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Simons v. United States

June 28, 2007

CURTIS SIMONS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

MEMORANDUM AND ORDER

Curtis Simons ("Simons" or "movant") filed a motion pursuant to 28 U.S.C. § 2255. After a hearing was held, the motion was denied for the reasons set forth at the hearing. On appeal, the Second Circuit remanded the case so that an opinion could be issued addressing a number of claims that were not explicitly decided at the hearing. Subsequently, Simons also filed a recusal motion. For the following reasons, both the recusal motion and the § 2255 motion are denied.

Background

Using an informant named Frederico DeLima ("DeLima" or "informant"), Trial Transcript ("Tr.") at 225, the government conducted an undercover investigation into suspected cocaine trafficking involving Glenia Ensermo ("Ensermo"), Andres Geson ("Geson"), Ensermo's son, and Simons, Tr. at 201. In addition to DeLima's cooperation*fn1, two federal officers, Special Agent William Klein ("S/A Klein") and Special Agent Richard Guerard ("S/A Guerard"), posed as potential couriers, who were supposedly recruited by DeLima. Tr. at 283, 291. Their role was to receive cocaine from Ensermo in Curacao, transport the cocaine into New York through John F. Kennedy Airport, Tr. at 308, 314-315, and then deliver the cocaine to Simons in Bermuda, Tr. at 213.

In August 1996, Simons and Geson were tried before a jury in federal court. At trial, the prosecution called S/A Guerard and S/A Klein. In addition to introducing an audio recording of a critical February 24, 1995 meeting between Ensermo, DeLima, Geson and S/A Klein (posing at the time as a courier), the prosecution also called Patricia Triana, who translated the portions of the recording that were in Spanish. Tr. at 249-52. At trial, Simons called three witnesses: June Hamilton, Simons's mother, Laquita Simons, Simons's wife, and Bruce Simons, Simons's brother. Simons did not testify at trial and Geson called no witnesses in his defense.

a. The Prosecution's Case

At trial, the government argued that Ensermo financed the operation and was to have supplied the cocaine. Tr. at 173. The government contended that Simons's role was to provide couriers and to ultimately distribute the cocaine inside Bermuda. Tr. at 173, 651. According to the government, DeLima's role was also to identify couriers. Tr. at 173.

Prior to trial, the government had determined that DeLima could no longer be used as an informant because of his involvement in various criminal activities. Tr. at 224. DeLima was eventually arrested, but he fled while on bail and did not testify at the trial. Tr. at 224-27. Therefore, the government was forced to present incomplete accounts of some of the meetings and conversations related to the alleged importation scheme. However, the evidence presented at trial, which is detailed below, firmly established Simons's role in the importation scheme.

On January 18, 1995, S/A Klein surveilled a meeting between DeLima and Simons at a restaurant in Manhattan. Tr. at 280. Upon arriving at the restaurant, DeLima walked up to Simons and "asked if his name was Steve." Tr. at 282. Simons "acknowledged he was Steve."*fn2 Id. After shaking hands, the two men began to talk. Id. S/A Klein, who was seated across from the two at the restaurant's bar, was only able to hear a portion of the conversation where DeLima asked "[w]hen do you want to start?" and Simons replied "[a]s soon as possible." Id. Simons then handed DeLima a pamphlet and a piece of paper, which Simons had written on. Id. After leaving the restaurant, DeLima drove around in Simons's car for fifteen minutes before being dropped off. Tr. at 205-06. DeLima, who had been searched prior to the meeting, had the following items on his person when he was picked up by federal agents: (1) a white pamphlet, which had "Black Family Productions" printed on the front; (2) a small scrap of paper that had a telephone number on it; and (3) a blue napkin containing $6,000. Id.

On January 19, 1995, DeLima spoke to Ensermo over the telephone. Tr. at 207-208. On February 23, 1995, a telephone conversation took place between DeLima, Ensermo and Geson. Tr. at 214. S/A Guerard listened in on both of these conversations; however, the conversations were in Spanish, and, as S/A Guerard could not understand Spanish, he was unable to testify to the substance of the discussions at trial. Tr. at 208, 214.

