Kitroser v. United States of America
Filing
4
OPINION AND ORDER: In connection with this motion, this Court received a private letter from Roman Kitroser, building upon themes discussed at his sentencing and providing information concerning both the lessons he has learned as a result of this prosecution and his abiding hope that his young son chooses a different path. The undersigned is gratified to receive the letter, and was deeply moved by its contents. The fact remains that Kitroser has not identified a basis to vacate his prior co nviction or sentence. The arguments he now makes studiously avoid reference to the two years' worth of investigative efforts undertaken independently of the California Wiretap. Separately, however much Kitroser has grown while incarcerated, th e fact remains that his involvement in narcotics trafficking was more widespread, and carried greater risks to co-conspirators and to the public, than any other narcotics defendant the Court has sentenced. The Court's below-Guidelines sentence adequately balanced the danger (from both the narcotics and the weapons) caused by Kitroser and the possibility of his reform. The Court sees no basis in the law to disturb that sentence. Kitroser's motion under 28 U.S.C. § 2255 is DENIED. A certificate of appealability shall be not granted, because Kitroser has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Hoffler v. Bezio, 726 F.3d 144, 154 (2d Cir. 2013); Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). The Clerk of Court directed to terminate all pending motions, adjourn all remaining dates and close this case. (Signed by Judge Katherine Polk Failla on 10/22/2019) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROMAN KITROSER,
Plaintiff,
-v.UNITED STATES OF AMERICA,
17 Civ. 4142 (KPF)
15 Cr. 19 (KPF)
OPINION AND ORDER
Defendant.
KATHERINE POLK FAILLA, District Judge:
Plaintiff Roman Kitroser brings this motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255. In November 2015, Kitroser
pleaded guilty to one count of conspiracy to distribute and to possess with the
intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846, for which he was sentenced principally to a term of 25
years’ imprisonment by this Court. In his § 2255 motion, Kitroser argues that
his prior counsel rendered ineffective assistance by failing to investigate
whether certain evidence that emerged after Kitroser’s guilty plea could have
supported a post-plea motion to suppress part or all of the Government’s
evidence against him. Because Kitroser has failed to show that: (i) such an
investigation would have led to a meritorious suppression motion, or (ii) he was
prejudiced by his counsel’s failure to make such a motion, his § 2255 motion is
denied.
BACKGROUND 1
A.
Factual Background
1.
The Commencement of the Investigation in 2012
The DEA began investigating Roman Kitroser in 2012 for suspected
narcotics trafficking. (PSR ¶ 12). On July 11, 2012, Natisha Aponte, who had
been identified as Kitroser’s girlfriend, was stopped by law enforcement
authorities at John F. Kennedy International Airport while carrying $136,900
in cash in a vacuum-sealed pouch contained within her carry-on luggage. (Id.
at ¶ 13). Law enforcement officers seized the cash, and on July 16, 2012, a
narcotics-detecting canine alerted officers to the presence of narcotics with the
money. (Id.). Due to the fact that the investigation was ongoing, Aponte was
not arrested at that time. (Id.).
2.
The Continuation of the Investigation in 2013
In December 2013, employees of a car dealership in Brooklyn notified
local law enforcement authorities that they had received a package they
believed to contain drugs. (PSR ¶ 14). Upon arrival, agents opened the
package and discovered approximately three kilograms of heroin. (Id.). They
directed the employees of the dealership to alert them if and when someone
arrived to pick up the package. (Id.). Later that day, Aponte arrived at the car
1
All docket entries in this Opinion refer to the docket for United States v. Roman Kitroser,
No. 15 Cr. 19 (KPF). For ease of reference, the Court refers to the parties’ briefing as
follows: Kitroser’s memorandum supporting his motion is referred to as “Kitroser Br.”
(Dkt. #140); the Government’s memorandum in opposition as “Gov’t Opp.” (Dkt. #143);
and Kitroser’s reply as “Kitroser Reply” (Dkt. #148). In addition, the Court refers to
Kitroser’s Presentence Investigation Report, which is maintained in a restricted format
at docket entry #133, as “PSR.”
2
dealership to pick up the package. (Id.). However, she became suspicious of
the employees’ efforts to stall her and left without the package. (Id.). Aponte
was then observed entering a vehicle that Kitroser was driving. Again, Aponte
was stopped by law enforcement authorities — this time with Kitroser — and
again she was permitted to leave. (Id.).
3.
Kitroser’s Arrest in Late 2014
The investigation into Kitroser’s narcotics-trafficking activities continued
into 2014. On approximately 20 different dates between November 2014 and
December 2014, DEA agents conducted surveillance of Kitroser in the vicinities
of his Brooklyn and Manhattan apartments. (PSR ¶ 16). On November 12,
2014, agents videotaped Kitroser at a Duane Reade pharmacy near his
Manhattan apartment, engaging in a drug transaction with two unidentified
individuals. (Id. at ¶ 17).
On November 20, 2014, agents observed Kitroser attempt to mail a large
package; a canine later alerted agents to the detection of narcotics in the
package. (PSR ¶ 18). That same day, agents obtained a search warrant for the
package (the “November 2014 Warrant”), signed by then-United States
Magistrate Judge Ronald L. Ellis of this District; in executing the warrant,
agents recovered a speaker with a hidden compartment that contained
approximately $300,000 in cash. (Id.). An employee at the mail station where
Kitroser had attempted to mail the package told DEA agents that he knew
Kitroser as “John Mackley,” and, further, that Kitroser was a regular customer
who had sent 15 packages during the preceding 90 days. (Id. at ¶ 19).
3
Four days later, on November 24, 2014, Kitroser was intercepted on a
wiretap that was being administered in California by the DEA (the “California
Wiretap”), and that was intended to intercept the communications of members
of a drug-trafficking organization responsible for importing large quantities of
narcotics into the U.S. from Mexico. (PSR ¶ 20). In connection with that
investigation, the DEA had seized at least 403 pounds of cocaine, 230 pounds
of heroin, and 28 pounds of methamphetamine between May 12, 2014, and
October 28, 2014. (Id.). Kitroser was heard speaking with one of the targets of
the California investigation, who was receiving shipments of narcotics in the
Los Angeles area. (Id.). Kitroser engaged in multiple telephone calls with the
target, during which they discussed, among other things, the receipt and
transport of various packages and boxes. (Id.).
