Vargas v. United States

• Decision Date: 27 June 2013
• Docket Number: No. 05 Cr. 1327(VM).,No. 10 Civ. 2933(GWG).,05 Cr. 1327(VM).,10 Civ. 2933(GWG).
• Citation: 951 F.Supp.2d 531
• Parties: Caonabo VARGAS, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

951 F.Supp.2d 531

Caonabo VARGAS, Petitioner,

v.UNITED STATES of America, Respondent.

No. 05 Cr. 1327(VM).

No. 10 Civ. 2933(GWG).

United States District Court,

S.D. New York.

June 27, 2013.

Anthony L. Ricco, Law Office of Anthony L. Ricco, New York, NY, for Petitioner.

Edward Arthur Imperatore, Harry Sandick, U.S. Attorney's Office, New York, NY, for Respondent.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Caonabo Vargas was convicted by a federal jury of conspiracy to commit Hobbs Act robberies in violation of 18 U.S.C. § 1951, and conspiracy to distribute cocaine, heroin, and marijuana in violation of 21 U.S.C. § 846. On January 11, 2008, he was sentenced to a prison term of 151 months. On December 17, 2008, the United States Court of Appeals for the Second Circuit affirmed the judgment of conviction. Vargas, who remains incarcerated, petitioned this Court pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The parties consented to disposition of the petition by a United States Magistrate Judge. In a previous opinion, Vargas v. United States, 819 F.Supp.2d 366 (S.D.N.Y.2011) (“Vargas I ”), this Court rejected several claims raised by Vargas in his petition and ordered an evidentiary hearing limited to the issue of whether Vargas received effective assistance of counsel as to advice he was given with respect to any plea offers made by the Government. The evidentiary hearing took place on August 7, 2012, and was followed by post-hearing briefing.

For the reasons stated below and in Vargas I, Vargas's petition for habeas corpus is denied.

I. BACKGROUNDA. Proceedings in the Criminal Case

In December 2005, Vargas and others were charged in a three-count indictment, alleging conspiracy to commit robbery; robbery; and using, carrying or brandishing a firearm (or aiding and abetting the same) in relation to the robbery charges. See Sealed Indictment, filed Dec. 27, 2005 (Docket # 1 in 05 Cr. 1327) (unsealed on January 19, 2006). At his arraignment, Vargas was represented by a retained attorney, Telesforo Del Valle. See Docket Entry, dated Jan. 19, 20006 (in 05 Cr. 1327). James Michael Roth filed a notice of appearance on behalf of Vargas on March 28, 2006. See Notice of Attorney Appearance, filed Mar. 28, 2006 (Docket # 23 in 05 Cr. 1327). On June 6, 2006, a notice of substitution of counsel was filed, stating that both Martin Schmukler and Del Valle were representing Vargas. See Notice of Substitution, filed June 6, 2006 (Docket # 36). The same day, Schmukler filed a notice of appearance on Vargas's behalf. See Notice of Appearance, filed June 6, 2006 (Docket # 37).

The case was assigned to the Honorable Victor Marrero, who in December 2006 set a trial date of January 22, 2007. See Order, dated Dec. 1, 2006 (Docket # 51 in 05 Cr. 1327). On January 8, 2007, the Government filed a superseding indictment against Vargas, adding a charge of conspiracy to distribute and possess with intent to distribute controlled substances. See Indictment, filed Jan. 8, 2007 (Docket # 54 in 05 Cr. 1327). Judge Marrero presided over Vargas's trial, which took place in March and April 2007. See Trial Transcripts, filed Apr. 27, 2007 (Docket 91–93 in 05 Cr. 1327) (“Trial Tr.”). Over the course of the 18–day trial, the Government offered testimony from four cooperating witnesses, Jose Stepan, Ramon Solis, Maximo Guillen, and Socrates Vizcaino; testimony from a confidential informant, Ingrid Negron; translations of recorded conversations between Negron and Vargas; and physical evidence.

The evidence showed that from at least 1997, Vargas operated a real estate office in the Bronx. ( See Stepan: Trial Tr. 759; Solis: Trial Tr. 822–23). From this office, Vargas rented apartments to individuals whom he knew to be involved in robberies and drug dealing. ( See Stepan: Trial Tr. 763, 806, 808; Solis: Trial Tr. 822, 827). As a result of this work, Vargas was privy to the personal information and addresses of various drug dealers and robbers. ( See, e.g., Stepan: Trial Tr. 767). Generally, robbers and drug dealers refrain from disclosingthis information because disclosure of this kind of information may result in the dealer or robber being robbed himself. ( See, e.g., Stepan: Trial Tr. 800–01, 808). Vargas used this information to act as a “santero” for a group of men who made their living robbing drug dealers. (Stepan: Trial Tr. 748, 759–61, 793). As a “santero,” Vargas would provide these men with the addresses of the drug dealers, the place where the drugs were located in the house, and the location of the house. ( See Stepan: Trial Tr. 748, 800–01). In addition, the “santero” would verify that drugs or money were within the house. ( See Stepan: Trial Tr. 749). In exchange for this information, Vargas received a “good part” of the proceeds of any robbery. ( Id.)

