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U.S. v. DURAN-BENITEZ

August 30, 2000

UNITED STATES OF AMERICA, PLAINTIFF,
V.
JAIME DURAN-BENITEZ, DEFENDANT.



The opinion of the court was delivered by: Trager, District Judge.

CORRECTED OPINION

Defendant Jaime Duran-Benitez ("Duran") was arrested on September 16, 1997, along with a co-defendant Ivonne Rodas-Bustamante ("Rodas") and her sister, Mayerlin Valencia-Bustamante. These arrests were made after "surveillance [led] to the discovery of, inter alia, $35,000 in a leather knapsack being carried by [Duran], drug records in the possession of [Rodas] and 130 grams of heroin and additional drug ledgers in a common residence." (Gov.'s Mem. Opp'n Def.'s Mot. Downward Departure at 2 [hereinafter Gov.'s Opp'n].) Duran and Rodas were arraigned on September 17, 1997. At that time Legal Aid Society attorney Heidi Poreda ("Poreda") was appointed to represent Duran, and Frank Handleman was appointed under the Criminal Justice Act, 18 U.S.C. § 3006A, to represent Rodas. One month later, on October 16, 1997, Duran and Rodas were indicted on two counts of possession of heroin with the intent to distribute and one count of conspiracy to distribute heroin, see 21 U.S.C. § 841 (a)(1), (b)(1)(B)(i); id. § 846. The complaint and case against Valencia-Bustamante was dismissed on October 17, 1997.

In November of 1997, the Government sent an initial proposed plea agreement to Duran based on what it believed at the time was his degree of criminal culpability. (See Def.'s Ex. G-1.) This plea agreement estimated a range of imprisonment of 70-87 months. (See id.) By December, Duran, who had not agreed to plead guilty, was represented by a new, private attorney, Robert Blossner, Esq. ("Blossner"). (See Notice of Appearance filed Dec. 15, 1997.)

Beginning in December, Rodas began cooperating with the Government and revealed her and Duran's involvement in a large Colombian heroin trafficking network. Based on the information Rodas provided, Duran was implicated in "the importation, possession, and distribution of over 20 kilograms of heroin" from April 1996 until his arrest in September 1997. (Def.'s Ex. H at 2 (Letter from AUSA Eric Tirschwell to Robert Blossner, Esq. of 1/23/98)). This new information almost doubled the. estimated range of Duran's incarceration and placed it between 135-168 months. (See id.) Additionally, Rodas's testimony, along with the testimony of other cooperators, helped convict Osvaldo "Danny" Rosa ("Rosa"), the purchaser of most of the heroin Rodas and Duran brought into the United States, in a case brought in the Middle District of Florida. See United States v. Osvaldo Rosa et al., No. 98-69-CR-ORL-18 (GKS) (M.D.Fla. 1998) (docket sheet).

Rodas's cooperation eventually earned her a "§ 5K1.1 letter," see U.S. Sentencing Guidelines ("USSG") Manual § 5K1.1 (1998), from the Government and a significant downward departure at her sentencing. See United States v. Duran-Benitez et al., No. 97-CR-974-2 (DGT) (E.D.N Y Feb. 1, 2000) (order sentencing Rodas to time served and five (5) years supervised release). In contrast, Duran, who pled guilty in November of 1998 and is currently awaiting sentence, has not received a § 5K1.1 letter from the Government, be cause the information he sought to provide in April of 1998 was deemed stale.

In the instant motion, made on March 16, 1999 in response to a Presentence Report that estimated Duran's imprisonment range at 188-235 months, Duran seeks a significant downward departure under § 5K2.0 of the USSG on the ground that Blossner had an actual conflict of interest due to Blossner's past representation of Rosa and the fact that Rosa paid Blossner's fee to represent Duran. Duran claims his understanding of cooperation was stunted in the care of his conflicted attorney, and he was prevented from approaching the Government at a time when his information would not have been stale.

A hearing on Duran's motion was held on September 8, 9, and 13, 1999.*fn1 In addition to counsel for Duran and counsel for the Government, Blossner was represented by an attorney who was present throughout the hearing, was permitted to participate in the questioning of witnesses,*fn2 (see Tr. at 2-7), and was given the opportunity to recall Blossner at the end of the hearing, which he declined, (see Tr. at 511). The hearing was followed by written submissions from Duran and from the Government.

