RICHARD F. CEBULL, Chief District Judge.
This case comes before the Court on Defendant/Movant Torres-Leon's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Torres is a federal prisoner proceeding with appointed counsel. On June 18, 2008, he was convicted of conspiracy to distribute methamphetamine and sentenced to serve 360 months in prison.
Several claims have already been denied. Two claims remain. One pleads ineffective assistance of counsel. The other, which Torres moves to add to his § 2255 motion at this time, alleges that the United States violated its obligations under Brady v. Maryland, 373 U.S. 83, 87 (1963). Those two claims have now been fully briefed.
On July 12, 2006, a grand jury in the District of Colorado handed down a two count indictment charging Torres and two co-defendants. Count 1 alleged:
D. Colo. Indictment (doc. 292-3) at 1-2. A substantive count was also pled. Id. Torres pled guilty to Count 1, the conspiracy count. He was sentenced in March 2007.
On June 22, 2007, Torres and six co-defendants were indicted in the District of Montana. Count 1 alleged:
Superseding Indictment (doc. 56) at 2. Torres also pled guilty to this conspiracy count. He was sentenced in June 2008.
Torres now contends that his second guilty plea was involuntary. He asserts that a reasonable defense attorney would have spotted and attempted to flesh out the possibility of a double jeopardy defense and that, had the defense been explored, there was a reasonable probability Torres would have chosen to pursue it at trial rather than pleading guilty. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Torres's inclusion in both indictments, the identity of the crime charged, the overlapping time periods, and references to "elsewhere" and "others both known and unknown to the Grand Jury" suggest that one conspiracy might be alleged. The double jeopardy clause protects defendants against, among other things, successive prosecutions for the same crime. United States v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003). Where a conspiracy is charged, the crime is the agreement with others to commit one or more offenses. These offenses may take place in one or more locations, multiple persons may enter and leave the conspiracy at various times, and the agreement may continue over a long period of time, all without becoming more than one agreement or conspiracy. Braverman v. United States, 317 U.S. 49, 53 (1942); see also, e.g., United States v. Morales, Nos. 10-50419, et al, 2012 WL 76911 at **2-3 (9th Cir. Jan. 11,2012) (unpublished mem. disp.).
"Because the government can tailor the . . . acts
As Torres's § 2255 proceeding has progressed, the possibility of a single conspiracy has been somewhat enhanced by the United States' late — very late — realization that the name of one of Torres's Colorado co-conspirators, UTV, was redacted from the discovery provided to Torres's Montana trial counsel. Although the redacted discovery closely connected Torres with FOA, that connection appeared to be focused on supplying methamphetamine to KTW and others in Denver for transport to Montana and possibly other places. But the unredacted discovery shows that Torres and FOA's agreement included both UTV's and KTW s operations during the time period of the Montana indictment.
Torres, accordingly, has moved to add a claim under Brady v. Maryland, 373 U.S. 83,87 (1963), to his § 2255 motion, arguing that the United States' redaction of UTV name withheld material evidence of his involvement with both Torres and FOA — evidence that was exculpatory because it supported a double jeopardy defense. Although the Brady claim is a new legal theory, it is closely connected with the operative facts of the double jeopardy defense and with what trial counsel knew or should have known. See Mayle v. Felix, 545 U.S. 644, 664 (2005). In addition, Torres could not have made the Brady claim before he received the unredacted discovery. 28 U.S.C. § 2255(f)(4).
The motion to amend is granted, and the Brady claim will be considered on the merits along with the ineffective assistance claim.