On February 1, 1995, S/A Guerard surveilled a meeting between DeLima and Claudia Vanessa Ensermo ("Claudia Ensermo"), the daughter of Ensermo. Tr. at 208. DeLima was meeting with Claudia Ensermo in order to retrieve currency for an upcoming trip to Curacao. Tr. at 209. After the meeting ended, DeLima handed $5,000 over to S/A Guerard; this money presumably came from Claudia Ensermo.*fn3 Tr. at 210.

On February 2, 1995, S/A Guerard surveilled another meeting between DeLima and Claudia Ensermo. Id. The two met in Queens and then traveled to a hotel in Manhattan. Tr. at 212. At the hotel, S/A Guerard overheard Claudia Ensermo ask a hotel attendant if Laquita Tuzo, Simons's then girlfriend and soon-tobe wife, Tr. at 516, had left her anything. Tr. at 212. The attendant replied that she did and then handed Claudia Ensermo a white plastic bag that apparently contained an article of clothing. Id. S/A Guerard then engaged Claudia Ensermo in a brief conversation in the elevator, where Claudia Ensermo confirmed that she was from Curacao.*fn4 Tr. at 213.

On February 24, 1995, S/A Klein met, for approximately thirty-five minutes, with Ensermo, Geson and DeLima at the Curacao Caribbean Hotel in Curacao. Tr. at 283-84. The meeting was recorded by S/A Klein, who was posing as one of two couriers that had been recruited by DeLima to meet with Ensermo and Geson.*fn5 Tr. at 283. The meeting was conducted in both Spanish and English. Tr. at 285. After the jury listened to the tape of the meeting, S/A Klein was permitted to explain his understanding of the various exchanges that occurred between the participants. Tr. at 291.

During a number of points in the meeting, it becomes clear, despite no explicit references to "cocaine" or "drugs," that the participants were discussing the importation of drugs. S/A Klein and Ensermo discussed how the couriers would be outfitted with the cocaine, as well as the procedure for picking up the cocaine before departing for New York. Feb. 24, 1995 Tr. at 7-8; Tr. at 296-97, 305, 307. S/A Klein mentioned to Ensermo that he and S/A Guerard would not be profiled upon returning to the United States because they were both white. Feb. 24, 1995 Tr. at 19; Tr. at 304. At the meeting, Ensermo also indicated that, after having the opportunity to meet S/A Klein face-to-face, she approved of him as a courier. Feb. 24, 1994 Tr. at 3; Tr. at 310. At one point, Ensermo noted "this is dangerous work. You have to be careful." Feb. 24, 1995 Tr. at 34. At another point during the meeting, Ensermo even referenced the money given to DeLima by Claudia Ensermo, stating "I sent all the money with Vanessa to give to [DeLima]." Feb. 24, 1995 Tr. at 35.

In addition, Simons was referenced numerous times throughout the meeting. At one point, S/A Klein mentioned that "we [referring to S/A Klein and DeLima] talked to the guy in Bermuda yesterday." Feb. 24, 1995 Tr. at 3. At trial, S/A Klein testified that this referred to Simons. Tr. at 292. Later during the meeting, some apparent confusion over Simons's role in financing and paying the couriers prompted Ensermo to state that "[w]e financed it [U/I]*fn6 it didn't belong to him, it belonged to us and [U/I]. This guy didn't finance it, you know." Feb. 24, 1995 Tr. at 5; Tr. at 293. At trial, S/A Klein explained that Ensermo was "referring to Mr. Simons" and that she was claiming that the money at issue was not Simons's. Tr. at 293-94. Just prior to this exchange, Ensermo referenced the individual identified by S/A Klein as "the guy in Bermuda" and stated that she spoke with him over the telephone in order to resolve an outstanding issue concerning the transaction. Feb. 24, 1995 Tr. at 9. At another point during the meeting, Ensermo stated that "we've worked with him many years without a problem [U/I] ten years ago." Feb. 24, 1995 Tr. at 6. At trial, S/A Klein interpreted this conversation to mean that Ensermo had worked with Simons for ten years without being caught. Tr. at 295-96, 301. Finally, during a discussion about the money that was to be paid to the couriers and the various hurdles that the couriers had to overcome in becoming part of the transaction, Ensermo remarked "[t]hat's Steven." Feb. 24, 1995 Tr. at 30.

