Borrero v. United States of America
OPINION AND ORDER: For the reasons set forth above, petitioner's § 2255 motion to vacate, set aside or correct his sentence is DENIED. The Court declines to issue a certificate of appealability, as Borrero has not made a substantial showing of a denial of a federal right. See Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). The Clerk of Court is directed to terminate Borrero's petition at 17-cv-2834 ECF No. 1 and 13-cr-58 ECF No. 618 and to terminate 17-cv-2834. SO ORDERED (Signed by Judge Katherine B. Forrest on 1/10/2018) Copies Mailed By Chambers. (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
DOC #: _________________
DATE FILED: January 10, 2018
OPINION & ORDER
KATHERINE B. FORREST, District Judge:
Louis Borrero, currently incarcerated at U.S.P. Canaan, brings a petition
under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. At trial Borrero
was convicted by a jury of conspiracy to possess with intent to distribute heroin
under 21 U.S.C. §§ 846 and 841(b)(1)(A); conspiracy to commit Hobbs Act robbery
under 18 U.S.C. § 1951; and use or carry of a firearm under 18 U.S.C. §
924(c)(1)(A)(i). On February 21, 2014, Borrero was sentenced to 324 months of
Borrero, acting pro se,1 puts forth three bases for his petition: lack of
jurisdiction; vagueness under Johnson; and ineffective assistance of counsel. For
the reasons set forth below, the petition is DENIED.
The Court applies a “liberal construction of [pro se] pleadings, which should be read ‘to raise the
strongest arguments that they suggest.’” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001)
(quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). Nevertheless, a Court may dismiss a
petition under § 2255 without directing the United States attorney to file a response or holding an
evidentiary hearing if “the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting
28 U.S.C. § 2255); Fed. R. Governing Sec. 2255 Proceedings for the U.S.D.C. 4(b) (“If it plainly
On December 14, 2012, a cooperating witness (“CW”) told Jancey Valle, a
member of a “crew of individuals who rob narcotics traffickers,” that a confidential
informant (“CI-1”) “had information” about the locations of narcotics stashes.
(Presentence Investigation Report (“PSR”) ¶ 28). This was done at the direction of a
case agent and under surveillance. (Id.) Valle responded that Javion Camacho
(“Camacho”) would be interested in meeting with CI-1, and that Camacho’s crew
“impersonates police officers, and may include actual police officers.” (Id.) Three
days later, on December 17, 2012, the CW and CI-1 (at the direction of the Drug
Enforcement Agency (“DEA”)) met with Valle and Camacho. (Id. ¶ 30.) CI-1 told
Camacho that a minimum of ten kilograms of heroin (the “Shipment”) would be
arriving in New York City and that CI-1 wanted to rob the Shipment. (Id.)
Camacho informed CI-1 that he had a “robbery crew of police impersonators who
would be able to carry out the robbery” and that he expected to be able to sell the
heroin. (Id.) Camacho gave CI-1 a telephone number and told CI-1 to keep him
informed about the Shipment. (Id.)
On December 31, 2012, a case agent reviewed text messages exchanged by
Camacho and CI-1 that day in which they agreed to meet on January 2, 2013. (Id. ¶
31.) On January 2, Camacho met CI-1 at a restaurant along with Valle and Julio
Camacho, Javion’s brother. (Id. ¶ 32.) CI-1 told Camacho that the Shipment would
appears from the motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the
moving party.”). Here, the petition raises no factual dispute and can thus be resolved without a
Government response and/or hearing.
contain between twenty and forty kilograms of heroin; Camacho responded that the
crew could “take over Jersey City” with that amount. (Id.) Julio Camacho asked
CI-1 whether he would mind if the traffickers expecting the Shipment were “laid
out”—killed—during the robbery. (Id.)
On January 8, 2014, Camacho and CI-1 exchanged text messages and
planned to meet the next day for the robbery. (Id. ¶ 35.) The next day, Camacho
texted CI-1 in preparation about the time and place, and at approximately 8:15
p.m., CI-1 met Camacho at a restaurant. (Id. ¶¶ 36–37.) CI-1 told Camacho and
Victor Moral, one of the drivers, that the Shipment contained approximately 20
kilograms of heroin; Camacho told CI-1 “there was a police officer on the robbery
crew in case they needed to shoot someone.” (Id. ¶¶ 37–38.) Eventually, a number
of the co-defendants had arrived at the restaurant. Six cars then left, driving single
file toward the destination. Borrero was in a car with Julio Camacho and Joshua
Roman. When they reached Lakeview Place, CI-1 called Camacho to tell him that
the “spot” was up on the right and that Camacho’s car should pull over just before
it. (Id. ¶¶ 36–37.) When all six cars had turned right and pulled over, law
enforcement approached and placed every individual under arrest. (Id. ¶ 37.)
