United States v. Velazquez, 11-CR-639 (JFB)

• Decision Date: 24 June 2016
• Docket Number: No. 11-CR-639 (JFB),11-CR-639 (JFB)
• Parties: UNITED STATES of America, v. Adam VELAZQUEZ, Defendant.
• Court: U.S. District Court — Eastern District of New York

197 F.Supp.3d 481

UNITED STATES of America,

v.Adam VELAZQUEZ, Defendant.

No. 11-CR-639 (JFB)

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

Signed June 24, 2016

Robert L. Capers, United States Attorney, Eastern District of New York, by Burton T. Ryan, Jr. and Charles P. Kelly, Assistant United States Attorneys, 610 Federal Plaza, Central Islip, NY 11722, for the United States.

Gail E. Laser, 314 Main Street, Suite 200, P.O. Box 566, Park City, UT 84060, for Defendant.

MEMORANDUM AND ORDER

Joseph F. Bianco, District Judge

On May 1, 2014, a jury convicted defendant Adam Velazquez ("Velazquez" or "defendant") of five crimes related to defendant's participation in a conspiracy to rob drug traffickers and business owners in New York City and Long Island.¹ Velazquez now moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure.

Velazquez asserts, among other things, that he should be granted a new trial based on the ineffective assistance of his trial counsel. Velazquez asserts that his trial counsel made numerous errors, including failing to investigate alibi evidence in the form of cell phone, work, and school records, and failing to introduce evidence that Velazquez did not in fact have a black, four-door sedan in 2009, as the government alleged. For the reasons set forth below, after careful consideration of the parties' written submissions, the trial record, and the evidentiary hearing, the Court grants the motion for a new trial based upon ineffective assistance of trial counsel.

As a threshold matter, having presided over the trial, it was apparent to the Court that defense counsel was prepared during the course of the trial, conducted thorough cross-examinations of the government's witnesses, and gave effective opening and closing statements to the jury. There is no doubt that he took his responsibility as defense counsel in this case very seriously, that he is an experienced and talented defense lawyer, and that he used that experience to substantially undermine the government's case. The effectiveness of certain aspects of defense counsel's strategy and performance in the courtroom was confirmed by the jury's decision to acquit the defendant on several counts of the superseding indictment. In short, defense counsel's effort was apparent, his courtroom performance was effective in many respects, and his professionalism was at the highest level. Thus, the Court emphatically rejects any suggestion by the defendant that his trial counsel was completely lacking in effort or preparation. However, as discussed in detail below, defense counsel's performance was deficient in several major respects, including failing to develop evidence that would have been highly favorable to the defendant's case, erroneously entering into a stipulation regarding identifications of his client by two witnesses who did not testify at trial, and engaging in a line of questioning with a cooperating witness that unnecessarily bolstered the credibility of the witness and damaged the defendant's case. These failures, in the Court's view, satisfy the Strickland standard for ineffective assistance of counsel.

First, defense counsel failed to obtain and introduce defendant's cellular telephone records (including locational information), and additional evidence that would support and explain those records. In particular, defense counsel told his client that he would obtain those telephone records, but then unilaterally decided not to do so because trial counsel believed that such records would be useless given that the records would not confirm that it was the defendant (as opposed to someone else) using the telephone at any particular time and the government was alleging that the robbery crew used "burner" phones. That reasoning was fundamentally flawed in the context of this case, and cannot be attributed to trial strategy, especially where there was no downside to obtaining and reviewing the records. Even though telephone records do not conclusively establish on their face who was using the phone at a given time, the records can often be used by the government or a defendant, in conjunction with other evidence or information, to strongly support the conclusion that it was the defendant (rather than some other third party) who was using the telephone at the relevant times. In fact, when new defense counsel obtained those records after the trial, the cellphone records and other records (such as college attendance and work records), in fact, provided substantial evidence, among other things, that: (1) defendant was in Manhattan at the time he was alleged to have participated in the 99th Street robbery in Queens and the St. Johns Place robbery in Brooklyn, both on November 23, 2009; and (2) defendant was in Woodhaven, Queens, around the time the 152nd Street robbery was alleged to have taken place in Whitestone, Queens.