As to both claims, the question is whether Torres participated in one conspiracy — involving at least FOA, KTW, and UTV and encompassing acts carried out in Montana, Denver, and perhaps elsewhere — or whether Torres participated in more than one conspiracy with one or more of those persons. More specifically, the question is whether a reasonable attorney and a reasonable defendant, searching for evidence to support a jury finding that the defendant engaged in one overarching conspiracy, would have found enough evidence to warrant going to trial instead of pleading guilty. Hill, 474 U.S. at 59. The Brady claim dovetails with this analysis because it supplies additional evidence for the reasonable attorney and reasonable defendant to consider. If all the evidence does not support finding one conspiracy, then the redaction of UTV's name was not sufficiently material or exculpatory to support a Brady claim or warrant relief under § 2255. United State v. Bagley, 473 U.S. 667, 682 (1985); see also Strickland v. Washington, 466 U.S. 668, 694 (1984) (stating that standard for assessing prejudice on ineffective assistance claim is identical to "the test for materiality of exculpatory information not disclosed to the defense by the prosecution") (citing United States v. Agurs, All U.S. 97, 104, 112-13 (1976)).
The following facts are taken from the record of the entire case in this Court, which includes the Complaint, Indictment, and Plea Agreement in the Colorado case, and the unredacted discovery produced by the United States in the § 2255 proceedings. Although, on summary judgment, facts are typically construed in the light most favorable to the non-moving party — here, the United States — in this case all facts have been construed from the perspective of a reasonable defense attorney and a reasonable defendant searching for evidence to support a jury finding that Torres engaged in one overarching conspiracy.
Such construction does not allow me to ignore facts; it means only that when there is contradictory evidence as to a fact, I will assume the true fact is the one that favors finding one conspiracy. So, for example, although Torres introduces only the indictment and the plea agreement from the Colorado case, the United States has filed the criminal complaint as well, and it contains a report of Torres's own statements at the time of his arrest. Torres has not claimed he did not make these statements or that they were misunderstood. Therefore, the report of his statements is presumed accurate. Cf. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (on motion for summary judgment, evidence may be presented in inadmissible form so long as its contents would be admissible).
If, viewing the facts from this perspective, a reasonable person would, to a reasonable probability, choose to go to trial, Hill, 474 U.S. at 59, then Torres prevails on his § 2255 motion.
Although I will construe the available facts in favor of finding one conspiracy, Torres still has the burden of proof. Ziskin, 360 F.3d at 943; United States v. Bendis, 681 F.2d 561, 564 (9th Cir. 1981) (citing Sanchez v. United States, 341 F.2d 225, 227 (9th Cir. 1965));
Sometime before May or June 2005, KTW was engaged in drug dealing with FOA, among others, in Colorado and Montana. FOA fronted methamphetamine to KTW, who in turn sold it to others. It appears that, at the time, FOA was acting either as a partner with Torres or as a middleman between KTW and Torres. After a drug debt owed to "FOA's supplier" was blamed on KTW, she began to obtain methamphetamine from Torres "directly, without FOA." Offer of Proof ¶ 1.
From December 2005 until May 2006, KTW obtained methamphetamine from "an unindicted co-conspirator." Offer of Proof ¶¶ 2-3. If this person was FOA or his previous supplier, or if it was someone known only to KTW, the analysis does not change. Torres does not produce evidence to show it was UTV, JC, HC, the confidential informant who was involved in the Colorado case, or anyone else whose involvement might add support to the one-conspiracy hypothesis.
In February 2006, federal drug agents based in Denver, Colorado, began an undercover investigation into the activities of JC and one HC. JC offered to sell an unidentified confidential informant ("CI") 10 pounds of methamphetamine for $13,000 per pound. JC claimed to have multiple sources of supply. No transaction occurred at that time. D. Colo. Compl. (doc. 292-2) at 2-4 ¶¶ 3-7.
In April 2006, at the request of investigating agents, KTW contacted FOA and arranged to purchase a half-pound of methamphetamine from him. FOA later called KTW to tell her Torres would make the delivery. When Torres met with KTW later that day, he told her he brought the methamphetamine from Phoenix. Offer of Proof ¶ 4;
In interviews, KTW
In May 2006, FOA was arrested on federal drug charges filed in this Court. In a statement to law enforcement, he attributed several-ounce quantities to himself but pounds to KTW, claimed that Torres was his source and "the boss," denied going to Phoenix himself to obtain methamphetamine, and generally portrayed himself as a distributor moving product from Denver to Wyoming or Montana at a lower level than KTW. (As to some occasions, he was right. E.g., Unredacted Discovery 22.) He later altered these facts as explained below. He correctly stated, however, that Torres drove a maroon Nissan with Arizona plates and arranged to deliver methamphetamine at public places, including the Home Depot parking lot in Denver. Unredacted Discovery 40-42.
