MARK A. KEARNEY, District Judge.
Convicted and sentenced for his central role in trafficking over a 1,000 kilograms of heroin and laundering millions of dollars in drug proceeds as affirmed by our court of appeals, Alejandro Sotelo pro se asks we vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He argues his trial and appellate counsel provided ineffective assistance of counsel depriving him of his Sixth Amendment right. Analyzed under the familiar standards defined by the Supreme Court in Strickland v. Washington, we deny Mr. Sotelo's motion.
A grand jury returned a Superseding Indictment against the Mexico-based Laredo Drug Trafficking Organization ("DTO") led by fugitives Antonio Laredo and Ismael Laredo and thirty-five individuals including Mr. Sotelo. The Superseding Indictment charged the DTO conspired from 2008 to November 2014 to import and distribute over 1,000 kilograms of heroin in Philadelphia and launder millions of dollars in heroin proceeds.
The grand jury charged a conspiracy based on both importing and distributing heroin and then structuring the return of millions of dollars in illegal heroin proceeds through money laundering. Mr. Sotelo, based in Chicago, performed both roles in the conspiracy at a high level; the grand jury charged him with heroin trafficking through, among other things, receiving monthly shipments of heroin from Mexico, storing the heroin shipments in Chicago until directed by his long-time friend Antonio Laredo to deliver heroin to the Philadelphia area for distribution, and transferring money to Mexico to conceal and launder the illegal heroin sale proceeds. The Superseding Indictment charged Mr. Sotelo with conspiracy to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 21 U.S.C. §§ 964, 960(b)(1)(A) (Counts 1 and 2); two counts of aiding and abetting and causing the distribution of one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (Counts 14 and 20); and money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Count 44).
Mr. Sotelo lived in his Chicago, Illinois home for several months pending trial. Over the course of his pretrial release, Mr. Sotelo treated with his oncologist for cancer diagnosed in 2010. Mr. Sotelo hired Illinois attorney Vincent Solano. Attorney Solano entered his appearance, moving for pro hac vice admission to this Court. Philadelphia attorney Andrew F. Erba sponsored Attorney Solano's September 15, 2015 pro hac vice motion.
In early January 2016, we issued an order directing Attorney Solano and Attorney Erba, as local counsel moving Attorney Solano's admission to this Court, to appear and show cause why Attorney Solano's pro hac vice admission should not be revoked based on Attorney Solano's failure to appear at two status conferences.
Having failed to appear at the January 22, 2016 show cause hearing, we ordered Attorney Solano to appear and show cause in a telephone hearing regarding Mr. Sotelo's continued retention of Attorney Solano as counsel.
On January 12, 2016, we scheduled trial involving Mr. Sotelo to begin on April 12, 2016.
The evidence at trial overwhelmingly confirmed Mr. Sotelo, a long-time friend of Antonio Laredo from their time together in Chicago, regularly distributed and transported, and directed multiple couriers to transport, multi-kilogram quantities of heroin from Chicago to the Philadelphia area. The evidence confirmed Sotelo picked up multiple payments of hundreds of thousands of dollars representing proceeds of heroin sales. Mr. Sotelo participated in and instructed the transport of heroin and the laundering of money through banking channels for the Laredo DTO. He received kilograms of heroin from Antonio Laredo in Illinois, sometimes as much as thirty-five (35) to fifty (50) kilograms of heroin a month. Mr. Sotelo renovated homes where he stashed kilograms of heroin between wall studs and behind drywall. Mr. Sotelo directed couriers to drive from Mexico to Chicago which included a car battery packed with approximately three kilograms of heroin and, at times, towed motorboats with marine batteries concealing kilograms of heroin. The jury also heard substantial evidence of Mr. Sotelo transporting bulk cash from Chicago to Mexico using vehicles with trap compartments.
Co-conspirators Joseph Torres and Bertin Torres Sanchez testified to ledgers they maintained tracking delivery of money and drugs (the "Ledgers"). The Ledgers reflect Mr. Sotelo transported drugs and money for the Laredo DTO. Mr. Torres testified to ledger entries recording bulk cash transfers to "Alex," identified as Mr. Sotelo, or his couriers.
Mr. Sotelo's counsel did not object to the proposed jury instructions submitted by the United States.
Retaining new counsel, Mr. Sotelo filed a post-trial motion seeking judgment of acquittal and for a new trial
On January 19, 2018, Mr. Sotelo moved pro se to reconsider his sentence seeking compassionate release due to his worsening cancer diagnosis.
