Vargas v. United States

• Decision Date: 20 October 2011
• Docket Number: No. 05 Cr. 1327(VM).No. 10 Civ. 2933(GWG).,05 Cr. 1327(VM).No. 10 Civ. 2933(GWG).
• Citation: 819 F.Supp.2d 366
• Parties: Caonabo VARGAS, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

819 F.Supp.2d 366

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.

Oct. 20, 2011.

Caonabo Vargas, Fort Dix, NJ, pro se.

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. He was sentenced to a prison term of 151 months on January 11, 2008. The United States Court of Appeals for the Second Circuit affirmed the judgment of conviction on December 17, 2008. Vargas, who is currently in prison serving his sentence, has petitioned this Court pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The parties have consented to disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons below, the Court will schedule 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. Vargas will also be appointed counsel for this purpose. The remaining issues raised by Vargas, however, do not require an evidentiary hearing as they have no merit.

I. BACKGROUNDA. Pretrial Procedural History

In December 2005, Vargas and his co-defendants Jose Ortiz, Caonabo Valdez, Ricardo Cruz, Socrates Vizcaino, Sergio Acuna, Angel Diaz, and Nairobi Rosado, were charged in a three-count indictment. See Sealed Indictment, filed Dec. 27, 2005 (Docket # 1 in 05 Cr. 1327) (unsealed on January 19, 2006). Vargas was charged in all three counts. Count One alleged that between December 2000 and January 2, 2001, Vargas participated in a conspiracy to commit robbery. Id. ¶ 1. Count Two alleged that on January 2, 2001, Vargas robbed two individuals in the vicinity of Gleason Avenue in the Bronx, New York. Id. ¶ 3. Count Three alleged that Vargas used, carried or brandished a firearm (or aided and abetted the same) in relation to the crimes charged in Counts One and Two. Id. ¶ 4.

Vargas made an initial appearance and was arraigned on January 19, 2006, where he was represented by retained attorney Telesforo Del Valle. See Docket Entry, dated Jan. 19, 2006 (05 Cr. 1327). On March 28, 2006, James Michael Roth filed a notice of appearance on behalf of Vargas. See Notice of Attorney Appearance, filed Mar. 28, 2006 (Docket # 23). A notice of substitution of counsel was filed on June 6, 2006, indicating that Vargas would no longer be represented by Roth and would instead be represented by Del Valle and Martin Schmukler. See Notice of Substitution, filed June 6, 2006 (Docket # 36). Schmukler filed his notice of appearance the same day. See Notice of Appearance, filed June 6, 2010 (Docket # 37).

By Order dated December 1, 2006, the court set a trial date of January 22, 2007. At some point in December 2006, see Transcript of Proceedings Held Before Hon. Victor Marrero, filed Feb. 28, 2010 (Docket # 63 in 05 Cr. 1327) (“H.Tr.”) at 7, the Government proposed a plea deal to Vargas. Vargas contends that the Government made a “5–year plea offer.” See Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed Apr. 6, 2010 (Docket # 1 in 10 Civ. 2933) (“Pet.Motion”) at 4. The Government has denied this and instead contends that Vargas was offered “the possibility of a plea to a somewhat longer sentence, albeit one shorter than the 151 month sentence Vargas ultimately received.” See Memorandum of Law in Opposition to Vargas's March 14, 2011 Reply Brief in Support of His § 2255 Petition, filed Apr. 19, 2011 (Docket # 24 in 10 Civ. 2933) (“Gov.Sur–Reply”) at 2 n. 2.

On January 8, 2007, the Government filed a superseding indictment, which added a fourth count against Vargas alleging that Vargas conspired to distribute and possess with intent to distribute controlled substances. See Indictment, filed Jan. 8, 2007 (Docket # 54 in 05 Cr. 1327). Vargas was arraigned on the superseding indictment on January 11, 2007. ( See H. Tr. at 3). Both Schmukler and Del Valle were present. At the conference, the parties discussed the December 2006 plea offer that had been proposed by the Government. Schmukler made the following statements regarding the Government's offer

[A]pproximately five or six weeks ago Ms. Loughnane and I had a very frank discussion about potential disposition.... And I listened to what perhaps in other circumstances might have been a very tempting offer. But in the end, after talking with my client we made a claim that we still intended to proceed to trial on the 22nd.

(H. Tr. at 7).

B. Evidence at Trial

Judge Victor 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). Over the course of the 18–day trial, the Government introduced evidence regarding Vargas's participation in the charged crimes in the form of testimony from four cooperating witnesses, Jose Stepan, Ramon Solis, Maximo Guillen, and Socrates Vizcaino, and 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: Tr. 759; Solis: Tr. 822–23). From this office, Vargas rented apartments to some individuals whom he knew to be involved in robberies and drug dealing. ( See Stepan: Tr. 763, 806, 808; Solis: 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: Tr. 767). Generally, robbers and drug dealers refrain from disclosing this information because their failure to keep this information secret may result in the dealer or robber falling subject to a robbery themselves ( see, e.g., Stepan: 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: Tr. 748, 759–61, 793). As a “santero,” Vargas would provide these men with the addressees of the drug dealers, the place where the drugs were located in the house, and the location of the house. ( See Stepan: Tr. 748, 800–01). In addition, the “santero” would verify that drugs or money were within the house. ( See Stepan: 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 to the [United States were residing].” ( See Stepan: 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: 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: Tr. 765). The marijuana was distributed amongst the “participa[nts] in the robbery” and a portion was given to Vargas. (Stepan: Tr. 766).

Vargas also provided Stepan with information about a potential robbery in New Jersey involving “300 kilos” of drugs. ( See Stepan: 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 that 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: Tr. 772–73).

Solis also utilized Vargas's services as a santero. ( See Solis: 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: 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: Tr. 903–04). After learning that Vargas had never actually seen the drugs, Solis and his crew decided not to commit the robbery. (Solis: 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: Tr. 906). The three discussed a potential “jewelry job,” which Solis rejected because “[he did not] steal jewelry.” (Solis: Tr. 906–07). In the summer of 2001, Solis discussed another potential job “in the area ... [of] 180th [Street].” (Solis: 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: 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: Tr. 909). Solis never discussed the job with Vargas again and Solis did not commit the robbery. (Solis: 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: Tr. 766–67, 770–71, 773–74). Stepan testified that he had provided Vargas marijuana as payment for his services as a santero (Stepan: ...