A search of the car Borrero was in uncovered, inter alia, ski masks. (Id. ¶
45.) In other cars, the agents uncovered, inter alia, a GPS unit (purportedly to
track vehicles used by narcotics traffickers), a firearm holster, and gloves. (Id. ¶
41.) The car was also equipped with a “mechanized device that, at the direction of
the driver, would cover the license plate with a steel plate.” (Id. ¶ 42.)
Borrero’s trial commenced on November 4, 2013. At trial, information from
agents, witnesses, physical evidence, telephone records, and cell-site location data
demonstrated that Borrero was present at meetings held by certain members of the
robbery crew, and that he was wearing black clothing like most of the crew
members. His telephone records indicated that he spoke with Javion Camacho
sixty-nine times and Julio Camacho 135 times between December 29, 2012 and
January 9, 2013. (Id. at ¶ 55.) On the day of the robbery, he was in telephone
contact with Javion Camacho sixteen times. (Id.)
On November 12, 2013, a jury convicted Borrero on all counts. At trial,
Borrero was represented by John Kaley and Anthony Cecutti. On December 3,
2013, Borrero submitted a pro se motion to set aside the verdict, for entry of
judgment of acquittal, and for a new trial, pursuant to Rules 29 and 33 of the
Federal Rules of Criminal Procedure. (ECF No. 265.) In that motion, Borrero
asserted, first, that that the evidence admitted against him at trial was legally
insufficient, and, second, that he received constitutionally ineffective assistance
from his trial counsel.
On February 14, 2014, the Court granted counsel’s request to extend the
deadline to submit post-trial motions until March 31, 2014. (ECF No. 341.) On
March 31, 2014, counsel advised the Court that he “d[id] not have any additional or
supplement issues to present to the Court,” and requested that the Court adjudicate
Borrero’s previously filed pro se motion. (ECF No. 380.) On May 12, 2014, the
Court denied Borrero’s motion on the merits. (ECF No. 399.) On June 19, 2014, the
Court denied Borrero’s motion for reconsideration of the May 12, 2014 decision.
(ECF No. 434.)
On October 14, 2014, as part of his sentencing submission, Borrero moved, for
the first time, to dismiss the Indictment for outrageous government conduct. (ECF
No. 478.) That motion was denied and on October 28, 2014, Borrero was sentenced
to 324 months’ incarceration. At sentencing, Borrero was represented by Glenn
THE STING OPERATION & THE ABSENCE OF DRUGS IN FACT
A. Legal Principles
1. Manufactured Jurisdiction
Federal agents are not permitted to “manufacture jurisdiction” in order to
prosecute criminal activity “primarily of local concern.” United States v. Archer,
486 F.2d 670, 682 (2d Cir. 1973). In other words, federal officers may not
“themselves suppl[y] the interstate element and act to ensure that an interstate
element would be present.” Id. (holding that federal jurisdiction may not exist when
federal agents provoked interstate calls that would not otherwise have been made).
A sting operation, however, is rarely the “manufacturing” of jurisdiction.
Rather, “government creation of the opportunity to commit an offense, even to the
point of supplying defendants with materials essential to commit crimes, does not
exceed due process limits.” United States v. Bout, 731 F.3d 233, 238 (2d Cir. 2013)
(quoting United State v. Cromitie, 727 F.3d 194, 219 (2d. Cir. 2013)); see also
United States v. Myers, 692 F.2d 823 (2d Cir. 1982) (allowing a sting operations
where the Government “produced people with fictitious identities ready to pay
bribes to Congressmen [but] the essential conduct of the agents and their paid
informant was to see who showed up to take the bribes and videotape them in the
act of doing so”). A sting operation does not become the manufacture of jurisdiction
simply because an object of the crime, such as narcotics, does not exist in fact; the
conspiracy was certainly real.
