Brito, moves to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255. On December 13, 2013, a jury found Brito guilty of participating
in a robbery conspiracy, in violation of 18 U.S.C. § 1951, and a conspiracy to distribute and
possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§
841(a), 841(b)(1)(A), 846. On July 17, 2014, Brito was sentenced principally to 144 months’
imprisonment. Brito appealed his conviction and sentence raising various evidentiary issues.
(Dkt. 89). The Second Circuit affirmed the judgment in a summary order on September 10,
2016. United States v. Brito, 615 F. App’x 701 (2d Cir. 2015), cert. denied, 136 S. Ct. 1219
(2016).
Brito was charged with participating in a five-member drug robbery crew. He and
other members of the crew were arrested on July 18, 2013 during a Drug Enforcement
Administration (“DEA”) sting operation in which the robbery crew believed they were about to
steal 50 kilograms of cocaine from a drug dealer’s stash house. The evidence at trial included
recordings of conversations between members of the robbery crew, including Brito, in which the

Mailed to Mr. Brito 7/24/2017

crew discussed plans for the robbery, testimony from several cooperating witnesses, and a
stipulation regarding Brito’s prior conviction for cocaine trafficking.
Brito, who proceeds pro se, attacks his conviction and sentence on several
grounds arguing that (1) both his trial counsel and appellate counsel were ineffective, (2) he was
entrapped by the government, (3) his sentence was disproportionately high as compared to his
co-defendants, (4) and the sting operation that resulted in his arrest was racially biased, all in
violation of his Fifth and Sixth Amendment rights.
DISCUSSION
I.

Brito’s Ineffective Assistance of Counsel Claims are Meritless.
Brito alleges numerous deficiencies in the performance of his attorneys in support

of his ineffective assistance of counsel claim. Specifically, Brito alleges that his trial counsel:
(1) failed to call him to testify at trial; (2) failed to call Felo, who Brito identifies as Pedro
Torres, as a witness at trial; (3) failed to seek a Fatico hearing; (4) failed to adequately crossexamine Edy Pena, a cooperating witness; and (5) failed to argue a Brady or Giglio violation.
(See Petition at 17-32). In addition, Brito claims that both his trial counsel and appellate counsel
failed to raise an entrapment defense. (Reply at 14). For reasons to be explained, Brito does not
make the required showing to succeed on an ineffective assistance of counsel claim under
Strickland v. Washington, 466 U.S. 668 (1984).
Brito did not assert any ineffective assistance claims on his direct appeal however,
this failure “does not bar the claim from being brought in a later, appropriate proceeding under §
2255.” Massaro v. United States, 538 U.S. 500, 509 (2003).
Strickland requires a two-part showing to establish ineffective assistance of
counsel. First, a defendant must show that “counsel made errors so serious that counsel was not

-2-

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. To
be considered ineffective, the attorney’s performance must fall below “an objective standard of
reasonableness” under “prevailing professional norms.” Id. at 687-88. “Second, the defendant
must show that the deficient performance prejudiced the defense.” Id. at 687. To establish
prejudice, the “defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “In
any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s
assistance was reasonable considering all the circumstances.” Id. at 688. Moreover, “a
defendant claiming ineffective counsel must show that counsel’s actions were not supported by a
reasonable strategy . . . .” Massaro, 538 U.S. at 501.
A. Failure to Call Brito as a Witness.
Brito asserts that his trial counsel was ineffective because he failed to call Brito as
a witness and advised Brito not to testify. (Petition at 18, Reply at 10). However, Brito does not
claim that his trial counsel actually prevented him from testifying or failed to inform him of his
right to do so. In fact, when defense counsel indicated his intention to rest at the close of the
Government’s case, the Court specifically advised Brito of his right to testify and confirmed that
Brito understood that right, had discussed the pros and cons of testifying with his counsel, and
was satisfied with his lawyer’s representation of him. (Trial Tr. at 427-28).
As for the substance of his potential testimony, Brito claims only that he “could
have testified that he withdrew from the conspiracy before any action to conspire took place” and
that by failing to call Brito as a witness, defense counsel “’l[o]st” the option of having Brito
testify that “he was innocent and never joined the conspiracy.” (Petition at 18, 20). However,

