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United States v. Guerrero

United States District Court, S.D. New York

August 7, 2013

ANTONIO GUERRERO a/k/a " Tony," Defendant

Decided August 6, 2013

For the Government: Laurie Korenbaum, Esq., PREET BHARARA, United States Attorney for the Southern District of New York, New York, New York.

For Antonio Guerrero, Defendant: Robert J. Krakow, Esq., LAW OFFICE OF ROBERT J. KRAKOW, P.C., New York, New York.


Page 524




I. Background

II. Prior Proceedings

A. Guerrero's Initial Rule 29/33


B. The Instant Rule 29/33


1. The April 4, 2013 Hearing

a. Testimony of Detective Tota

b. Testimony of Frederick Cohn, Esq.

c. Testimony of James Dowd

d. Testimony of Special Agent Charles


2. Guerrero's Brady Challenge

III. There Was No Brady Violation

IV. Guerrero's Trial Counsel Was Constitutionally


A. The Applicable Standard

B. The Trial Counsel Was Not Ineffective in Failing

to Present a Two-Shooter Theory

C. The Trial Counsel Was Not Ineffective In Failing

to Explore Inconsistencies in the Trial Testimony

and Evidence

1. Guerrero's Arrival at Minford Place

2. Locations of the Victims After the


3. Where Guerrero Was Dropped Off After

the Shootings

4. Guerrero's Confession the Day After

The Shootings

5. Guerrero Cannot Establish Prejudice

V. Conclusion

Page 525


Defendant Antonio Guerrero (" Defendant" or " Guerrero" ) was convicted on June 7, 2010 of shooting to death two individuals, Fernando Garrido and Livino Ortega. Guerrero has moved for a judgment of acquittal pursuant to Fed. R. Cr. P. 29 (" Rule 29" ), or in the alternative, for an order setting aside the jury's verdict and ordering a new trial pursuant to Fed. R. Cr. P. 33 (" Rule 33" ) (collectively, the " Rule 29/33 Motion" ). Based upon the conclusions set forth below, the motion is denied.

I. Background

This case arises out of the prosecution of members of the Solid Gold drug distribution organization for the September 3, 1994 murders of Livino Ortega (" Ortega" ) and Fernando Garrido (" Garrido" ); the October 9, 1994 murder of Leonard Overman (" Overman" ) and non-fatal shooting of Alvino Wade (" Wade" ); and the December 13, 1994 murder of Carmen Diaz (" Diaz" ) and non-fatal shooting of Genero Rodriguez (" Rodriguez" ). The shootings all took place in the Bronx, and were perpetrated by members of Solid Gold in an effort to protect the organization's retail crack cocaine business, which at that time was operating at 173rd Street and Boston Road. The relevant facts, derived from the evidence presented at Guerrero's trial, are as follows:

On September 3, 1994, Ortega, a crack dealer, and his friend, Garrido, were shot as they stood near a gas station on Minford Place and 173rd Street in the Bronx, within 100 feet of Solid Gold's drug spot. Both Ortega and Garrido died as a result of their gunshot wounds.
The Solid Gold crew disfavored Ortega, who was selling crack cocaine in close proximity to the Solid Gold spot and who was directly competing with Solid Gold for customers. Additionally, Ortega had sold crack of an inferior quality using Solid Gold's packaging, thereby hurting Solid Gold's brand. As a result, members of the Solid Gold crew had several confrontations with Ortega.
Solid Gold also had a dispute with Overman, a/k/a " Boo," who had operated the Solid Gold drug spot before Solid Gold's predecessor, Feliz. Since being released from jail, Overman had made it clear that he wanted the drug spot back for himself and his partner, Wade. At one point, [Solid Gold members] Ramon [Flores], Leonardo [Flores] and Guerrero armed themselves with guns from Guerrero's apartment and prepared to shoot at Overman and Wade from the rooftop of 1669 Boston Road. Guerrero, who was on duty as manager that day, left to attend to the spot shortly before [Ramon and Leonardo Flores] shot at Wade as he walked below in the street. The attempt to shoot Wade was unsuccessful as he managed to evade the gunfire and get away.
After Overman assaulted Ricky, one of the Solid Gold workers, members of Solid Gold, including Miguel Padilla (" Padilla" ), Ramon [and] Leonardo [Flores,] and Guerrero sought out Overman

