U.S. v. Santiago

• Decision Date: 08 February 2007
• Docket Number: No. CR No. 05-30020-MAP.,CR No. 05-30020-MAP.
• Parties: UNITED STATES of America v. Eddie SANTIAGO, Defendant.
• Court: U.S. District Court — District of Massachusetts

474 F.Supp.2d 209

UNITED STATES of America v. Eddie SANTIAGO, Defendant.

No. CR No. 05-30020-MAP.

United States District Court, D. Massachusetts.

February 8, 2007.

Vincent A. Bongiorni, Springfield, MA, for Defendant.

Ariane D. Vuono, Todd E. Newhouse, William M. Welch, II, United States Attorney's Office, Springfield, MA, for United States of America.

MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO STRIKE THE GOVERNMENT'S INFORMATION

(Docket No. 50)

PONSOR, District Judge.

On July 27, 2006, Defendant was convicted of possessing with intent to distribute fifty grams or more of cocaine base in the form of crack cocaine. Prior to his conviction, the government filed an information pursuant to 21 U.S.C. § 851(a)(1), notifying Defendant of its intent to rely upon three prior felony drug convictions to increase Defendant's minimum mandatory sentence from ten to twenty years. (See Dkt. No. 19, Information 1.) Since filing this information, the government has conceded that only one of these previous offenses — a February 10, 1999 state-court conviction for possession with intent to distribute a Class B substance — may serve as a sentencing enhancer. Defendant has filed a motion challenging the validity of this conviction on the grounds that: (1) the government cannot demonstrate beyond a reasonable doubt that he was the individual convicted of this crime; or (2) the conviction "was obtained in violation of the Constitution of the United States." 21 U.S.C. § 851(c)(2).

On January 3 and January 4, 2007, the court heard testimony bearing on the motion from five witnesses. Having now had an opportunity to consider this evidence, the court will allow Defendant's motion to strike the government's information. Although the government satisfied its burden of proving beyond a reasonable doubt that Defendant was the person previously convicted of the state-court offense in question, Defendant has proved by the preponderance of the evidence that this prior conviction was constitutionally impaired.

The background facts are relatively straightforward.¹ Springfield police officer Miseal Rodriguez testified that on the evening of September 9, 1997, he observed Defendant, with others, conducting a series of what appeared to be illegal drug transactions in front of 69 Clyde Street for a period of approximately one hour. Officer Rodriguez conceded that he made these naked-eye observations after sunset from a location within an adjacent park more than 100 yards away. Nevertheless, he testified that, based on prior contacts, he was certain that Defendant was the individual conducting these apparent drug transactions.

After Officer Rodriguez made his observations, his partner confronted the group at Clyde Street, and Defendant along with others fled into the park. Rodriguez gave chase and eventually apprehended Defendant and placed him under arrest. Defendant had no drugs or money on his person at the time of his arrest, and there was no evidence, other than Rodriguez's observations, linking Defendant to the Clyde Street drug dealing. Following Defendant's arrest, a bag of cocaine was found near the base of a tree in the park, but no evidence connected Defendant to these drugs.²

During the two-day evidentiary hearing, Defendant and another witness named Luis Ortiz testified that on September 9, 1997, Defendant, Ortiz, and another individual named Angel Rivera did not arrive at 69 Clyde Street until two or three minutes before Defendant's arrest. Thus Defendant could not have been involved in drug dealing for the hour before Rodriguez's partner confronted the group on Clyde Street.³ Defendant also presented the testimony of Julio DeJesus, who was himself arrested and charged along with Defendant for possessing the drugs in question. During the hearing, DeJesus confessed that he alone was responsible for the cocaine found in the park, and he corroborated the testimony of Defendant and Ortiz to the effect that Defendant did not arrive at 69 Clyde Street until minutes before the arrest.

Finally, Defendant offered the testimony of the defense attorney Mickey Harris, who was appointed to represent Defendant following his indictment by a Hampden County Superior Court grand jury. Counsel testified that Defendant initially maintained his innocence and provided the names and addresses of a number of individuals, including Ortiz, who, Defendant asserted, could corroborate his claim that he was innocent of any involvement in the Clyde Street drug dealing.