On December 4, 2014, the Government obtained a warrant for Kitroser’s
geolocation information from then-United States Magistrate Judge Frank Maas
of this District. (Dkt. #140-6). The agent affidavit in support of the warrant
recited that there was probable cause to believe that the geolocation
information would lead to evidence of a narcotics conspiracy given the following
facts: (i) the DEA had been investigating Kitroser since 2012; (ii) an individual
had told law enforcement that on at least three occasions he had received
packages of cash from Kitroser for narcotics trafficking; (iii) law enforcement
had observed Kitroser attempt to mail a package that contained $500,000 in
cash in a speaker; (iv) a canine had alerted officers to the presence of controlled
substances in the package; (v) Kitroser had mailed 15 packages to California in
4
the preceding 90 days using the name “John Mackley”; (vi) law enforcement
agents in California had observed a target of the California Wiretap
investigation pick up the packages shipped by Kitroser; (vii) that target had
been intercepted participating in several calls with Kitroser; and (viii) the DEA
now had recordings of the calls between Kitroser and the target discussing
mailing packages. (Id. at 4-7).
That same day, the Government obtained a warrant for a GPS tracking
device for two of Kitroser’s vehicles from United States Magistrate Judge
Roanne Mann of the Eastern District of New York. (Dkt. #140-7). The agent
affidavit in support of this warrant recited that there was probable cause to
believe that GPS information would lead to evidence of a narcotics conspiracy
given the following facts: (i) an individual had told law enforcement that on at
least three occasions he had received packages of cash from Kitroser for
narcotics trafficking; (ii) law enforcement had observed Kitroser trade bags with
two men in the back of a drug store in Manhattan; (iii) Kitroser had attempted
to mail a package that contained $500,000 in cash in a speaker from a
Brooklyn mail station; (iv) a canine had alerted to the presence of controlled
substances in the package; (v) Kitroser had mailed 15 packages to California
from the Brooklyn mail station in the preceding 90 days using the name “John
Mackley”; and (vi) law enforcement agents in California had observed a target of
the California Wiretap investigation pick up certain packages shipped by
Kitroser. (Id. at 4-9).
5
On December 8, 2014, law enforcement agents identified a package
arriving from California that was intended for Kitroser. (PSR ¶ 22). After
obtaining a positive canine hit on the package and a search warrant, law
enforcement agents opened the package and discovered a speaker that
contained one kilogram of heroin and six kilograms of cocaine. (Id.). On
December 9, 2014, law enforcement agents observed what they believed to be a
drug transaction between Kitroser and another individual in the parking lot of
a Staples store in Brooklyn. (Id. at ¶ 23).
On December 11, 2014, law enforcement agents again conducted
surveillance of Kitroser in the vicinity of his Brooklyn apartment. (PSR ¶ 25).
Kitroser was observed entering the residence and emerging with a bookbag,
which he put in the trunk of his car. (Id.). Kitroser drove a short distance, at
which point co-defendant Ronel Pierre approached Kitroser’s car carrying a
black bag. (Id.). Pierre entered the vehicle and handed the bag to Kitroser.
(Id.). Law enforcement agents approached the car and spoke with Kitroser and
Pierre. (Id.). Kitroser claimed that the car was not his and that the bags inside
did not belong to him. (Id.). Kitroser and Pierre were then arrested. (Id.). Law
enforcement agents subsequently found $67,995 in the bag delivered by Pierre
and two packages containing two kilograms of cocaine inside the bookbag
carried by Kitroser. (Id.).
That day, Kitroser was arrested in this District along with Natisha
Aponte, Ronel Pierre, and Jessy Castillo. (Dkt. #3). Also on that day, United
States Magistrate Judge Vera Scanlon of the Eastern District of New York
6
signed a search warrant for Kitroser’s Brooklyn apartment. (PSR ¶ 27). The
agent affidavit submitted in support of the warrant recited that there was
probable cause to believe that Kitroser kept narcotics and narcotics proceeds in
the apartment given the following facts: (i) Kitroser had attempted to mail a
package that contained $300,000 2 in cash in a speaker; (ii) a canine had
alerted officers to the presence of controlled substances in the package; and
(iii) law enforcement officers had arrested Kitroser with two bookbags in his
car, one containing large bundles of U.S. currency and another containing two
brick-shaped packages containing what appeared to be cocaine. (Dkt. #143-2
at 3-5).
In executing the search warrant for Kitroser’s Brooklyn apartment, DEA
agents found, among other things, nine firearms, one of which showed evidence
of discharge and three of which appeared to be three machine-guns; two
silencers; high-ammunition magazines; approximately eight kilogram-sized
packages containing cocaine; two packages containing approximately two
kilograms of heroin; a large press used to form loose narcotics into kilogramsized bricks (i.e., a “kilo press”); bundles of U.S. currency totaling more than
$889,000; three money counters; approximately 21 cell phones; a laptop
computer that revealed that more than 140 UPS packages had been tracked
2
Specifically, the agent averred that “[u]pon execution of that search warrant, I and other
law enforcement agents discovered approximately $500,000 in cash hidden inside of a
speaker, which was, in turn, contained within the Box.” (Dkt. #143-2 at 3). The
number “500,000” is crossed out and there is a handwritten mark above it stating
“300,000.” (Id.). The references to $500,000 in the GPS and geolocation warrant
applications appear to have been made in error.
7
between California and New York, each of which weighed between nine and 60
pounds; and identification cards that displayed photographs of Kitroser, but
reflected different names. (PSR ¶ 27).
The following day, December 12, 2014, United States Magistrate Judge
Gabriel W. Gorenstein of this District signed a search warrant for Kitroser’s
Manhattan apartment. (PSR ¶ 29). The agent affidavit submitted in support of
the warrant recited that there was probable cause to believe that Kitroser kept
narcotics and narcotics proceeds in that apartment given the following facts:
(i) Kitroser had been seen driving between and among his Manhattan
apartment, his Brooklyn apartment, and a mail station with cardboard boxes;
(ii) law enforcement officers had stopped Kitroser with two bookbags in his car,
one of which contained large bundles of U.S. currency and the other of which
contained two brick-shaped packages of what appeared to be cocaine; and
(iii) a search of Kitroser’s Brooklyn apartment had turned up six kilograms of
cocaine, receipts from UPS and FedEx stores, a kilo press, U.S. currency, and
guns. (Dkt. #143-4 at 3-6).
During the execution of the search warrant at Kitroser’s Manhattan
apartment, agents found, among other items, three speaker boxes, each
containing seven kilograms of cocaine (for a total of 21 kilograms); a bag
containing 2.35 kilograms of marijuana; scales; a safe containing
approximately $55,000 in U.S. currency; a vacuum-sealed package containing
more than $100,000 in U.S. currency; ledgers containing tracking numbers for
packages; three money counters; electronics; and fake identification cards.
