United States v. Eshetu
| Docket Number | 13-cr-262 (CRC) |
| Decision Date | 08 November 2023 |
| Parties | UNITED STATES OF AMERICA, v. YONAS ESHETU, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Defendants Pablo Lovo, Joel Sorto, and Yonas Eshetu were tried by a jury and convicted of conspiracy to commit Hobbs Act robbery of a liquor store doubling as a drug stash house. In actuality this stash house was fictitious: Defendants were caught red-handed in a reverse-sting operation orchestrated by the Washington, D.C. Metropolitan Police Department (“MPD”). After the jury returned its guilty verdict and following a direct appeal, Defendants now move to vacate their convictions based on claims of ineffective assistance of counsel. They contend that their trial counsel performed below constitutional standards by failing to (1) investigate and present an entrapment defense, (2) object to the admission of Spanish-language recordings capturing Defendants' meetings with the undercover officers, and (3) seek dismissal based on selective enforcement.
The Court disagrees on all counts. For each charge of ineffective assistance, Defendants cannot satisfy Strickland v Washington's dual requirements of deficient performance and prejudice. Because this outcome is clear based on the record, an evidentiary hearing is not required. The Court will, accordingly, deny Defendants' motion to vacate their convictions.
The Court draws the following factual background from the D.C. Circuit's opinions on direct appeal, transcripts of the trial and pretrial proceedings, and other pleadings and docket entries in the case.
Back in the summer of 2012 and again in February 2013, Defendant Lovo helped his longtime friend, Jonathan Avila, obtain drugs to sell to an individual named “Santos.” See United States v. Eshetu, 863 F.3d 946, 949 (D.C. Cir. 2017) (Eshetu I). Unbeknownst to Lovo, Avila was no longer a true friend. He was now cooperating with law enforcement, and “Santos” was in reality an undercover MPD Officer named Miguel Rodriguezgil. Id. These drug transactions were the opening salvo of a reverse-sting operation designed to catch Lovo committing a crime.
The operation continued into summer 2013, but its focus shifted to a more serious transgression: conspiracy to commit an armed robbery of a liquor store and purported stash house. Id. This conspiracy came into being over the course of five meetings that summer. Id. The first took place on August 13 when Lovo and Avila broke bread with Rodriguezgil at Camino Real, a local restaurant in the Northwest quadrant of Washington, D.C. See ECF No. 191 (“Trial Day 2 Tr.”) at 166-71. At this initial encounter-which is the only one not recorded-Rodriguezgil testified that he probed Lovo's interest in committing robberies and explained that he knew a narcotics courier who could tip them off when large quantities of drugs and cash were being stashed inside a liquor store. Id. While Rodriguezgil explained that he could use a New York-based crew to handle the job, Lovo insisted there was no need to look elsewhere. Id. at 171-74. Lovo assured him that he had a “crew” that was well-suited for the job given their extensive experience robbing brothels and illegal gambling houses and their expansive stockpile of weapons. Id. at 174-76. The plotters parted ways after agreeing to reconnect in the coming days to hammer out the details. Id. at 176. Rodriguezgil then phoned Lovo two days later, and they arranged to meet the next day with the purported “drug courier”- Janice Castillo, a special agent with the United States Bureau of Tobacco, Firearms, and Explosives (“ATF”). Id. at 188-93.
This second meeting occurred on August 16 at Camino Real. Id. at 48, 55. As with all meetings that followed, this conversation was secretly recorded on both audio and video. The recording quality was poor, however, and the dialogue drifted back and forth between Spanish and English. Agent Castillo posed as a disgruntled courier for a local liquor store that trafficked large quantities of cocaine. Eshetu I, 863 F.3d at 949. Lovo actively engaged the undercover officers throughout the conversation as they plotted their scheme and, once more, reiterated that he had a crew that was well experienced in robbing brothels and gambling joints and equipped with all the weapons they might need to carry out the heist. Id.; Trial Day 2 Tr. at 73-79. Although Lovo bragged about his crew's criminal resume, he never mentioned any member by name. Trial Day 2 Tr. at 78. The parties left the restaurant with an agreement to divide the robbery proceeds equally. Id. at 84.