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to kill him. Using a white van, the crew planned to have Padilla drive and Guerrero shoot Overman from the vehicle. When the crew was unable to find Overman, however, they returned to Boston Road. Once there, the crew decided that, since they were armed and prepared, they might as well take the opportunity to kill Ortega.
In preparation for the anticipated shooting of Overman, Guerrero had armed himself earlier that day with a 9 millimeter firearm, which he had retrieved from his apartment on Boston Road. Guerrero, his face obscured by the hood of his sweatshirt, walked to the corner of 173rd Street and Minford Place and shot Ortega in the head at close range. Guerrero then shot Garrido, who had been standing with Ortega, in the back. Guerrero then got into a white van that was waiting for him down the block. Padilla, who was in the driver's seat, drove a few blocks away, where Padilla and Guerrero regrouped with Ramon and Leonardo [Flores], who were waiting there in Leonardo [Flores'] burgundy car. Guerrero got in the burgundy car and announced that " I killed him." Leonardo [Flores] then drove away. Ortega, who sustained three gunshot wounds, died on the spot. Garrido, who sustained a single gunshot wound to the back, died some hours later at a hospital in the Bronx.

U.S. v. Guerrero, 882 F.Supp.2d 463, 472-73 (S.D.N.Y. 2011) (" Guerrero IV" ).

II. Prior Proceedings

On April 7, 2009, Guerrero was indicted for the murders of Ortega and Garrido. Dkt. No. 1. The trial began on April 28, 2010, and on June 7, 2010 the jury found Guerrero guilty of both murders.

A. Guerrero's Initial Rule 29/33 Motion

On February 7, 2011, Guerrero submitted his initial Rule 29/33 motion, arguing that the evidence presented at trial was insufficient to support the jury's verdict and that his trial counsel ineffectively represented him in (i) failing to explore certain issues at trial including, inter alia , inconsistencies in the testimony given by Government witnesses at trial concerning how and by what means Guerrero arrived at the location of the double murder and the precise locations of the bodies of the murder victims; and (ii) failing to present testimony and evidence that would have allegedly undermined the testimony presented by the Government concerning how and by what means Guerrero arrived at the murder scene.

On December 1, 2011, the Court issued an opinion denying Guerrero's motion, finding, inter alia , that the decision by Guerrero's trial counsel not to explore the apparent inconsistencies raised by Guerrero, either by cross-examination of trial witnesses or by the presentation of additional testimony and evidence, was strategically justified and therefore did not constitute constitutionally ineffective representation. See Guerrero IV, 882 F.Supp.2d at 489-92.

B. The Instant Rule 29/33 Motion

On April 2, 2012, Guerrero submitted a second Rule 29/33 motion, which is the motion currently before the Court. In his initial brief in support of the instant motion, Guerrero contended that he received constitutionally ineffective counsel at trial because his trial counsel neglected to explore ballistics evidence that supported a two-shooter theory and therefore would have raised a reasonable doubt as to the Government's theory of the case, which identified Guerrero as the lone shooter. See Dkt. No. 142, Defendant Antonio

Page 527

Guerrero's Memorandum in Support of His Supplemental Motion for a Judgment of Acquittal or, In the Alternative, for a New Trial Pursuant to Federal Rules of Criminal Procedure 29(c) and 33 (" Def. Mem." ) at 2. Guerrero premised his argument principally upon what he described as a " police ballistics report" which described the bullet that was recovered from the victim Ortega's clothing as a .38 caliber round. See Def. Mem. at 5 and Ex. A at 8. Guerrero has contended that the description of this bullet as a .38 caliber round demonstrates the presence of two shooters at the murder scene, since several 9-millimeter shell casings were also found at the scene and a 9-millimeter bullet was found in victim Garrido's body. Id. at 5-6.

