The opinion of the court was delivered by: Trager, J.
Movant Angel Perez brings this motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence after he was convicted by a jury of conspiracy to import and to possess with intent to distribute cocaine, importation of cocaine and possession with intent to distribute cocaine. Perez bases his motion on ineffective assistance of counsel at sentencing. For the reasons set forth below, the motion is denied.
The charges against Perez stem from his arrest at John F. Kennedy International Airport ("JFK") on January 29, 1997. Perez, traveling with co-conspirator Teresa Peguero, was returning from Aruba on Air Aruba. Perez and Peguero had flown out of Newark International Airport ("Newark") four days earlier and had purchased their tickets at the ticket counter with cash.
Based on the brevity of their trip and payment in cash, Air Aruba's station supervisor notified the United States Customs Service ("Customs"), now known as the United States Customs and Border Protection.
Customs, in turn, posted a "lookout" for Perez and Peguero at JFK on the date of their return and pulled them aside at the gate. Customs agents led Perez and Peguero to the customs hall, questioned them and searched their luggage. A Customs agent noted that, during routine questioning, Perez and Peguero appeared nervous and that Peguero appeared bulky. Perez and Peguero were separated and patted down. Customs agents discovered that Perez and Peguero each had strapped two packages strapped to their bodies. The packages contained a white, powdery substance that tested positive for cocaine.
Upon discovery of the packages on Perez's body, Perez stated that he thought the packages contained money. He asserted that he had been approached by a man named Raymond in the supermarket that Perez owned in Paterson, New Jersey, approximately one month before the flight to Aruba. According to Perez, Raymond told him that he had relatives in Aruba who owed him money and that he needed someone to pick up the money for him. Perez stated that Raymond promised to pay him $5,000 over Perez's expenses for making the trip. In Aruba, Perez claimed that a man named Antonio delivered a package of money to Perez and told him that someone would meet Perez at JFK. Perez stated that he informed Peguero of the situation, and she agreed to carry two of the packages believing them to contain cash. Perez promised to pay Peguero $1,000 for her role.
Perez and Peguero were charged in a three-count indictment with conspiracy to import and to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(b)(1)(B), 963 and 960(b)(2)(B), importation of cocaine in violation of §§ 952(a) and 960(b)(2)(B) and possession with intent to distribute cocaine in violation of § 841(a)(1) and (b)(1)(B). Peguero pleaded guilty, and Perez continued to a jury trial.
At trial, Perez testified in his defense. His testimony centered on his account involving Raymond's request to retrieve money from Aruba. The jury was instructed on the theory of conscious avoidance, whereby the knowledge requirement of a statute is met when a defendant deliberately and consciously avoids learning the truth. The jury returned guilty verdicts on all counts.
At sentencing, the Government requested a two-level enhancement of Perez's base offense level for obstruction of justice. The Government argued that Perez testified falsely at trial when he claimed that he thought the packages contained money instead of cocaine. The Court declined to apply the enhancement. Moreover, the United States Probation Office ("Probation"), in a Presentence Investigation Report, recommended no downward adjustment to Perez's total offense level for acceptance of responsibility because he continued to deny his criminal conduct, and the Court accepted Probation's recommendation. The Court sentenced Perez to sixty months' imprisonment, the mandatory minimum.*fn1 Perez appealed, and, on December 1, 1998, the Second Circuit affirmed the Court.
Perez now brings the instant motion*fn2 based on ineffective assistance of counsel at sentencing. In particular, Perez claims that counsel was ineffective for failing to argue that Perez was entitled to: (1) a downward adjustment for acceptance of responsibility, (2) a downward departure pursuant to the "safety valve" provision of 18 U.S.C. § 3553(f) or (3) a downward departure "due to the extraordinary hardship that would be placed on [his] employees in the event of [his] incarceration."*fn3
In documents dated August 1, 2000 ("supplemental documents"), Perez sought to supplement the instant motion. Perez claimed that, in addition to being ineffective at sentencing, counsel was ineffective at trial. First, Perez asserted that counsel failed to: (1) request documents relating to Perez's stay in Aruba on January 29, 1997, (2) call Raymond as a witness or (3) call Peguero as a witness. According to Perez, any of these actions would have bolstered his account that he thought that he was carrying cash. Regarding the documents Perez argued should have been presented at trial, Perez claimed that they would have tended to show that he and Peguero waited at the hotel for approximately two hours for Anthony to deliver the packages. How this was so, Perez does not explain.
Moreover, Perez faulted counsel for failing to: (1) convey any offers for plea agreements made by the Government, (2) subpoena credit card records which would have shown that Perez attempted to buy the airline tickets with a credit card, (3) convey to the Government Perez's offer to submit to a lie detector test, (4) conduct redirect examination of Perez to rehabilitate him after Perez got confused on cross, (5) object to the Government's use of his ...