Mr. Sotelo then filed the instant pro se motion under 28 U.S.C. § 2255. Mr. Sotelo is currently in custody at the Federal Medical Center in Butner, North Carolina receiving treatment for his medical condition.
Under Strickland,
To establish deficient performance of his trial counsel, Mr. Sotelo must show "counsel's representation fell below an objective standard of reasonableness."
Mr. Sotelo's claim of ineffective assistance of appellate counsel is also examined under Strickland; he "must show that counsel's representation fell below an objective standard of reasonableness" and, for the prejudice prong, must show "that there is `a reasonable probability ` — `a probability sufficient to undermine confidence in the outcome,' but less than a preponderance of the evidence — that his appeal would have prevailed had counsel's performance satisfied constitutional requirements."
Mr. Sotelo identifies ten grounds asserting violations of his right to effective assistance of both his trial and appellate counsel: (1) Attorney Erba's representation of Mr. Sotelo as well as prosecution witness Bertin Torres Sanchez created a conflict of interest; (2) trial counsel's failure to request a competency evaluation for Mr. Sotelo at trial while taking pain medication for cancer; (3) trial counsel's failure to raise the defense of impossibility to the indictment's aiding and abetting charge; (4) trial counsel's failure to provide representation on the first day of trial; (5) trial counsel's failure to advise Mr. Sotelo of his right to testify; (6) appellate counsel's failure to appeal a jury instruction; (7) trial counsel's stipulation to drug type and quantity; (8) trial counsel's failure to appeal a violation of the Confrontation Clause; (9) trial counsel's failure to object to the knowing use of perjured testimony; and (10) appellate counsel's failure to appeal hearsay testimony identifying Mr. Sotelo as "Alex."
After careful review of each of his ten grounds, we find Mr. Sotelo fails to meet the high burden under Strickland and we deny his motion in the accompanying Order.
Mr. Sotelo contends attorney Andrew Erba represented him at trial while also representing a cooperating witness for the United States Bertin Torres Sanchez who testified against Mr. Sotelo, and while Attorney Erba negotiated a plea agreement for Mr. Torres Sanchez. Mr. Sotelo alleges a conflict of interest in Attorney Erba's representation of both him and Mr. Torres Sanchez violates the Sixth Amendment. Mr. Sotelo argues we failed to address "or otherwise make known" to him Attorney Erba's representation of Bertin Torres Sanchez and "abdicated [our] duty under the Sixth Amendment to explain the conflict of interest and seek a waiver of conflict free counsel from [him]." He further argues both Attorney Erba and Attorney Solano hid the conflict from him. In his Declaration attached to his motion, Mr. Sotelo swears he did not know Attorney Erba represented Bertin Torres Sanchez until his wife told him after trial.
The facts do not support Mr. Sotelo's claim. Attorney Erba never represented Mr. Sotelo. The United States brought a criminal complaint against Mr. Torres Sanchez on July 22, 2013.
After the May 6, 2015 Superseding Indictment, Mr. Sotelo first appeared before a court in this District on August 11, 2015 represented by Attorney Solano whom Mr. Sotelo privately retained.
On September 15, 2015, Attorney Solano moved for pro hac vice admission to this Court. Attorney Erba sponsored Attorney Solano's pro hac vice motion. Our Local Rules of Criminal Procedure require attorneys representing a defendant in any criminal matter to file an entry of appearance which must be served on the United States Attorney.
Attorney Erba's role in this matter relating to Mr. Sotelo is limited to his sponsorship of Attorney Solano's pro hac vice motion and his appearance for Mrs. Sotelo in our January 22, 2016 show cause hearing regarding the possible revocation of Attorney Solano's pro hac vice admission. At the January 22, 2016 hearing, we questioned Attorney Erba about his role in representing Mr. Sotelo. Attorney Erba explained his involvement as limited to the arraignment of Mr. and Mrs. Sotelo.
Two weeks later, on February 3, 2015, we held a telephonic hearing with Attorney Solano, Mr. Sotelo, and the United States Attorney. At the February 3, 2015 hearing, Mr. Sotelo confirmed, under oath, he intended to continue with Attorney Solano's representation.