2. 21 U.S.C. §§ 841 and 846
Federal law makes it a crime to knowingly or intentionally “manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Additionally, it is a crime
to “attempt or conspire to commit any offense defined in this subchapter.” 21
U.S.C. § 846. A defendant convicted under § 846 “shall be subject to the same
penalties as those prescribed for the offense . . . .” Id.
3. Impossibility Defense
A common feature of sting operations is that the object of a conspiracy—such
as drugs or other contraband—never exists in fact. However, “inability [to commit a
crime] due to frustrated efforts, factual impossibilities or unforeseen circumstances
does not defeat the inference of an agreement to produce contested amounts of
narcotics.” United States v. Hendrickson, 26 F.3d 321, 337 (2d Cir. 1994). “[T]he
failure to produce is relevant only to the extent it suggests an absence of intent or
agreement.” Id. Factual impossibility is “irrelevant”; “the ‘reasonable capability’
analysis ‘looks to whether a defendant would have been able to consummate a
narcotics transaction if the facts were as he believed them to be.’” Id. (quoting
United States v. Howard, 998 F.2d 42, 51 (2d Cir. 1993).
4. Void for Vagueness Doctrine and Johnson
In 2015, the Supreme Court held that the residual clause of the Armed
Career Criminal Act (“ACCA”) violates the Constitution’s guarantee of due process
because it is unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551
(2015). The clause at issue defined “violent felony” to include any felony that
“otherwise involves conduct that presents a serious potential risk of physical injury
to another.” Id. at 2555 (quoting 18 U.S.C. § 924(e)(2)(B)). The Court determined
that the “indeterminacy of the wide-ranging inquiry required by the residual clause
both denies fair notice to defendants and invites arbitrary enforcement by judges.”
Id. at 2557. If a statute is held to be void for vagueness, then a criminal defendant
may have his or her conviction overturned. See, e.g., id.
Several of Borrero’s alleged grounds for relief rest on the fact that his
conviction rests upon a sting operation involving heroin but that, in reality, no
heroin ever existed. According to Borrero, this lack of a “real” narcotic necessitates
a conclusion that the government manufactured jurisdiction. In addition, he asserts
that in all events, 21 U.S.C. §§ 841 and 846 are void for vagueness under Johnson.
Borrero’s claims are without merit. Read in the light most favorable to petitioner,
his claims essentially amount to an impossibility defense: because the heroin never
existed, Borrero claims, the government should not be able to prosecute him.
1. Impossibility Defense
When a defendant is accused of a crime, factual impossibility is irrelevant,
and thus not a defense. Instead, the Court determines whether the defendant
would have been able to commit the crime if the facts were as he believed they were.
Hendrickson, 26 F.3d at 337. Here, the facts demonstrated that Borrero was part of
a conspiracy. If the facts had been as Borrero expected just before he was arrested,
he would have robbed the purported narcotics traffickers. It was the “absence of
drugs, not the lack of intent or an agreement among the co-conspirators, [that]
precluded the defendant from realizing his plan.” Id. at 337. Further, Borrero was
convicted of conspiracy to possess with intent to distribute heroin—whether or not
the heroin existed is irrelevant. Thus, even if it were an option, he could not
support an impossibility defense.
2. Manufactured Jurisdiction
Nor can Borrero support a claim that the Government “manufactured
jurisdiction.” A sting operation is not impermissible manufacturing, as it does not
add an element to the crime to federalize it, when that element would not have
existed without the Government’s intervention. Borrero points to United States v.
Archer, 486 F.2d 670 (2d Cir. 1973), for support, but this case is inapposite. There,
the conviction was overturned because federal agents provoked interstate phone
calls to “set up a federal crime, [going] beyond any proper prosecutorial role and
needlessly inject[ing] the Federal Government into a matter of state concern.”
Archer, 486 F.3d at 672. Here, the crimes Borrero committed—conspiracy to
possess and distribute narcotics, conspiracy to commit Hobbs Act robbery, and use
or carry of a firearm—were themselves federal crimes. In fact, the Archer Court
distinguished cases similar to Borrero’s. See Archer, 486 F.3d at 677 (noting that
the federal agents’ activity was “substantially more offensive than the common
cases where government agents induce the sale of narcotics in order to make drug
arrests.”). The Government did not manufacture some interstate element to an
otherwise wholly local crime in order to create federal jurisdiction—nor did it need
to. As such, the Government did not manufacture its jurisdiction.
