Moreno-Godoy v. United States
| Decision Date | 20 March 2014 |
| Docket Number | 07 Cr. 354,13 Civ. 2383 (JSR) (GWG) |
| Parties | LUIS FELIPE MORENO-GODOY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND
RECOMMENDATION
Luis Felipe Moreno-Godoy was convicted by a jury on November 20, 2008, of conspiracy to kill United States nationals (18 U.S.C. §§ 2332(b), 3238); conspiracy to kill officers and employees of the United States (18 U.S.C. §§ 1114, 1117, 3238); conspiracy to acquire and use anti-aircraft missiles (18 U.S.C. §§ 2332g(a)(1), 2332g(b)(4), 3238); conspiracy to provide material support or resources to designated foreign terrorist organizations (18 U.S.C. §§ 2339B(a)(1), 2339B(d)(1)(E), 3238); and money laundering (18 U.S.C. § 1956(a)(3)). On February 24, 2009, United States District Judge Jed Rakoff sentenced Godoy to 300 months in prison. The United States Court of Appeals for the Second Circuit affirmed the judgment of conviction on October 24, 2011. Godoy, who is currently in prison serving his sentence, has petitioned this Court pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.1For the reasons stated below, Godoy's petition should be denied.
Godoy and co-conspirators Monzer Al Kassar and Tareq Mousa Al Ghazi were indicted for the following offenses: (1) conspiracy to kill United States nationals in violation of 18 U.S.C. §§ 2332(b), 3238; (2) conspiracy to kill officers and employees of the United States in violation of 18 U.S.C. §§ 1114, 1117, 3238; (3) conspiracy to acquire and use anti-aircraft missiles in violation of 18 U.S.C. §§ 2332g(a)(1), 2332g(b)(4), 3238; (4) conspiracy to provide material support or resources to a foreign terrorist organization in violation of 18 U.S.C. §§ 2339B(a)(1), 2339B(d)(1)(E), 3238; and (5) money laundering in violation of 18 U.S.C. § 1956(a)(3). See Third Superseding Indictment, filed June 21, 2007 (Docket # 7 in 07 Cr. 354) ("Indictment"). In a section called "Background to the Conspiracy," the Indictment alleged:
Since in or about the early 1970s [Kassar] has been an international weapons trafficker [who] has been a source of weapons and military equipment for armed factions engaged in violent conflicts around the world [including] such factions in Nicaragua, Brazil, Cyprus, Bosnia, Croatia, Somalia, Iran, and Iraq. . . . Luis Felipe Moreno Godoy, the defendant, has worked with [Kassar] in his weapons-trafficking business for approximately the last 10 years [and] [d]uring this time period, [Godoy's] role has included managing financial matters for Al Kassar, including arranging for various bank accounts to be used to conduct weapons transactions.
The Indictment alleged that Godoy, Kassar, and Ghazi had agreed to provide the international terrorist group Fuerzas Armadas Revolucionarias de Colombia ("FARC") with "millions of dollars worth of weapons to be used, among other things, to kill nationals of the United States in Colombia." See id. at 5. The indictment contained details of a Governmentsting operation beginning in February 2007 in which "[Kassar] and [Ghazi] met with two confidential sources working with the United States Drug Enforcement Agency (the 'DEA') at [Kassar's] residence in Marbella, Spain, and discussed the sale of millions of dollars worth of weapons to the FARC." Id. at 6. The confidential sources told Kassar and Ghazi that "they represented the FARC, and that the FARC needed weapons to fight against the United States in Colombia," to which Kassar allegedly replied that "his fight was also with the United States, and agreed to sell weapons to the FARC." Id. Kassar "offered to send 1,000 men to the [confidential sources] to fight with the FARC against United States military officers in Colombia, and also offered to supply the [confidential sources] with C4 explosives, detonators, and experts to train the FARC to use them against these United States armed forces." Id. at 7-8.
According to the indictment, on March 27, 2007, Kassar, Godoy, and Ghazi met with the confidential informants to further discuss the sale of the weapons and also to discuss the sale of "surface-to-air missile systems for the FARC to use to attack United States helicopters in Colombia." Id. at 10. Also on that day, Godoy allegedly "transported the [confidential sources] to an Internet café to permit [them] to transfer €100,000 from the United States . . . to secure . . . transportation services for the weapons." Id. at 11. On April 5, 2007, Kassar and Godoy allegedly "received an email that had been drafted by [the confidential source] that asked [Kassar] and [Godoy] . . . to obtain 15 of the surface-to-air missile systems [Kassar] had previously shown to the [confidential sources]," and Kassar then called the confidential source on the telephone and "agreed to provide [him] with the surface-to-air missile systems [that he] had requested." Id. at 12-13. On May 2, 2007, Kassar and Godoy allegedly met with one of the confidential sources "and discussed the logistics of transporting the weapons." Id. at 13. On May 19, 2007, Kassar agreed to meet with the confidential source in Romania as soon as theconfidential source had access to €3,500,000 to pay for the weapons. Id. at 16.
