Following arraignment on the Indictment, petitioner filed pretrial motions, and the Government submitted its response. At a conference before this Court on April 25, 1994, oral argument was heard on these motions. The Court, finding probable cause for petitioner's arrest and the search of the automobile, denied Ortega's motion to suppress the physical evidence seized from the automobile. The Court also denied Ortega's motion requesting a severance, the disclosure of the identity of the CI, and a bill of particulars. During this conference, Ortega withdrew his motion to suppress his post-arrest statement on the grounds that it was the product of an unlawful arrest and that he had invoked his right to remain silent prior to the Court rendering its ruling. Regarding Ortega's motion to suppress identification evidence resulting from an identification procedure, the Court ruled that if identification became an issue at trial, a hearing would be held to assess whether any identification evidence was unduly and impermissibly suggestive. See Govt's Mem. at 8.
On May 10, 1994, prior to the commencement of the trial, Ortega entered an unconditional plea of guilty to Count One of the Indictment, charging him with conspiracy to commit robbery. Prior to the guilty plea, Ortega and the Government entered into a plea agreement, which contained various stipulations regarding the calculation of petitioner's offense level, criminal history category, and guidelines sentencing range. See Govt's Mem. at 8-9.
They also agreed that neither party would appeal a sentence by the Court that fell within the stipulated sentencing range. See Govt's Mem. at 9.
On July 8, 1994, this Court sentenced Ortega to 37 months imprisonment, followed by three years of supervised release, and a mandatory special assessment. The sentence was based on a sentencing range of 37 to 46 months, the agreed upon range in the plea agreement. Ortega did not appeal his conviction or sentence. See Govt's Mem. at 9.
On February 5, 1995, Ortega moved for an order pursuant to 28 U.S.C. § 2255 to set aside his sentence. The Government opposes petitioner's motion.
I. Plaintiff Has Waived the Right to Challenge this Court's Disposition of His Pretrial Motions.
Petitioner requests that his sentence be set aside since his pretrial motions 1) to suppress physical evidence, identification evidence and his post-arrest statements; 2) to disclose the identity of the CI; and 3) to sever his case from that of his co-defendants were improperly decided. Petitioner's request is seemingly proper under 28 U.S.C. § 2255, which provides that a prisoner may request that his sentence be set aside "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the amount imposed by law, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255. However, when petitioner pleaded guilty to Count One of the Indictment, he waived the right to assert these claims.
It is well settled that when a criminal defendant knowingly and voluntarily pleads guilty, he admits to all of the elements of the formal criminal charge. See McCarthy v. United States, 394 U.S. 459, 466, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969); Hayle v. United States, 815 F.2d 879, 881 (2d Cir. 1987). The criminal defendant also waives all challenges to the prosecution and all defects in the prior proceedings, except those going to the court's jurisdiction. See Hayle 815 F.2d at 881; see also United States v. Rios, 893 F.2d 479, 481 (2d Cir. 1990) (per curiam); La Magna v. United States, 646 F.2d 775, 778 (2d Cir. 1981), cert. denied, 454 U.S. 898, 70 L. Ed. 2d 214, 102 S. Ct. 399 (1981); Lebowitz v. United States, 877 F.2d 207, 209 (2d Cir. 1989). Thus, a defendant who has pleaded guilty may not raise nonjurisdictional challenges by collateral attack under § 2255. See United States v. Broce, 488 U.S. 563, 569, 102 L. Ed. 2d 927, 109 S. Ct. 757 (1989); Hayle, 815 F.2d at 881; La Magna, 646 F.2d at 778.
Although petitioner alleges that his attorney advised him to plead guilty or face 15 years in prison, see Ortega's § 2255 Petition ("Petition"), at 1, it is undisputed that at the time of his guilty plea, Ortega waived his constitutional rights, acknowledged that his plea was voluntary and of his own free will, and admitted to his role in the crime. See Govt's Mem. at 10-11. Since petitioner's claims do not challenge the Court's jurisdiction, they are waived by his guilty plea, which did not include a court-approved reservation of those claims. See Lebowitz, 877 F.2d at 209.
Ortega's motions to suppress evidence, to compel disclosure of the identity of the CI, and to sever his case from that of his co-defendants are not jurisdictional in nature, and therefore, by pleading guilty, Ortega waived his rights to reexamine the Court's decisions with respect to these motions.
However, even if the Court reexamines the merits of these motions, Ortega's claims still must fail.
A. Ortega's Arrest Was Supported by Probable Cause.
Petitioner claims that the law enforcement agents lacked probable cause to arrest him, and that any evidence obtained from his person or car resulted from an illegal search and seizure, in violation of the Fourth Amendment of the Constitution.
