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ORTEGA v. UNITED STATES

September 5, 1995

CIPRIAN ORTEGA, Petitioner, against UNITED STATES OF AMERICA, Respondent.

Peter K. Leisure, U.S.D.J.


The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge:

 This is a pro se petition, pursuant to 28 U.S.C. § 2255, seeking to set aside petitioner's sentence, entered upon a plea of guilty. Petitioner is Ciprian Ortega ("Ortega"). Respondent is the United States of America (the "Government"). This Court sentenced Ortega to 37 months imprisonment for conspiracy to commit robbery. Ortega claims that his sentence should be set aside because (1) his conviction was obtained by the use of evidence gained from an unconstitutional search and seizure; (2) his Fifth Amendment Right to remain silent during custodial interrogation was violated; (3) the court improperly denied his motion for a severance; (4) the Court erroneously denied his motion to suppress a suggestive photographic identification thereby violating his due process rights; (5) the Government should have disclosed the identity of the confidential informant in petitioner's case; (6) he was deprived of effective assistance of counsel due to "legal documentation and other issues of fact;" and (7) the Court incorrectly calculated his offense level in determining the applicable sentencing range. For the reasons set forth below, petitioner's request is denied.

 BACKGROUND

 On December 1, 1993, an individual arrested for failure to appear in New York State Supreme Court on a robbery indictment, became a first-time confidential informant ("CI") regarding a robbery planned for later that day. He provided the agents of the FBI/NYPD Joint Robbery Apprehension Task Force (the "agents") with the following details:

 The CI was conspiring with five individuals to rob a supermarket owner's residence in the Washington Heights section of Manhattan of approximately $ 150,000. The CI named three of his co-conspirators as Antonio Acosta a/k/a "Roberto," Edgar Foy a/k/a "Eddie," Jose Torres a/k/a/ "Ecedro" or "Isidro." See Government's Memorandum of Law in Opposition to Petitioner's § 2255 Petition ("Govt's Mem.") at 3; Petitioner's Notice of Motion pursuant to 28 U.S.C. § 2255 to Set Aside Sentence ("Petitioner's Mot."), at 1.

 The participants were to travel to the crime location in an older model, yellow Toyota station wagon and were to have two walkie-talkie radios and two automatic firearms, to be concealed inside the car behind a panel on the rear, driver's side. The weapons were to remain concealed until the robbery, to avoid the possibility of capture by the police on the street in possession of firearms. See Govt's Mem. at 3.

 The CI asserted that he could identify the victim's apartment building and that he believed the residence to be located on Fort Washington Avenue in the vicinity of 182nd Street. See Govt's Mem. at 3-4. He further stated that the conspirators planned to await the arrival of the victim's wife and children, retrieve the firearms from their vehicles, pursue the victim's family into the apartment, and force the wife to surrender the money. See Govt's Mem. at 4.

 At the agents' request, the CI then engaged in a consensually recorded telephone call with Ecedro, see Govt's Mem. at 4 (or Roberto, see Petitioner's Mot. at 3), who confirmed that the robbery was to be carried out that day. When the CI informed Ecedro that he would not be available to participate in the robbery, Ecedro indicated that he and his other co-conspirators would look for another person to take the CI's place. See Govt's Mem. at 4.

 Thereafter, the agents proceeded with the CI to the situs of the intended robbery, and established surveillance positions. They observed five men on the street, as well as a 1980 yellow Toyota station wagon and a 1981 green Buick parked closely together. See Govt's Mem. at 5. The agents observed the five men entering and exiting the vehicles. See id. at 5. The men were also observed looking about the area, repeatedly talking amongst themselves and then separating from one another, and "otherwise acting suspiciously." Id. at 5.

 During the surveillance, Ortega and Rivera were seen exiting and entering the Buick. See Govt's Mem. at 5. At one point during the surveillance, another agent observed Ortega and his co-defendants Acosta, Foy, and Torres conversing at the corner of 183rd Street and Fort Washington Avenue. Id. at 5.

 Ortega claims that he was present at the scene only in his capacity as a car service driver and that he had received a call at 1:30 p.m. to drive defendant Ramon Rivera round-trip from 309 Tremont Avenue in the Bronx, to 183 Fort Washington Avenue. See Petitioner's Mot. at 7-8, and Exhs. A, B.

 After approximately 20 minutes of surveillance, the agents decided to detain defendants prior to the arrival of the victim's wife and children, so as not to endanger them. See Govt's Mem. at 5-6. The agents believed that they had probable cause to arrest defendants. See id. at 5.

 Defendants were then confronted at gunpoint, detained, and searched. See Govt's Mem. at 6; Petitioner's Mot. at 8. The agents recovered car keys from defendants Torres and Ortega and two walkie-talkies from Foy. See Govt's Mem. at 6. Petitioner claims that the keys were not retrieved from his person, but rather were taken from the ignition of the car. See Petitioner's Mot. at 8. Torres' key matched the Toyota, and Ortega's key matched the Buick. See Govt's Mem. at 6. The agents recovered nylon stockings and two semi-automatic firearms from the Toyota, concealed behind the panel in the rear, driver's side. See id. at 6. They also recovered a .38 caliber revolver from a hidden compartment inside the dashboard of the 1981 Buick. See id. at 6.

 Information obtained from the New York State Department of Motor Vehicles provided that the yellow Toyota was registered to an Argeli Perez and the Buick was registered to a Jose Guzman. See id. at 6.

 In post-arrest statements, Ortega stated that the Buick belonged to him. See Petitioner's Mot. at 5. However, he stated that he did not know any of the other defendants, except that he was acquainted with "Roberto." See id. at 5. He further stated that he did not know why the .38 caliber firearm was in his car. Id.

 In his post-arrest statement, defendant Rivera told agents that he was picked up that day by his friend Ortega who was driving the Buick. See Petitioner's Mot. at 5. He contended that Ortega stopped the car for an unknown reason near the vicinity where they were arrested, and he denied knowing any of the other defendants or why the .38 caliber firearm was found in Ortega's car. See id. at 5.

 In post-arrest statements, Edgar Foy stated, inter alia, that he knew that defendant Torres was planning a robbery, that defendant Rivera had previously committed many similar robberies, and that "Roberto" had contacted Foy and told him that another person was needed to commit the robbery. See Petitioner's Mot. at 6.

 On December 16, 1993, an indictment was filed against petitioner Ciprian Ortega and his co-defendants Acosta, Foy, Rivera, and Torres. See Indictment, United States of America v. Acosta, et al., 93 Cr. 1074 (PKL) (the "Indictment"). Counts One and Two of the Indictment charged all five defendants with conspiracy to commit robbery in violation of 18 U.S.C. § 1951 and with using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Count Three charged Ciprian Ortega with possession of a firearm having been convicted of a crime punishable by imprisonment for a term exceeding one year. Count Four charged defendant Jose Torres with possession of a firearm having been convicted of a crime punishable by imprisonment for a term exceeding one year.

 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. *fn1" 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.

 DISCUSSION

 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 ...


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