The couriers were scheduled to fly out of Curacao on February 26, 1995, two days after the meeting at the hotel. Two hours before their flight, Ensermo was supposed to call the couriers, who would then travel to her home to be outfitted with the cocaine. Tr. at 384. Ensermo, however, never contacted the couriers. Id. After repeated attempts to contact her, S/A Klein and S/A Guerard left Curacao on February 26th without any cocaine on their persons. Tr. at 385.

On February 27, 1995, S/A Klein, in an effort to determine why the transaction did not occur, had DeLima call Simons; S/A Klein listened in on that call.*fn7 Tr. at 386-87. At the beginning of the call, the other party on the line acknowledged that his name was Steve. Tr. at 387. DeLima then "told [Simons] that he was back in New York and did not have the product" and asked "Simons if he had spoken to Glenia Ensermo." Tr. at 388. Simons "said yes, he had." DeLima then said "that the deal didn't go" and "that Glenia didn't have it ready." Id. Simons responded with "words to the effect oh, well, these things happen." Id. Simons then "asked [DeLima] if he had any of the money left." Id. When DeLima responded that he had spent it all, Simons stated that "well, perhaps we can work again in the future," and reminded DeLima that they had each other's telephone numbers. Tr. at 388-89. At trial, S/A Klein testified he understood this conversation to be referring to the cocaine that was to have been transported out of Curacao. Tr. at 475-76.

On May 22, 1995, Simons was arrested at a hotel in Manhattan. Tr. at 219. At the time of his arrest, Simons denied being involved in any drug deals with Ensermo. Tr. at 416. When asked to consent to a search of the room's safe, Simons refused, stating "there's nothing illegal in there. It's just money."

Tr. at 476, 481. Simons then stated that he wanted a lawyer.

Tr. at 476. No contraband was found in Simon's hotel room. Tr. at 238. Agents did, however, recover $20,000 in cash; $7,000 was found in the room and another $13,000 was later recovered from the hotel safe.*fn8 Tr. at 419. The agents also recovered other items including business cards, credit cards, insurance certificates, plane tickets to Curacao, Simons's passport and a number of pamphlets for "Black Family Entertainment Productions." Tr. at 238-39, 420-23.

b. The Defense Case

The defense conceded that Ensermo was a drug dealer, Tr. at 186, but stressed that Ensermo also had a number of legitimate businesses involving entertainment, clothing, shoes and leather goods. Id. The defense argued that Simons's entertainment business, "Black Family Productions," Tr. at 187, had previously conducted legitimate business dealings with Ensermo and that Simons believed that he was conducting another legitimate transaction with Ensermo, Tr. at 693. To support this argument, the defense maintained that DeLima deceived the government about the purpose of the money that Simons gave him. Tr. at 680, 694. The defense also focused on the fact that Simons gave DeLima a pamphlet for Black Family Productions, suggesting that Simons was engaging in what he believed to be a legitimate business transaction. Tr. at 688. In attacking the government's theory that Simons was supposed to identify the couriers, the defense pointed out that Simons never even with met the couriers. Tr. at 691.

All three defense witnesses detailed the family's numerous social contacts with Ensermo and Ensermo's family, including Claudia Ensermo. Tr. at 501, 504, 522-23, 531. Laquita Simons, movant's wife, and Bruce Simons, his brother, explained the operations of Black Family Productions, the entertainment company that they ran with Simons in Bermuda. Tr. at 517-18, 525-529, 587-89. Laquita Simons and Bruce Simons also detailed the purchase of leather goods from Ensermo, as well as jewelry samples that Ensermo provided. Tr. at 523-24, 549, 557, 597, 608. Bruce Simons testified that in addition to Black Family Productions, he and his brother ran games of chance during "Crown and Anchor," a holiday in Bermuda. Tr. at 591-92.

