Triana v. USA, 1861

Citation205 F.3d 36
Decision Date01 August 1999
Docket NumberNo. 1861,Docket No. 98-2952,1861
Parties(2nd Cir. 2000) LUIS TRIANA, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

DARRELL B. FIELDS, New York, NY (Legal Aid Society, Federal Defender Division, Appeals Bureau, on the brief), for Plaintiff-Appellant.

EMILY BERGER, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Paul Schoeman, Assistant United States Attorney, on the brief), for Defendant-Appellee.

Before: JACOBS, McLAUGHLIN, and PARKER, Circuit Judges.

JACOBS, Circuit Judge:

Luis Triana, who was convicted in federal court for offenses arising out of a scheme to import cocaine, appeals from an order of the United States District Court for the Eastern District of New York (Korman, J.) denying his motion to vacate his conviction. Triana contends that his Sixth Amendment right to counsel was violated because both his lawyers had conflicts of interest:

(i) As to lawyer Luis Beltre, it is apparently undisputed that he was a participant in the same cocaine importation scheme from which Triana's charges arose.

(ii) As to Jerald Levine, Esq., who has testified that he does not know who paid his fees for Triana's defense, Triana argues that (a) Levine's disclaimer as to the source of his fee is inherently implausible, (b) Levine therefore also must have had a divided loyalty, and (c) this conflict of interest adversely affected Triana's defense.

It is undisputed that the trial was conducted almost entirely by Levine, and that Beltre's services at trial were negligible. We affirm, because, (i) as to Levine, who actively conducted Triana's defense, the evidence does not support the allegation that he had a conflict, and (ii) as to Beltre, although he had an actual conflict of interest, he had no more than a negligible role at trial. In short, Levine labored under no conflict, and Beltre had a conflict but labored not.

BACKGROUND
A. The Conviction

During 1989, Triana held himself out as the president of Arenal, Inc., a firm with locations in Philadelphia, Pennsylvania, and Long Island City, New York, that was ostensibly in the business of importing sodium hydroxide, known as "caustic soda." In fact, Arenal was a front for cocaine importation. The organization concealed cocaine in the bottom of drums filled with caustic soda, imported the drums to the United States through Philadelphia, and then shipped them by truck to New York. On November 4, 1989, United States Customs Agents searched the Arenal warehouse in New York and seized five tons of cocaine.

Triana was charged with conspiracy to import cocaine, in violation of 21 U.S.C. 952(a), 963 (1988); conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1), 846 (1988); and possession of cocaine with intent to distribute, 21 U.S.C. 841(a)(1) (1988).

At the jury trial before Judge Korman in the Eastern District of New York, Levine and Beltre both appeared for Triana. The thrust of Triana's defense was that he was a legitimate businessman associated with a number of enterprises, and he did not know that Arenal was being used as a front for the importation of illegal drugs.

The government presented evidence that Triana was the president of Arenal (as well as another front corporation) and that he arranged for the purchase by Arenal of a suction machine that was capable of removing the surrounding caustic soda from the drum so that the conspirators could isolate and remove the cocaine. For reasons that are disputed on the present appeal, Triana did not testify in his defense. He was convicted on August 7, 1991, and his conviction was affirmed without opinion on direct appeal to this Court. See United States v. Lopez, 993 F.2d 1534 (2d Cir. 1993) (unpublished table decision). On September 24, 1992, Triana was sentenced to three concurrent terms of 292 months' imprisonment followed by five years of supervised release, a sentence that was later reduced.

B. The Habeas Proceeding

On July 19, 1994, Triana, pro se and incarcerated, filed a motion to vacate his conviction pursuant to 28 U.S.C. 2255, claiming that conflicts of interest on the part of his trial counsel rendered their assistance constitutionally ineffective, and (in particular) nullified his right to testify in his own defense. Counsel appointed by Judge Korman prevailed on a motion for resentencing, upon which Triana's sentence was reduced (on February 9, 1996) to 168 months in prison and five years of supervision. On June 10, 1996, Judge Korman referred the habeas proceeding to Magistrate Judge A. Simon Chrein for preparation of a report and recommendation on the conflict of interest issues. The magistrate judge conducted a three-day evidentiary hearing early in 1997.