The Fourth Amendment secures persons and their effects against unreasonable searches and seizures, and requires the existence of probable cause before a warrant shall issue. A warrantless arrest is justified if the police have probable cause when the defendant is arrested to believe that an offense has been or is being committed. See United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987), cert. denied, 484 U.S. 1077, 98 L. Ed. 2d 1018, 108 S. Ct. 1056 (1988); United States v. Fox, 788 F.2d 905, 907 (2d Cir. 1986).
Probable cause is a flexible, common-sense standard. See Texas v. Brown, 460 U.S. 730, 742, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983). It merely requires that the facts available to the officers would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful evidence of a crime. See Brown, 460 U.S. at 742; Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280 (1925)). Probable cause requires "only a probability or substantial chance of criminal activity." Illinois v. Gates, 462 U.S. 213, 245 n.13, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). One need not even show that such a belief is correct or more likely true than false. See Brown, 460 U.S. at 742. The determination of whether probable cause exists may be based on the collective knowledge of all of the officers involved in the surveillance where the various law enforcement officers are in communication with each other. See Cruz, 834 F.2d at 51.
A finding of probable cause turns on the facts of each case. See Gates, 462 U.S. at 232; Cruz, 834 F.2d at 50. The Court must examine the "totality of the circumstances," see United States v. Moreno, 897 F.2d 26, 31 (2d Cir.), cert. denied, 110 S. Ct. 3250 (1990), as viewed by someone experienced in the field of law enforcement. See Brown, 460 U.S. at 742.
Additionally, a criminal participant or witness to a crime "need not be shown to have been previously reliable before the authorities may rely on his statements." See United States v. Gaviria, 805 F.2d 1108, 1115 (2d Cir. 1986), cert. denied, 481 U.S. 1031 (1987) (quoting United States v. Rueda, 549 F.2d 865, 869 (2d Cir. 1977) (emphasis in original). "Evidence sufficient to show probable cause by corroborating even a previously unknown informant may be found in circumstances which do not actually establish the crime itself." Gaviria, 805 F.2d at 1115, (quoting Rueda, 549 F.2d at 870); see United States v. Sultan, 463 F.2d 1066, 1069 (2d Cir. 1972). Even if a defendant's conduct may appear innocent on its face, probable cause may still be established since the probable cause standard "'does not deal with hard certainties, but with probabilities.'" Gates, 462 U.S. at 231 (quoting United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981)); see Gaviria, 805 F.2d at 1115.
Here, the agents properly relied on the CI's statements, and when the statements were combined with other corroborative facts, the agents had probable cause to arrest Ortega. Although it is of little significance that the CI was a first-time informant, it is noteworthy that he was not merely an informant, but was involved in orchestrating the crime. See Gaviria, 805 F.2d at 1115. The CI provided the agents with detailed information about the execution of the intended robbery and about the victims. His statements were corroborated by his phone call to Ecedro, and significantly, Ecedro indicated that another person would take the CI's place in the robbery.
The CI's testimony was further corroborated by the surveillance mission. The CI accompanied the agents to the intended crime scene, where he identified "Eddie," "Ecedro," and "Roberto." The yellow Toyota matched the description of the car which was to be used in the robbery, and which he said would contain weapons. Furthermore, he identified the green Buick as a vehicle he had seen used in past robberies and one in which he had previously seen a firearm.
Ortega was observed conversing with his co-defendants at the corner of 183rd Street and Fort Washington Avenue. See Govt's Mem. at 15. The agents observed defendants looking around, repeatedly talking together and separating, and otherwise acting suspiciously. See Govt's Mem. at 14.
Thus, the CI's information, corroborated by the phone call to Ecedro and the events at the scene, as viewed by experienced law enforcement officers, reasonably support the agents' conclusion that Ortega was one of the co-conspirators recruited to replace the CI in a pending offense. Under the totality of the circumstances, the Court finds that sufficient objective evidence existed to find that Ortega was involved in criminal activity, and that the agents were justified in arresting him.