I see no indication in the record that Torres was involved in Montana or with KTW or FOA after FOA's arrest in May 2006.
On June 19, 2006, back in Denver, JC contacted the CI — Torres has not identified this person — and offered methamphetamine from a new source. The same day, the CI and JC met at a local restaurant with JC's new source, UTV. Two days later, the CI met at an automotive repair shop with two men, JC and UTV, driving a blue Chevrolet truck. Agents tailed the truck to a nearby park, where they saw the two occupants meet with a third man, who was driving a "dark colored" Nissan sedan with an Arizona plate registered in Phoenix. D. Colo. Compl. at 4-6 ¶¶ 8-14.
Later the same day, the CI told the agents he would meet JC and UTV at a Home Depot parking lot and purchase six pounds of methamphetamine. JC and UTV approached the CI in the blue Chevy truck. While the CI was at the Chevy's passenger window talking to JC, the Nissan sedan pulled up next to the truck. UTV directed the CI to go to the Nissan to see the methamphetamine. The driver of the Nissan identified himself as "Gumaro."
When arrested, Torres admitted the methamphetamine belonged to him. He stated that he purchased it in Mexico for $8,000 and intended to sell it in the United States for $10,000. He also said he had one more pound at his apartment. JC told agents that he and UTV had arranged the sale with Torres earlier that day at a park. D. Colo. Compl. at 5-6 ¶ 13, 9 ¶ 26. Later, in September 2006, Torres contradicted these statements, telling agents that he obtained the Colorado methamphetamine in Phoenix, not Mexico, and also that he did not know how the drugs wound up in the Nissan. Unredacted Discovery 4.
On December 7, 2006, FOA gave a statement. He told agents that the methamphetamine sold by him and Torres originated in Mexico, was smuggled across the border to the Phoenix area, then cut with horse vitamins to make a pound and a half out of each pound of pure methamphetamine. He and Torres brought ten to fifteen pounds of methamphetamine three to six times per month from Phoenix to Denver — between February and April 2006, occasionally twenty pounds. He, like KTW, did not say he and Torres further "cut" the methamphetamine. FOA said that other people, working for the same organization, distributed methamphetamine all across the country, from Los Angeles to North Dakota to Atlanta. He said two or three pounds regularly went to Montana from Denver. FOA also identified UTV as one of Torres's regular customers who received two pounds each time Torres and FOA brought meth from Phoenix to Denver. FOA did not know UTV's last name and did not say whether UTV knew him. Unredacted Discovery at 128-130, 132, 136.
On December 8, 2006, Torres pled guilty to conspiracy to distribute methamphetamine in the District of Colorado. He agreed that UTV and JC began negotiating a methamphetamine purchase "in the early months of 2006," D. Colo. Plea Agreement (doc. 292-4) at 4, and, to facilitate that purchase, he agreed to supply methamphetamine to UTV and JC "for distribution in Colorado," id.
At some point after the Colorado sentencing in March 2007, Torres was transported by the United States Marshals Service to Montana, along with FOA and KTW. KTW said that Torres told her, during the flight, "[t]hat FOA's family lived in California" and there were "already people there just waiting" for her to arrive in prison if she "ratted" on her co-defendants. Sentencing Tr. 22:14-23:9; see also id. at 9:14-10:2.
Laboratory analysis of methamphetamine seized from FOA in October 2005 showed it to be 63% to 70% pure — a figure consistent with producing a pound and a half of methamphetamine by cutting one pound of methamphetamine with horse vitamins. The methamphetamine seized from Torres in the Home Depot parking lot in Colorado was 45% pure. Torres Presentence Report ¶ 25.