Vargas provided Stepan and his partner “Rubio” with the address and the “specific information of an apartment” in the Bronx where some people who were bringing drugs into the United States were residing. (Stepan: Trial Tr. 761). Vargas took Stepan and Rubio to the apartment and told them where the drugs were “so [they] could steal them.” ( Id.) Specifically, Vargas told Stepan that the drugs were located in a “trap, ... a secret compartment that drug dealers use to stash their drugs so the police cannot find [them].” (Stepan: Trial Tr. 763–64). After receiving this information, Stepan, Rubio, and others committed the robbery, and found approximately one thousand pounds of marijuana in the location that Vargas had described. (Stepan: Trial Tr. 765). The marijuana was distributed amongst the “participa[nts] in the robbery” and a portion was given to Vargas. (Stepan: Trial Tr. 766).

Vargas also provided Stepan with information about a potential robbery in New Jersey involving 300 kilograms of drugs. ( See Stepan: Trial Tr. 771). Vargas told Stepan “that he knew some Mexicans” who had left a van containing 300 kilos of drugs illegally parked in New Jersey. ( Id.) The sheriff had towed and taken away the van and drugs were still located within the van, hidden under fruit and produce. ( See id.) Upon hearing this information, two members of Stepan's crew went to New Jersey to “check[ ] ... out” the location of the potential robbery. ( Id.) After learning that the van was parked in a location where there were cameras, Stepan decided not to commit the robbery. ( See Stepan: Trial Tr. 772–73).

Solis also utilized Vargas's services as a santero. ( See Solis: Trial Tr. 827–28, 903–04, 907–08). In 1999, Solis met with Vargas to discuss a potential “job” on Gun Hill Road in the Bronx. (Solis: Trial Tr. 903). Vargas took Solis and others to the Gun Hill Road house and told them that the persons residing there were stashing “a load” of cocaine. (Solis: Trial Tr. 903–04). After learning that Vargas had never actually seen the drugs, Solis and his crew decided not to commit the robbery. (Solis: Trial Tr. 904). Vargas and Solis discussed two additional potential robberies. Sometime in 2000 or 2001, Solis met with Vargas and his “woman” Evelyn at Vargas's office in the Bronx. (Solis: Trial Tr. 906). The three discussed a potential “jewelry job,” which Solis rejected because “[he did not] steal jewelry.” (Solis: Trial Tr. 906–07). In the summer of 2001, Solis discussed another potential job “in the area ... [of] 180th [Street].” (Solis: Trial Tr. 907). Vargas told Solis that he “had rented [an apartment] to some Mexicans who came from Mexico with a load [of cocaine]” and that he “had the trap built where the [Mexicans] were going to put the drugs.” (Solis: Trial Tr. 907–08). Vargas took Solis to the house, showed him the key to the building, and told Solis that he would contact him after he had spoken to the Mexicans. (Solis: Trial Tr. 909). Solis never discussed the job with Vargas again and Solis did not commit the robbery. (Solis: Trial Tr. 909–10).

In addition to conspiring to commit robberies, Vargas also conspired with others to distribute drugs, including those that were stolen in robberies. (Stepan: Trial Tr. 766–67, 770–71, 773–74). Stepan testified that he had provided Vargas marijuana as payment for his services as a santero (Stepan: Trial Tr. 766–67) and he had given Vargas 20 kilograms of cocaine to distribute for a drug dealer named “El Fuerte” ( see Stepan: Trial Tr. 773). Additionally, Vargas boasted about his sales of both heroin and cocaine during a phone conversation with Negron, which Negron had recorded unbeknownst to Vargas. Portions of a translated version of the transcript of this conversation were read to the jury. (Trial Tr. 1188). During the conversation, Negron asked Vargas whether he could obtain heroin for Negron's boyfriend to sell. See Memorandum of Law in Opposition to Vargas's Motion to Vacate, Set Aside, or Correct Sentence, filed Mar. 25, 2011 (Docket # 21), at 6. Vargas replied “ ‘[d]on't worry, I'm gonna help you guys. You guys are gonna make some real good big bucks, both of you are....” Id. at 6.

Evidence was also presented regarding other services that Vargas provided to various robbers and drug dealers. For a fee, Vargas would put the apartments he rented to robbers “under a specific name” and would take care of setting up the electricity, gas, and telephone under the same name. (Stepan: Trial Tr. 762–63; see Solis: Trial Tr. 822–27). In addition, Vargas procured false identification documents for Solis ( see Solis: Trial Tr. 837, 923–27) and helped to secure bail for a robber named Chi Chi, in exchange for a million dollars ( see Stepan: Trial Tr. 775–76).

Vargas testified on his own behalf at trial. He stated that he was the owner of Gleason Realty, a small real estate business located in the Bronx, and in that capacity he would rent and sell real estate. (C. Vargas: Trial Tr. 1402–05). Vargas testified on cross-examination that he was not a licensed real estate broker or agent ( see C....