3. Void for Vagueness
Finally, Borrero uses the absence of any drugs in fact to claim that 21 U.S.C.
§§ 841 and 846 are void for vagueness under Johnson. However, neither statute
denies a defendant fair notice or is subject to arbitrary enforcement. Rather, § 841
is specific, and § 846, which criminalizes conspiracy to violate § 841, benefits from §
841’s specificity. Together, the statutes clearly delineate possession of controlled
specific amount of specific controlled substances as crimes, and they provide specific
sentencing minimums. There can be no valid argument that Borrero had no notice
that his actions were unlawful.
For the foregoing reasons, the fact that the offense conduct here was in
response to a sting operation, and thus no heroin actually existed, is not a valid
argument against Borrero’s conviction.
INEFFECTIVE ASSISTANCE OF COUNSEL
A. Legal Principles
1. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Borrero “must [first]
show that counsel’s representation fell below an objective standard of
reasonableness,” as measured against “prevailing professional norms.” Strickland
v. Washington, 466 U.S. 668, 688 (1984). In addition, petitioner must demonstrate
that counsel’s “deficient performance prejudiced the defense,” id. at 687, meaning
that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different,” id. at 694.
As to the first prong of Strickland, attorney conduct is subject to an objective
standard of reasonableness, and is accorded deference in light of the “range of
legitimate decisions” that accompanies the various circumstances encountered by
counsel. Id. at 688-89. As a result, reviewing courts “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance, bearing in mind that there are countless ways to provide
effective assistance in any given case and that even the best criminal defense
attorneys would not defend a particular client in the same way.” United States v.
Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (alterations and internal quotation marks
omitted) (quoting Strickland, 466 U.S. at 689).
As to the second prong of Strickland, a petitioner must show that, but for his
or her attorney’s deficient performance, there is a reasonable probability that the
result would have been different. Strickland, 466 U.S. at 694. More is required
than a mere showing “that the errors had some conceivable effect on the outcome of
the proceeding,” as “not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the proceeding.” Id. at 693.
Under Strickland, “strategic choices made [by counsel] after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Id. 466 U.S. at 690–91. “Actions or
omissions by counsel that ‘might be considered sound trial strategy’ do not
constitute ineffective assistance.” Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005)
(quoting Strickland, 466 U.S. at 689). 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 v. Wells, 417 F.3d 305, 319 (2d
Cir. 2005) (quoting DeLuca v. Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996)). “The
likelihood that an affirmative defense will be successful at trial and an assessment
of the probable increase or reduction in sentence relative to the plea if the
defendant proceeds to trial are clearly relevant to the determination of whether an
attorney acted competently in recommending a plea.” Panuccio v. Kelly, 927 F.2d
106, 109 (2d Cir. 1991).
To successfully assert an entrapment defense, a defendant must
demonstrate, by a preponderance of the evidence, “(1) government inducement of
the crime, and (2) lack of predisposition on the defendant’s part.” United States v.
Bala, 236 F.3d 87, 94 (2d Cir. 2000) (quoting 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.” Salerno, 66 F.3d at 547 (quoting United States v.
Harvey, 991 F.2d 981, 992 (2d Cir. 1993)). Predisposition may be shown by
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.” Salerno, 66 F.3d at 548 (quoting United States v. Valencia, 645 F.2d
1158, 1167 (2d Cir. 1980)).
Borrero claims that his counsel was ineffective for two reasons: (1) he failed
to advise Borrero on affirmative defenses, namely, entrapment; and (2) he failed to
call Julio Camacho as a witness.2 The Court addresses each in turn.
Borrero also claims that, in the event any of his grounds for habeas relief are valid but were not raised at an earlier
juncture in the proceeding, his counsel was ineffective for failing to raise and/or preserve issues. (Mot. at 11.) This
claim is moot, as the Court holds that Borrero has no grounds for habeas relief.
Borrero’s attorney did not provide ineffective assistance of counsel if he failed
to assert or inform Borrero of an entrapment defense. Whether he informed Borrero
of such defense or not is ultimately irrelevant. An entrapment or coercion defense
was not supported by the evidence.