The facts stated here are drawn from the testimony at the hearing, as found by the magistrate judge, or are essentially undisputed.

Triana originally tried to retain Barry Schulman, Esq. Schulman, who was representing another defendant in the same action, may have recommended Levine to Marta Parra, a friend of Triana's. Levine testified that he initially learned of Triana and his arrest in a phone call from Parra, whom he knew from a prior retention. In any event, Levine appeared on Triana's behalf at the arraignment, and informed Triana "I'm your lawyer." Later, in a meeting with Triana at the Metropolitan Correctional Center ("MCC"), Levine quoted a fee of $80,000. Triana said he could not afford to pay it, but told Levine to see if any of Triana's friends could help pay the fee.

To this end, Levine talked to Parra several times. At one point, Levine dialed a phone number in Colombia and spoke to a party who said that "they were helping Mr. Triana out on the case." Levine asked that $50,000 be wired to his bank account to start the defense, and the money arrived shortly thereafter. Levine was unable to recall the name of the person with whom he spoke or how he had gotten the phone number. Nor does he know who sent the money, except that the money was not given to him by Beltre. Levine emphasized, however, that he "did not discuss the case or how he should defend the case with the unknown payor." The Colombian phone number was later disconnected, and the $30,000 balance of Levine's fee was never paid.

Levine assumed that the unknown source of funds was a close friend of Triana's, one Luis Delio Lopez. Levine believed that Lopez was the head of the Colombian organization that supplied Arenal with narcotics, and thus Triana's ultimate employer. Triana testified that he too assumed that Lopez was the source of the money.

Beltre's appearance is more mysterious. Beltre first materialized several days after the arraignment in a meeting at the MCC, during which he assured Triana that he "was in charge of paying the lawyers' fees." According to DEA Special Agent Peter Reilly, Beltre appeared as Triana's counsel at the behest of Ramon Velasquez, who allegedly headed the narcotics distribution organization that employed Triana directly. Beltre's usual employment for Velasquez was money-laundering, but his role in Triana's defense was to protect Velasquez's interests by monitoring the evidence for any risk to Velasquez. Triana testified that he learned from government agents during a proffer session that Velasquez and his brother provided half the financing for the five-ton cocaine shipment and that Velasquez's half-brother set up Arenal's New York operation.

Levine testified that Beltre entered the case after Levine, that he did not know how Beltre was retained, and that he never enlisted Beltre to contact Triana's benefactors about the unpaid $30,000 balance owing to Levine.

In 1992, Beltre was indicted, along with Velasquez and others, in the Eastern District of New York on charges related to cocaine importation. Beltre was murdered two days after Velasquez's lawyer was advised that Beltre was cooperating with the government.

After the hearing, the magistrate judge issued his report and recommendation, which accurately recited the applicable principles of law, and concluded:

(i) that, although Levine may have been paid by some party (known or unknown) who had in mind some interests other than Triana's, Triana failed to make the requisite showing that Levine's interests diverged from Triana's as to a material factual or legal issue or a course of action; and

(ii) that Beltre "had no influence over Levine's decision to counsel Triana not to testify," and that "there [was] no evidence that Beltre had any input into the strategic decisions made during the defense of Triana's criminal case."

The magistrate judge therefore recommended that the 2255 motion be denied. Judge Korman adopted the Report and Recommendation on October 20, 1998.

On this appeal, Triana makes two claims of error bearing on his Sixth Amendment right to counsel. First, Triana claims that Levine labored under a conflict of interest that adversely affected his representation of Triana, as manifested by Levine's desire to keep Triana from testifying in his own defense. Second, Triana asserts that Beltre's membership in the Velasquez conspiracy was a conflict of interest that constituted a per se violation of Triana's right to counsel, and requires automatic reversal of the conviction.

DISCUSSION

This Court has jurisdiction pursuant to 28 U.S.C. 1291 and 2255. The notice of appeal was timely filed on October 22, 1998, soon after denial of the motion.

In the 2255 context, this Court reviews "factual findings for clear error" and ...

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