Castro v. U.S.

• Decision Date: 28 February 2003
• Docket Number: No. 91-708-CR.,No. 98-324-CIV.,98-324-CIV.,91-708-CR.
• Parties: William CASTRO Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of Florida

248 F.Supp.2d 1170

William CASTRO Movant, v. UNITED STATES of America, Respondent.

No. 98-324-CIV.

No. 91-708-CR.

United States District Court, S.D. Florida.

February 28, 2003.

COPYRIGHT MATERIAL OMITTED

Lawrence Lavecchio, Asst. U.S. Atty., Fort Lauderdale, FL, for Plaintiffs.

Maria del Carmen Jimenez, Esq., Miami, FL, for Defendants.

ORDER

GONZALEZ, District Judge.

THIS MATTER has come before the Court upon the third and fourth amended motions (DE #24, 47)—filed August 8, 1998 and September 7, 1999, respectively—to vacate, set aside, or correct the conviction and sentence, pursuant to 28 U.S.C. § 2255, of Movant William Castro ("Movant").¹ The Court referred this matter to the Magistrate, and the Magistrate issued two Reports and Recommendations (DE # 41, 58), on December 23, 1998 and March 23, 2000, respectively (collectively, the "R and R"), recommending that the Motion be denied.

For the reasons stated herein, after a de novo review of the record in this case, the Court adopts the Magistrate's recommendation; the Court therefore ORDERS and ADJUDGES that the Motion is DENIED.

I. Background.

Movant is one of nine co-defendants convicted as a result of "Operation Court Broom." The facts of Operation Court Broom have been well recounted in several published Eleventh Circuit opinions², so only those facts essential to the Court's ruling on the instant Motion will be recounted here.

Operation Court Broom was an investigation, undertaken by federal and state law enforcement officials, into corrupt activities occurring in Dade County Florida Circuit Court, roughly between August 1989 and June 1991. In Metropolitan Dade County ("Metro Dade"), circuit court judges were empowered both to appoint criminal defense attorneys as special assistant public defenders ("SAPDs") and to approve and authorize the compensation that Metro Dade paid to the attorneys so appointed. Circuit court judges would appoint SAPDs to represent indigent defendants.

Roy T. Gelber, Alfonso C. Sepe, Harvey N. Shenberg, and Philip S. Davis were circuit court judges for the Eleventh Judicial Circuit in Metro Dade during the relevant time period. Among other unlawful activities, these judges approached various criminal defense lawyers practicing in the Eleventh Judicial Circuit and offered to appoint, or to have one of their colleagues appoint, the attorneys as SAPDs in exchange for kickbacks. Gelber approached and made such an offer to Movant—who was, by all accounts, a talented, young, criminal defense attorney at the time. The two agreed that Gelber would appoint Movant as SAPD to cases and, within a few days of the appointment, Movant would pay Gelber a sum approximating twenty percent of the attorney fees Movant could anticipate earning from Metro Dade for the representation. Between October 1989 and June 1991, Gelber appointed Movant to some sixty-four cases, for which Metro Dade, upon Gelber's authorization, paid Movant approximately $77,000. Movant paid Gelber approximately $10,000 to $12,000. Movant also recruited another lawyer, Kent Wheeler, to accept SAPD appointments from Gelber in exchange for kickbacks. Gelber appointed Wheeler to thirty-seven cases during the same period, for which Metro Dade paid Wheeler roughly $34,000.

In Operation Court Broom, the government built its case using an attorney who agreed to work undercover, presenting himself to Gelber and the other suspect judges as a corrupt lawyer representing clients in organized crime. The government's undercover agent wore a recording device and taped conversations between himself and Gelber, as well as the other judges, engaging in the kickback scheme and other illegal conduct. Gelber ultimately pleaded guilty to violating 18 U.S.C. § 1962(d), that is, conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act or "RICO", and testified at trial for the government as an unindicted co-conspirator.

Movant and eight co-defendants—three judges and five lawyers—were charged in a 106-count indictment, alleging various racketeering, extortion, mail fraud, money laundering, and bribery offenses. Movant was specifically charged with the following: in count 1, a violation of 18 U.S.C. § 1962(d) (RICO Conspiracy); in counts 6-32, violations of 18 U.S.C. §§ 1341, 1346 and 2 (honest services mail fraud); and in count 81, violations of 18 U.S.C. § 666(a)(2) (bribery concerning programs receiving federal funds). At the commencement of trial, the government dismissed count 6. The jury ultimately convicted Movant and his co-defendants on all remaining counts. Movant was sentenced to thirty-seven months of imprisonment, three years of supervised release, and a forfeiture of $77,204.00, reflecting the amount of attorney fees Movant was paid by Metro Dade as a result of the kickback scheme.

