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CAMPOS v. UNITED STATES

June 7, 1996

MARIO CAMPOS, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: AMON

 AMON, UNITED STATES DISTRICT JUDGE

 I. Introduction

 Petitioner Mario Campos seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Petitioner originally filed his motion pro se, contending that his constitutional rights had been violated because defense counsel at trial refused to allow him to testify. *fn1" In a letter to the Court dated May 20, 1995, petitioner notified the Court that his trial counsel was willing to provide an affidavit in support of these contentions.

 In light of these allegations, the Court appointed counsel to represent petitioner in pursuing his requested relief and ordered an evidentiary hearing. Prior to the hearing, petitioner's trial counsel, Barry Asness, submitted an affidavit confirming that petitioner had expressed a wish to testify at trial, and that Asness had not permitted him to do so. At the hearing, both Asness and petitioner testified. The government and petitioner also filed additional briefs subsequent to the hearing.

 After considering the testimony at the hearing and the briefs submitted by the government and petitioner, and for the reasons discussed below, the Court hereby grants the petition.

 II. Background

 Petitioner was tried in a joint trial with three other co-defendants, including his wife, Nidia Campos ("Nidia"), and Edgar Vargas. Petitioner was convicted of conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846, conspiring to conduct a financial transaction involving the proceeds of narcotics trafficking activity in violation of 18 U.S.C. § 371, and using a communication facility to facilitate the commission of a narcotics trafficking offense in violation of 21 U.S.C. § 843(b). Vargas was also convicted of all of the charges on which he was tried. Although the evidence established that Nidia Campos had a greater role in the narcotics transactions than petitioner, the jury could not reach a verdict in her case. She was retried. In her second trial, she was acquitted of the narcotics offense but convicted of conspiracy to conduct a financial transaction involving the proceeds of narcotics trafficking activity.

 On April 14, 1992, petitioner was sentenced to a mandatory minimum term of 120 months' imprisonment and a five year term of supervised release based upon his conviction on the narcotics conspiracy charge. He received concurrent prisons terms on the remaining charges. Nidia received a sentence of 54 months on her conviction for money laundering.

 The Second Circuit Court of Appeals affirmed the judgments of conviction against petitioner, Nidia Campos, and Edgar Vargas. United States v. Vargas, 986 F.2d 35 (2d Cir.), cert. denied, 510 U.S. 827, 126 L. Ed. 2d 59, 114 S. Ct. 91 (1993).

 A. Petitioner's Trial

 At trial, the government's evidence primarily consisted of testimony of Drug Enforcement Administration ("DEA") agents, recorded conversations, and telephone records. The evidence against petitioner consisted almost exclusively of the testimony of Special Agent Robert Matos of the DEA.

 On June 20, 1989, Vargas and Matos met again. Vargas told Matos that he had spoken to his associates and that they would purchase a large quantity of cocaine. Vargas said that he would speak again to his associates and introduce Matos to them the next day.

 On June 21, 1989, Matos met Vargas in Queens, and Vargas took him to McCabe's Bar and Grill, where he was introduced to the petitioner. According to Matos, petitioner said that Vargas had told him that Matos had a lot of money to launder. Petitioner said he could convert large amounts of money from small denomination bills to large denomination bills, and that laundering $ 500,000 per week would not be a problem. Matos also testified that petitioner asked him how much cocaine he could supply, and when Matos said 500 kilograms, petitioner responded that his wife was "tapped out" and would be interested in purchasing large amounts. Petitioner said he would call his wife Nidia to tell her that Matos and Vargas would be coming. Matos said that petitioner then went to the back of the bar for a few minutes and when he ...


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