8
(PSR ¶ 29). Using a key recovered during the execution of the residential
search warrants, law enforcement agents then opened a storage locker in
Brooklyn. (Id. at ¶ 30). Inside the locker, agents recovered a Louis Vuitton
purse that contained two hand grenades hidden inside two red cloth bags.
(Id.).
On December 18, 2014, DEA agents executed a search warrant on 10
parcels intercepted in connection with the investigation. (PSR ¶ 31). The
parcels were addressed to various companies and individuals in New York City
and were sent from various individuals in California. (Id.). The packages were
determined to contain approximately 35 kilograms of cocaine, three kilograms
of heroin, and $1,001,265 in cash. (Id.).
B.
Procedural Background
1.
The Complaint and the Indictment
On December 12, 2014, the day after the arrests, the Government filed
Complaint No. 14 Mag. 2797, charging Kitroser, Aponte, Pierre, and Castillo
with conspiring to distribute and to possess with the intent to distribute
controlled substances (specifically, cocaine, heroin, and marijuana), in violation
of 21 U.S.C. § 846, and with using and carrying, or aiding and abetting the use
and possession of, firearms in connection with that conspiracy, in violation of
18 U.S.C. §§ 924(c) and 2. (Dkt. #1). Kitroser was represented at his
presentment by attorney James R. Froccaro, Esq.; attorneys Edward Palermo
and Sanford Talkin later entered notices of appearance, but the conduct about
which Kitroser now complains was undertaken by Froccaro. (Dkt. #2, 13, 17).
9
On January 13, 2015, a grand jury returned Indictment No. 15 Cr. 19,
charging Kitroser and his co-defendants with: (i) conspiring to distribute and to
possess with the intent to distribute controlled substances (specifically,
cocaine, heroin, and marijuana), in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A) and (D), and 846; and (ii) possession of a firearm during and in
relation to a drug trafficking crime, and aiding and abetting same, in violation
of 18 U.S.C. §§ 924(c) and 2. (Dkt. #14). Kitroser was arraigned on
January 16, 2015, and subsequent pretrial conferences were held with him on
March 13, 2015, and April 3, 2015. (Minute Entries).
2.
The Motion to Suppress and the Scheduling of Trial
On July 16, 2015, Kitroser submitted a motion to suppress any evidence
seized pursuant to the November 2014 Warrant, as well as the fruits of any
such evidence. (Dkt. #61). Kitroser argued that the warrant was based on a
purported canine alert that narcotics would be found inside the cardboard box,
but that after the warrant was issued and the search of the package
conducted, no controlled substances were found. (Id. at 6-7). After briefing
had concluded, and shortly before oral argument, Kitroser submitted a
“supplement” to his motion that raised additional factual and legal arguments.
(Dkt. #77). On October 16, 2015, the Court held oral argument on Kitroser’s
motion as supplemented. (Dkt. #83 (transcript of proceedings)). The Court
then denied the suppression motion via oral order. (Id. at 58:21-59:3).
On October 21, 2015, the Government filed a prior felony information
against Kitroser pursuant to 21 U.S.C. § 851, which filing had the effect of
10
doubling the otherwise-applicable mandatory minimum terms specified by 21
U.S.C. § 841(b)(1)(A). (Dkt. #79). The following day, the Court issued a
schedule for trial to begin on December 1, 2015. (Dkt. #80).
3.
The Plea and Sentencing
On November 2, 2015, Kitroser pleaded guilty pursuant to a plea
agreement with the Government to Count One of the Indictment, which
charged him with conspiracy to distribute and to possess with the intent to
distribute one kilogram and more of mixtures and substances containing a
detectable amount of heroin, five kilograms and more of mixtures and
substances containing a detectable amount of cocaine, and mixtures and
substances containing a detectable amount of marijuana. (See Dkt. #83). The
Government and Kitroser stipulated that, because of the weight of drugs
involved, the use of a firearm, the maintenance of a stash house, the
commission of the offense as part of a pattern of criminal conduct engaged in
as a livelihood, and Kitroser’s supervisory role in the charged conspiracy, the
adjusted offense level under the Guidelines was 42. (Dkt. #140-2 (“Plea
Agreement”) at 2-3; see also PSR ¶¶ 43-50). The Government agreed that a
two-level decrease would be appropriate if Kitroser continued to accept
responsibility, and that it would recommend a reduction of one additional level
for Kitroser’s provision of timely notice of his intention to plead guilty, for an
adjusted offense level of 39. (Plea Agreement 3; see also PSR ¶¶ 52-53). With a
Criminal History Category of III, Kitroser’s stipulated Guidelines range was 324
to 405 months’ imprisonment, with a mandatory minimum term of 240
11
months’ imprisonment. (Plea Agreement 3-4; Dkt. #136 at 33:3-15). Of
potential significance to the instant motion, the Government agreed to move to
dismiss Count Two of the Indictment and agreed not to pursue further criminal
prosecution of Kitroser for “conspiring to distribute and possess with intent to
distribute cocaine, heroin, and marijuana from in or about December 2013
through on or about December 12, 2014.” (Plea Agreement 1, 2).
At his plea allocution, Kitroser confirmed that he had discussed the
charges in the Indictment with his attorney and that he understood the
consequences of his plea. (Dkt. #87 (transcript of proceedings)). The Court
informed Kitroser that the maximum term of imprisonment for a guilty plea to
Count One of the Indictment was lifetime imprisonment and that the
mandatory minimum term was 20 years. (Id. at 18:22-19:4). Kitroser stated
that he understood the sentencing process and still wanted to enter a guilty
plea. (Id. at 21).
A few weeks after Kitroser entered his guilty plea, in November and
December 2015, USA Today ran a series of articles under the heading
“America’s Wiretap Capital,” which articles contained information regarding the
Riverside County, California wiretap program. (See Dkt. #140-1). In relevant
part, the series detailed how Riverside County District Attorney Paul Zellerbach
had delegated authority — impermissibly, it was argued — to lower-level
lawyers within his office to review wiretap applications. (See id.). The articles
also discussed the disparity between the number of wiretaps authorized in
12
Riverside County and those authorized in all other state and federal
jurisdictions.
On June 6, 2016, the Court sentenced Kitroser principally to a term of
300 months’ imprisonment, which reflected a below-Guidelines sentence. (Dkt.
#136). In imposing sentence, the Court observed:
What is useful in this process is hearing from those who
know Mr. Kitroser outside of the criminal justice
system. The letter from his son, the letter from his
friend, Mr. Meringolo, the letter from his family
members. Also in the probation report I see some
evidence of legitimate employment.
