Rodriguez v. United States

• Decision Date: 08 September 2021
• Docket Number: 13-CR-85 (PKC)
• Parties: ANGELO RODRIGUEZ, Defendant, v. UNITED STATES OF AMERICA.
• Court: U.S. District Court — Eastern District of New York

ANGELO RODRIGUEZ, Defendant, v. UNITED STATES OF AMERICA.

No. 13-CR-85 (PKC)

United States District Court, E.D. New York

September 8, 2021

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Defendant Angelo Rodriguez, a prisoner in federal custody and proceeding pro se, moves for habeas relief under 28 U.S.C. § 2255.^[1] In the main, Rodriguez argues that he was denied effective assistance of counsel because his trial attorney allegedly misled him with respect to a motion to suppress certain evidence. He also argues that his trial counsel was ineffective for not objecting to a jury charge that instructed the jury that it could convict him of possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A) as long as it found that he constructively possessed the firearm. Rodriguez contends that 18 U.S.C. § 924(c)(1)(A) does not encompass constructive possession. For the reasons below Rodriguez's claims do not provide any basis for habeas relief, and his § 2255 motion is denied.

BACKGROUND

I. Defendant's Arrest

In November 2012, Rodriguez was arrested and charged with several federal crimes for his participation in and leadership of a drug trafficking organization in the greater New York City area. (See generally Complaint, Dkt 1; Superseding (S-1) Indictment, Dkt. 49.) The relevant facts, as adduced at trial, are as follows.^[2]

On the morning of November 14, 2012, an undercover agent (“UC”) with the Drug Enforcement Administration (“DEA”) received information from a confidential source that individuals in the New York City area were looking to transfer $450, 000 in alleged drug proceeds and that these individuals could be contacted at 917-573-4024 (the “4024 Number”) using a particular code word. (See Trial Tr. at 61:9-11, 66:3-69:6, 104:12-18.) The UC called the 4024 Number at approximately 9:00 a.m. and spoke with a man, later identified as Hector Gamez Parra, who told the UC that the money would be delivered in three installments, with the first delivery occurring later that day in the Bronx. (See id. at 69:7-9, 71:3-25 1008:19-1009:9.) The UC subsequently received a call from a second man using the 4024 Number, and the UC and this second individual agreed that the first delivery would occur in the parking lot of a Kmart Shopping

Center located off of the Bruckner Expressway, at Bruckner Boulevard and White Plains Road in the Bronx. (Id. at 74:11-76:11.) The second individual told the UC that another man would deliver the money. (Id. at 75:22-24.) Later that day, the UC received a call from a third man, later identified as Rodriguez's co-defendant Miguel Deasis, and the two agreed to meet at 3:00 p.m. in the designated Kmart parking lot. (See id. at 82:22-84:11, 86:3-87:2.) At approximately 3:00 p.m., Deasis and the UC met in the Kmart parking lot, and Deasis gave the UC a Kohl's shopping bag containing a yellow box. (Id. at 90:2-91:10.) Inside the yellow box were three plastic-wrapped bundles of cash, totaling approximately $150, 000. (See id. at 95:23-99:18.)

After delivering the money to the UC, Deasis, who was by himself, drove away from the parking lot in a silver 2010 Jeep Liberty. (Id. at 92:22-93:5, 94:23-95:22, 143:25-144:3.) Officers from the New York Drug Enforcement Task Force (the “Task Force”), who were conducting surveillance of the meeting, followed. (Id. at 144:4-145:3.) Deasis eventually arrived at a singlefamily home located at 249 Concord Road in Yonkers, New York, where he parked the Jeep in the driveway and went inside. (See id. at 145:4-147:1, 154:12-18.)

While Deasis was inside, the UC spoke again with Gamez Parra. (See id. at 103:6-20.) The UC asked Gamez Parra whether the remaining funds could be handed over in one delivery, instead of two separate deliveries as previously discussed. (Id.) Gamez Parra said that he would have to check and get permission to do so. (Id. at 103:21-23.) Gamez Parra also told the UC that the same person who had made the first delivery-i.e., Deasis-would be making the next delivery at the same Kmart parking lot in the Bronx. (Id. at 103:24-104:3.)