Background

(1)

Blossner's Conflict of Interest

As noted above, Poreda was appointed Duran's counsel at his arraignment on September 17, 1997. (See Tr. at 318.) At that time, Poreda simply explained to Duran the charges pending against him, (see Tr. at 453), and promised to visit him at the Metropolitan Detention Center in Brooklyn ("MDC Brooklyn"), where was he being held, (see Tr. at 453-54).

A. Duran's initial Meeting with Blossner

Duran and Rodas both testified that thirteen days after their arraignment (September 30, 1997), they were called down to the visitor's room at MDC Brooklyn. (See Tr. at 10, 185, 467.) Two private attorneys, Blossner and David Segal ("Segal"),*fn3 and an interpreter were waiting to meet with them. (See Tr. 10, 185, 467-68; Def.'s Ex. C-1.) These visitors were unexpected; both Duran and Rodas testified that they had not directly contacted, nor asked anyone else to contact, private attorneys on their behalf. (See Tr. at 185-86, 467.)

This account of how Blossner came to visit Duran and Rodas is consistent with Blossner's testimony at the hearing, but differs from a statement Blossner made to this court during a conference addressing Duran's request to change counsel. (See Def.'s Ex. D (Transcript of conference held March 17, 1998).) During that conference, Blossner said that he became involved in Duran's case after Duran himself contacted Blossner and said he wanted Blossner to be his attorney. (Id. at 2-3.) But at the hearing, Blossner testified that he initially visited Duran and Rodas because Rosa had told him that one of his (Rosa's) friends had been arrested on federal drug charges and wanted private counsel for himself and his girlfriend, who had also been arrested. (See Tr. at 11-12, 17.)*fn4

At the beginning of their first meeting, Blossner introduced himself to Duran and told him "I'm here on behalf of your friend in New York." (See Duran Tr. at 468.) When Duran inquired if this "New York friend" was Rosa, Blossner said that it was. (See id.; see also Blossner Tr. at 34 ("I introduced myself [to Duran] by my name and that I was recommended in one way or another by his friend Danny [Rosa].").) Blossner similarly introduced himself to Rodas and explained that Rosa had sent him. (See Tr. at 14, 185.) Rodas became convinced that Rosa had sent Blossner once Blossner told her that Rosa said she made "the best beefsteaks in New York." (Rodas Tr. at 185. But see Blossner Tr. at 14 (not recalling any comments made to Rodas about beefsteak).) Blossner then introduced Rodas to Segal, and these latter two went into a private cubicle to talk,*fn5 (see Tr. at 14, 187), while Duran, Blossner, and Schoen entered another cubicle, (see Tr. at 468).

Blossner and Duran testified to slightly different versions of what occurred at this first meeting, although they agreed on the following details: First, Blossner told Duran about his thirty years of experience as a criminal defense attorney, particularly his expertise at trial. (See Tr. at 468.) Second, Duran and Blossner discussed, in general terms, the money laundering charges for which Duran was arrested. (See Tr. at 72, 469.) Third, Blossner quoted Duran a fee of $25,000 to accept his case. (See id.) Duran replied that he was not sure how he could pay that high a fee, but that he would try to get the money from his family in Colombia. (See id.) Fourth, Blossner warned Duran not to discuss his case with other inmates at MDC Brooklyn. (See Tr. at 38, 468.)

Finally, on the subject of cooperation, both witnesses agree that Blossner did not explain the concept or the process to Duran during this first meeting. (See Tr. at 34, 37, 468-69.) Instead, Blossner concedes that he mentioned cooperation only in the context of warning Duran that it could be dangerous to speak with other inmates about his case, (see Tr. at 38), and by generally describing Duran's three options as "going to trial, going forward with motions, or pleading. In [Blossner's] mind, pleading contain[ed] cooperation." (Blossner Tr. at 36.) Duran, however, remembered Blossner negatively commenting on cooperation by telling him that most of the people in the visiting room were "the snitches, the rats," (Duran Tr. at 469), and that "they [were] going to end up worse than the problem they were in," (id.).

B. Subsequent Meetings with Blossner

After their first meeting at the end of September 1997, Blossner visited Duran at MDC Brooklyn five to seven more times before he was retained as Duran's counsel in December of that same year. (See Blossner Tr. at 44. But see Duran Tr. at 470 (estimating eight to ten visits with Blossner from September through December 1997).)*fn6 Different witnesses provided different versions of why Blossner continued to meet with Duran during this time and who eventually paid his retainer.

