The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Petitioner Carmen Cardoso ("Petitioner" or "Cardoso"), presently subject to a sentence of 150 months imprisonment imposed by this Court on April 10, 2007, seeks to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 on the ground that at the time of her sentence, the government violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963) and 18 U.S.C. § 3500/Federal Rule of Criminal Procedure 26.2 by not disclosing impeachment material to the defense. Petitioner also requests further discovery. Oral argument on this motion was held on March 26, 2009.
For the reasons set forth below, Petitioner's motion is granted to the extent that, should she so elect, Petitioner shall be resentenced by this Court on August 21, 2009 at 10:00 a.m. in Courtroom 24A. Petitioner's motion for additional discovery is denied.
A. The Indictment and Trial Overview
Under Indictment 05 Cr. 563, Petitioner was charged with three counts: conspiracy to import one kilogram and more of heroin and five kilograms and more of cocaine from 2003 to 2005; conspiracy to distribute and to possess with intent to distribute one kilogram and more of heroin and five kilograms and more of cocaine from 2003 to 2005, and; conspiracy to commit money laundering.
Trial commenced on October 16, 2006. The evidence at trial consisted of testimony and tape recordings showing that in October-November 2003, Petitioner's significant other, Nelson Solano ("Solano"), sought the assistance of two government informants, Papi Luna ("Papi") and Oscar Torres ("Oscar"), in bringing 200 kilograms of cocaine into the United States from South America, by boat. Telephone calls between Oscar and Solano and a meeting between the two at a restaurant in Philadelphia confirming the purpose of the meeting were recorded. In a telephone call a couple of weeks later, Solano and Oscar also discussed the possibility of getting drugs on credit from South America by having Solano be held hostage to guarantee payment. (Govt. Ex. IT.2, IT.4.) Petitioner was part of this plan. She had a call with Papi in which she advised him that the drugs would be coming through Antigua and not through Haiti. At the end of that call, Petitioner told Papi that she would let Solano, who was in South America, know that Oscar was just about ready to carry out this plan. (Govt. Ex. IT.3.)
Next, in early 2004, Petitioner tried to arrange with Oscar for scuba divers to unload 125 kilograms of cocaine from the bottom of a boat; for his services, Oscar would receive $400 per kilogram. (Govt. Ex. IT. 5(a), (b).) Petitioner even went to Philadelphia in March 2004 to meet with Oscar and the two men, Kiko and Vic, who needed the scuba divers to unload the cocaine. Oscar claimed that the water was too cold and he sought more information as to the exact location of the boat for surveillance purposes; Petitioner tried hard to change his mind. (Govt. Ex. 6(a).)
In 2003-2004, Petitioner also assisted in another plan of Solano, to supply heroin to Henry Jiminez (a/k/a Frank). In 2003, Denise Butler agreed to act as a drug courier for Jiminez, and to bring heroin from Venezuela to the United States in October 2003. Petitioner used her own telephone and a phony name to make a round trip air reservation for Ms. Butler to Venezuela and back. (Govt. Ex. 2A.) In February 2004, Solano called Israel Cintron and told him that drugs would be arriving in Atlanta within the next few days. (Govt. Ex. 2T.1.) Two days later, Butler was arrested in the Atlanta airport coming from Venezuela with heroin in her suitcase. (Govt. Ex. 2T.3.) Petitioner called Cintron two weeks later and told him that "Frank" had told Solano that the drugs had been seized but that she did not believe it because Frank was in such good spirits. (Govt. Ex. 2T.3.) In March 2004, however, Petitioner called Cintron and warned him that Frank had been arrested. Cintron said, "I am going to change everything!" Petitioner responded, "Yes, that's why I am calling you." Defendant closed the conversation saying, "To be forewarned is to be forearmed." (Govt. Ex. 2T.5.)
The trial testimony next involved the testimony of Miguel Diaz, who stated that in November 2004, a shipment of heroin had arrived in the United States. Diaz's testimony was supported in part by his two cell phones, which corroborated that in the hours prior to his arrest while he was awaiting the delivery of heroin to his house, he was in touch with Petitioner and Solano, who was in Colombia. (Govt. Ex. 3P1, 3P2.)
Diaz, who had arranged that Edward Pena would drive the shipment of heroin up to New York from Texas,*fn1 testified that about an hour before he was arrested, he confirmed with Petitioner, to whom, ("Jeffrey" amongst others), he was supposed to deliver the heroin. Petitioner and Solano's involvement in the shipment of heroin was confirmed by the testimony of her son, Edward Cardoso. Petitioner called Edward Cardoso to tell him of Diaz's arrest, and she stated that she was concerned that she could be arrested as well. Edward Cardoso testified that he helped Petitioner raise and pay $108,000 for Solano's release in Colombia. Edward Cardoso also testified that Petitioner sent him to the authorities to photocopy Diaz's and Pena's court papers in order to send those papers to Colombia as proof that the heroin had been seized and not stolen.