On June 7, 2007, United States Drug Enforcement Administration ("DEA") agents obtained a provisional arrest warrant and arrested Godoy in Bucharest, Romania. See Trial Transcripts, filed Dec. 3, 2008 (Docket ## 101, 102, 103, 168 in 07 Cr. 354) ("Tr."), 378-80. In July 2007, the Government submitted affidavits to the court in support of Godoy's extradition from Romania. See Affidavits in Support of Request for Extradition (annexed as Ex. 4 to Godoy Pet.). Collectively, these affidavits recounted the factual details regarding the FARC weapons agreement, explained the charges brought against Godoy in the Indictment, and summarized evidence that the Government had obtained in support of these charges. On October 16, 2007, the Romanian government agreed to extradite Godoy and delivered him into the custody of United States DEA personnel. See DEA Report of Investigation, dated Oct. 30, 2007 (annexed as Ex. 7 to Godoy Pet.). Godoy was then brought to the United States and placed in the Special Housing Unit ("SHU") of the Metropolitan Correctional Center ("MCC") in New York City. See Letter from Roger Stavis to MCC, dated Feb. 19, 2008 (annexed as Ex. 9 to Godoy Pet.) ("Stavis MCC Letter"). On October 18, 2007, Godoy was arraigned on the Indictment. See Minute Entry for Proceedings Held Before Judge Jed S. Rakoff, dated Oct. 18, 2007 (Docket for 07 Cr. 354).
At the time of his arraignment, Godoy was represented by Jennifer Brown of the Federal Defenders. See id. On January 7, 2008, Godoy signed a stipulation for substitution of counsel which appointed Roger Stavis as his new attorney. See Stipulation for Substitution of Counsel, filed Jan. 10, 2008 (Docket # 19 in 07 Cr. 354). On April 10, 2008, Judge Rakoff held a hearing pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), to determine if there was aconflict of interest with Stavis representing Godoy, and if so, whether Godoy wished to waive the conflict. See Transcript of Proceedings Held Before Judge Jed S. Rakoff, dated Apr. 10, 2008 (annexed as Ex. B to Gov't Mem.) ( ). At the hearing, Stavis testified that Godoy's co-defendant, Kassar, had paid him to represent Godoy throughout the criminal proceedings. See C. Hr. 21. Stavis stated that he told this to Godoy, and Godoy "was very pleased about that" because he "would not have to pay [any] fees." Id. Stavis further explained that he did not think that it "matter[ed] that Mr. Al Kassar or people associated with him were responsible for the fees [because Stavis's] loyalty would only run to [Godoy] and [he] wouldn't do anything to damage him in order to please Mr. Al Kassar." C. Hr. 21-22. Additionally, Stavis stated he would have no financial incentive to please Kassar because his fees had already been "fully paid" by Kassar, and therefore, Kassar had "no further financial obligation toward [him] whatsoever." C. Hr. 22. Godoy then testified that he remembered having such conversations with Stavis. C. Hr. 23. Judge Rakoff explained to Godoy the possibility that he would have to take an adverse position to Kassar at trial and asked Godoy whether he would still be comfortable with Stavis representing him in such a situation. C. Hr. 24. Godoy replied that he would still be "[c]ompletely satisfied" and that he had no questions in his mind about Stavis's loyalty. Id. Based on Stavis and Godoy's testimony, Judge Rakoff concluded, "I am totally satisfied that there is neither an actual nor even a potential conflict and that [Godoy] fully understands the entire situation and recognizes that, if there were even the slightest conflict, they should bring it to the attention of the Court; and that they are totally comfortable with their current counsel and feel no need and have expressed no need to consult with separate counsel." C. Hr. 26. Judge Rakoff then acknowledged the fact that and therefore, "there is no economic disincentive to [Godoy or Stavis] taking any position adverse to Mr. Al Kassar." Id.
Finally, Judge Rakoff informed Godoy that "should at any future time [he have] misgivings in this area that have not come out for some reason or that develop as a result of future activity, [he is] to personally bring them directly to the attention of the Court so that the Court can inquire further at such a time." C. Hr. 26-27. Godoy has not alleged in his § 2255 petition that he...
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