And then we have the countervailing factors. There is
an awful lot of narcotics here. I will put the grenades to
the side because I don’t know really what to do with
them. The guns and the silencers were significant
enough. The sheer amount of narcotics proceeds
dwarfs any case I’ve had as a judge. And when you look
at things that folks say [may] 3 be accurate predictors or
proxies for culpability, they are all here. There is a prior
conviction, there is substantial jail time on narcotics
charges, which itself … was the product of a four-year
involvement in a narcotics conspiracy, and where there
was criminal conduct while on pretrial release.
(Id. at 34:1-16). Neither Kitroser nor the Government appealed from the
sentence. 4
On June 2, 2017, Kitroser, represented by new counsel, filed a motion
pursuant to 28 U.S.C. § 2255 to vacate his conviction on the grounds that his
3
The transcript reflects “may not,” but the Court is confident that it said “may,”
particularly given the remainder of the paragraph.
4
Kitroser’s Plea Agreement with the Government contained a waiver of his right to appeal
or collaterally challenge any sentence of imprisonment within or below the parties’
stipulated Guidelines range. (Dkt. #87 at 26:6-16). There was, however, a carveout to
that waiver for claims of ineffective assistance of counsel.
13
prior counsel had been ineffective in failing to investigate the Riverside County
information. (Dkt. #140). The Government filed a brief in opposition on July
26, 2017. (Dkt. #143). On September 24, 2017, Kitroser filed a brief and
affidavit in reply to the Government’s opposition. (Dkt. #148, 149).
DISCUSSION
A.
Applicable Law
1.
Motions Under § 2255
A prisoner in federal custody may seek to have his sentence vacated, set
aside, or corrected on the grounds that it “was imposed in violation of the
Constitution or laws of the United States, or that the [trial] court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack[.]” 28
U.S.C. § 2255(a). However, the grounds for such a collateral attack under
Section 2255 are much more limited than those available on a direct appeal.
See United States v. Addonizio, 442 U.S. 178, 185 (1979). Relief may lie “only
for a constitutional error, a lack of jurisdiction in the sentencing court, or an
error of law or fact that constitutes ‘a fundamental defect which inherently
results in a complete miscarriage of justice.’” United States v. Bokun, 73 F.3d
8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962));
accord Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000).
Generally speaking, a § 2255 motion requires a hearing unless files and
records conclusively show that the prisoner is entitled to no relief. See 28
U.S.C. § 2255(b); see also Machibroda v. United States, 368 U.S. 487, 494
14
(1962); Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003). No hearing is
required, however, where the movant’s allegations are “vague, conclusory, or
palpably incredible.” Machibroda, 368 U.S. at 495. To warrant a hearing, the
movant “must set forth specific facts supported by competent evidence, raising
detailed and controverted issues of fact that, if proved at a hearing, would
entitle him to relief.” Gonzalez v. United States, 722 F.3d 118, 131 (2d Cir.
2013). Significantly, however, a district court retains discretion when
determining whether to hold a hearing, and may elect to investigate facts
outside the record without the personal presence of the movant. See
Machibroda, 368 U.S. at 495; see also, e.g., Chang v. United States, 250 F.3d
79, 85-86 (2d Cir. 2001).
2.
Ineffectiveness Claims on Collateral Review
One potential basis for relief under § 2255 occurs when a defendant has
received the ineffective assistance of counsel. A defendant in criminal
proceedings has a right under the Sixth Amendment to effective assistance
from his attorney at all critical stages in the proceedings; this includes entry of
a guilty plea, see, e.g., Hill v. Lockhart, 474 U.S. 52, 58 (1985), and sentencing,
see, e.g., Glover v. United States, 531 U.S. 198, 202-04 (2001).
In order to succeed on a claim of ineffective assistance of counsel, a
movant must meet the two-pronged test established by Strickland v.
Washington, 466 U.S. 668 (1984). First, the movant must show that his
counsel’s representation was deficient, falling below the objective standard of
reasonableness. See id. at 687-88. During this first step, the standard of
15
review is highly deferential and includes “a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id.
at 689. The Second Circuit has made clear that an attorney does not provide
ineffective assistance by failing to raise frivolous arguments, even where
requested by a client. See, e.g., Weingarten v. United States, 865 F.3d 48, 53
(2d Cir. 2017).
Next, the movant must establish that his counsel’s errors resulted in
actual prejudice. See Strickland, 466 U.S. at 694. A movant satisfies this
second prong by proving that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. In the specific context of guilty pleas, the prejudice analysis
“focuses on whether counsel's constitutionally ineffective performance affected
the outcome of the plea process. In other words, in order to satisfy the
‘prejudice’ requirement, the defendant must show that there is a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 59.
A court is not required to conduct a Strickland inquiry in any particular
order. See Strickland, 466 U.S. at 697. If the defendant does not successfully
establish either the performance prong or the prejudice prong, the entire claim
fails, and the remaining, unaddressed step becomes moot. See id.
3.
Post-Plea Motions to Suppress
In order to make a showing of ineffective assistance of counsel based on
the failure to make a suppression motion, the putative motion must be shown
16
to be meritorious, and there must be a reasonable probability that the verdict
would have been different if the evidence had been suppressed. See United
States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990); Kimmelman v. Morrison, 477
U.S. 365, 375 (1986); accord United States v. Tisdale, 195 F.3d 70, 71 (2d Cir.
1999).
Kitroser acknowledges that the information on which his § 2255 motion
is based became known only after his guilty plea. Under Federal Rule of
Criminal Procedure 11, Kitroser would therefore have had to show “a fair and
just reason for requesting the withdrawal” of the plea. Fed. R. Crim. P. 11(d).
In addition, under Federal Rule of Criminal Procedure 12, Kitroser would have
had to show “good cause” for failing to file a timely suppression motion. Fed.
R. Crim. P. 12(b)(3), (c)(3). The Court considers Kitroser’s arguments with
these standards in mind.
B.
Kitroser’s Prior Counsel Did Not Render Ineffective Assistance
1.
The Putative Suppression Motion Would Not Have Been
Meritorious
In his motion, Kitroser asserts that the California Wiretap was illegal
and, more importantly, that prior counsel James Froccaro was ineffective in
failing to investigate the Wiretap for two separate reasons: (i) investigation
would have resulted in a meritorious suppression motion and a basis to
withdraw Kitroser’s guilty plea, and (ii) investigation would have revealed that
the prosecutors in this case and the California case omitted material
information from several warrant applications, in violation of Franks v.
Delaware, 438 U.S. 154 (1978), which would have provided a separate basis for
17
withdrawal of the guilty plea. As set forth in the remainder of this Opinion,
these arguments lack merit.