Lastly, in February 2005, Petitioner told Edward Cardoso that she and Nelson Solano were arranging to have 3-5 kilograms of cocaine delivered to Edward, and she described how the cocaine should be distributed, including that some should be distributed to "Jeffrey." (Govt. Ex. 5T.1.) It is clear from the evidence that Petitioner was involved with Solano in several conspiracies to import cocaine and heroin into the United States.
Petitioner testified in her own defense. In general she did not dispute the government's evidence, but argued instead that her statements on the wiretap recordings were explained by the fact that she was acting as a government informant posing as a narcotics trafficker. Petitioner testified that she understood that she was authorized to engage in most of this conduct by a DEA agent and subsequently, by a New York City Police Department narcotics task force detective to whom she was providing information.
The jury began its deliberations on October 31, 2006, and Petitioner was found guilty on count one (conspiring to import five kilograms or more of cocaine and one kilogram of heroin) and on count two (conspiring to possess and distribute one kilogram or more of heroin and five kilograms or more of cocaine). The third count (money laundering) had been dismissed during trial.
B. The Testimony of Miguel Diaz At Trial
Miguel Diaz testified against Petitioner pursuant to a cooperation agreement with the government. (Declaration of George Royal, dated October 21, 2008 ("Royal Decl."), Ex. P [trial transcript] at 484-85.) Diaz claimed that Petitioner participated in a scheme in which he and several other co-conspirators, including Nelson Solano, imported and planned to distribute approximately five kilograms of heroin from Colombia in late 2004. (Id.) He testified that after first meeting Petitioner in early 2004, he and Petitioner and Nelson Solano met several times and discussed "[p]ossibilities of firming up drug deals and different scenarios that could occur . [for] bringing in drugs from another country." (Id. at 508-09.)
During these meetings, Petitioner and Diaz spoke "about many different possibilities about drugs that were going to come in," but shortly thereafter, in late 2004, Petitioner "told [Diaz] that [they] could get heroin in Colombia . on credit," but "that [they would] have to go and pick it up, because it wasn't going to come directly to New York City." (Ex. P at 511-512, 514-15.) Petitioner asked Diaz if he knew someone who could retrieve the heroin from Houston, Texas, and he told her that he did. (Id. at 512-13.) Diaz's planned courier was unavailable, however, so Petitioner told Diaz someone would have to "travel down" to Houston to collect the heroin, and that once she had "the information a hundred percent for sure," Petitioner would tell Diaz where to collect the drugs. (Id. at 513.) Petitioner then corrected the location and told Diaz that the drugs would instead be at a location in Lake Charles, Louisiana. (Id. at 514-15.) Diaz then arranged for Edward Pena to pick up the heroin.
In March 2006, Diaz signed a cooperation agreement with the government pledging "to provide the government with all necessary information about criminal activities and to tell the truth about everything." (Ex. P at 485.) Specifically, the agreement provided that Diaz "shall bring to this office's attention all crimes which he has committed ." and that he "shall commit no further crimes whatsoever." The government also elicited testimony from Diaz about the parameters of his activities as a government cooperator. Diaz testified that he told law enforcement about his contacts with certain drug traffickers "right away" after he had them. (Ex. P at 577.) Diaz also stated that he did not make any contacts with drug traffickers without getting "specific approval from the agents," and that he understood that he would be in "big trouble" and would put his cooperation agreement at risk if he did not do so. (Id. at 578.)
C. Petitioner Disputed Diaz's Trial Testimony
Petitioner testified that Diaz, not she, was the supervisor of the scheme to import heroin from Colombia in late 2004. According to Petitioner, Diaz appeared in front of her building one day with a "Dominican girl." (Ex. P at 1135.) Diaz told Petitioner that there was heroin ready to be picked up, and that he wanted to send the Dominican girl to pick up the heroin from his suppliers. (Id. at 1135.) Petitioner denied that she had organized the importation of the heroin from Colombia in late 2004, or that she had ever told Diaz where drugs were in Texas. (Id.) Instead, Petitioner claimed, it was Diaz who had learned directly from his suppliers where the drugs could be retrieved. (Id. at 1135-36.) Petitioner also testified that after a courier (Pena) had been sent to retrieve the heroin in Texas, Diaz "would ...