To determine whether one conspiracy or two or more are charged, courts in the Ninth Circuit employ a five-factor test. Ziskin, 360 F.3d at 944; United States v. Arnold, 336 F.2d 347, 348-49 (9th Cir. 1964). "No single factor . . . controls the determination of whether there was a single conspiracy; after consideration of all, the question is whether there was more than one agreement." Guzman, 852 F.2d at 1121 (citing Bendis, 681 F.2d at 568).
The time frames of each indictment overlap. The Montana indictment commences ten months before the Colorado indictment, and the Colorado indictment terminates a month and a half after the Montana indictment. Although one period does not encompass the other, the overlap is significant and would tend to support finding one conspiracy.
Torres's role in both cases is similar. He brought methamphetamine to Denver and sold it to persons there for further distribution. He also accompanied KTW to Montana on one occasion to "check out" downline receiver-distributors and ensure that payment was received. That seems to be what he was doing when he was arrested in the Home Depot parking lot in Denver as well.
Although it is clear that both Torres and UTV were involved in the conspiracy alleged in the Montana case, they are the only persons who also participated in the Colorado conspiracy. There is no evidence that FOA — who was arrested in May 2006 — played any role in the Colorado transaction. Further, there is no evidence Torres joined the conspiracy alleged in the Colorado case before June 19, 2006. UTV's and Torres's participation in the Montana conspiracy is at best meager evidence that the Montana and the Colorado conspiracies were the same conspiracy. The lack of evidence on this factor tends to support finding two conspiracies, but a closer look is required.
In each case, methamphetamine was sold in Denver to various people who would further distribute it "in Colorado." The discovery associated with the Montana case reveals an extensive conspiracy extending to many, far-flung states — California, Georgia, North Dakota, and elsewhere. There is no indication of such extension in the Colorado case, but of course the Colorado case could be an instance of the far-flung Montana conspiracy. This factor may tend to support finding one conspiracy, but again, a closer look is required.
The offenses are identical. This factor supports finding one conspiracy.
The acts shown by the evidence are similar in nature. In each case, Torres and FOA transported methamphetamine to Denver and sold it to others who would in turn sell it to smaller distributors or users. But all sales of methamphetamine for further distribution are similar in nature.
Here, there is no evidence that both indictments encompassed any of the same sales. Moreover, as discussed below, the price and quality of the methamphetamine itself appears to have been different in the Montana and Colorado cases, and this distinction was entirely unforeseen by the persons debriefed in the Montana case. Even though each conspiracy aimed to sell methamphetamine, the acts underlying each conspiracy are distinct. This factor supports finding two conspiracies.
The facts show that Torres agreed with FOA to obtain methamphetamine in Phoenix and transport it to Denver to be fronted to various subordinate dealers. Torres and FOA each had "reason to believe that whatever benefits [he] might get from the conspiracy were probably dependent" upon the other's success. 9th Cir. Crim. Jury Instr. 8.23 (2010).
I also find that UTV, like KTW, joined in the agreement between Torres and FOA. There is no indication that UTV knew of FOA, but "one may become a member of a conspiracy without full knowledge of all the details of the unlawful scheme or the names, identities, or locations of all of the other members." 9th Cir. Crim. Jury Instr. 8.23 (2010). UTV regularly distributed two pounds of methamphetamine after every trip FOA and Torres made from Phoenix to Denver. That fact "demonstrate[s] a substantial level of commitment" on UTV's part to "engag[e] in a consistent series of smaller transactions that furthered [the] ultimate object of supplying the consumer demand of the market" shared by FOA and Torres, United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1991) (internal quotation marks and citation omitted), regardless of what UTV knew about who was sharing the market. After all, the United States "doesn't have to prove with whom a defendant conspired," only "that the defendant joined the agreement alleged, not the group." Townsend, 924 F.2d at 1389 (emphases added).
But none of this evidence gives rise to an inference that the agreement in which Torres, FOA, KTW, and UTV all participated persisted beyond May 2006 into June. True, Torres's "modus operandi" was consistent with respect to both KTW and UTV. He acted as their supplier. He accompanied them to "check out" downline receiver-distributors. He used the Home Depot parking lot, as FOA might have predicted. But Torres's own admissions about his involvement with UTV and JC in June suggest an agreement of very limited scope involving them and no one else — in particular, not FOA. And it was not the same meth. See Am. Mot. (doc. 271) at 5 ("In the Colorado case . . . the Movant states that it was a different methamphetamine and not the same as he was distributing" in Montana).
