Castro v. United States

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: SPATT, District Judge.
• Citation: Castro v. United States, 55 F.Supp.3d 471 (E.D. N.Y. 2014)
• Decision Date: 29 October 2014
• Docket Number: No. 12–cv–5024 ADS.,12–cv–5024 ADS.
• Parties: Ledwin CASTRO, Petitioner, v. UNITED STATES of America, Respondent.

55 F.Supp.3d 471

Ledwin CASTRO, Petitioner

v.UNITED STATES of America, Respondent.

No. 12–cv–5024 ADS.

United States District Court, E.D. New York.

Signed Oct. 29, 2014.

Ledwin Castro, Inez, KY, Pro Se.

United States Attorney for the Eastern District of New York Central Islip, N.Y. by John J. Durham, Charles N. Rose, Assistant United States Attorneys, for the Respondent.

DECISION AND ORDER

SPATT, District Judge.

On January 29, 2014, 993 F.Supp.2d 332 (E.D.N.Y.2014), the Court issued a Memorandum of Decision and Order that dismissed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, filed by the presently incarcerated Petitioner Ledwin Castro (the “Petitioner”) pro se, on the ground that he was denied his constitutional right to effective assistance of counsel in his federal trial.

Presently pending before the Court is the Petitioner's motion pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 59(e) to alter or amend the January 29, 2014 order. For the reasons that follow, that motion is denied.

I. BACKGROUND

A. The Drive–By Shootings and the Arrest

The Petitioner is an admitted member of MS–13, a nationwide criminal gang organized into local subunits referred to as “cliques.” David Vasquez was a member of a Long Island clique headed by the Petitioner known as the Freeport Locos Salvatruchas. The evidence at the first trial showed that, on June 18, 2003, the Petitioner, along with several others, including Vasquez, Ralph Admettre, and Nieves Argueta, drove to a laundromat in Hempstead to search for members of SWP, a rival gang. From a van parked in a gas station parking lot across the street, Vasquez opened fire on a crowd outside the laundromat, wounding Ricardo Ramirez and Douglas Sorto.

Less than an hour later, the Petitioner and the others traveled to a delicatessen in Freeport where they encountered a group of young black men that they believed to be members of the Bloods, another rival gang. At Vasquez's urging, Argueta shot Carlton Alexander seven times in the back. Despite being struck by multiple gunshots, Alexander survived. Between July 10, 2003 and July 17, 2003, the Nassau County Police Department arrested the Petitioner, Vasquez, Admettre, and Argueta for their roles in the shootings.

Following the Petitioner's arrest, he and his defense counsel met with then Nassau County Assistant District Attorney Frank X. Schroeder. Based upon these discussions, the Nassau County District Attorney's Office (“NCDAO”) determined that the Petitioner was willing to provide important information concerning the homicide death of Jaime Figueroa. Ultimately, the NCDAO offered the Petitioner the opportunity to plead to a lesser charge in connection with the June 18, 2003 shootings in exchange for his cooperation in the Figueroa homicide prosecution. Pursuant to this agreement, the NCDAO called the Petitioner as a witness in a grand jury proceeding related to the Figueroa homicide. Before the grand jury, the Petitioner testified that he was a member of MS–13 and stated that Johnny Rodas and Mario Jimenez, fellow MS–13 gang members, admitted to him that they murdered Figueroa.

On May 12, 2004, former ADA Schroeder was cross-designated to serve as a Special Assistant United States Attorney to assist in the United States Attorney's Office's investigation of MS–13.

B. Indictment and the First Trial

Meanwhile, in February 2004, a federal grand jury indicted the Petitioner and thirteen others for various offenses stemming from a series of violent incidents on Long Island between August 2000 and September 13, 2003. A superseding indictment (the “Indictment”) was returned on June 23, 2005. The Indictment described MS–13, or “La Mara Salvatrucha,” as a gang that originated in El Salvador but had members throughout the United States. It accused the defendants of being members of MS–13, and it alleged that MS–13 members “engaged in criminal activity” in order to increase their position within the organization. According to the Indictment, MS–13 constituted an “enterprise” under 18 U.S.C. § 1959(b)(2) because it was an ongoing organization the activities of which affected interstate commerce. Furthermore, the Indictment stated that MS–13 engaged in two forms of racketeering activity under 18 U.S.C. § 1961(1) : (1) acts and threats involving murder as defined by New York State law, and (2) narcotics trafficking as defined by federal law.