1. Blossner's Testimony

Blossner testified that a few weeks after their initial meeting, a friend of Duran's, Jackie Campo ("Campo"), began to call him to ask him to visit Duran and accept Duran's case. (See Tr. at 43.) Campo also visited Blossner's office several times. (See Tr. at 78.) The first time she visited the office, she explained to Blossner that she was a friend of Duran's, that Duran had asked her to help him, and that she wanted to know what she could do. (See Tr. at 78-79.) Blossner did not discuss Duran's case with Campo during that first visit. (See Tr. at 79.) However, during a subsequent visit with Duran at MDC Brooklyn, Duran gave Blossner permission to talk with Campo about his case. (See id.) Duran also told Blossner that Campo was a good friend and was helping him make three-way calls to his family in Colombia in an attempt to raise the money to pay Blossner's fee. (See id.)

Thereafter, Campo continued to call Blossner regularly, asking him to represent Duran and reassuring him that Duran was attempting to raise the money needed to retain him. (See Tr. at 80, 82.) On one occasion, Blossner recalled Campo, Rosa, and another woman meeting at his office and trying to convince him to become Duran's attorney. (See Tr. at 43.) After discussing the "viable issues" of Duran's case with the trio, Blossner emphasized his need to receive payment, and Campo again assured him that Duran was trying to raise the money to pay him. (See Tr. at 82.) Blossner was certain that although he discussed Duran's case with both Campo and Rosa at various times during the fall and winter of 1997, he never discussed whether or not Duran was cooperating. (Id.)

Blossner further testified that in early December 1997, Rosa inquired whether Blossner was representing Duran. (See Tr. at 43.) Blossner answered: "No, he [] never retained me. I haven't seen him in a while and I'm not going to see him again." (Tr. at 85.) In response, Rosa offered to pay Blossner's fee on Duran's behalf, stating his belief that Duran would pay him back. (Tr. at 86.) After negotiating a reduction in the fee ($15,000 if there was no trial; $25,000 if a trial took place), Blossner agreed to allow Rosa to pay him to be Duran's attorney. (See Tr. at 87.) Rosa returned later that night or the next day and gave Blossner $8,000 in cash.*fn7 (Id.) According to Blossner, an additional fee of $7,000 was paid to him by Rosa sometime in late December 1997 or early January 1998. (See Tr. at 102.) Rosa explained to Blossner that the balance of the fee had not been paid sooner because the money was "slow in coming to him [(Rosa)] from [Duran's] family." (Blossner Tr. at 101.)

Soon after the first installment of his fee had been paid, Blossner visited Duran at MDC Brooklyn and told him Rosa had paid his retainer. (See Blossner Tr. at 89.) Duran responded by questioning Blossner about how much the representation was going to cost — $40,000 or $25,000. (See id.) Once Blossner assured Duran that his fee was $25,000, (see id.), Duran asked if Blossner's total fee had been paid, (see Tr. at 90). When Blossner answered no, Duran "informed [him] that [he] didn't have to worry, that his family was going to make sure [he] was paid the whole thing." (Id.) Blossner maintained that even though the money came from Rosa's hand, Blossner was "very, very clear that [Duran] was responsible for the payment of [his] fee." (Id.)*fn8

Blossner admitted that at no time before or after accepting payment from Rosa did he inquire as to the nature of the relationship between Rosa and Duran or whether there was any illegal business between the two. (See Tr. at 17-18, 32-33, 175-76.) Blossner also testified that during their various conversations about the fee and the case, Rosa never gave him any indication that he and Duran were involved in a drug trafficking network together, (see Tr. at 69), nor that he had any involvement in the criminal activity for which Duran was arrested, (see Tr. at 175-76).

2. Duran's Testimony

After Blossner's first visit, Duran, with the help of Campo, placed many phone calls to Colombia to try to raise the funds needed to pay Blossner's fee. (See Tr. at 488.) However, these fund-raising attempts were unsuccessful. (See id.) At the same time (approximately three weeks after Blossner's first visit), Rosa arranged to speak with Duran on the telephone. (See Tr. at 465-66). Duran testified that Rosa asked him to provide the phone numbers of his drug suppliers in Colombia, which Duran refused to do. (See Tr. at 467, 489.) Duran asked Rosa to repay him $9,000 he was owed from a previous drug transaction, (see Tr. at 466), so that Duran could use the money to hire Blossner, (see Tr. at 488). Rosa agreed to do so and told Duran he "was in good hands" with Blossner and that he should "trust the attorney he [(Rosa)] had sent." (Tr. at 467.) Duran also asked Campo to continue reassuring Blossner that he was trying to raise the money to pay his retainer and to ask Blossner to keep visiting him at MDC Brooklyn. (See Tr. at 489.)