-3-

defense counsel made the argument that Brito never joined the conspiracy at several different
points during the trial. (Trial Tr. at 37 (Opening Statement), 436 (Rule 29 Motion for Judgment
of Acquittal), 482-84 (Summation)). Brito fails to establish how his testimony could have
changed the outcome of the trial when, on multiple occasions, his attorney made the same
arguments Brito claims he would have made. Nor does Brito address the risks he would have
faced from cross-examination had he chosen to testify. Accordingly, even if Brito could
establish that his counsel’s conduct was deficient, he has made no showing of prejudice.
B. Failure to Call Felo as a Witness.
Brito also faults his trial counsel for failing to call Felo as a defense witness.
According to Brito, “Felo’s testimony would have destroyed the government’s theory of
conspiracy” and “would have corroborated [Brito’s] story that [Brito] never joined or at least
withdrew from the conspiracy in question.” (Petition at 18-19). In addition, Brito claims that
Felo’s testimony could have been used to impeach the testimony of government witnesses
thereby “sway[ing] the jury.” (Petition at 19; Reply at 11).
“The decision whether to call any witnesses on behalf of the defendant, and if so
which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in
almost every trial.” United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987); see also
Greiner v. Wells, 417 F.3d 305, 323 (2d Cir. 2005) (“Courts applying Strickland are especially
deferential to defense attorneys’ decisions concerning which witnesses to put before the jury.”).
Moreover, an attorney’s decision “whether to call specific witnesses – even ones that might offer
exculpatory evidence – is ordinarily not viewed as a lapse in professional representation.”
United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (citations omitted). Brito does not
elaborate on how Felo’s testimony would have “destroyed the government’s theory” or

-4-

corroborated Brito’s claim that he never joined the conspiracy, nor does he identify which
government witnesses Felo’s testimony could have been used to contradict. Brito’s vague and
unsubstantiated allegations cannot overcome “the presumption that, under the circumstances, [his
attorney’s decision not to call Felo] might be considered sound trial strategy,” Strickland, 466
U.S. at 689 (internal quotation marks and citations omitted).
Although not entirely clear from the Petition, it appears that Brito believes that
Felo would have testified as to who was present in the different vehicles involved in the robbery
scheme. (See Petition at 18 (listing the passengers of the taxi and the black Infiniti and
describing a discrepancy between testimony of Eddie Alphonso Castro and Pena as to whether
Felo or Juan Dominguez (a/k/a Manolo) was present in the taxi with Brito); Reply at 11-12
(citing testimony from Castro regarding who got in and out of the taxi and the black Infiniti as a
reason why Felo should have been called as a trial witness)). To the extent that Brito intended to
argue that Felo was in the taxi with Brito, Pena, and the Confidential Informant, and could
therefore testify as to what Brito said in the taxi, Brito has failed to show he was prejudiced by
the lack of such testimony. Not only had Pena testified as to the content of the conversations in
the taxi, the recordings that Pena made of those conversations had also been introduced into
evidence. (Trial Tr. at 223-55; Gov’t Ex. 307T). Brito has not established what Felo’s potential
testimony would have added on this matter let alone how Felo’s testimony would have altered
the trial result.
Finally, to the extent that Brito intended to argue that testimony from Felo would
have highlighted an alleged discrepancy between Castro’s testimony and Pena’s testimony as to
whether Felo or Manolo was also present in the taxi with Brito, Pena, and the Confidential
Informant, the Petition fails to establish prejudice. It is not clear how Felo’s potential testimony

-5-

about such a minor point would have changed the outcome of the trial. See United States v.
Vargas, 920 F.2d 167, 170 (2d Cir. 1990) (ineffective assistance claim based on counsel’s failure
to call defense witnesses rejected where proffered testimony related only to “collateral matters”).
Additionally, Brito does not explain why the jury would have found Felo more credible than
other witnesses or why his testimony would not have ultimately bolstered the government’s case
rather than Brito’s defense. In sum, Brito has not established that his trial lawyer’s decision not
to call Felo as a witness fell below prevailing professional norms, or that he suffered prejudice
due to the absence of such testimony.
C. Failure to Request a Fatico Hearing.
Brito also claims his trial counsel should have requested a Fatico hearing to
contest the amount of drugs involved in the conspiracy. According to Brito, the “fake quantity”
of drugs “increased [his] sentence by seven years.” (Petition at 19). However, the failure to
request a Fatico hearing can be a reasonable, strategic decision on the part of counsel. See
United States v. Lee, 818 F.2d 1052, 1056 (2d Cir. 1987) (explaining that decision to forgo
Fatico hearing may be tactical); United States v. Costa, 423 F. App’x 5, 8-9 (2d Cir. 2011)
(summary order) (decision not to request a Fatico hearing fell “within the range of reasonable
professional assistance”); Papetti v. United States, No. Civ. 09-3626, 2010 WL 3516245, at *6
(E.D.N.Y. Aug. 31, 2010) (“the decision to forego a Fatico hearing is a matter of strategy and [a
court will] presume that such a strategy is sound absent a strong showing to the contrary.”)
(internal quotation marks and citations omitted).
In this case, the record contained evidence that Brito understood the amount of
cocaine to be stolen from the stash house to be 50 kilograms and the Court would have been
entitled to rely on that evidence had there been a dispute as to the drug quantity to be considered