Thereafter, Attorney Solano appeared at trial, including the intended first day of trial when Mr. Sotelo did not appear. On that date, April 12, 2016, Attorney Solano represented to us his relationship with Mr. Sotelo telling us "[p]ractically every day for the last, at least, thirty days, Mr. Sotelo has come into my office, even as recently as this past Saturday and Sunday, where we sat as we were getting discovery documents"
Mr. Sotelo has not shown Attorney Erba ever provided legal services or shared confidences with him. Our Magistrate Judges appointed Attorney Erba as Criminal Justice Act counsel for Mr. Torres Sanchez and Mrs. Sotelo. Attorney Solano always represented Mr. Sotelo. Mr. Sotelo never suggested he thought Attorney Erba served as his attorney. Rather, Attorney Erba sponsored Attorney Solano for admission pro hac vice. Under our Local Criminal Rules, Attorney Erba represents persons once he enters an appearance. He never entered an appearance for Mr. Sotelo.
Even assuming we ignored our Local Rules and the absence of a relationship between Attorney Erba and Mr. Sotelo, we still have no basis to find an actual conflict.
Mr. Sotelo contends his cancer required narcotic pain medication, including morphine and Dilaudid, a narcotic analgesic, rendering him incompetent at pre-trial and trial proceedings. He alleges ineffective assistance based on Attorney Solano's failure to request a competency evaluation under 18 U.S.C. § 4241(a). Mr. Sotelo additionally alleges the pain medication prevented his ability to consult with Attorney Solano, to understand the proceedings against him, and to competently assist Attorney Solano in his defense.
Section 4241(a) provides "At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, . . . the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense."
Under the law in this circuit, trial counsel should request a competency evaluation when he has "reason to doubt [his client's] competence to stand trial."
Mr. Sotelo provides us with no evidence his trial counsel had reason to doubt his competence either at the pre-trial or trial stage. Mr. Sotelo cites to his Declaration attached to the instant motion, swearing during trial he "was on . . . hydro-morphine and morphine every two hours, or as needed"; when administered the medication he is unable to focus or concentrate; "simple tasks like engaging in conversation sometimes becomes problematic," and "often [he] is rendered semiconscious and forgetful."
Mr. Sotelo's Declaration is inconsistent with this pre-trial and trial conduct. For example, at our January 22, 2016 show cause hearing, Mr. Sotelo responded to our questions clearly and competently, providing us with a timeline of his contacts with Attorney Solano.
During a colloquy with Mr. Sotelo on the last day of trial regarding his decision not to testify in his defense, Mr. Sotelo had the ability to clearly state and spell his name; correct counsel on his present age; confirm he can read, write, and understand English and Spanish; confirm he understood the proceedings to date; confirm he had no trouble understanding his discussions with counsel regarding testifying in his defense; confirmed through the course of trial he and his counsel continued to discuss the right to testify in his defense; confirmed he understood his Constitutional right to testify, or not testify, in his case and it is his decision; confirmed no one coerced, influenced, or forced him to decide not to testify in his defense; and confirmed he understood the decision not to testify cannot be held against him.
When asked by his counsel specifically about his mental status with regard to his right to testify, Mr. Sotelo testified:
During our colloquy with Mr. Sotelo regarding the United States' plea offer, he exhibited an understanding of the proceedings:
We find there is no evidence to support a finding Attorney Solano, the United States Attorney, or the Court had reasonable cause to believe at the pre-trial and trial stage Mr. Sotelo "may presently be suffering from a mental disease or defect rendering him mentally incompetent" because his responses to the colloquy show he understood the nature and consequences of the proceedings against him and to assist properly in his defense. Taking a medication such as a narcotic in itself does not show mental incompetence.
Mr. Sotelo argues ineffective assistance of his trial counsel for failing to raise an impossibility defense to Count 14 of the Superseding Indictment. In Count 14 of the Superseding Indictment, the grand jury charged Mr. Sotelo with distributing one or more kilograms of heroin and aiding and abetting and causing the distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)
Mr. Sotelo argues § 2(a) and § 2(b) have different mens rea requirements; he argues § 2(a) has a mens rea requirement while §2(b) does not. Mr. Sotelo points to Rosemond to support his argument. Mr. Sotelo argues his counsel's ignorance of the Rosemond case satisfies the first part of the Strickland test and the merit of the "physical impossibility" defense satisfies the second part of Strickland.
Mr. Sotelo misunderstands the statute and the Supreme Court's Rosemond decision. Section 2 is the federal aiding and abetting statute imposing liability as a principal on an accomplice who furthers the commission of a federal offense. This section "derives from . . . common-law standards for accomplice liability" and "reflects a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission."
Section 2(b) imposes liability on a defendant who "willfully causes" the criminal act of another person.
There is nothing in Rosemond to create a "physical impossibility" with regard to the mens rea elements of each subsection; both require a mens rea element. A defendant may aid and abet the commission of a crime under§ 2(a) or cause another to commit a crime under§ 2(b).
