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Nivia v. United States

August 15, 2007


The opinion of the court was delivered by: Sifton, Senior Judge.


On September 24, 2003, defendant Elsa Triana Nivia ("Triana Nivia") was arrested for conspiring with her husband, Rafic Nahle, and Nelson Pulecio-Barrera to import heroin into the United States. Triana Nivia pled guilty on March 4, 2004, to one count of conspiracy to import heroin into the United States, in violation of 21 U.S.C. § 963, and one count of conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). On October 3, 2005, she was sentenced to a term of 87 months, three years of supervised release and a $200 special assessment. Now before this Court is Triana Nivia's motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255.

In support of her motion, Triana Nivia contends (1) that she should have received a minor role reduction; (2) that her counsel rendered ineffective assistance by not giving her better pre-trial advice and not achieving a favorable plea bargain; (3) that because she did not cooperate with the government her sentence was improperly enhanced as compared with those of her co-defendants; and (4) that the court erred in its sentence in not departing downward based on duress.*fn1 For the reasons stated below, defendant's motion is denied.


The following facts are drawn from the parties' submissions in connection with this motion. Disputes are noted.

Petitioner's Involvement in Drug Conspiracy

On January 11, 2003, a cargo shipment of twelve wooden crates arrived at John F. Kennedy International Airport on a flight from Caracas, Venezuela. The crates contained a total of 360 leather handbags sent by Inversions Cuyuni in Venezuela and consigned to Venise Verde, Ltd., ("Venise Verde"), West New York, New Jersey. On January 13, 2003, United States Customs Inspectors examined the shipment and found 8.8 kilograms of heroin hidden within the cardboard linings of handbags in three of the crates.

Agents of the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") arranged for a controlled delivery of the crates, and on January 17, 2003, an ICE agent posing as a delivery person delivered them to Venise Verde, where they were accepted and opened by Rafic Nahle ("Nahle"), the owner and president of Venise Verde. Shortly thereafter, Nahle was arrested.

Soon after Nahle's arrest, agents determined that Nelson Pulecio-Barrera ("Pulecio-Barrera"), also known as "Carlos," was involved in the heroin shipment and arrested him. PulecioBarrera subsequently entered into a cooperation agreement with the government and provided information to law enforcement agents about the narcotics importation conspiracy in which he had been involved, identifying Rafic Nahle and Nahle's wife, the petitioner, as his co-conspirators. On September 24, 2003, petitioner was arrested and subsequently detained pending trial. Report of Investigation ("Report"), Exhibit C to Government Sentencing Letter of January 11, 2005 ("Jan. 11 Letter"), at 4.

Following Triana Nivia's indictment, petitioner met with the government at a proffer session on December 11, 2003. She informed the government about the leading role her brother, Luis Fernando Triana Nivia ("Luis Fernando"), a resident of Colombia, had played in conceiving the heroin shipment and in procuring her agreement to assist in carrying it out by arranging to receive the goods at her husband's store, Venise Verde. Report, Exhibit D to Jan. 11 Letter, at 2. Petitioner states in her motion that "I did not participate in any prior meetings or negotiations to purchase the narcotics." Petitioner's Motion ("Motion") at 4. In the proffer session she described several meetings with Pulecio-Barrera and her husband during which narcotics were not mentioned. Report, Exhibit D to Jan. 11 Letter, at 4. She also stated that she had discussed the heroin shipments by phone in the United States with Pulecio-Barrera and with her brother and Freddy Cespedes*fn2 in Colombia, although only about receiving the shipment. Probation Department Presentence Investigation Report dated July 2, 2004 ("PSR") ¶ 8; Report, Exhibit D to Jan. 11 Letter, at 2-4.

The petitioner has given varying accounts of her reasons for entering into the conspiracy. In post-arrest statements she told investigators that she had agreed to become involved because she needed the extra money. PSR ¶ 9. Later she stated that she had agreed to participate in the conspiracy to help her brother, who had been in a serious motorcycle accident, financially. Jan. 11 Letter at 6. Finally, in her pre-sentence letters she alleged that her brother had been threatened by the drug traffickers before the shipment and that after agreeing to participate she had tried to "get out," but had gone through with the project out of fear for her brother's life. Jan. 11 Letter at 7; Motion at 9. On October 28, 2003, petitioner's mother in Colombia received a telephone call informing her that her son Luis Fernando had been forced out of his vehicle, blindfolded and abducted. PSR ¶ 14. Petitioner stated at the December 11 proffer session that she believed her brother had been kidnapped and killed by the same people that he was dealing with regarding the heroin. Exhibit D to Jan. 11 Letter at 4. She also later told the government that in February 2004 she convinced her family to go to the authorities to report her brother's disappearance because she believed that if the authorities investigated, they would uncover facts corroborating or explaining things she had told case agents in reference to her offense. PSR ¶ 14. On February 20, 2004, petitioner's mother in Bogota went to the police to report the disappearance. Id. See also Attorney General's Office [Colombia] Complaint ("Complaint"), Exhibit E to Jan. 11 Letter at 1.

Petitioner's Guilty Plea

On March 4, 2004, Assistant U.S. Attorney Toni Mele sent a letter to petitioner's counsel pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), setting forth the government's position regarding the Sentencing Guidelines and statutory penalties the petitioner would face upon a guilty plea. See Government's Memorandum in Opposition ("Government's Memo") at 5. Defense counsel reviewed the contents of this letter with petitioner. Affirmation of Steven N. Gordon ("Gordon Affirmation") at 2.

On March 4, 2004, Triana Nivia pled guilty to Counts One and Two of the superseding indictment. At the plea allocution, the following exchange took place:

THE COURT: If you plead guilty to this accusation, you could under our laws be sent to prison for the rest of your life and you must be sent to prison with some exceptions but you must be sent to prison for a period of at least ten years. Do you understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: When I say there's some exceptions, there are circumstances under which the mandatory minimum sentence will not be imposed but since the decision is whether the mandatory minimum can or cannot be imposed you have to recognize that I'm the one who makes the determination and I cannot today tell you that I will not impose the mandatory minimum. In fact, I can't tell you whether I will impose the life sentence or not. It seems to me unlikely if what you say is your role that I ...

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