-6-

at sentencing. (Trial Tr. at 228, 308); see United States v. Munoz, 268 F. App’x 46, 48-49 (2d
Cir. 2008) (summary order) (“Based on the evidence presented at trial, [the judge] fairly
surmised [defendant] conspired to distribute at least 15 kilograms of cocaine. The trial testimony
of drug dealers to whom [defendant] sold cocaine provided a sufficient basis for that finding . . .
.”). Brito offers no basis for contesting the drug quantity used at his sentencing other than the
fact that because he was arrested as part of a sting operation, the drugs did not exist and the
amount was determined by the government. (Petition at 19, 22). He alleges that the federal
agents “knew that placing the bar above 5 kilograms or more came with a mandatory minimum
of 10 years to life imprisonment” and took advantage of their “unfettered ability to inflate the
amount of drugs in the house” to “obtain a greater sentence for each of the men involved in this
alleged crime.” (Petition at 22). The Second Circuit has recognized that “[i]t is unsettling that in
this type of reverse sting, the government has a greater than usual ability to influence a
defendant’s ultimate Guidelines level and sentence” by setting the “bait,” or the amount of drugs
to be stolen, in the reverse sting. United States v. Caban, 173 F.3d 89, 93-94 (2d Cir. 1999)
(involving reverse sting where government informant approached defendants with opportunity to
steal up to 50 kilograms of cocaine from stash house). However, Brito has come forward with
no evidence of any wrongdoing or improper conduct on the part of the government in this case.
As there is no evidence that Brito’s counsel would have had a factual basis for challenging the
drug quantity used at sentencing, it was reasonable for defense counsel not to request a Fatico
hearing.
D. Failure to Cross Examine Edy Pena.
Brito also complains that his trial counsel failed to adequately cross-examine Edy
Pena, the Government’s cooperating witness. Specifically, Brito notes that when the Court asked

-7-

defense counsel how much longer he intended to cross-examine Pena, defense counsel indicated
that he needed ten to fifteen more minutes when trial resumed the following day, but when the
next day came, counsel indicated that he had finished his cross-examination the day before.
(Trial Tr. at 310, 314). This, Brito claims, constituted ineffective assistance of counsel. (Reply
at 10). Courts consider the examination of witnesses to fall within the purview of a trial
counsel’s legal strategy; therefore, decisions related to the nature and scope of cross-examination
will generally not support a claim of ineffective assistance of counsel. United States v. Eisen,
974 F.2d 246, 265 (2d Cir. 1992) (holding that trial lawyer was effective, despite defendant’s
claim that lawyer failed to thoroughly impeach prosecution witness); Nersesian, 824 F.2d at
1321 (“Decisions whether to engage in cross-examination, and if so to what extent and in what
manner, are . . . strategic in nature.”). “[T]he conduct of examination and cross-examination is
entrusted to the judgment of the lawyer, . . . and [a court] should not second-guess such decisions
unless there is no strategic or tactical justification for the course taken.” United States v.
Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (citing Eisen, 974 F.2d at 265). Brito does not
support his conclusory allegations with any description of what topics or questions were left out
of the cross-examination of Pena. Defense counsel cross-examined Pena at length and covered
topics such as Pena’s difficulty identifying Brito, the questions that Brito asked while they drove
to the robbery site, and the fact that Brito was not present at any of the planning meetings that
took place prior to the day of the robbery. (Trial Tr. at 258-308). Brito does not identify
additional questions that should have been asked, nor does he establish that another ten to fifteen
minutes of cross-examination would have resulted in a different outcome at trial. Accordingly
Brito has failed to establish that his trial counsel’s actions were unreasonable or that he was
prejudiced by those actions.