JC contacted the CI on June 19. Just two days later, Torres had seven pounds of methamphetamine on hand, six in the Nissan at UTV's disposal. According to FOA, for UTV to obtain six pounds of methamphetamine from Torres, Torres would have had to make three trips from Phoenix to Denver in two days. Torres himself said he obtained the methamphetamine in Mexico, not Phoenix, two months after he told KTW that he and FOA obtained her meth from Phoenix. Torres introduced no evidence to show that the Phoenix methamphetamine he dealt together with FOA came from the same originating source in Mexico
Alternatively, in April 2006, KTW said that FOA and Torres brought about six pounds of methamphetamine to Denver each time they came over from Arizona. Construing the facts in the light most helpful to Torres — which requires ignoring what he himself said about the price and source of the Colorado meth — one might suppose the six pounds he had with him in the Nissan when he met JC and the CI were brought in one trip from Phoenix. That hypothesis would show that FOA's arrest materially altered Torres's ability to move methamphetamine. After all, KTW said six pounds was the total amount of methamphetamine brought on each trip, and Torres was trying to sell six pounds at once to one person. This possibility gives further support, if any were needed, to the finding of a functioning partnership between Torres and FOA.
But even if that hypothesis is true, it does not assist Torres in carrying his burden of showing that his previous agreement, which included all his work with FOA, also included the Colorado transaction. There is no evidence that Torres continued or believed himself to be continuing to carry out his prior agreement by selling three times more methamphetamine to UTV. Even putting to one side the discrepancies in the price and quality of the meth, Torres shows no phone calls to FOA's people or suppliers, no evidence as to whether other aspects of the previous agreement continued, such as the time allowed for payment, and no evidence even to show whether the Colorado meth was fronted to Torres.
Torres himself would know the truth about all these things, yet all the evidence he presents about the Colorado case are the documents introduced into this record from that prosecution. Those documents are sparse indeed. Maybe Torres obtained the meth from the same source as his and FOA's meth. But there is as much evidentiary support — i.e., virtually none — for the idea that Torres stole meth bit by bit over a long period of time, aggregated and diluted it until he had seven pounds, and then sold it, with UTV's help, to earn $10,000 free and clear.
There simply is not enough evidence here to support a reasonable attorney in recommending trial. Nor would a reasonable defendant choose to present these facts at trial in the hope of an acquittal on double jeopardy grounds, when conviction at trial could make a difference of two and a half to nine and one-third years in his sentence.
As to the Brady claim, even in the face of Torres's recalcitrance with his own attorney, the possibility of a double jeopardy defense should have been clear both to defense counsel and the United States on the face of the indictment and Torres's criminal history. But the revelation of UTV's name in FOA's debriefing was not so exculpatory of Torres as to have required disclosure under Brady. It is worth noting, in particular, that Torres himself not only knew everything he needed to know about UTV, but he also knows more than the United States ever will know about the facts of the Colorado case. Although UTV's name should have been disclosed, no real prejudice resulted from its redaction.
Torres has failed to carry his burden of proof on his two remaining claims. They are denied.
"The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a), Rules Governing § 2255 Proceedings. A COA should issue as to those claims on which the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The standard is satisfied if "jurists of reason could disagree with the district court's resolution of [the] constitutional claims" or "conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
I note that counsel concluded, after reviewing the case, that the claims Torres brought pro se — except his claim of ineffective assistance based on double jeopardy and the later-discovered Brady claim — should be abandoned. Supp. to Am. § 2255 Mot. (doc. 285) at 5-6. I agreed then, and I agree now.