Although the defense witnesses established the existence of Black Family Productions and testified to prior, apparently legitimate transactions with Ensermo, neither Laquita Simons nor Bruce Simons attempted to provide an explanation for the $6,000 DeLima received from Simons. Moreover, there were discrepancies in the testimony provided by these three witnesses. Critically, Bruce Simons's account of how he first met Ensermo made little sense in light of Laquita Simons's testimony about her first meeting with Ensermo. Tr. at 741-42. Laquita Simons testified that she first met Ensermo, by chance, on a beach with movant in 1992. Tr. at 518-19. Bruce Simons explained that he first met Ensermo on a trip in 1993 when he "ran into her by chance" at the hotel where he was staying. Tr. at 594. According to Bruce Simons, Ensermo never mentioned to him that she knew his brother. This sequence of coincidences was, to say the least, implausible.*fn9

c. Appellate and Post-Conviction Proceedings

Simons was convicted of conspiracy and attempt to import cocaine in violation of 21 U.S.C. § 963. He was sentenced to 121 months imprisonment. On appeal, the Second Circuit affirmed Simons's conviction, but remanded the matter on a sentencing issue. United States v. Simons, No. 96-1730, 1997 WL 701369 (2d Cir. Nov. 10, 1997). On re-sentencing, Simons received a term of ninety-seven months. Simons's appeal of that sentence was denied. United States v. Ensermo, No. 98-1149, 1998 WL 870209 (2d Cir. Dec. 11, 1998). Simons filed two petitions for writs of certiorari, both of which were denied.

On April 3, 2000, Simons filed a motion pursuant to 28 U.S.C. § 2255, raising four claims. First, he argues that he received ineffective assistance of trial counsel, pointing to eleven alleged violations, which are detailed infra. Second, Simons maintains that his Fifth and Sixth Amendment rights were violated when S/A Klein was permitted to testify that Simons declined to consent to a search and requested a lawyer. Third, Simons argues that portions of S/A Klein's testimony violated his rights under the Confrontation Clause. Fourth, Simons advances a general due process claim. On September 6, 2000, Simons amended his motion to include a claim that his conviction violated Apprendi v. New Jersey, 530 U.S. 466 (2000).

In response to Simons's claims, Simons's trial counsel, James Druker ("Druker"), filed an affidavit explaining his trial decisions and strategy. On June 11, 2001, a hearing was held ("Hearing") at which both Simons and Druker testified. Prior to the witnesses taking the stand, a number of the ineffective assistance claims were dismissed. As discussed infra, I concluded that a number of counsel's decisions at trial were legitimate trial strategy. Additionally, Simons's § 2255 counsel explicitly withdrew two ineffective assistance claims at the Hearing. At the conclusion of the Hearing, Simons's claims that Druker failed to advise Simons of his right to testify at trial and that Druker failed to inquire into the basis of certain statements made by S/A Klein were both denied. June 11, 2002 Hearing Transcript ("H.") at 100-02. At the Hearing, Simons's claims that were unrelated to his ineffective assistance argument were not explicitly addressed, nor were the other ineffective assistance issues raised by Simons explicitly ruled on. On June 13, 2001, an order was entered dismissing the § 2255 motion "for the reasons stated" during the Hearing.

Before the Second Circuit, Simons filed an appeal and a motion seeking to have me recused. On February 6, 2003, the Second Circuit issued a mandate remanding the case "[b]ecause the district court's opinion did not address four of the claims raised by Simons's habeas petition, nor five of the sub-points raised within his claim of ineffective assistance of counsel." The Second Circuit directed that an opinion be issued addressing these remaining claims. Furthermore, the Second Circuit instructed Simons that "if he wishes to raise the district court's alleged impartiality as an issue on appeal, he must move in the district court for the judge's recusal pursuant to 28 U.S.C. ยง 455." Subsequently, Simons ...


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