1.
Kitroser Has Not Demonstrated a Basis to Suppress the
California Wiretap or Its Fruits
a.
Motions to Suppress Under Title III
Kitroser relies heavily on California law to support his ineffectiveness
arguments. However, the law is clear that the admissibility of wiretap evidence
in a federal prosecution is properly evaluated using federal standards. See
United States v. Miller, 116 F.3d 641, 661 (2d Cir. 1997).
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18
U.S.C. §§ 2510-2522, specifies the minimum requirements for obtaining
judicial authorization to intercept wire, oral, or electronic communications.
Generally speaking, Title III requires a wiretap applicant, upon oath or
affirmation, see id. § 2518(1), to provide “full and complete statement[s]” both
as to probable cause for such interceptions and as to the need to use such
methods, id. § 2518(1)(b) and (c). See generally United States v. Lambus, 897
F.3d 368, 393 (2d Cir. 2018).
Title III contains its own exclusionary provision. In particular, it permits
an “aggrieved person” to move
to suppress the contents of any wire or oral
communication intercepted ... or evidence derived
therefrom, on the grounds that (i) the communication
was unlawfully intercepted; (ii) the order of
authorization or approval under which it was
intercepted is insufficient on its face; or (iii) the
interception was not made in conformity with the order
of authorization or approval.
18
18 U.S.C. § 2518(10)(a).
Both constitutional and statutory violations may result in suppression
under § 2518(10)(a)(i). United States v. Giordano, 416 U.S. 505, 527-28 (1974).
That said, not “every failure to comply fully with any requirement provided in
Title III would render the interception of wire or oral communications
‘unlawful.’” United States v. Chavez, 416 U.S. 562, 574-75 (1974) (holding that
misidentification of the official authorizing a wiretap application did not require
suppression of wiretap evidence under § 2518(10)(a)(i) when the application
was authorized by an appropriate official). Rather, “Congress intended to
require suppression where there is failure to satisfy any of those statutory
requirements that directly and substantially implement the congressional
intention to limit the use of intercept procedures to those situations clearly
calling for employment of this extraordinary investigative device.” Giordano,
416 U.S. at 527.
Wiretap evidence must be suppressed when provisions that are “intended
to play a central role in the statutory scheme” are violated. Giordano, 416 U.S.
at 528; accord United States v. Donovan, 429 U.S. 413, 433-34 (1977).
Conversely, “[a] technical defect ... is insufficient grounds to warrant
suppression.” United States v. Garcia, No. 04 Cr. 603 (HB), 2005 WL 589627,
at *5 (S.D.N.Y. Mar. 14, 2005) (citing United States v. Radcliff, 331 F.3d 1153
(10th Cir. 2003)). “The thrust of Giordano and Chavez is that only the violation
of a sufficiently important statutory provision will render an interception
‘unlawful’ under § 2518(10)(a)(i).” United States v. Simels, No. 08 Cr. 640 (JG),
19
2009 WL 1924746, at *10 (E.D.N.Y. July 2, 2009); see also Lambus, 897 F.3d
at 395-96 (rejecting district court conclusion that defects in the wiretap
application had to be “inadvertent”; reversing suppression of wiretaps based on
failure to disclose prior authorizations).
b.
Kitroser Has Not Identified a Basis for Suppression
Despite the fact that federal law governs any exclusionary analysis,
Kitroser leans heavily into his argument that California law was violated, and
that such violation merited suppression of the evidence against him. The
Court need not conclude that the putative violation of California law discussed
in this section would merit suppression under the federal standard. That is
because Kitroser has fallen at the antecedent hurdle of demonstrating that the
California Wiretap violated California law.
Kitroser’s illegality argument is premised on the fact that the application
for the wiretap (the “California Wiretap Application”) was not signed by Paul
Zellerbach, then the District Attorney of Riverside County, but by Assistant
District Attorney Creg G. Datig. Kitroser argues that this delegation violated
California Penal Code § 629.50, which requires the District Attorney to apply
for all wiretap orders, unless an assistant district attorney has been designated
to act as the district attorney in the District Attorney’s absence.
In United States v. Perez-Valencia, 727 F.3d 852, 855 (9th Cir. 2013), the
Ninth Circuit explained “that ‘the’ attorney designated to act in the district
attorney’s absence — as § 629.50 specifies — must be acting in the district
attorney’s absence not just as an assistant district attorney designated with the
20
limited authority to apply for a wiretap order, but as an assistant district
attorney duly designated to act for all purposes as the district attorney of the
political subdivision in question.” Ultimately, that Court remanded the matter
to the district court for further development of the record regarding whether the
assistant district attorney at issue was duly acting for all purposes as the
principal prosecuting attorney of the county where the wiretap was authorized,
because the district attorney’s memo merely stated that certain assistants were
designated “to act in [his] absence.” Id. at 854-55. 5
Here, the very memo that Kitroser cites in support of his argument
makes plain that Zellerbach did delegate his authority to Datig “to make all
decisions necessary to the administration of the District Attorney’s Office” in
Zellerbach’s absence. (Dkt. #140-3). This memo suffices to show that Datig
was authorized not merely to apply for wiretap applications, but also to act
with the full scope of authority of the District Attorney in Zellerbach’s absence.
Thus, Zellerbach’s delegation to Datig was not per se impermissible.
Recognizing as much, Kitroser argues that, because nothing in the
California Wiretap indicates that Zellerbach was absent or otherwise
unavailable on the day the California Wiretap was signed, the Court should
infer that Zellerbach was present, and thus that Datig’s signature on the
California Wiretap Application is illegal. (See Kitroser Br. 11 (“But nothing in
5
On remand, the district court concluded that the Assistant District Attorney who
submitted the wiretap application was the only person authorized to do so and had
authority to exercise all the powers of the office. The resulting denial of the defendant’s
suppression motion was then upheld by the Ninth Circuit. See United States v. PerezValencia, 744 F.3d 600, 603 (9th Cir. 2014).
21
the Nov. 2014 wiretap application indicates that Zellerbach was absent or
otherwise unavailable of the day of submission.”)). However, Kitroser’s
insinuation that Zellerbach was likely present on the day that Datig applied for
the warrant is not enough to convince the Court that the wiretap was obtained
illegally. See Nardone v. United States, 308 U.S. 338, 342 (1939) (“The burden
is, of course, on the accused in the first instance to prove to the trial court’s
satisfaction that wire-tapping was unlawfully employed.”). Indeed, the
affirmation of Deputy District Attorney Deena Bennett suggests that Datig was
duly authorized to sign the California Wiretap Application. (Dkt. #140-4).