Borrero claims that he was not “prowling for a robbery to commit or looking
for any drugs to sell.” (Mot. at 9.) Rather, he was “pulled into a criminal scheme
manufactured [sic] and controlled entirely by the federal government through its
own agents.” (Mot. at 9.) (Id.) As such, he claims, there was “no plausible
justification for counsel to have not at least put the option of an entrapment defense
on the table for Petitioner to consider . . . .” (Id.)
First, assuming arguendo that Borrero’s counsel decided not to pursue an
entrapment or coercion defense and not to inform Borrero of the same, these
decisions were reasonable given the record in this case and the low likelihood of
success for asserting such a defense. The record in this case demonstrates that
Borrero was a member of the robbery crew—he was not only found in a car with
Julio Camacho on the way to the robbery, but he also spoke with both Camachos
over two hundred times in the three weeks leading up to the robbery. As a result, it
was reasonable for Borrero’s counsel to conclude that his client had shown “a
willingness to commit the crime” as demonstrated by a “ready response to the
inducement.” Salerno, 66 F.3d at 548.
Decisions by Borrero’s counsel not to inform Borrero of the defense’s
availability when counseling him on whether to plea thus survive Strickland,
especially in light of the fact that the entrapment defense is risky and rarely
successful. See, e.g., United States v. Balis, Nos. 08-cv-5637, 03-cr-1028, 2009 WL
1117274, at *6 (S.D.N.Y. Apr. 24, 2009) (noting that the entrapment defense is risky
because it “in effect admits that the defendant engaged in criminal conduct, and
attempts to explain away the commission of criminal acts,” and generally “dilute[s]
the force of a denial of wrongdoing”).
In any event, even assuming Borrero were able to show that his attorney’s
conduct was somehow deficient, he fails to show that he suffered prejudice as
required under Strickland. “[W]here the alleged error of counsel is a failure to
advise the defendant of a potential affirmative defense to the crime charged, the
resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative
defense likely would have succeeded at trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985). As explained above, in light of the record here, it is unlikely that Borrero
would have been entitled to a jury instruction on entrapment, let alone that he
would have succeeded on an entrapment defense at trial.
In sum, Borrero’s counsel did not provide ineffective assistance of counsel by
failing to inform Borrero of an entrapment defense when recommending that he
Moreover, it is worth noting that there is “no hint in the record that [defendant], well represented
by a competent attorney, was unaware that entrapment or coercion could be used as a defense.”
United States v. Michaelson, 552 F.2d 472, 475–76 (2d Cir. 1977).
2. Failure to Call Julio Camacho
Borrero also argues that his counsel’s failure to call Julio Camacho as a
witness constituted ineffective assistance. At trial, Victor Moral—the driver in
Javion Camacho’s car—stated that Julio Camacho had told Moral that Borrero was
a “wild boy” who “gets busy.” (Mot. at 10.) Borrero argues that because the Second
Circuit acknowledged that those statements were prejudicial and important to the
Government’s case, it is “beyond dispute that the statements . . . were very
impactful in the government’s favor,” so “trial counsel should have sought to refute
the testimony . . . by calling Camacho as a witness.” (Id.) See also United States v.
Camacho, 630 Fed. App’x 20, 23 (2d Cir. 2015).
However, “counsel’s decision as to ‘whether to call specific witnesses . . . is
ordinarily not viewed as a lapse in professional representation.’” United States v.
Best, 219 F.3d 192, 201 (2d Cir. 2000) (quoting United States v. Schmidt, 105 F.3d
82, 90 (2d Cir. 1997). While calling Julio Camacho as a witness may have served
the purpose Borrero wishes, it may also have led to detrimental testimony—if, for
example, Julio Camacho corroborated Moral’s testimony. As such, it is not clear
that counsel’s failure to call Julio Camacho was unreasonable.
For the reasons set forth above, petitioner’s § 2255 motion to vacate, set aside
or correct his sentence is DENIED. The Court declines to issue a certificate of
appealability, as Borrero has not made a substantial showing of a denial of a federal
right. See Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). The Clerk
of Court is directed to terminate Borrero’s petition at 17-cv-2834 ECF No. 1 and 13cr-58 ECF No. 618 and to terminate 17-cv-2834.
New York, New York
January 10, 2018
KATHERINE B. FORREST
United States District Judge
P.O. Box 300
Waymart, PA 18472
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