The overwhelming evidence showed Mr. Sotelo's managerial and supervisory role over couriers who transported heroin and its proceeds for the Laredo DTO evidencing his culpability as both "aid[ing] and abet[ing]" and "caus[ing] an act to be done" under 18 U.S.C. § 2(a) and (b). Mr. Sotelo fails to meet his burden under Strickland and we deny his motion on this ground.
Mr. Sotelo asserts ineffective assistance based on his trial counsel's failure to protect his right to be present on the first day of trial. There is simply no fact basis for this argument.
In January 2016, we scheduled Mr. Sotelo's trial to begin on Wednesday, April 12, 2016. Mr. Sotelo did not appear on April 12. We discussed with counsel, in open court and on the record, the whereabouts of Mr. Sotelo and the issuance of a bench warrant. During our discussion with counsel on April 12, Attorney Solano received a telephone call from Mr. Sotelo. After taking Mr. Sotelo's call, Attorney Solano stated, on the record, Mr. Sotelo remained in Chicago waiting for the arrival of medication to treat his cancer.
Mr. Sotelo fails to meet his burden under Strickland, and we deny his petition on this ground.
Mr. Sotelo next argues Attorney Solano failed to advise him of his right to testify, swearing in his Declaration Attorney Solano never told him he had a "right, or even the option, to testify."
The colloquy confirms Attorney Solano advised Mr. Sotelo of his right to testify in his defense. To the extent Mr. Sotelo's argument here is also based on the side effects of his pain medication and Attorney Solano's failure to determine Mr. Sotelo's mental competency, it is denied for the reasons discussed above. Mr. Sotelo's claim fails under Strickland as there is neither deficient performance nor prejudice.
Mr. Sotelo contends Counts 14 and 20 of the Superseding Indictment charged him with having "caused" the distribution of heroin in violation of 18 U.S.C. § 2, and we did not explain "caused" or provide a correct statement of the applicable law in our jury instructions. Mr. Sotelo asserts ineffective assistance by his appellate counsel, Attorney Diamondstein, for failing to appeal our jury instruction on the "aiding and abetting and caused the distribution of' charge.
Counts 14 and 20 charged Mr. Sotelo "knowingly and intentionally distributed, and aided and abetted and caused the distribution of' one kilogram or more of heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2 (emphasis added).
Based on our fulsome charge using the Model Criminal Charges, we find Mr. Sotelo fails under Strickland to show deficient performance of his appellate counsel or prejudice.
Mr. Sotelo next contends ineffective assistance of his trial counsel for stipulating to the drug type and quantity of heroin. At the beginning of trial, Attorney Solano and the United States stipulated to the substances seized by law enforcement as heroin and its quantity. Mr. Sotelo signed each of the stipulations.
Mr. Sotelo cites to his Declaration swearing Attorney Solano never explained the stipulations; he did not have knowledge about stipulations in general; he pleaded not guilty and went to trial with the intent to challenge every aspect of the United States' case; and, had he been properly advised, he would have rejected the stipulations and fired Attorney Solano.
We begin our Strickland analysis with the prejudice prong, an approach endorsed by our court of appeals where consideration of prejudice before examining counsel's performance "makes it `easier to dispose of an ineffectiveness claim.'"
Even assuming Attorney Solano's agreement to stipulate to the quantity of heroin fell below an objective standard of reasonableness, Mr. Sotelo fails to carry his burden to show prejudice. Given the testimony at trial establishing drug type and quantity, Mr. Sotelo cannot show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Accordingly, we deny Mr. Sotelo's motion on this ground.
Mr. Sotelo alleges ineffective assistance by his appellate counsel, Attorney Diamondstein, for failing to appeal violations of the Confrontation Clause by Special Agent Moynihan's testimony. Mr. Sotelo challenges Agent Moynihan's testimony as a violation of the Confrontation Clause complaining (a) testimony identifying Mr. Sotelo as a member of the Laredo cartel and associating the Laredo cartel with the Sinaloa and Los Rojos Mexican cartels involved in heroin trafficking impermissibly goes to his "general bad reputation or character"
Mr. Sotelo's arguments fail under Strickland. Mr. Sotelo's first challenge is without merit. Special Agent Moynihan's testimony regarding the Sinaloa cartel and "El Chapo," and the Los Rojos cartels does not go to Mr. Sotelo's reputation or character. Special Agent Moynihan's testimony did not refer to Mr. Sotelo's character as an individual; rather, his testimony defined terms the United States expected to use during testimony at trial, terms Special Agent Moynihan learned during his role as the lead investigator in the case. Special Agent Moynihan's testimony regarding the other cartels is not hearsay, as he simply referred to media reports generally and did not testify to the contents of any media reports.