The Indictment charged the Petitioner with ten counts. Count One charged him with conspiracy to commit assaults with a dangerous weapon in order to maintain and increase his position within the MS–13 racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(6). Counts Six, Seven, and Eight charged the Petitioner with assault with a dangerous weapon in order to maintain or increase his position in the MS–13 racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(3). Counts Twelve, Thirteen, and Fourteen accused the Petitioner of discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The Indictment identified the relevant crimes of violence as the assaults charged in Counts Six, Seven, and Eight. Finally, Counts Seventeen, Eighteen, and Nineteen charged the Petitioner with using an explosive to commit a felony—the felonies being the assaults charged in Counts Six, Seven, and Eight—in violation of 18 U.S.C. § 844(h)(1).

Judge Leonard D. Wexler of the Eastern District of New York, who was originally assigned to the criminal case, severed the charges against the Petitioner and co-defendant Vasquez from the charges against some of their co-defendants. The remaining co-defendants pleaded guilty to assault. The Petitioner, and Vasquez, proceeded to trial. During the course of the trial, which took place between July 19, 2005 and July 26, 2005, the Government called Hector Alicea, an officer with the New York State Police, as an expert witness. In particular, Alicea testified with regard to MS–13's history, structure, and modes of communication.

The Government also called the three shooting victims, Admettre, and another co-defendant to testify against the Petitioner and Vazquez. In addition, the Government offered into evidence telephone records, the gun used in the shootings, ballistics reports, and the Petitioner's post-arrest confession.

C. The First Jury Verdict and Sentencing

Of relevance here, on July 26, 2005, the jury found the Petitioner guilty on all ten counts. In a special verdict, the jury further found that MS–13 was an enterprise that affected interstate commerce; that MS–13 engaged in acts and threats of murder; that the Petitioner was a member of the MS–13 enterprise; and that the Petitioner had participated in the conspiracy to assault and in the charged assaults in order to maintain or increase his position within MS–13. However, the jury failed to find that MS–13 engaged in the racketeering activity of narcotics trafficking.

One week later, the Petitioner asked the district court to set aside the verdict and enter a judgment of not guilty pursuant to Federal Rule of Criminal Procedure (“Fed.R.Crim.P.”) 29, or in the alternative, to vacate the judgment and order a new trial pursuant to Fed.R.Crim.P. 33. First, he claimed that the jury's failure to find that MS–13 engaged in narcotics trafficking was fatal to the verdict because the Indictment had not pleaded the two racketeering activities (murder and narcotics trafficking) in the alternative. Second, he argued that the proof of MS–13's involvement in murder was insufficient. Third, he asserted that the Government had failed to prove that the MS–13 enterprise had an existence separate from the charged offenses. The district court docket does not indicate when or how the district court denied the motion, but that it did so is clear from the progression of the case to sentencing.

On January 6, 2006, the district court sentenced the Petitioner principally to 60 years plus 1 day of imprisonment. The 1 day consisted of concurrent 1–day sentences for the conspiracy count (Count One) and the three assault charges (Counts Six, Seven, and Eight).

D. The First Appeal

On appeal, the Petitioner contended, among other things, that the district court erred in allowing the Government to call Alicea as an expert witness and that Alicea's testimony violated the Federal Rules of Evidence and the holding of the Supreme Court of the United States in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). He also contended that the Government failed to prove that MS–13 was a racketeering enterprise.

On October 6, 2008, the Second Circuit vacated the conviction of the Petitioner and remanded the case to the District Court, finding that Alicea's testimony violated the Confrontation Clause of the Sixth Amendment and Fed.R.Evid. 703 because Alicea had taken out of court statements obtained from MS–13 members during custodial interrogations and conveyed the substance of those statements to the jury. United States v. Mejia, 545 F.3d 179, 199 (2d Cir.2008). The Second Circuit concluded that, under the circumstances, Alicea was “simply summarizing an investigation by others that [was] not part of the record and presenting it in the guise of an expert opinion.” Id. (internal quotation marks and citations omitted). The Second Circuit further found that admitting Alicea's testimony was not harmless error because his testimony bore heavily on the material issues of whether MS–13 was an enterprise and whether the gang had engaged in acts and threats of murder. Id. at 200.

E. The Second Jury Verdict and Sentence

On remand, the criminal case was reassigned to this Court.

At the second trial, the Petitioner was represented by Peter J. Tomao, Esq. and Michael Annibale, Esq. Following a re-trial, on October 14, 2009, a jury convicted the Petitioner on all seven counts charged in the Third Superseding Indictment. In particular, he was convicted of conspiracy to commit assault with a dangerous weapon, 18...