After more back and forth phone communication, Rodriguezgil and Lovo agreed to meet again on August 24 at another nearby restaurant. ECF No. 192 (“Trial Day 3 Tr.”) at 54. This time, Lovo brought one of his “crew” members, Defendant Sorto. Id. It was the first time Rodriguezgil had heard of Sorto. Id. at 58-61. At the meeting, Rodriguezgil informed Lovo and Sorto that the courier had concerns about their experience and was considering using a veteran squad from New York to handle the heist, id. at 78, but Lovo again touted their bona fides and insisted they were ready for the job, id. at 65-66. Lovo explained he had a variety of firearms available for the robbery, including a “TEC-9” semiautomatic pistol. Id. at 68-70. Sorto then interjected that he would be armed with a machete which, from experience, he viewed as more intimidating. Id. at 115-20. The three delved into details about the robbery's logistics and reaffirmed their pact to share evenly in the booty. Id. at 72, 94. Rodriguezgil concluded the meeting by telling the two unwitting suspects he would be in touch once he received more information from the courier. Id. at 121-22.
After speaking over the phone several days later, Lovo and Rodriguezgil met again on September 2 so Rodriguezgil could showcase the vehicle that he planned to use for the robbery. Id. at 148-59. Meeting outside a restaurant on 14th Street, Rodriguezgil popped the trunk of his minivan and allowed Lovo to examine a secret compartment which could be used to store their guns and loot. Id. Lovo seemingly approved of the proposed get-away car and repeated that his crew had its own firearms, so Rodriguezgil need not make any arrangements to procure weapons. Id. at 158.
The fifth and final meeting took place on September 5, the day of the would-be robbery. The parties had agreed to stage the operation from a storage unit outfitted to resemble a cocaine processing facility. Id. at 176-77. Rodriguezgil pulled up to the spot in the minivan he had previewed three days prior, and Lovo arrived in a rented Kia accompanied by Sorto, Defendant Eshetu, and two other men. ECF No. 193 (“Trial Day 4 Tr.”) at 9-10. This was the first Rodriguezgil had heard of Eshetu and the first time he learned the identities of Lovo's other crew members. Id. at 18. Before entering the storage unit, Rodriguezgil placed a gun inside the van's secret compartment and directed the others to do the same. Id. at 11-13. Lovo and Sorto initially responded by opening their Kia and manipulating a bag inside, but they left the bag in the trunk and did not retrieve any guns. Id. at 13-15. Lovo then told Rodriguezgil that he had left the weapons inside the Kia because they might use two vehicles for the robbery, and the men entered the storage unit. Id. at 14-15.
Once inside, Raul Cruz, Jr., another member of the crew, directed everyone to lift their shirts and drop their pants to ensure they were not hiding weapons. Id. at 45. All complied, including Cruz who pulled out an eight-inch knife. Id. at 45-50. The parties then remained in the storage unit for around 40 minutes as they rehashed their agenda. Id. at 24. Rodriguezgil showed the crew members photographs of the target liquor store as well as the owner, and the co-conspirators asked about the target, the courier, and the game plan. Id. at 39-42. As on prior occasions, Rodriguezgil gave the conspirators an out, informing them they were free to leave if they did not trust him. But Defendants refused the offer in unison and opted to go forward. Id. at 50-53. Once again, Lovo reassured Rodriguezgil about their experience and restated the terms of their agreement. Id. at 56-58. Eshetu, meanwhile, began assigning responsibilities to the other men. Id. at 65. The meeting came to a surprise end, however, when the storage unit gates lifted to reveal an MPD squad standing at the ready to arrest the unsuspecting conspirators. The officers later searched the Kia and found, among other items, a TEC-9 and other firearms, wire, ammunition, magazine clips, facemasks, and two long machetes. See Eshetu I, 863 F.3d at 950; ECF No. 211 (“Trial Day 6 Tr.”) at 48-115.
The following week, a grand jury indicted all five crew members with one count of conspiring to interfere with interstate commerce by robbery (“Hobbs Act robbery”), in violation of 18 U.S.C. § 1951, and a second count of using, carrying, or possessing a firearm during a crime of violence and abetting that offense, in violation of 18 U.S.C. §§ 924(c) and 2. Eshetu I, 863 F.3d at 950. Lovo, Sorto, and Eshetu proceeded to trial while the other two members entered guilty pleas. Id. at 950 & n.3. In the run up to trial before now-retired Judge Rosemary M. Collyer, the parties litigated two issues relevant here: (1) the possibility that Defendants would raise an entrapment defense and (2) the admissibility of transcripts of the government's audio and video recordings.
Regarding the first issue, the government sought a pretrial order prohibiting Defendants from presenting an entrapment defense on the grounds that, as a matter of law, there was no...
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