While acknowledging that Zellerbach’s contemporaneous records were
inadequate to resolve the issue, Bennett convincingly explains why Zellerbach
would not have been present — his recent election loss, which left him a
proverbial “lame duck” through January 2015. (Id. at ¶¶ 2-3, 6; see also id. at
¶¶ 13-14 (explaining the geographical expanse of Riverside County and the
constant physical location for the designated judicial officer)). On this record,
the Court cannot conclude that there was a violation of § 629.50 or, by
extension, that a meritorious suppression motion could have been made on
this basis.
Other district courts have concluded similarly. In United States v. Ruiz,
No. 09 Cr. 719 (DAB), 2010 WL 4840055, at *5 (S.D.N.Y. Nov. 19, 2010), the
defendant who was recorded on a wiretap applied for by a subordinate of the
Riverside County District Attorney, argued that without evidence of the District
Attorney’s absence, the subordinate’s signature could not be accepted and
22
therefore the warrant application violated state law. A sister court in this
District rejected this argument, noting that while the Government offered no
proof that the District Attorney was absent, the defendant bore the burden to
show that the warrant applicant abused his authority. Id. (citing United States
v. Terry, 702 F.2d 299, 310-11 (2d Cir. 1983) (holding that a designated official
is “presumed to have properly exercised” the power to apply for a wiretap
“unless the defendants offer evidence, apart from mere conjecture or
speculation, to rebut this presumption”)). Similarly, the allegations in the USA
Today series, while potentially troubling, do not show that Zellerbach was
actually present and available on the date that Datig signed the California
Wiretap. Nor would the series have provided Kitroser’s prior counsel with the
ability to obtain information on Zellerbach’s whereabouts on the date in
question.
In United States v. Mattingly, No. 15 Cr. 99 (DJH), 2016 WL 3670828, at
*5 (W.D. Ky. July 1, 2016), a second court denied a suppression motion based
on the same arguments made here. In Mattingly, the defendant argued that
several wiretaps signed by assistant district attorneys in Riverside County,
including one signed by Datig pursuant to delegation from Zellerbach, were
illegal. Id. The defendant offered no evidence that Zellerbach was present
when the wiretaps were authorized; instead, like Kitroser, he pointed to the
USA Today articles, and urged the court to infer that Zellerbach had improperly
designated his wiretap authority on a permanent basis. Id. at *6. The
Mattingly court rejected this argument, concluding that the USA Today articles
23
did not show that Zellerbach was actually present and available on the dates of
the wiretap applications at issue, or that his designation of authority under
§ 690.50 was otherwise unlawful. Id. The court also explained that “statistics
regarding the total number of wiretaps applied for by the Riverside County DA’s
office in 2014 [did not] provide information relevant to this particular case.” Id.
Since it was Mattingly’s burden to show that the wiretap application was
invalid, and he offered only mere speculation that Zellerbach was in fact
available, the court concluded that suppression was not warranted on the
ground that the wiretaps were improperly authorized. Id. at *7.
Had Kitroser’s counsel moved to suppress evidence obtained from the
California Wiretap, he would have faced the same obstacles that Ruiz and
Mattingly faced in proving that the District Attorney was not absent at the time
that the warrants were approved. Given such obstacles, Kitroser’s counsel
would have been reasonable in concluding that it was not advisable for his
client to attempt to file a suppression motion on this basis or to attempt to
withdraw his plea.
c.
Kitroser Was Not Prejudiced by His Counsel’s Failure to
Make a Suppression Motion
Even if Kitroser’s attorney could have shown that the California Wiretap
was obtained illegally, he would have faced another obstacle in showing that
the Government’s trove of physical evidence against him — including large
quantities of drugs, drug paraphernalia, cash, guns, and other weapons — was
derived from that wiretap and should be suppressed. Since even a successful
suppression motion would have suppressed little, if any, of the evidence
24
against Kitroser, his attorney did not provide ineffective assistance in failing to
make such a motion, and Kitroser was not prejudiced by the failure to make
such a motion.
The exclusionary rule’s application has been restricted to those instances
where its remedial objectives are thought most efficaciously served. See United
States v. Awadallah, 349 F.3d 42, 72 (2d Cir. 2003). “Any extension of the rule
beyond its core application — normally, barring use of the illegally seized items
as affirmative evidence in the trial of the matter for which the search was
conducted — must be justified by balancing the additional marginal deterrence
of the extension against the cost to the public interest of further impairing the
pursuit of truth.” Id.; cf. United States v. Ganias, 824 F.3d 199, 209 (2d Cir.
2016) (en banc) (discussing good faith exception to Fourth Amendment
exclusionary rule).
The fruit of the poisonous true doctrine requires the exclusion of the
fruits of illegally obtained evidence, unless “granting establishment of the
primary illegality, the evidence to which instant objection is made has been
come at ... by means sufficiently distinguishable to be purged of the primary
taint.” Wong Sun v. United States, 371 U.S. 471, 488 (1963). This principle
has resulted in considerable latitude in the application of the exclusionary rule
in the Fourth Amendment context. Even where there has been misconduct on
the part of law enforcement, the exclusionary rule allows the receipt of evidence
that the Government inevitably would have discovered legally in any case, as
25
well as evidence that is sufficiently attenuated from the illegal government
action. See id. at 487-88
Kitroser argues that all of the evidence obtained by the Government after
the California Wiretap was issued on November 20, 2014, would have been
suppressed as fruits of the poisonous tree. (Kitroser Br. 14-15). He is wrong.
To begin, Kitroser was not picked up on the California Wiretap until
November 24, 2014, and he would thus have been unable to demonstrate that
evidence obtained by the Government before that date was tainted. By that
time, the Government was two years into its investigation of Kitroser, and had
amassed a significant amount of evidence. Among other things, the DEA had
(i) observed Kitroser’s girlfriend (who had earlier been stopped with $136,000 in
cash at JFK) attempt to pick up a package containing three kilograms of heroin
in his presence; (ii) observed Kitroser engage in a drug transaction at a Duane
Reade pharmacy; (iii) observed Kitroser attempt to ship a package containing
$300,000 hidden in a speaker; (iv) learned that Kitroser had been regularly
shipping packages under a fake name; and (v) been in contact with a coconspirator of Kitroser who told them specifically that Kitroser had sent him
packages containing money from narcotics trafficking. (Gov’t Opp., Ex. 1 at 3).
Even if a suppression motion had been made, Kitroser would not have been
able to show that the California Wiretap had any bearing on this evidence.
Further, Kitroser’s arguments about why the evidence obtained after
November 24, 2014, was tainted by the California Wiretap are unpersuasive.
