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Colon v. United States

October 30, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge*fn1


Following a bench trial before Hon. Michael Mukasey on August 1 and 2, 2005, Petitioner Eris Jose Duran Colon ("Petitioner" or "Colon") was convicted of (i) conspiracy to distribute heroin in violation of 21 U.S.C. § 846; (ii) possession of a fraudulent alien registration card in violation of 18 U.S.C. § 1546, and (iii) fraudulent use of a passport in violation of 18 U.S.C. §1543. On February 14, 2006, Judge Mukasey sentenced Colon to three concurrent terms of 84 months imprisonment, to be followed by a term of supervised release. Colon moves pursuant to 28 U.S.C. §2255 to vacate his conviction and sentence on the basis of ineffective assistance of counsel. For the reasons that follow, the petition is DENIED.


Acting on information concerning drug activity at the location, on July 29, 2004, three members of a Drug Enforcement Agency ("DEA") task force traveled to Petitioner's apartment in upper Manhattan and asked for and obtained his consent to search it. Trial Transcript, August 1 and 2, 2005 ("Tr.") at 24, 28, 132. During the search, the agents discovered certain paraphernalia associated with narcotics trafficking, including a "drug press" and a digital scale, as well as five passports from the Dominican Republic and a resident alien card (a "green card"). Tr. 133. Some of the documents featured Petitioner's photograph but bore a name not his own:Jose Ernesto Tapia Martinez. Tr. 133-34. Before he was either arrested or advised of his rights under Miranda, Colon informed one of the agents that the drug press belonged to a friend. Tr. of Suppression Hearing, Mar. 24, 2005 ("Supp. Hrg. Tr.") at 13-14. Petitioner also acknowledged that his name was not Jose Tapia Martinez and that he had used the documents bearing that name to travel in and out of the country. Id.

Colon was arrested and subsequently charged in a three-count indictment with conspiracy to distribute heroin, possession of a fraudulent green card, and fraudulent use of a passport. On October 6, 2004, through his then counsel,*fn2 Colon moved to suppress (i) the physical evidence obtained from the search of his apartment on the grounds that his consent had not been given voluntarily; and (ii) the statements made to the agents on the grounds that he was in custody during the search and his statements were not preceded by Miranda warnings. At a suppression hearing held on March 24, 2005, one of the investigating agents testified that Colon freely consented to the search, telling the agents "he had nothing to hide" and signing a written consent-to-search form. Supp. Hrg. Tr. 8-9. The agent further testified that while other members of the team searched the apartment he sat with Colon in the kitchen area and engaged in "small talk" about Colon's job and his children. Id. at 11. The agent then searched the kitchen and uncovered an object that he recognized as a press used to form drugs into shape and asked Colon about it. Id. at 13. Colon replied that a friend of his had left it there. Id. Subsequently, one of the other agents entered the kitchen and showed Colon the travel and immigration documents. Id. at 14. Colon then made the admission pertaining to the passports and the immigration documents. Id. at 14. At the conclusion of the search, the agents placed Colon under arrest. Id. at 27.

On May 13, 2005, Judge Mukasey found that Colon's consent to search was voluntary and denied Colon's motion to suppress the physical evidence. Tr. of May 13, 2005 Proceedings at 2-5. The Court did not then rule on Colon's motion to suppress the statements.

At a pretrial proceeding held July 20, 2005, Colon's new counsel moved to reopen the suppression motion, arguing that prior counsel had neglected to argue for suppression of the statements. Tr. of July 20, 2005 Proceedings at 5-11. Counsel focused on the statement concerning the drug press, which she referred to as a "very damaging statement." Id. Thereafter, Colon's counsel submitted a letter brief to the Court, arguing for suppression of the statement concerning the drug press on Fifth Amendment grounds. In a footnote, counsel noted that Colon's statements regarding the immigration documents should also be suppressed "for the same reasons that are argued in this letter." July 27, 2005 Letter, Ex. M. The Government responded by indicating that it would not introduce the statement about the drug press in its case-in-chief. Tr. at 2; July 28, 2005 Letter, Ex. N. At the commencement of trial, the prosecution sought clarification about the admissibility of Colon's other statements: "with respect to the statement about the immigration documents, I'm assuming because there was no suppression motion made [as] to those statement, that your Honor is not suppressing them." Tr. at 7. Judge Mukasey stated that is was his understanding there was no suppression motion addressed to those statements, and Colon's trial counsel raised no objection. Id. At trial, the Court heard testimony concerning Colon's statement that he used the passports bearing the name Jose Ernesto Tapia Martinez to travel in and out of the country. Tr. at 28.