-8-

E. Failure to Raise Brady and/or Giglio Violations.
Brito also claims that his trial counsel was ineffective because he did not raise
what Brito asserts were Brady and/or Giglio violations. Specifically, Brito claims that the
government was aware that Felo would have provided exculpatory testimony and therefore
“seized . . . and ‘tucked’ him away before the defense could find [him] and call him to the stand
to impeach the testimony of other government witnesses and suppressed evidence.” (Petition at
18-19). According to Brito, defense counsel’s failure to pursue this argument violated the
Strickland standard. (Petition at 20). “There are three components of a true Brady violation: The
evidence at issue must be favorable to the accused, either because it is exculpatory, or because it
is impeaching; that evidence must have been suppressed by the [prosecution], either willfully or
inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82
(1999). Aside from his own self-serving statements, Brito does not provide any evidence of
government wrongdoing that might support an argument under Brady. In addition, as discussed
above, Brito has failed to show that he was prejudiced in any way by the absence of Felo’s
testimony. Accordingly, Brito cannot establish that his counsel’s decision not to pursue this line
of argument fell below an objective standard of reasonableness.
F. Failure to Raise an Entrapment Defense.
Finally, Brito claims that both his trial counsel and appellate counsel provided
ineffective assistance by failing to raise an entrapment defense. “[A] lawyer’s decision not to
pursue a defense does not constitute deficient performance if, as is typically the case, the lawyer
has a reasonable justification for the decision.” Greiner, 417 F.3d at 319 (quoting DeLuca v.
Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996)); see United States v. Kirsh, 54 F.3d 1062, 1072 (2d
Cir. 1995). To assert an entrapment defense, a defendant must establish “(1) government

-9-

inducement of the crime, and (2) lack of predisposition on the defendant’s part.” United States
v. Salerno, 66 F.3d 544, 547 (2d Cir. 1995). “A defendant is predisposed to commit a crime if he
is ready and willing without persuasion to commit the crime charged and awaiting any propitious
opportunity to do so.” Id. (citations and internal quotation marks omitted). The government may
show predisposition with evidence of “(1) an existing course of criminal conduct similar to the
crime for which [the defendant] is charged, (2) an already formed design on the part of the
accused to commit the crime for which he is charged, or (3) a willingness to commit the crime
for which he is charged as evidenced by the accused’s ready response to the inducement.” Id.
(quoting United States v. Valencia, 645 F.2d 1158, 1167 (2d Cir. 1980)).
Any decision by Brito’s trial and appellate counsel not to pursue an entrapment
defense was a reasonable one given the risks associated and the low likelihood of success of such
a defense. Generally speaking, entrapment defenses are rarely successful. See AluearRodriguez v. United States, No. 95 Civ. 2381 (KTD), 1996 WL 67939, at *2 (S.D.N.Y. Feb. 15,
1996) (failure to raise entrapment defense did not constitute ineffective assistance of counsel
because an entrapment defense “could materially harm the interests of the defendant and has a
small likelihood of success at trial”) (citing Isaraphanich v. United States, 632 F. Supp. 1531,
1534 (S.D.N.Y. 1986) (“it is a matter of legal realism that [entrapment] defenses rarely
succeed”)). In this case, the government had introduced considerable evidence of Brito’s
willingness to participate in the scheme and his “ready response to the inducement.” Salerno, 66
F.3d at 547. Pena testified that Brito appeared serious about participating in the robbery and did
not display any hesitation about the plan. (Trial Tr. at 229-31). In the recordings of Brito’s
conversation with Pena, Brito never objected to the scheme or indicated that he was not planning
on moving forward with the robbery. Rather Brito asked about what they should do once they

- 10 -

were inside the stash house and the physical characteristics of the guard Brito was responsible
for handling. (Trial Tr. at 241, 252). Pena understood Brito’s questions about the robbery
logistics as showing that Brito wanted to be as prepared as possible before the robbery, not that
he was on the fence about participating. (Trial Tr. at 249-50).
An entrapment defense also involves significant risks in that it requires a
defendant to admit to an intent to commit the crime charged and opens the door to the
introduction of government evidence regarding the defendant’s propensity to engage in criminal
conduct. See United States v. Collins, 957 F.2d 72, 76 (2d Cir. 1992) (presenting entrapment
defense entailed conceding the elements of the charged crimes); United States v. Tutino, 883
F.2d 1125, 1138-39 (2d Cir. 1989) (government may introduce prior bad acts to show
predisposition). Arguing entrapment would have required Brito to essentially admit that he
participated in the robbery scheme, weakening his primary argument that he never joined the
conspiracy in the first place. Given these risks and the low likelihood of success, it was not
unreasonable for Brito’s attorneys to decide not to raise an entrapment defense at trial or on
appeal.
II.

