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OCAMPO v. U.S.

March 22, 2004.

FRANKLIN OCAMPO, also known as "Danny Gomez," -against- UNITED STATES OF AMERICA, Respondent


The opinion of the court was delivered by: JOHN GLEESON, District Judge

MEMORANDUM AND ORDER

Franklin Ocampo, also known as (and referred to herein as) "Danny Gomez," moves pursuant to 28 U.S.C. § 2255 to vacate his sentence of life in prison, imposed upon him after a jury found him guilty of, inter alia, drug trafficking and a hostage-taking in which the 17 Page 2 year-old victim was brutally murdered. For the reasons set forth below, I reject all of the arguments in Gomez's motion except for two, as to which an evidentiary hearing will be held on April 9, 2004 at 11:00 a.m.

  BACKGROUND

  A. The Facts

  On July 19, 1995, James Barona, a confidential informant, advised Detective Billy Ralat that Barona's friends Emilio and Jerry had received threats. Barona told Ralat that "Gandhi," "Runi" and others had confronted Emilio and Jerry at their apartment and accused them of stealing $350,000 in money orders from a "stash" location controlled by "Gandhi." The woman who had been watching that location at the time of the theft was unable to identify Emilio and Jerry as the thieves, so they were released. However, shortly thereafter, a note was placed under Emilio and Jerry's door, directing them to contact beeper number (971) 752-1106. Emilio, Jerry and Barona paged the beeper number. They spoke with "Runi" and "Jose," and were informed that their associate "Papitas" had been kidnapped and that a second individual had already been killed. "Jose" warned that the stolen money orders must be returned if they did not want "Papitas" killed.

  After hearing Barona's account, Detective Ralat made inquiries into recent homicides of unidentified males. He learned that five days earlier, on July 14, 1995, on a service road adjacent to the Grand Central Parkway in Queens, New York, the police found the dead body of 17-year-old Carlos Alberto Osorio stuffed inside in a black suitcase. An onion had been placed in his mouth, his face had been wrapped in duct tape, and his legs and arms had been bound. The cause of death was strangulation, but the body bore the marks of torture: there were blunt impact injuries on the forehead, and there was a 4-inch stab wound on one thigh. Ralat showed a photo of Osorio to Barona, who confirmed that Osorio was "Papitas," the kidnapped associate of Emilio Page 3 and Jerry. At Ralat's direction, Barona again paged (917) 752-1106, which was the dead man's pager. Posing as the "sponsor" of Emilio and Jerry, Barona engaged the kidnappers in tape-recorded conversations relating to Osorio's torture and death and the provision of cocaine as restitution for the stolen money orders.

  In the first of two conversations recorded on the evening of July 19, 1995, Gomez identified himself as "Jose." He related how Osorio had "snitched out" Emilio and Jerry regarding the stolen money orders. Barona said Emilio and Jerry were not involved in the theft. Gomez told Barona to have Emilio and Jerry consider returning the stolen money.

  In the second conversation, Gomez identified himself as "Gandhi." During this call, Gomez described how the woman overseeing the stash location was brought to Emilio and Jerry's residence, but she could not identify them. However, she did identify Osorio, who was seized. Gomez said that Osorio was originally treated well, but then he was tortured. Osorio named Emilio and Jerry as the other thieves. Gomez also said a woman believed to be Emilio's mother was kidnapped and was being held in Colombia.

  The following day, July 20, 1995, other telephone calls were recorded. In one call, Barona talked with "Gandhi" (Gomez) and "Gigo" (Jamie Londono Garcia, referred to herein as "Londono"). Gomez claimed the stolen money orders belonged to him, and that he would accept cocaine in lieu of them. Londono concluded that discussion, and in another call later that evening, Barona and Londono agreed that five kilograms of cocaine would be delivered by Barona as a down payment on the $350,000 owed as a result of the stolen money orders.

  Londono, who testified for the government pursuant to a cooperation agreement, admitted that he was involved in the charged drug conspiracy and testified that he had engaged in a series of kidnappings and extortions for drug dealers in 1993 and 1994. He had met Gomez, whom Page 4 he knew only as "Gandhi," several months earlier. On July 20, 1995, Gomez related the Osorio incident to Londono in detail. Gomez said that $350,000 had been stolen from him, that he and "Runi" had brought the two men and a woman overseeing the location from which the money was stolen to Jerry and Emilio's residence, and that the woman could not identify them as the thieves. However, Gomez told Londono, Osorio was later identified as one of the thieves and kidnapped. After being tortured, Gomez stated, Osorio confessed that Jerry, Emilio and "Costeno" had committed the robbery; Osorio was then strangled to death and "Runi" was paid $25,000 for the murder. Gomez hired Londono to kidnap Emilio and Jerry, gave him a $4,000 advance, and exchanged beeper numbers with him. Londono still had Gomez's beeper number in his possession when he was arrested on July 20, 1995.