The factual bases of some of Torres's claims are contradicted by the record of the case. These include his claims that he went through the entire underlying case without a competent translator, compare Minutes (docs. 78, 157, 199, 209), Staff Notes (Nov. 13, 2007; Jan. 24, 2008; Mar. 3, 2008; May 28, 2008), with Am. Mot. (doc. 271) at 4, Br. (doc. 271-1) at 5,19-20; that he was not adequately advised about the potential sentence, compare Change of Plea Tr. at 8:1-9 with Br. at 3-4; that the Court "intervened" in his case at the change of plea hearing, compare Change of Plea Tr. at 21:11-27:14, Fed. R. Crim. P. 11 (b)(1)(N), (b)(2), with Am. Mot. at 5-6, Br. at 14-16; and that counsel did not argue against the enhancements imposed at sentencing, compare Sentencing Tr. at 11:18-13:13, 18:12-20:3, 25:10-30:3, 32:3-33:13, 35:16-37:16, Presentence Report Addendum at 1 with Am. Mot. 4-5, 7, Br. at 7-14, 20-23. No reasonable jurist would find a basis for a COA in these claims.
Some of Torres's claims failed to allege any prejudice. These include his claims that counsel did not investigate the quality of the methamphetamine attributed to him, compare 21 U.S.C. § 841(b)(1)(A)(viii) with Am. Mot. at 5, Br. at 7; and that he was not personally asked, before the sentencing hearing began, whether he had reviewed the presentence report with counsel, Br. at 19-20. Because no prejudice is realistically possible, see Supp. to Am. § 2255 Mot. at 5-6; Order Denying Some Claims (doc. 286) at 9-10, a COA is not warranted as to these claims either.
Although Torres sufficiently alleged prejudice in connection with both counsel's failure to raise a double jeopardy defense and his Brady claim, he failed to prove prejudice. The facts of the Colorado case, sparse as they are, do not support an inference that Torres was continuing, when he sold methamphetamine to UTV, JC, and the CI in June 2006, to execute the same agreement he had with FOA, KTW, UTV and probably others from May 2005 through May 2006. Torres himself said the methamphetamine came from a different source, its purity and price were different, and he added nothing to the record pre-existing the § 2255 proceedings to show that the Colorado conspiracy was part of the same large conspiracy as that alleged in the Montana indictment. Because the proof fails even to meet the low threshold of a showing with some non-frivolous substance to it, a COA is not warranted on this claim.
Torres's claim that he "did not have a complete understanding of what he was pleading guilty to," Am. Mot. at 4, failed to specify any particular understanding he lacked. A COA is not warranted on this claim.
Finally, Torres's claim that he was denied free copies of his case records, Am. Mot. at 6, could not be a basis for relief under § 2255. Moreover, Torres received the free copies to which he was entitled during the course of the criminal case. He was not entitled to additional copies at public expense after his case had concluded and before he filed his § 2255 motion. A COA is not warranted as to this claim.
Accordingly, IT IS HEREBY ORDERED as follows;
1. Torres's motion to amend his § 2255 motion to add a claim under Brady v. Maryland, 373 U.S. 83, 87 (1963) (doc. 305) is GRANTED;
2. Torres's claims that counsel should have explored a double jeopardy defense and that the United States violated the rule of Brady are DENIED;
3. Torres's motion for summary judgment (doc. 306) is DENIED;
4. All claims having been denied, Torres's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 (docs. 259, 271, 285) is DENIED;
5. A certificate of appealability is DENIED as to each claim. The Clerk of Court shall immediately process the appeal if Torres files a Notice of Appeal;
6. The Clerk of Court shall ensure that all pending motions in this case and in CV 09-111-BLG-RFC are terminated and shall close the civil file by entering judgment in favor of the Uinted States and against Gulmaro Torres-Leon.
Hill, 474 U.S. at 59.
On April 13, 2006, FOA told KTW that "his distribution to Montana was still active." He explained that "a guy from Montana was driving to Denver and picking up two to three pounds of methamphetamine at a time to take back to Montana." Plea Agreement (doc. 25) (sealed) at 6 [ 9 subpara. 5, No. 1:06-CR-62-RFC. There is no evidence in the record in this case or FOA's suggesting that this "guy" was UTV.