Brito’s Claims related to Entrapment, Sentencing, and Racial Bias are Procedurally
Barred.
Aside from his ineffective assistance of counsel claims, Brito asserts three

additional bases for vacating, setting aside, or correcting his sentence. First, he argues that the
DEA sting operation that resulted in his arrest constituted entrapment. (Petition at 21). Second,
he claims that he was “oversentenced” in comparison to his co-defendants. (Petition at 25).
Third, he contends that “[t]he stash house case brought by the government [was] racially
bias[ed].” (Petition at 27). On this point Brito appears to attack sting operations in general on
the grounds that they “allow[] the government to cast a wide net, trawling for criminals in seedy,
- 11 -

poverty-ridden areas all without an iota of suspicion that any particular person has engaged in
similar conduct in the past” resulting in the arrests and prosecutions of “poverty-ridden Hispanic
American, or African American male[s] with no priors[,] or robbery[,] or violence[,] or any
criminal record . . . who [are] simply enticed by the l[u]re of a large amount of money and quick
way out of his impoverished life.” (Petition at 27). None of these issues were raised in Brito’s
direct appeal.
Generally, claims not raised on direct appeal may not be raised in a section 2255
petition. Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007). A petitioner may not raise
new grounds for relief in a section 2255 proceeding that previously could have been raised in a
direct appeal, unless he has shown either “(1) ‘cause’ for the failure to bring a direct appeal and
‘actual prejudice’ from the alleged violations; or (2) ‘actual innocence.’” Id. (quoting Bousley v.
United States, 523 U.S. 614, 622 (1998)); see also United States v. Pipitone, 67 F.3d 34, 38 (2d
Cir. 1995) (“A party who fails to raise an issue on direct appeal and subsequently endeavors to
litigate the issue via a § 2255 petition must ‘show that there was cause for failing to raise the
issue, and prejudice resulting therefrom.’”) (quoting Douglas v. United States, 13 F.3d 43, 46 (2d
Cir. 1993)). “To satisfy the cause requirement, the petitioner must show circumstances external
to the petitioner, something that cannot be fairly attributed to him.” Zhang, 506 F.3d at 166
(internal quotation marks omitted). Alternatively, to establish actual innocence, a petitioner must
demonstrate by a preponderance of the evidence that “‘it is more likely than not that no
reasonable juror would have convicted him.’” United States v. Thorn, 659 F.3d 227, 234 (2d
Cir. 2011) (quoting Bousley, 523 U.S. at 623).
Brito asserts that he did not raise his entrapment, sentencing, and racial bias
claims in his direct appeal due to the ineffective assistance of his appellate counsel. Deficient

- 12 -

attorney performance that rises to the level of a Sixth Amendment violation may provide “cause”
excusing a failure to raise claims on direct appeal. Coleman v. Thompson, 501 U.S. 722, 753–54
(1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). The Court has already found that appellate
counsel’s decision not to raise an entrapment defense on appeal was a “reasonable strategy,”
Massaro, 538 U.S. at 501, and did not amount to a Sixth Amendment violation. Appellate
counsel’s decisions not to raise the sentencing disparity and racial bias issues on direct appeal
were similarly reasonable and fail to cure the procedural default.
Brito, who was sentenced principally to 144 months’ imprisonment, claims that
he was “oversentenced” in comparison to his co-defendants who received sentences ranging
from 18 to 37 months’ imprisonment. However, a District Court considers many variables when
determining an appropriate sentence and is not required to sentence each participant in a
conspiracy to an equal term. In this case, Brito’s co-defendants were not similarly situated and
therefore any sentencing disparity was warranted. Brito chose to proceed to trial while his codefendants pled guilty. In addition, Brito was sentenced as a career offender due to his extensive
criminal history. Finally, Brito was subject to a mandatory minimum sentence of 120 month’s
imprisonment. Thus, appellate counsel’s decision not to raise the issue of a sentencing disparity
on appeal was not objectively unreasonable. For the same reasons, Brito cannot show that he
was prejudiced by this decision as required by the second Strickland prong.
It was also reasonable for appellate counsel not to argue that the sting operation
that resulted in Brito’s arrest was racially biased. The record contains no evidence of such bias
nor does Brito point to any indication of bias in this case. Rather, his argument appears to be
based almost entirely on an excerpted USA Today article regarding DEA sting operations in

- 13 -

which race is not mentioned. (Petition at 28-32). Brito’s appellate counsel reasonably chose not
to raise arguments based on these unsupported and conclusory allegations.
CONCLUSION
Brito’s motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §
2255 is DENIED. The Clerk is directed to close the case captioned Brito v. United States, 16
Civ. 5585 (PKC).
Brito has not made a substantial showing of the denial of a constitutional right
and, accordingly, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Blackman v.
Ercole, 661 F.3d 161, 163-64 (2d Cir. 2011). His motion was not filed in forma pauperis, and
the Court therefore makes no finding pursuant to 28 U.S.C. § 1915(a)(3).
SO ORDERED.

Dated: New York, New York
July 24, 2017

- 14 -