Mr. Sotelo's second challenge is to Special Agent Moynihan's testimony regarding two police reports detailing the traffic stop and arrest of Giovanni Delgado in Texarkana, Texas and a traffic stop in Nashville, Tennessee both resulting in the seizure of heroin. Mr. Sotelo objects to this testimony as hearsay because Agent Moynihan did not personally conduct the stops. A review of the transcripts show Agent Moynihan did not testify to the contents of police reports in these incidents, but testified to his knowledge of the stops as part of his role in the investigation.
Mr. Sotelo's third challenge is to Agent Moynihan's testimony regarding statements made in a Drug Enforcement Agency report attributed to Mr. Sotelo's brother, Sabino Sotelo. Mr. Sotelo argues the testimony related to conversations between two non-testifying witnesses and is hearsay. The record does not support the argument. Agent Moynihan testified to the DEA form documenting the seizure of approximately $550,000 in heroin proceeds from a residence occupied by Sabino Sotelo.
There is no merit to Mr. Sotelo's claim of ineffective assistance of appellate counsel. Mr. Sotelo's appellate counsel "cannot be deemed ineffective for failing to raise a meritless claim."
Mr. Sotelo next contends ineffective assistance of his trial counsel for failing to object to "knowing use of perjured testimony" used to convict him. Mr. Sotelo asserts Agent Moynihan perjured himself when he testified the authorities seized $26,000 from Mr. Sotelo's residence. Again citing his Declaration, Mr. Sotelo swears the money seized from his home amounted to $13,000.
Mr. Sotelo again fails to meet his burden under Strickland. Even assuming his trial counsel failed to highlight the discrepancies, if at all, between Agent Moynihan's testimony and documentary evidence regarding the amount seized from Mr. Sotelo's home, he fails to meet his burden on the prejudice prong. Based the overwhelming evidence adduced at trial, Mr. Sotelo fails to show a reasonable probability, but for his trial counsel's errors in the $13,000 difference in the amount of money seized, the result of the proceeding would have been different.
Mr. Sotelo asserts an ineffective assistance of appellate counsel for failing to object to hearsay testimony referring to Mr. Sotelo as "Alex." Although he sat through eight days of trial where his attorney, the United States' attorneys, and witnesses consistently referred to Mr. Sotelo as "Alex," Mr. Sotelo never objected to the use of "Alex" in reference to him. Now, two years after trial, Mr. Sotelo for the first time contends he never used the name "Alex," no one calls him "Alex," his nickname is "Paco," and his name is Alejandro.
Mr. Sotelo contends the United States accused two people named "Alejandro" of being participants in the Laredo DTO. He asserts ineffective assistance of appellate counsel for failing to raise on appeal there are two people named "Alejandro." Mr. Sotelo concedes his appellate attorney challenged as hearsay the testimony of Special Agent Moynihan and Mr. Torres Sanchez identifying Mr. Sotelo as "Alex" in the Ledgers seized in the investigation, an argument rejected by our court of appeals. But his challenge now is to the use of the Ledgers referring to exchanges of drugs and money made to "Alex," suggesting the other Alejandro is the "Alex" in the Ledgers, not him. Mr. Sotelo argues his counsel's failure to raise the "two Alejandros" issue gave our court of appeals the "misimpression that there was `just one' [Alejandro] Alex," thus undermining the "confidence in the outcome of the appeal."
There is no merit to this argument. Attorney Solano never developed a "two Alejandros" defense and referred to Mr. Sotelo as "Alex" in pre-trial hearings and throughout the entire trial. In our February 3, 2016 show cause hearing, we referred to Mr. Sotelo as "Alex" to which he did not object.
Mr. Torres further identified Mr. Sotelo as having first met him to pick up money (heroin proceeds) from drug sales in Philadelphia. Mr. Torres maintained Ledgers reflecting transactions attributed to "Alex." Mr. Torres also testified he knew only one "Alex" in the DTO, explaining he used the name "Alex" in the Ledgers and "Alejandro" to make deposits into Mr. Sotelo's bank account.
Mr. Sotelo fails to meet his burden under Strickland. We deny his motion under 28 U.S.C. §2255 in the accompanying Order.
Section 2(b) provides "Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal" (emphasis added).