The docket supplied by the government reveals that Defendant's case was repeatedly set for trial and continued throughout 1998. Each time a trial date approached, Defendant testified that he would attempt to find his alibi witnesses and convince them to accompany him to court.

Although he placed Ortiz and two other individuals on a list of potential witnesses he filed on October 7, 1998 (Dkt. No. 19, Information 9), Counsel conceded that he never subpoenaed, or even spoke to, any witness identified by Defendant or brought by Defendant to court. Counsel also acknowledged that he never filed a motion to suppress the cocaine or sought to obtain discovery to ascertain the exact location from which Officer Rodriguez claimed to have made his observations.⁴

Given the fact that his files from this era were unavailable, Counsel explained during the hearing before this court that he was not entirely sure why he made these decisions. He did state, however, that he recalled coming to the conclusion that the potential witnesses identified by Defendant were "thugs," lacking in credibility.⁵ Although the government argued that Counsel could have taken a view of the location from which Officer Rodriguez made his observations and/or interviewed potential alibi witnesses even after the trial commenced, Counsel did not testify that he intended to do either.

On December 29, 1998, the assistant district attorney assigned to Defendant's case was not available, and the trial scheduled for that day was continued to February 10, 1999. (Dkt. No. 19, Information 5.) Counsel testified that in the days following this continuance Defendant indicated for the first time his willingness to accept a plea bargain, previously negotiated by Counsel, which would result in a relatively lenient sentence of six months in the house of correction.⁶ In contrast, Defendant testified credibly that the thought of pleading guilty did not occur to him until days before the February trial date, when it became clear that Counsel's deficient pretrial preparation would inevitably result in Defendant's conviction and the imposition of a three-year minimum mandatory sentence.

On February 10, 1999, Defendant pled guilty and was sentenced to two and one-half years in the house of correction — six months to be served and the balance suspended. Defendant now contends that the representation afforded by Counsel in this state-court proceeding fell below the level of effectiveness required by the Sixth Amendment.

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court held that the two-part test to establish ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), "applies to challenges to guilty pleas." Hill, 474 U.S. at 58, 106 S.Ct. 366; see also United States v. Colon-Torres, 382 F.3d 76, 86 (1st Cir.2004). Under Hill, a defendant must show that his attorney's performance fell below an objective standard of reasonableness, and "but for counsel's errors," there is "a reasonable probability" that "he would not have pleaded guilty and would have insisted on going to trial." 474 U.S. at 5, 106 S.Ct. 3669.

[W]here the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.

Id. In this circuit, "[a] claim of ineffective preparation requires ... specific allegations concerning the facts or defenses which counsel would have uncovered had he been prepared," Blanco v. United States, 995 F.2d 1061 (1st Cir.1993) (per curiam) (internal quotation marks and citations omitted), and it is the defendant's burden "to demonstrate ineffective assistance by a preponderance of the evidence," Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993) (citations omitted).

Defendant's first argument is that Counsel rendered ineffective assistance in failing to file a motion to suppress the cocaine found in the park. This contention carries no weight. By the time Defendant was arrested in 1997, it was well settled in Massachusetts that individuals "have only a very limited expectation of privacy with respect to an area used routinely by others." Commonwealth v. Welch, 420 Mass. 646, 654, 651 N.E.2d 392 (1995) (citation omitted). Since it is unlikely that any Commonwealth court would have been willing to suppress contraband found in a public park, counsel's decision not to seek suppression is entitled to a "heavy measure of deference." Colon-Torres, 382 F.3d at 86 (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052); see also United States v. Pellerito, 968 F.2d 1210 (1st Cir.1992) (per curiam) (refusing to fault counsel's failure to file motion to suppress in absence of "showing that any valid ground of suppression was available").

Counsel's decision not to subpoena or even interview crucial, available alibi witnesses is altogether different. Here, the court finds that the performance of Counsel did fall below an objective standard of reasonableness.⁷

In Dugas v. Coplan, 428 F.3d 317 (1st Cir.2005), the First Circuit found that...