Duran further testified that during a visit which took place in the middle of December 1997, Blossner informed him that his "fee ha[d] been taken care of." (Id.) When Duran inquired how much the fee was and whether Danny had paid it, Blossner answered that the fee was $25,000 and that "your friend [(meaning Danny)] had taken care of it." (Tr. at 490.)*fn9 Duran also recalled that sometime in the end of January 1998, he discovered that the money Rosa used to pay Blossner did not come from his family, as he had originally believed, but came from Duran's Colombian drug suppliers. (see Tr. at 500-01.) Duran believed that both his family and Rosa contacted the Colombians and asked them to pay Blossner's fee, (see Tr. at 502), and that the Colombians agreed to do so in order to discover whether Duran was cooperating, (see Tr. at 501, 503).

3. Campo's Testimony

Campo testified that her first visit with Duran after his arrest took place during the first two weeks of October 1997. (see Tr. at 262.) During this visit, or soon thereafter, Duran asked Campo to "visit [Blossner] as a member of the family, as a representative, to keep up-to-date on what was happening, and to formulate an opinion . . . whether or not he was a good attorney." (Tr. at 263-64.) Campo agreed to do so, and between mid-October and December 1997, she made numerous telephone calls to Blossner and visited his office on seven or eight occasions. (see Tr. at 265-66.) She also facilitated three-way phone calls to Colombia so that Duran could speak with his family, (see Tr. at 271), although she did not remember whether Duran told her he needed to make these calls to try to raise money to pay Blossner's fee, (see Tr. at 272).

Campo claimed to have consulted with Blossner about everything she was doing to assist Duran, including making the three-way phone calls to Colombia. (see Tr. at 278.) While she believed that she once asked Blossner not to abandon Duran, she did not remember telling him that Duran was trying to raise the money to pay his fee. (see Tr. at 269.) Instead, she said it was "assumed that the attorney would be paid [for] by Danny [Rosa]," with money he owed Duran. (Tr. at 272.) She also insisted that she never gave Blossner or Rosa any money to be applied to Duran's legal fees. (see Tr. at 268.)

In mid-October 1997, (see Tr. at 264), during Campo's first (or possibly second) visit to Blossner's office, she met Rosa for the first time. (see Tr. at 265.) They met coincidentally in the lobby of Blossner's building and rode the elevator up to his office together. (see Tr. at 266.) Rosa asked Campo to tell Duran "not to worry, that he was going to help him out with the attorney, he would not abandon him and that he had a good attorney and that he [Rosa] would take charge of it." (Campo Tr. at 266-67.) Rosa also told Campo that he was going to pay Blossner's fee. (see Tr. at 265.) During this meeting, and at least two others Campo recalled, Rosa, Blossner, and she discussed how Duran's case was going and what could be done to help him. (see Tr. at 267-68.) Additionally, before or after these meetings, Campo would be asked to wait outside the office to allow Rosa and Blossner to speak privately together. (see Tr. at 268.)

Although she was never explicitly told, Campo "supposed" that Duran and Rosa had worked together in the drug business, a conclusion Duran "led [her] to believe." (Tr. at 276.) She also concluded that Blossner was aware of the illegal partnership between Duran and Rosa based on the fact that Blossner and Rosa were "very friendly" and because Rosa had agreed to help pay Duran's fee. (see Tr. at 277.) Moreover, Campo recalled that during one meeting, Rosa and Blossner discussed how the money to pay Blossner's fee could be "channeled to him in a legal fashion." (Tr. at 273.) One option they explored was making the money appear to have come from Colombia, (see Tr. at 274), instead of from Rosa, due to Rosa's involvement with illegal drugs, (see Tr. at 275-76).