Movant and his co-defendants filed direct appeals. The issues raised by Movant et al, in his direct appeal and addressed by the Eleventh Circuit were the following:

(1) whether a material variance or misjoinder occurred; (2) whether sufficient evidence existed to establish that appellants conspired to participate in a RICO enterprise; (3) whether the district court's instructions and the prosecutor's summations constructively amended the indictment; (4) whether appellants were properly convicted of bribery under 18 U.S.C. § 666(a)(2); (5) whether appellants were properly convicted for mail fraud under 18 U.S.C. §§ 1341, 1346; (6) whether prosecutorial misconduct occurred through impermissible vouching for witness's credibility and through improper remarks; and (7) whether district court abused its discretion in excluding appellant's proffered evidence.

United States v. Castro, 89 F.3d 1443, 1449-50 (11th Cir.1996), cert. denied sub nom, Luongo v. United States, 519 U.S. 1118, 117 S.Ct. 965, 136 L.Ed.2d 850 (1997). The Court of Appeals rejected all of the appellants' arguments and affirmed Movant's and his co-defendants' convictions and sentences.

II. Procedural History and Standard of Review.

In the Motion, Movant advances in total thirteen separate grounds for error, i.e., claims for relief. The Magistrate variously found Movant's arguments to be procedurally barred or substantively without merit and, therefore, recommended that the Motion be denied. Movant timely filed extensive objections to the Magistrate's R & R, objecting to the Magistrate's recommendations as to each ground for relief advanced in the Motion.

Title 28, section 636, provides that district courts "shall make a de novo determination of those portions of the report ... to which objection is made." 28 U.S.C. § 636(b)(1); Diaz v. United States, 930 F.2d 832, 836 (11th Cir.1991). The Eleventh Circuit has stated that, "(a]s the use of the phrase de novo implies, the district court's consideration of the factual issue must be independent and based upon the record before the court." LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988).

III. Law and Analysis.

The Court has conducted an extensive de novo review of the record in this case. As a preliminary matter, the Court notes certain general rules applicable in § 2255 proceedings following direct appeals. "Generally speaking, an available challenge to a criminal conviction or sentence must be advanced on direct appeal or else it will be considered procedurally barred in a § 2255 proceeding." Mills v. U.S., 36 F.3d 1052, 1055 (11th Cir.1994) (citation omitted), cert. denied, 514 U.S. 1112, 115 S.Ct. 1966, 131 L.Ed.2d 856 (1995). A ground for error is usually "available" on direct appeal when its merits can be evaluated without further development of the factual record of the case. Id. When a defendant fails to pursue a particular available claim on direct appeal, a court considering the defendant's subsequent § 2255 motion will not consider such a claim unless the defendant can establish "cause" for the default and "actual prejudice" resulting from the alleged error underlying the claim. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir.2001) (citing United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)), cert. denied, 122 S.Ct. 2362 (2002). Further, a § 2255 movant cannot argue as the causal basis for his failure to advance an argument on direct appeal that the argument only became known to the movant due to subsequent developments in the law. See id. Likewise, a § 2255 movant cannot argue as the causal basis for the default that the argument appeared to be futile in the then prevailing legal landscape. McCoy, 266 F.3d at 1259 (citing Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). Conversely, if a defendant does raise a claim for relief on direct appeal, and a court of appeals rejects the claim advanced, the defendant usually cannot relitigate the rejected claim in a § 2255 proceeding. Mills, 36 F.3d at 1056 (citing United States v. Hobson, 825 F.2d 364, 366 (11th Cir.1987), vacated on other grounds, 492 U.S. 913, 109 S.Ct. 3233, 106 L.Ed.2d 581 (1989)).

With the foregoing rules in tow, the Court will address Movant's thirteen argued grounds for relief. For organizational purposes, the Court will address Movant's thirteen grounds for relief in groupings based upon the substantive law underlying Movant's various claims.

A. Movant's RlCO-Conspiracy-Related Grounds for Relief (1, 2, 3, 4, 9 and 12).

Movant advances six grounds for relief stemming from his conviction on count 1 of the indictment, which charged Movant with violating 18 U.S.C. § 1962(d), the conspiracy subsection of RICO. The substantive provisions defining the activities RICO prohibits— § 1962(a), (b) and (c)— proscribe certain conduct affecting enterprises through a pattern of racketeering activity. See 18 U.S.C. § 1962. Section 1962(c), the substantive RICO provision that Movant was charged with, and convicted of, conspiring to violate, provides in...