Second, defense counsel failed to show his client the government's proposed trial exhibits prior to the trial, which prevented counsel from learning of favorable evidence to the defense that would have completely undermined one of the government's only pieces of evidence offered to corroborate the government's cooperating witnesses. Specifically, among the trial exhibits was Government Exhibit 7, which was a certified DMV document demonstrating that the defendant owned a black four-door sedan. The government argued that this exhibit was strong corroboration of the testimony of a cooperating witness that the defendant and his partner were in a black four-door sedan at the 99th Street robbery on November 23, 2009. The defendant was not shown this record prior to its introduction, and there was evidence that could have conclusively undermined that exhibit. In particular, the DMV record related to 2008 (through the robbery was in November 2009) and, following the trial, based upon information provided by the defendant, new defense counsel was able to obtain uncontroverted proof (in the form of DMV and insurance records) demonstrating that the plates for that black sedan were surrendered and destroyed in June 2008 (over one year prior to the 99th Street robbery) because the defendant had wrecked the car in June 2008. In fact, there was even a reference on Exhibit 7 itself, indicating that the plate had been surrendered in 2008, which apparently neither the government nor defense counsel noticed. In short, it is clear that, if the defendant had been shown that document prior to trial and had time to discuss it with his attorney, counsel would have been able to obtain this evidence that would have definitively undermined the government's theory that Exhibit 7 established that defendant owned that black sedan at the time of the 99th Street robbery.

Finally, defense counsel entered into a stipulation with the government (Government Exhibit 10) regarding photo arrays that were shown to numerous witnesses during the investigation of the case. A portion of the stipulation was helpful to the defense because it indicated that six co-conspirators in the robbery crew and a robbery victim were each shown photo arrays containing the defendant and failed to identify the defendant. The stipulation, however, also indicated that five individuals positively identified the defendant in the photo arrays. Although three of those witnesses testified at the trial for the government, two of those witnesses never testified at all. Thus, the highly damaging inference from the stipulation was that two non-testifying co-conspirators from the robbery crew had also identified the defendant in connection with the robbery crew (even though their identifications were unrelated to any charged crimes) or, at the very least, had identified the defendant in connection with some other criminal activity. In short, although the Court has carefully considered the explanations offered by trial counsel regarding these issues, the Court cannot attribute any of these decisions to trial strategy, but rather concludes, in each instance, that it was an error by trial counsel.² Moreover, the Court believes that, in the aggregate, these errors by trial counsel satisfy the first prong of the Strickland standard.

With respect to the prejudice prong of Strickland , this Court recognizes that a defense lawyer's failure to obtain phone or car records, even if such records would have been helpful to the defense, does not necessarily mean that such failures affected the outcome of the case. However, having presided over this particular trial, this Court concludes that it is reasonably likely that, had the jury heard this additional evidence (and had the other errors regarding the stipulation and Lovly cross-examination not occurred), the jury would not have convicted the defendant of any of the counts in this weak case. The only substantive robbery for which the jury returned a guilty verdict was the 152nd Street robbery of a drug dealer and (from the verdict sheet and the evidence) it is highly likely that the other counts of conviction (robbery conspiracy, brandishing a firearm, conspiracy to distribute marijuana, and conspiracy to launder money) all arose from the jury's conclusion that the defendant participated in that robbery of a marijuana dealer, as well as the subsequent splitting of the proceeds from that robbery. The government's proof for that robbery was based primarily on the testimony of two cooperating witnesses—Martin Lovly ("Lovly") and Timothy Glass ("Glass")—whose out-of-court identifications were unusual (to say the least), and whose largely uncorroborated testimony contained numerous, and often troubling, inconsistencies with other proof in the case.

For example, Glass (the leader of this robbery crew who committed over 100 robberies) admitted that he did not know the defendant well and picked out another individual in a photo array as having done robberies with him and, after the circling of that other individual, an arrow was drawn on the array to ...