B. The Agents Lawfully Searched the 1981 Buick.
Ortega also claims that the Court should have suppressed the physical evidence, specifically the handgun recovered from the Buick, see Petitioner's Mot. at 9-10, since the agents lacked probable cause to conduct a warrantless search of the vehicle. "[A] defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure." United States v. Padilla, 123 L. Ed. 2d 635, 113 S. Ct. 1936, 1939 (1993) (per curiam) (emphasis in original). Thus, to contest a search, a defendant must have a legitimate expectation of privacy in the thing that was searched. See United States v. Tropiano, 50 F.3d 157, 161 (2d Cir. 1995). To determine whether petitioner's Fourth Amendment rights were violated, "first, the person challenging the search must demonstrate a subjective desire to keep his or her effects private; and, second, the individual's subjective expectation must be one that society accepts as reasonable." United States v. Paulino, 850 F.2d 93, 97 (2d Cir. 1988), cert. denied, 490 U.S. 1052, 104 L. Ed. 2d 435, 109 S. Ct. 1967 (1989) (citing California v. Greenwood, 486 U.S. 35, 39, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988)).
The defendant seeking suppression bears the burden of proving a privacy interest in an automobile. See United States v. Pena, 961 F.2d 333, 336 (2d Cir. 1992). To prove this privacy interest, it is not necessary that defendant own the vehicle. See id. at 337. Instead, defendant must show, among other things, a legitimate basis for being in the vehicle, such as permission from the owner. See id. at 337; United States v. Ochs, 595 F.2d 1247, 1253 (2d Cir.), cert. denied, 444 U.S. 955, 62 L. Ed. 2d 328, 100 S. Ct. 435 (1979). "Defendants who do not have a legitimate basis for being in a car that is not registered in the name of any of the car's occupants cannot object to the search of the vehicle." United States v. Ponce, 947 F.2d at 646, 649 (2d Cir. 1991), cert. denied, 503 U.S. 943 (1992). Even if a defendant can establish a privacy interest in an automobile, he must still have a reasonable expectation of privacy in the area of the vehicle searched. See Pena, 961 F.2d at 337.
Petitioner has failed to establish a Fourth Amendment interest in the Buick, as he did not submit an affidavit in support of his claimed privacy interest, and he failed to demonstrate either ownership in the car, or license from the owner to possess the car. See United States v. Sanchez, 635 F.2d 47, 64 (2d. Cir. 1980). The registered owner of the car is Jose Guzman. Even the records which Ortega submitted from his car service employer failed to identify any relation between the Buick's registered owner and the car service. Ironically, petitioner further indicates his lack of a privacy interest in the car by emphasizing that he did not even possess the keys to the car, but claims that they were found in the ignition. See Petitioner's Mot. at 8. Petitioner has failed to show that he had the requisite privacy interest in the 1981 Buick.
Even if petitioner had established a privacy interest in the Buick, the automobile exception to the Fourth Amendment warrant requirement permits a warrantless search of an automobile when the police have probable cause to believe that the vehicle contains contraband or evidence of criminal activity. See Carroll, 267 U.S. at 149; Pena, 961 F.2d at 338. If the probable cause extends to the entire vehicle, the agent may conduct a warrantless search "of every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross, 456 U.S. 798, 825, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982). The CI's information, corroborated by the events at the crime scene provided the agents with probable cause to search the automobile.
Thus, petitioner has failed to establish a legitimate Fourth Amendment entitlement to the 1981 Buick, and does not possess a privacy interest in the hidden compartment inside the dashboard where the .38 caliber revolver was found. The agents had probable cause to conduct a warrantless search of the vehicle. Accordingly, Ortega's motion to suppress evidence seized from the vehicle was properly denied.
C. The Court Properly Denied Ortega's Motion for A Severance.
Petitioner contends that the Court improperly denied his motion for a severance from his co-defendants, specifically Rivera and Foy. Ortega moved for a severance on the grounds that admission of Rivera's redacted post-arrest statement would have violated his rights under the Confrontation Clause since the statement directly implicates Ortega's car and intimates Ortega's possession of the gun. See Petitioner's Mot. at 10-11; Govt's Mem. at 21. Ortega argues that even though the statement was redacted to delete names, a jury would be able to use other evidence to determine the identity of the redacted names. See Govt's Mem. at 21. Additionally, he claims that a joint trial would have precluded introduction of Foy's unredacted post-arrest statement, which he contended exculpated him, see Govt's Mem. at 21. Furthermore, Ortega claims spillover prejudice by Foy's statement against Rivera, in violation of his Fifth Amendment Due Process rights. See Petitioner's Mot. at 11.
The decision whether to sever multi-defendant trials is committed to the sound discretion of the trial court, see United States v. Lasanta, 978 F.2d 1300, 1306 (2d Cir. 1992), and the defendant alleging such prejudice bears a heavy burden. See United States v. Locascio, 6 F.3d 924, 947 (2d Cir. 1993), cert. denied, 114 S. Ct. 1645 (1994).