A short while later-about 40 minutes after Deasis first arrived at the house on 249 Concord Road-Deasis emerged from the house with Defendant Rodriguez, each of them carrying a box like the one Deasis had delivered to the UC earlier in the day. (Id. at 169:3-170:20.) Both men went to the passenger side of the Jeep, where they remained for several minutes, and then went back into the house emptyhanded. (Id. at 171:7-172:14.) A short while later, Deasis and Rodriguez exited the residence with a third man-Gamez Parra. (Id. at 178:3-11.) All three men spent some time on the passenger side of the Jeep. (Id. at 178:12-14.) Gamez Parra then returned inside the house while Deasis and Rodriguez drove away in the Jeep, with Deasis in the driver's seat and Rodriguez in the passenger seat. (Id. at 178:14-17, 180:10-11.) Officers from the Task Force followed and stopped the Jeep before it reached the Kmart parking lot. (Id. at 180:1-7, 201:16-203:2.) After receiving Deasis's consent to search the vehicle, the Task Force officers found, among other things, six bundles of cash totaling $300, 000, wrapped identically to the three bundles that the UC had received earlier, as well as five cell phones, including one with the 4024 Number. (See id. at 205:20-206:1, 211:14-214:18, 217:5-16, 232:11-20.)^[3] Deasis and Defendant Rodriguez were arrested and searched. (Id. at 232:21-233:6.)

Meanwhile, back at 249 Concord Road, another group of Task Force officers approached the house. (See id. at 336:11-25.) Gamez Parra, the only person at the house at that time, answered the door. (Id. at 337:1-10.) When Gamez Parra began speaking in Spanish, one of the officers who spoke Spanish took the lead in speaking with Gamez Parra. (Id. at 337:10-15.) Gamez Parra eventually allowed the officers to enter the house, told the officers that he was staying in one of the bedrooms, and gave verbal-but not written-consent for the officers to search the house. (See id. at 337:25-339:8, 381:25-382:7.) Gamez Parra then advised the officers that there was a gun in the basement. (Id. at 339:11-14.) The officers proceeded to the basement and, in a cabinet in a built-in kitchen area, found a .45 caliber handgun and a magazine of bullets. (See id. at 339:1521, 353:15-19.) In a nearby cabinet, a “half step to a step” away, the officers found 40 kilograms of cocaine. (See id. at 340:16-21, 347:13-20.)

After discovering the gun and cocaine in the basement, the officers searched the other parts of the house. (See id. at 341:8-9.) Among other things, the officers found several cell phones, a laptop computer belonging to Gamez Parra, a Food Saver machine used to heat-seal plastic wrap, multiple boxes of plastic Food Saver bags, and a ream of plastic wrap. (See id. at 341:10-342:8.) The officers also found various receipts and paperwork, including a JetBlue boarding pass showing that Gamez Parra had flown from Long Beach, California, to New York City on October 22, 2012, and a Verizon Fios bill addressed to Defendant Rodriguez at 249 Concord Road. (See id. at 362:20-363:2, 364:7-18.) After completing their search of the house, the officers arrested Gamez Parra. (Id. at 380:16-18.)

II. Pretrial Proceedings

Defendant Rodriguez, along with co-defendant Deasis, was indicted on three counts: (i) conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; (ii) conspiracy to launder money, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and (iii) unlawful possession of a firearm in furtherance of a drug trafficking crime, which carries a mandatory consecutive sentence of at least five years under 18 U.S.C. § 924(c)(1)(A)(i). (See Complaint, Dkt. 1, at 1-2; S-1 Indictment, Dkt. 49, ¶¶ 1-3.) Rodriguez was arraigned on the indictment on February 21, 2013, at which time he pleaded not guilty.^[4] (See 2/21/2013 Minute Entry, Dkt. 25.)

Prior to trial, Rodriguez-represented at the time by retained counsel Murray Richman and Thomas J. Sullivan-moved, among other things, to

Suppress[] as evidence all property seized in this case because the search and seizures of [Rodriguez]'s person and property violated his rights under the Fourth Amendment of the United States Constitution; . . .

Suppress[] all evidence derived from the illegal search and seizures as fruit of the poisoned tree under Wong Sun v. United States and Dunaway v. New York; . . .

Suppress[] evidence seized under Search Warrants as fruit of the poisonous tree or, in the alterative granting a hearing under Franks v. Delaware[.]

(Notice of Motion (“Pretrial Mot.”), Dkt. 43, at 1.)^[5] The memorandum of law in support of Rodriguez's suppression motion elaborated further that:

Rodriguez moves to suppress all physical evidence derived from the illegal searches, seizures and arrest . . . as well as the testimony of agents and officers regarding their observations, inquiries and recovery of approximately $300, 000 dollars [sic] wrapped in heat-sealed packaging in a compartment of Deasis's car. So too, regarding information agents and officers used to obtain search warrants authorizing searches of his cell phone and a piece of mail addressed to his name.

(Memorandum of Law in Support of Pretrial Motions (“Pretrial Mem.”), Dkt. 45, at 16.) At an evidentiary hearing before Judge Townes, however, Attorney Sullivan-who by that point was Rodriguez's sole attorney because Attorney Richman had withdrawn from the case (see 7/10/2014 Minute Entry)-conceded that Rodriguez did not have standing to challenge the search of, and any evidence recovered from, the house at 249 Concord Road:

SULLIVAN: And in your years as a police officer

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