4. Osvaldo "Danny" Rosa

According to Rosa, Campo and another friend of Duran's called him a week or two after Duran had been arrested to collect some money he owed Duran. (see Tr. at 409.) The next day, Rosa went over to Campo's apartment to deliver the money owed — between $10,000 and $15,000. (see Tr. at 410.) When he arrived, Duran was on the phone, and Rosa agreed to speak with him. (see id.) Rosa claimed that during this phone conversation Duran asked for his help in finding an attorney and, in response to Duran's request, Rosa contacted Blossner about Duran's case. (see Tr. at 411.)

Shortly thereafter, Rosa met Campo and another friend of Duran at Blossner's office for a meeting they had scheduled. (see Tr. at 411.) After Rosa introduced the women to Blossner, he claims to have left the room to talk with Blossner's secretary and paralegal and with Segal, the attorney who shares office space with Blossner. (see Tr. at 412, 434.) When Rosa returned to Blossner's office, Blossner indicated he had agreed to look into Duran's case. (See id.). Rosa also noticed a stack of money on Blossner's desk, which he assumed was from Campo to be applied to Duran's legal fee. (see Tr. at 414, 434). Rosa denied ever negotiating a fee with Blossner for his representation of Duran, (see Tr. at 436), denied directly paying Blossner a fee to represent Duran, (see Tr. at 413), and denied ever discussing Duran's case with Blossner and Campo, (see Tr. at 436). Rosa also maintained that he never told Blossner he had regularly purchased heroin from Duran. (see Tr. at 416).

C. Blossner's Representation of Rosa's Couriers

Throughout his testimony, Blossner adamantly maintained that he was unaware of any illegal connection between Rosa and Duran until after he was relieved as counsel in March of 1998. (see, e.g., Tr. at 17-18, 69, 175-76.) His credibility on this issue, however, was seriously undermined by the testimony of both Duran and Campo, who indicated Blossner knew Duran and Rosa were engaged in illegal activities together, as well as the testimony of three other associates of Rosa who were arrested on narcotics charges in late 1997 and early 1998 and to whom Blossner also provided legal advice. These three witnesses described Blossner's behavior in a manner almost completely consistent with Duran's descriptions,*fn10 and their testimony provides convincing evidence that Blossner engaged in a pattern of representation designed to protect the interests of Rosa, his former client.

Sehring and Rodriguez agreed to become drug couriers for Rosa when he recruited them in a Manhattan nightclub in 1997. (see Tr. at 216, 285.) Upon arriving in Miami International Airport from Colombia on the evening of December 24, 1997, they were arrested for attempting to import heroin into the United States. (see Tr. 214, 282-83.) The next day (December 25, 1997), when Sehring and Rodriguez were brought up for their arraignment, Blossner and another attorney, Manuel Vasquez, were waiting to represent them. (see Tr. at 219, 287.)*fn11 Here, too, the appearance of the attorneys was unexpected, because the women had been brought to jail so late the night before, neither had the opportunity to make any phone calls or attempt to arrange for counsel. (See id.) According to Sehring, Blossner introduced himself and explained that while he was on vacation in Florida, a friend of hers had called him, told him she had been arrested and asked him to help her out. (see Tr. at 220.) Sehring claimed to have known right away that Rosa had sent Blossner because "[Rosa] was the only person that would have been obligated to." (Id.) Similarly, Rodriguez realized Rosa must have contacted the attorneys when Blossner told her: "`You know who sent us. There [are] people out there who love you.'" (Rodriguez Tr. at 288.) While Sehring claimed that Blossner told her to say that her family was paying his fee, (see Tr. at 251), no money was ever paid to either attorney by Sehring or Rodriguez or their families; instead, Rosa paid the attorney's fees for both. (see Tr. at 233, 290.)

Both witnesses admitted to initially not wanting to cooperate against Rosa, (see Tr. at 224, 303), but they also both testified that Blossner never explained cooperation to them, (see Tr. at 224, 295), and only mentioned it as an option he did not recommend, (see Tr. at 222, 296). He also told Sehring that the Government was not interested in her cooperation. (see Tr. at 223; see also infra note 20.) Instead, Blossner advised both women that safety-valve proffers would be the best course for them to pursue, (see Tr. at 221, 292), even though he was aware Rodriguez had a prior felony conviction which would make her ineligible, (see Tr. at 306). According to the women, Blossner made this recommendation without asking either of them for any details regarding the crime for which they were arrested. (see Tr. at 298; cf. Tr. at 226.) In fact, Sehring testified that when she agreed to draft a safety-valve proffer, Blossner specifically told her to not include names and not get into too much detail, (see Tr. at 226-27; see also ...


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