The Confrontation Clause of the 6th Amendment guarantees a criminal defendant the right to cross-examine the witnesses against him, see United States v. Kyles, 40 F.3d 519, 526 (2d Cir. 1994), and this interest in cross-examination is heightened when the witness is an accomplice whose testimony could implicate the defendant as a fellow wrongdoer. See id. at 526. A defendant's right to cross-examine an accomplice who incriminates the defendant may be frustrated when they are tried jointly. See id. at 526. If the accomplice has confessed that he and the defendant committed the crime together, that confession is admissible against the declarant as an admission, see Fed. R. Evid. 801(d)(2), but is generally inadmissible hearsay as to the nondeclarant. See Kyles, 40 F.3d at 526. Thus, unless the nondeclarant defendant has the opportunity at trial to cross-examine the declarant, the part of the statement incriminating the nondeclarant may not be admitted at joint trial. See id. at 526; Bruton v. United States, 391 U.S. 123, 126, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).
However, the confrontation problem may be eliminated by redacting the statement so that it no longer connects the nondeclarant defendant to the crimes charged, by replacing the names of the co-defendants with neutral pronouns. See Kyles, 40 F.3d at 526; United States v. Tutino, 883 F.2d at 1125, 1135 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990). A redacted statement violates a defendant's Bruton rights only if the statement, "standing alone, would clearly inculpate him without introduction of further independent evidence." Tutino, 883 F.2d at 1135 (quoting United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir.), cert. denied, 472 U.S. 1019 (1985)). In Richardson v. Marsh, 481 U.S. 200, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987), the Supreme Court explicitly rejected a "contextual" approach, and focused instead on whether the redacted statement alone was "facially incriminating" as to the codefendant. Id. at 208-09; Tutino, 883 F.2d at 1135. Thus, a defendant's statement implicating both himself and his co-defendants, which has been redacted to exclude the co-defendants' names, and which would be incriminating only when linked with other evidence in the case, is properly admitted into evidence, and does not violate the co-defendants' constitutional rights. See Tutino, 883 F.2d at 1135.
Here, the Government proposed a redacted version of Rivera's statement that not only deleted the names of the co-defendants, but also removed any indication to the jury that any defendant identified any other individuals. See Govt's Mem. at 21, 23. Additionally, Rivera's statement implicating Ortega was not "incriminating on its face." See Tutino, 883 F.2d at 1135. It did not identify Ortega, and would only have implicated Ortega if additional independent evidence was introduced, such as law enforcement observations at the crime scene, the testimony of a coconspirator, and other physical evidence such as the gun recovered from the 1981 Buick.
Since the redaction of Rivera's statement effectively removed all manifest references to Ortega from the statement, and was not incriminating on its face, it did not infringe on Ortega's rights under the Confrontation Clause, and was properly admitted into evidence.
Petitioner also contends that a joint trial would have prevented his use of Foy's unredacted statement, which he claims exculpated him, since it did not name petitioner along with the four co-defendants. See Govt's Mem. at 25. Petitioner's claim lacks merit since Foy's statement would have been inadmissible hearsay, in violation of Fed. R. Evid. 801, and could not be introduced in a separate trial. The statement was an out of court declaration offered by Ortega to prove the truth of the matters asserted, namely to prove that the conspirators consisted of the four co-defendants and not Ortega. See Govt's Mem. at 25. Since the statement did not fall within any of the hearsay exceptions, the Court properly denied severance based on this ground.
Finally, to prevail on his claim of spillover prejudice, based on Foy's statement against Rivera, petitioner must show that he was so severely prejudiced by the spillover evidence that a joint trial will constitute a miscarriage of justice. See Lasanta, 978 F.2d at 1306. Ortega has failed to meet this burden. He has not specified any statements made by Foy which are so prejudicial against defendant that their use would result in an injustice.
Accordingly, for the reasons set forth above, and in the interests of judicial economy, Ortega's motion for a severance was properly denied.
D. The Court Properly Denied Ortega's Motion to Disclose the Identity of the Confidential Informant.
Petitioner claims that the Government should be compelled to disclose the identity of the CI, "to prove that petitioner is the person he states he saw" in the conspiracy. See Petition at 5. It is within the Court's discretion to decide whether to compel disclosure of an informant's identity. See DiBlasio v. Keane, 932 F.2d 1038, 1042 (2d Cir. 1991). The Court should consider the particular circumstances of each case, taking into consideration "the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988), cert. denied, 489 U.S. 1089, 103 L. Ed. 2d 858, 109 S. Ct. 1555 (1989).
