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July 25, 2001


The opinion of the court was delivered by: Sweet, D.J.,


Petitioner Frank John DeFeo ("DeFeo") has moved to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 on the grounds that the attorney who represented him in a Rule 33 motion was ineffective, and that the Honorable Mary Johnson Lowe*fn1 erred in making sentencing findings as to the amount of narcotics involved under the United States Sentencing Guidelines by a preponderance of the evidence, rather than beyond a reasonable doubt, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). For the reasons set forth below, the petition will be denied.


DeFeo has been in custody since his arrest on April 23, 1990. Indictment 2S 90 Cr. 250 (MJL) charged DeFeo with (1) conspiring (a) to possess cocaine and heroin with intent to distribute; (b) conspiring to import heroin; and (c) conspiring to employ a minor in narcotics trafficking, in violation of 21 U.S.C. § 846 and 963; (2) employing a minor in the drug trade in violation of former 21 U.S.C. § 845b(a)(1), now codified at 21 U.S.C. § 861(a)(1); (3) possession with intent to distribute heroin in violation of 21 U.S.C. § 841(A)(1) and 841 (B)(1)(C); (4) importation of more than 100 grams of heroin in violation of 21 U.S.C. § 952(a), 960(a)(1), and 960(b)(2)(A); and (5) possession with intent to distribute more than 100 grams of heroin in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). After a seven-day jury trial in May of 1991 and extensive post-trial motions before Judge Lowe, a judgment of conviction was entered against DeFeo on August 11, 1997.

DeFeo relieved his trial counsel, Frank A. Lopez, Esq. ("Lopez"), and hired Jorge DeJ. Guttlein, Esq. ("Guttlein") to represent him in post-conviction proceedings. After several adjournments, Guttlein filed DeFeo's first post-trial motion, on August 9, 1993. This Rule 33 motion sought a new trial on the grounds that DeFeo's trial counsel was constitutionally ineffective and the alleged perjury of a government witness, Carol Smith ("Smith"). Judge Lowe denied the motion, in an oral decision rendered on June 6, 1994.

DeFeo again retained new counsel, David I. Schoen, Esq. ("Schoen"), and filed a second motion for a new trial on April 28, 1995. The second Rule 33 motion alleged: (1) newly discovered evidence that Smith had perjured herself; (2) recent recantations by a cooperating witness, Marc Nemeth ("Nemeth"); (3) newly discovered evidence of alleged misconduct by the DEA; and (4) ineffectiveness of trial counsel.

While the motion was pending, Schoen applied ex parte for funds pursuant to the Criminal Justice Act ("CJA") to hire an investigator to conduct additional post-trial investigation into the allegations in the second Rule 33 motion. Judge Lowe directed Schoen to submit evidence in support of the request for funds, and both Schoen and DeFeo submitted affidavits seeking an ex parte hearing in response to that order.

The Rule 33 motion was denied in a written opinion and order dated December 27, 1996 and docketed on January 6, 1997. United States v. DeFeo, No. 2S 90 Cr. 250 (MJL), 1997 WL 3259 (S.D.N.Y. Jan. 6, 1997). The request for CJA funds was denied on the same day in a separate four-page, single-spaced order which stated that "[t]he Court will not permit government funding for an exercise in repetition." (Pet. Br. Ex. J.) Judge Lowe proceeded to sentence DeFeo on June 6, 1997, more than seven years after DeFeo's arrest and more than six years after a jury convicted him on five felony narcotics trafficking counts.

Judge Lowe then made findings of fact as to the amount of narcotics involved in DeFeo's offense pursuant to the United States Sentencing Guidelines ("the Guidelines"). In accordance with the recommendation of the Probation Department, Judge Lowe found that DeFeo's conduct involved (1) 555 grams of heroin recovered from DeFeo and a coconspirator at JFK Airport; (2) four kilograms of cocaine that DeFeo stole in Florida; and (3) one kilogram of cocaine DeFeo stole in a Manhattan restaurant. Although there was evidence of significant additional quantities of drugs, Judge Lowe did not consider it in establishing the base offense level under the United States Sentencing Guidelines (the "Guidelines").

Under section 2D1.1 of the Sentencing Guidelines Drug Equivalency Tables, the five kilograms of cocaine equaled one kilogram of heroin, which, when added to the 555 grams of heroin seized from DeFeo and his coconspirator, totaled the equivalent of 1.555 kilograms of heroin. This amount yielded a base offense level of 32 under U.S.S.G. § 2D1.1(c)(4).

Judge Lowe then increased the base offense level by one level because DeFeo had employed a minor, see U.S.S.G. § 2D1.2(a)(2), by four levels to reflect his role as an organizer of crime involving five or more persons, see U.S.S.G. § 3B1.1(a), and two levels for his obstruction of justice in threatening and attempting to bribe his coconspirator, see U.S.S.G. § 3C1.1 cmt n. 3(a). Based upon these enhancements, DeFeo's adjusted offense level was 39. As DeFeo had a criminal history category of IV,*fn2 his sentencing range was 360 months to life imprisonment. DeFeo, No. 90 Cr. 250, 1998 WL 38115, at *1.

DeFeo was sentenced to 360 months in prison, at the bottom of his applicable guideline range, and within the aforementioned statutory range that was applicable without taking into consideration amounts of narcotics that were not charged or found by the jury. This sentence was imposed concurrently on each of the five counts of conviction, plus a life term of supervised release. Judgment was entered on June 24, 1997 and docketed as Judgment #97,1689 on August 11, 1997.

Still assisted by Schoen, DeFeo appealed to the Second Circuit, arguing that Judge Lowe had erred in denying the Rule 33 motion, in denying DeFeo's application for funds for an investigator, and in sentencing. The Second Circuit affirmed DeFeo's conviction by summary order dated May 20, 1998, United States v. DeFeo, 1998 WL 391115 (2d Cir. May 20, 1998), and denied rehearing by order dated July 17, 1998. The mandate issued on July 29, 1998.

On August 23, 1999, Defeo filed a pro se § 2255 motion alleging that he had been denied constitutionally effective assistance of counsel. New counsel, Peter Quijano ("Quijano") filed a memorandum in support of the petition on April 28, 2000 and amended the petition to include an Apprendi claim by letter of August 1, 2000. The government filed a brief in opposition on February 26, 2000 and supplemented that filing with a letter dated February 28, 2000. After seeking numerous continuances, counsel for DeFeo filed a reply brief on May 25, 2001, whereupon the motion was deemed fully submitted.*fn3


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