Kitroser claims, in conclusory fashion, that “because much of the proof against
26
Kitroser appears to derive, directly and indirectly, from the initial geolocation
and GPS warrants there is ‘reasonable probability’ that the Court — upon
proper motion — would have held it inadmissible fruit of the infirm Riverside
tap, quashing the plea accordingly.” (Kitroser Br. 15). On the contrary, there
are several reasons why it is unlikely that the Court would have found all of the
evidence post-dating the California Wiretap to have been inadmissible fruit.
Of note, neither the application for the GPS warrant nor the application
for the geolocation warrant relies solely on evidence obtained through the
California Wiretap to establish probable cause. Both warrant applications
recite other evidence the Government had obtained on Kitroser long before he
was intercepted on the California Wiretap. Thus, the result of suppressing the
California Wiretap evidence would not have automatically resulted in
suppression of the evidence derived from the GPS and geolocation warrants.
Evidence is not excluded as fruit of the poisonous tree unless the illegality is at
least the but-for cause of the discovery of the evidence. Segura v. United
States, 468 U.S. 796, 815 (1984). Given all of the facts establishing probable
cause in the warrant applications, it cannot be said that the evidence obtained
from the California Warrant was the but-for cause of the discovery of evidence
obtained from those warrants.
2.
Kitroser Was Not Prejudiced by Prior Counsel’s Failure to Seek
a Franks Hearing
As a fallback position, Kitroser argues that investigation of the California
Wiretap and its Application by his prior counsel would have allowed him to
challenge that warrant, as well as the GPS and geolocation warrants, in a
27
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). In Franks, the
Supreme Court held that, despite the “presumption of validity with respect to
the affidavit supporting [a] search warrant,” a defendant can challenge an
affidavit “where the defendant makes a substantial preliminary showing that a
false statement knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit, and if the allegedly
false statement is necessary to the finding of probable cause.” Id. at 155-56.
The Second Circuit has provided extensive guidance to district courts
conducting a Franks analysis in United States v. Rajaratnam, 719 F.3d 139 (2d
Cir. 2013), and for this reason, this Court quotes at length from that opinion:
“[T]o suppress evidence obtained pursuant to an
affidavit containing erroneous information, the
defendant must show that: (1) the claimed inaccuracies
or omissions are the result of the affiant’s deliberate
falsehood or reckless disregard for the truth; and (2) the
alleged falsehoods or omissions were necessary to the
[issuing] judge’s probable cause [or necessity] finding.”
United States v. Canfield, 212 F.3d 713, 717-18 (2d Cir.
2000) (internal quotation marks omitted); see also
United States v. Awadallah, 349 F.3d 42, 64 (2d Cir.
2003) (noting that “[i]n order to invoke the Franks
doctrine, [a defendant] must show that there were
intentional and material misrepresentations or
omissions in [the] warrant affidavit.” (emphases
supplied)).
To determine whether misstatements are “material,” a
court must “set[ ] aside the falsehoods” in the
application, United States v. Coreas, 419 F.3d 151, 155
(2d Cir. 2005), and determine “[w]hether the untainted
portions [of the application] suffice to support a
probable cause [or necessity] finding,” United States v.
Nanni, 59 F.3d 1425, 1433 (2d Cir. 1995). If the
untainted portions of the application are sufficient to
support the probable cause or necessity findings, then
28
the misstatements are not “material” and suppression
is not required.
Although omissions “are governed by the same rules” as
misstatements, United States v. Ferguson, 758 F.2d
843, 848 (2d Cir. 1985), “the literal Franks approach
[does not] seem[ ] adequate because, by their nature,
omissions cannot be deleted”; therefore “[a] better
approach ... would be to ... insert the omitted truths
revealed at the suppression hearing,” United States v.
Ippolito, 774 F.2d 1482, 1487 n.1 (9th Cir. 1985).
Accordingly, we have held that “[t]he ultimate inquiry is
whether, after putting aside erroneous information and
[correcting] material omissions, there remains a residue
of independent and lawful information sufficient to
support [a finding of] probable cause [or necessity].”
Canfield, 212 F.3d at 718 (internal quotation marks
omitted); see also United States v. Martin, 615 F.2d 318,
328 (5th Cir. 1980) (“[W]e [are] required to determine
whether, if the omitted material had been included in
the affidavit, the affidavit would still establish probable
cause [or necessity].... If it would not, we would be
required to void the warrant and suppress the evidence
seized pursuant to it.”).
Id. at 146; accord United States v. Long, 678 F. App’x 31, 34 (2d Cir. 2017)
(summary order), as amended (Feb. 3, 2017).
Kitroser argues that the USA Today series offers information sufficient to
make a “substantial preliminary showing” that — even if the California Wiretap
Application were compliant with the relevant law — the applicants for the
California Wiretap Application, the geolocation warrant, and the GPS warrant
strategically withheld two integral facts: (i) Zellerbach had abdicated his
wiretap authority and (ii) he did so to shirk political responsibility for
constitutional violations. (Kitroser Br. 16). But these are conclusory
allegations, which do not suffice to prove, or even merit an evidentiary hearing,
29
as to the proffered facts. The record before the Court, even with the inclusion
of the USA Today series, offers no substantiation for either point.
Further, Kitroser’s conclusory assertions do not show that the agents
who applied for the three warrants knew, intended, or were even reckless in
omitting the proffered information regarding Zellerbach. Beginning with the
California Wiretap, the Court observes a circularity to Kitroser’s argument that
a legally compliant wiretap application (which this Court finds the California
Wiretap Application to be) would nonetheless be constitutionally or statutorily
infirm for reciting that the District Attorney had delegated his authority as
California law permits, while failing to recite that this delegation was an
“abdication” of responsibility undertaken to “shirk” constitutional violations.
On this point, Kitroser’s citations to the district court opinion in Mattingly,
2016 WL 3670828, at *5-6, are misleading, as they do not reflect the findings
of the district court, but rather the findings of another court with a different
factual record.
Turning next to the SDNY geolocation and GPS warrants, the relevant
applications underscore the limits of the affiant’s involvement in the California
investigation, and the concomitant overreach of Kitroser’s argument of joint
investigation. (See Kitroser Br. 16). The DEA agent affiant, Anthony Scotto,
relates only that he had discussions with law enforcement agents in California
and obtained from them recordings and line sheets from telephone calls,
including calls with a person Scotto believed to be Kitroser. (See Dkt. #140-6
at 6-7; Dkt. #140-7 at 8). The warrant applications do not indicate that Scotto
30
was aware of the circumstances surrounding the California agents’ obtaining of
the California Wiretap, and the USA Today series, which might have put Scotto
on notice, was not published until a year after all of these warrants were
issued.