The Government's privilege to withhold the identity of a confidential informant gives way "where the disclosure of an informer's identity . . . is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Roviaro v. United States, 353 U.S. 53, 60-61, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957); DiBlasio, 932 F.2d at 1041. The informant's identity need not be disclosed unless disclosure is "material" or "essential" to the defense, see Saa, 859 F.2d at 1073; Scher v. United States, 305 U.S. 251, 254, 83 L. Ed. 151, 59 S. Ct. 174 (1938), as occurs where the informant "is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence." United States v. Russotti, 746 F.2d 945, 950 (2d Cir. 1984). However, if disclosure of the informant's identity would only be marginally valuable to the defendant's case, then it is insufficient to show that the informant was a participant and witness to the crime charged. See United States v. Jimenez, 789 F.2d 167, 170 (2d Cir. 1986). The burden is on the defendant to demonstrate the need for the extraordinary remedy of disclosure. See United States v. Long, 697 F. Supp. 651, 663 (S.D.N.Y. 1988).
Ortega has failed to satisfy his burden of establishing that disclosure of the CI's identity is material to his defense. The CI's testimony is essential to the Government's position, not the defense, and the Government asserts that the CI would have taken the stand in the Government's case, where petitioner would have had ample opportunity to cross-examine him. See Govt's Mem. at 28. The bulk of the CI's testimony related to events prior to the crime, in which he did not even implicate Ortega. Furthermore, since Ortega's activities at the crime scene were also witnessed by law enforcement agents, the CI is not a key witness to the events. The CI merely identified Ortega, his co-defendants, and the vehicles involved. Ortega has not demonstrated that disclosure of the CI's identity will prove his innocence. Petitioner has presented no evidence to support his claim that the CI had a motive falsely to accuse petitioner of participation in the conspiracy. See Petition at 5. In any event, a challenge to an informant's credibility is "normally an insufficient basis to overcome the informant's privilege." Russotti, 746 F.2d at 950.
Thus, since Ortega has failed to establish that the disclosure of the CI's identity is material to his defense, petitioner's motion was properly denied.
E. Ortega's Claims Regarding His Motion to Suppress and His Post-arrest Statement Lack Merit.
Ortega contends that the Court erroneously denied his motions to suppress his post-arrest statement and the identification evidence. Ortega's claims lack merit. In fact, since Ortega withdrew his motion to suppress his post-arrest statement at the April 25, 1994 conference, the Court never ruled on this motion. In any event, since there was probable cause to arrest Ortega, his post-arrest statements were properly admitted into evidence, and his motion to suppress his post-arrest statements would properly have been denied. See Cruz, 834 F.2d at 52; Gaviria, 805 F.2d at 1115-1116.
Furthermore, at the same conference, the Court ruled that if identification became an issue at trial, it would conduct an evidentiary hearing to assess whether any identification evidence was unduly and impermissibly suggestive. Thus, this Court never denied Ortega's above motions, and Ortega's claims challenging the purported denial of these motions are dismissed.
II. Petitioner's Claim of Ineffective Assistance of Counsel is Unsupported by Adequate Factual Allegations.
Ortega further claims ineffective assistance of counsel due to "lack of legal documentation, and other issues of fact." See Petition at 5. To prevail on a claim of ineffective assistance of counsel, Ortega must overcome the law's presumption that counsel's conduct was reasonable. See Strickland v. Washington, 466 U.S. 668, 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Thus, petitioner "must establish that his  counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. He must also show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Billy-Eko v. United States, 8 F.3d 111, 117 (2d Cir. 1993) (citations omitted).
Petitioner's vague assertions in the petition are insufficient to satisfy these requirements. Nowhere in his moving papers does petitioner define the "lack of legal documentation, and other issues of fact." The lack of legal documentation may refer to the motion petitioner filed on February 5, 1995 requesting his transcripts and sentencing transcripts. Petitioner referred to this motion in a letter to his former attorney, Daniel Nobel, Esq., dated March 20, 1995, again requesting this documentation so that petitioner could appeal his sentence. In the above letter, petitioner also referred to "certain issues and facts in the entire case which I know and am aware," which allegedly establish petitioner's innocence. However, these documents are utterly insufficient to clarify the obscure assertions made in petitioner's moving papers.
Petitioner's assertions in his reply papers are equally unavailing. Petitioner claims in his reply that his counsel's representation was ineffective due to:
1. Lack of legal documentation and other issues of fact;
2. Counsel made errors very serious errors, by not functioning as counsel should under the guarantee of the Sixth Amendment;
3. Counsel was prejudice due to his unprofessional errors, the results of which would have been a different outcome of defendant's right to liberty;