  In his testimony at trial, Londono also explained portions of the recorded telephone conversations on July 20, 1995, that corroborated Barona's testimony. He identified "Gandhi's" voice on the tapes as the voice of Gomez. The voice identification was buttressed by comparison of the tapes to Gomez's voice on other taped conversations,*fn1 including several calls from a wiretap in a separate federal investigation in Tennessee during the period from July 14, 1995 to July 17, 1995. Londono also identified the voice of "Runi" on some of the Tennessee tapes. "Runi" was arrested in Memphis on July 17, 1995, with Gomez's pager number in his possession.

  The Tennessee calls corroborated Londono's account of what Gomez had told him about the torture and killing of Osorio. In one conversation, "Canoso" described how he gave an "ass-kicking" to someone to make him "sing;" and that he "turned his [Osorio's] face into shit." Page 5 (Gov't Ex. 55 at 3.) In another call, Gomez described how the kidnapped person (who the context made clear was Osorio) "spit out Emilio, Jerry and Costeno at us." (Gov't Ex. 61 at 8.)

  Gomez was arrested on August 24, 1995. In a post-arrest statement, he admitted that one of his nicknames was "Gandhi" and that he had a friend named "Runi."

 B. The Procedural History

  Gomez was charged with conspiracy to possess with intent to distribute five kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count One); hostage taking, which resulted in Osorio's death, in violation of 18 U.S.C. § 1203(a) (Count Two); hostage-taking of Jane Doe (a person believed to be Emilio's mother), in violation of 18 U.S.C. § 1203(a) (Count Three); and illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a) (Count Four). The jury convicted Gomez on all four counts. He was sentenced to a term of life imprisonment on September 6, 1996.

  Gomez was represented by new counsel for his appeal. Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). The brief identified and discussed several potential issues for review before concluding that there were no nonfrivolous points to be raised on appeal. The potential issues were: (1) jury tampering (i.e., an inadvertent entry of a nonjuror into the jury room); (2) improper admission of hearsay; (3) insufficiency of the evidence; and (4) incompetence of trial counsel. In pro se briefs, Gomez raised additional claims: (5) prosecutorial misconduct in the government's rebuttal summation; (6) improper testimony from James Barona interpreting taped conversations; (7) outrageous government conduct in creating a crime; (8) insufficiency of the evidence on Count Three (hostage-taking of person believed to be Emilio's mother); (9) and jury tampering. Gomez did not, in either of his pro se briefs, raise a claim of ineffective assistance of trial counsel. Page 6

  In light of the Anders brief, the Second Circuit granted appellate counsel's motion to be relieved and further granted the government's motion for summary affirmance. United States v. Gomez. No. 96-1611 (Aug. 6, 1998) (summary order).

  DISCUSSION

  In a lengthy, blunderbuss-type motion that rails against both his trial and appellate lawyers, Gomez admits almost all of what the government proved at trial. Specifically, he states that,
— he was "one of the collectors" responsible for the safekeeping of the $350,000 in money orders at the stash house;
— Osorio, Emilio and Jerry robbed the money orders from the stash house, pistol-whipping two women who resided there;
— Gomez suspected that the robbery was an "inside job;"
— Having been given a description of the thieves, Gomez (and two other drug dealers from Tennessee) summoned Osorio to meet with them;
— when Osorio denied the theft, Gomez decided to have the two beaten women look at him;
— the women identified Osorio as one of the robbers; and
— after that identification, Gomez and five other men were in an apartment with Osorio, who had already been beaten but was not yet dead and was not free to leave.
(Memo at 4-5.)*fn2

  Gomez admits all of that, and then he further admits going to the apartment "[o]n or about July 18, 1995," where he "found Papitas [i.e., Osorio] had been strangled." (Id. at 6.) Page 7

  The only part of the government's case that Gomez does not admit in his petition was proved overwhelmingly at trial. On tape, Gomez told Barona that Osorio was treated well at first, but then he was tortured. He also told Barona that, upon being tortured, Osorio gave up Emilio and Jerry, so Emilio's mother had been kidnapped in Colombia. Also on tape, Gomez said he would accept cocaine in lieu of the stolen money orders, and that five kilograms would be an acceptable down payment.*fn3

  Also, Londono, who Gomez admits was part of the conspiracy to retrieve the stolen money, testified that Gomez hired him to kidnap Emilio and Jerry. Gomez also told Londono that Osorio had been kidnapped, tortured and killed by asphyxiation.

  In short, very few cases entail evidence of guilt as strong as the evidence of Gomez's guilt in this case. With that backdrop, I turn to his various and belated allegations of incompetence by his lawyers.

 A. The Governing Standard

  The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington. 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, the Page 8 petitioner must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. In assessing the reasonableness of counsel's performance, "judicial scrutiny of counsel's performance must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland. 466 U.S. at 689 (internal quotation marks omitted); Jackson v. Leonardo. 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry. 124 S.Ct. 1, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").

  In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith. 123 S.Ct. 2527, 2535 (2003) (citations omitted) (quoting Strickland. 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of ...


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