The Government's case at trial was based almost entirely on the testimony of a cooperating witness, Henry Jimenez, who testified that he began to sell drugs with Colon in 1997.*fn3 Jimenez testified that in 2000 Colon accepted delivery of 800 grams of heroin from a courier who carried it from Miami to New York in a pair of shoes. Tr. 46-48. Jimenez further testified that between 2000 and 2001, he and Colon did not work together because Colon had no customers for heroin. Tr. 52. Jimenez testified that in 2002 and 2003 he supplied Colon with "little" amounts of heroin "around three or four times," and that he estimated those transactions amounted to "100, 150, 200 [grams], something like that." Tr. 54, 125. Additionally, according to his testimony, in 2003 Jimenez paid Colon to break down and package "a couple of kilos of cocaine."*fn4 Tr. 55. Jimenez testified that he charged Colon "between 60 and 62" dollars per gram of heroin and that "in the beginning" Colon was good about paying, but "afterwards" he was not and Colon still owed Jimenez $3,000. Tr. 54. The only other witnesses at trial were a special agent of Immigrations and Customs Enforcement ("ICE"), who testified about the immigration documents recovered from Colon's house, and two of the agents who searched Colon's apartment and arrested him.

Judge Mukasey delivered his verdict on August 16, 2005, finding Colon guilty on all three counts. With respect to Count Two (possession of a fraudulent green card) and Count Three (use of a fraudulent passport), Judge Mukasey stated that he did understand the charges to be "seriously contested" and found as follows:

When the defendant was arrested in his apartment, agents found a resident alien card, introduced as Government Exhibit 2, that carried his picture and the name Jose Ernesto Tapia Martinez. Introduced as Exhibit 1A was the application for that card, which shows the same handwriting as exhibits 7A to 7E, also seized from the defendant's apartment at the time of his arrest and which bear his handwriting. There can be little question that he was aware that he possessed the card in another name, and his apartment was located in the Southern District of New York. Accordingly, defendant is guilty of the charge in Count Two.

As to the passport, the subject of Count Three, the evidence was very much the same. Domincan passports bearing the defendant's picture and the name, Jose Ernesto Tapia Martinez were seized from the defendant's apartment and were introduced as exhibits 3A and 3B in evidence. They bore stamps dated 1995, 2000, and 2001, which, according to the testimony of Immigrations and Customs Enforcement agent James Grathwohl showed the passport had been used to arrive in the United States, likely at JFK airport. (Tr. 22-23). In addition, the defendant admitted to investigator Alex Colon of the Amtrak police that he had used the passports for travel outside the United States. Therefore, the defendant is guilty of the charge in Count Three.

Tr. of August 16, 2005 Verdict ("Verdict Tr.") at 2-3.

With respect to the narcotics conspiracy count of the indictment, Judge Mukasey found that "Jimenez's account of the defendant's participation in heroin trafficking . . . makes it plain that defendant was not a substantial customer for the heroin that Jimenez provided," but that "[n]onetheless, Jimenez's testimony was sufficient to convince me beyond a reasonable doubt that defendant dealt in heroin, albeit in modest amounts, during the period charged in the indictment." Id. at 7-8. Consequently, Judge Mukasey found Colon guilty of Count One. Id.

After the verdict was read, Colon's counsel raised the issue of the drug quantity, and both counsel engaged the Court in a discussion of what the trial evidence showed. The Government contended that the evidence established transactions in excess of one kilogram of heroin, a conclusion that Colon's counsel disputed. Id. at 9-10. Judge Mukasey stated ...

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