In any event, omission of the proffered information regarding Zellerbach
would not have affected the judges’ findings of probable cause. Using the
standards identified by the Second Circuit, this Court can confidently conclude
that “putting aside erroneous information and [correcting] material omissions,
there remains a residue of independent and lawful information sufficient to
support [a finding of] probable cause.” Canfield, 212 F.3d at 718. The
California Wiretap Application was supported by a 63-page affidavit (Dkt. #1405), in which the agent painstakingly detailed efforts undertaken in 2013 and
2014 to investigate a wide-ranging narcotics-trafficking conspiracy, including
(i) law enforcement seizures of hundreds of pounds of controlled substances
between May and October 2014; (ii) communications intercepted pursuant to
other, unchallenged wiretap orders; (iii) the analysis of toll records; (iv) physical
surveillance in 2013 and 2014, including surveillance of criminal activity in
Riverside County; and (v) the execution of search warrants at locations
associated with the target subjects of the application. Put simply, abundant
evidence existed for the grant of the California Wiretap Application.
Information obtained from the California Wiretap was far less important
to the findings of probable cause for the geolocation and GPS warrants in this
District. These applications focused on evidence of Kitroser’s criminal conduct
31
obtained well prior to Kitroser’s interception on the California Wiretap,
including evidence that: (i) the DEA had been investigating Kitroser since 2012;
(ii) an individual had told law enforcement that on at least three occasions he
had received packages from Kitroser containing narcotics proceeds; (iii) law
enforcement had observed Kitroser attempt to mail a package that contained
$300,000 in cash in a speaker; (iv) a canine had alerted officers to the presence
of controlled substances in the package; and (v) Kitroser had mailed 15
packages in the preceding 90 days using the name “John Mackley.” (Dkt.
#140-6 at 4-6). That evidence alone suffices to establishes probable cause that
Kitroser was involved in narcotics trafficking, and would support the issuance
of each of the warrants. See United States v. Martin, 426 F.3d 68, 76 (2d Cir.
2005) (stating that probable cause is a common-sense test; an affidavit in
support of a search warrant need only establish that there is a fair probability
that contraband or evidence of a crime will be found in a particular place).
The evidence that the Government obtained from the search of Kitroser’s
apartments is even further attenuated from the California Wiretap, inasmuch
as it was obtained pursuant to search warrants that made no mention of the
California Wiretap. The Magistrate Judges who signed the search warrants for
Kitroser’s Manhattan and Brooklyn apartments found probable cause to believe
that Kitroser was involved in narcotics distribution from the other evidence
obtained during the agents’ two-year investigation. And the results of those
residential search warrants included machine guns, grenades, silencers, tens
32
of kilograms of cocaine, kilograms of heroin, kilograms of marijuana, and U.S.
currency totaling over $1 million. (PSR ¶¶ 27-30).
For all of these reasons, whether couched as a violation of Title III or of
Franks, Kitroser could not have made a meritorious suppression motion had
his prior counsel investigated the substance of the USA Today series.
Therefore, Kitroser was not prejudiced by his counsel’s failure to investigate or
to make a motion to suppress or to withdraw his plea, and his counsel’s
representation did not constitute ineffective assistance.
C.
Kitroser Would Not Have Obtained a More Favorable Result by
Withdrawing His Plea
To review, a movant raising a claim of ineffectiveness under § 2255 who
has been convicted based on a plea of guilty is typically required to aver that,
“but for counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill, 474 U.S. at 59. Kitroser does not do that, but
rather avers that had he known that the Government’s evidence against him
resulted from an improperly obtained wiretap warrant, he would have
instructed his prior counsel attorney to move to withdraw his plea and seek
suppression of the wiretap evidence and its fruits. (Dkt. #148-1 at ¶ 9).
The Court has reviewed with great care Kitroser’s factual and legal
contentions. As explained in the preceding section, the Court is confident that
there was no meritorious suppression motion to be made on the record
presented to it here. Given that fact, there is little chance that Kitroser would
have fared well at a trial that would have included intercepted
communications, video surveillance, a cooperating witness, and a surfeit of
33
physical evidence. Conversely, given this backdrop, prior counsel obtained for
Kitroser a favorable plea offer — one that foreclosed the possibility of a
mandatory consecutive term of at least five years’ imprisonment under 18
U.S.C. § 924(c)(1), prevented the Government from filing a superseding
charging instrument that would have referenced the hand grenades (which
would have prompted a higher mandatory consecutive term), and allowed
Kitroser both a three-level reduction for acceptance of responsibility and the
ability to argue for (and receive) a below-Guidelines sentence. There is no
reasonable probability that had Kitroser withdrawn his guilty plea and pursued
a motion to suppress the California Wiretap, he would have received a result
more favorable than the below-Guidelines sentence that resulted from his plea
deal. Kitroser’s counsel was not ineffective in realizing that this was the case
and in refraining to take an action (withdrawal of the plea) which would very
likely have resulted in a materially worse outcome for Kitroser.
CONCLUSION
In connection with this motion, this Court received a private letter from
Roman Kitroser, building upon themes discussed at his sentencing and
providing information concerning both the lessons he has learned as a result of
this prosecution and his abiding hope that his young son chooses a different
path. The undersigned is gratified to receive the letter, and was deeply moved
by its contents.
The fact remains that Kitroser has not identified a basis to vacate his
prior conviction or sentence. The arguments he now makes studiously avoid
34
reference to the two years’ worth of investigative efforts undertaken
independently of the California Wiretap. Separately, however much Kitroser
has grown while incarcerated, the fact remains that his involvement in
narcotics trafficking was more widespread, and carried greater risks to coconspirators and to the public, than any other narcotics defendant the Court
has sentenced. The Court’s below-Guidelines sentence adequately balanced
the danger (from both the narcotics and the weapons) caused by Kitroser and
the possibility of his reform. The Court sees no basis in the law to disturb that
sentence.
Kitroser’s motion under 28 U.S.C. § 2255 is DENIED. A certificate of
appealability shall be not granted, because Kitroser has not made a substantial
showing of a denial of a federal right and appellate review is, therefore, not
warranted. Hoffler v. Bezio, 726 F.3d 144, 154 (2d Cir. 2013); Tankleff v.
Senkowski, 135 F.3d 235, 241 (2d Cir. 1998).
The Clerk of Court directed to terminate all pending motions, adjourn all
remaining dates and close this case.
SO ORDERED.
Dated:
October 22, 2019
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
35
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