On March 27, 2013, the Government submitted an opposition brief to which it attached several documents as exhibits, including a single page from a notebook maintained by the detective who had been involved in the state investigation into the murders of Garrido and Ortega. See Dkt. No. 169, Government's Pre-Hearing Memorandum of Law and Memorandum of Law in Opposition to Defendant Antonio Guerrero's Third Post-Trial Motion For Judgment of Acquittal Or a New Trial (" Gov. Opp." ), Ex. 11 (the " Erpedio Document" ). The notes on that page memorialize the detective's interview of Yokasta Santana, the wife of murder victim Ortega. Id. According to the detective's notes, during the course of the interview, Santana disclosed that she had spoken with an individual whom she identified as " Erpedio," and that Erpedio had told Santana that he had been present when Santana's husband, Ortega, had been shot. Id. The notes further disclosed that Erpedio had told Santana that " the shooter chased him [i.e., Erpedio] and fired three shots at him." Id. (emphasis added).

The Erpedio Document was submitted by the Government in connection with its opposition brief because the use of the singular term " shooter" by the eyewitness Erpedio disputed Guerrero's contention that his trial counsel was ineffective in failing to present a two-shooter theory at trial. See Gov. Opp. at 13 n. 5.

1. The April 4, 2013 Hearing

On April 4, 2013, a hearing was held on the instant Rule 29/33 motion. The Government called four witnesses - (i) Detective Anthony Tota (" Det. Tota" ), a ballistics expert who examined the bullets and shell casings recovered in connection with the double murder; (ii) Frederick Cohn, Esq. (" Cohn" or " Trial Counsel" ), the attorney who represented Guerrero at trial; (iii) James Dowd (" Dowd" ), a private investigator who worked on Guerrero's case in conjunction with Guerrero's trial counsel; and (iv) Special Agent Charles Mulham (" S.A. Mulham" ), the case agent who oversaw the investigation of the double-murder. Guerrero did not call any witnesses.

a. Testimony of Detective Tota

Detective Tota has been a ballistics expert for over forty years, working both with the NYPD and the Westchester County Police Department. Transcript of April 4, 2013 Hearing (" Tr." ) at 3-4. In the course of his duties, Det. Tota has examined " tens of thousands" of firearms, bullets, bullet fragments and bullet casings. Id. at 5. With respect to the bullet recovered from the clothing of victim Ortega, Det. Tota testified that it " fits into the .38 caliber category, which includes 9-millimeter." Id. at 9. Det. Tota stated that this bullet could have been either a .38 caliber or a 9-millimeter round, and that no definitive classification could be made due, in part, to the fact that those two bullet-types are extremely similar and also the fact that the bullet recovered from Ortega's clothing was deformed. Id. at 9-10, 12. Det. Tota arrived at this conclusion

Page 528

after examining the bullet under a microscope. Id. at 12.

Det. Tota also testified regarding the document that Guerrero referred to as a " police ballistics report" in his initial brief, see Def. Mem. at 5 & Ex. A at 8. Det. Tota stated that the document was not in fact a ballistics report, but rather was a receipt that was filled out by another NYPD ballistics examiner, Detective Thomas Natale, after Detective Natale had retrieved the bullet from the coroner's office. Tr. at 10-11. Det. Tota " assumed" that the typewritten portion of the document (the " Ballistics Evidence Receipt" ) was filled out by Detective Natale, who had not examined the bullet in a laboratory as he was not the examiner assigned to the case. Id. at 11; see also id. at 27 (noting that to whatever extent Natale examined the bullet recovered from Ortega's body, it was " an examination at the Medical Examiner's Office without a microscope or measuring tools" ).

Det. Tota also identified several 9-millimeter shell casings recovered from the murder scene, which Det. Tota had concluded all came from the same gun. Tr. at 12-13. Finally, Det. Tota identified the bullet recovered from Garrido's body as a " 9-millimeter brass jacketed bullet." Tr. at 14. Det. Tota explained that he was able to arrive at a definitive determination as to the caliber of that round because it was not as deformed as the round that had been recovered from Ortega's body.

b. Testimony of Federick Cohn, Esq.

Frederick Cohn, Esq., Guerrero's trial counsel, testified that he had considered raising the defense that there had been two shooters involved in the murders of Ortega and Garrido, but after consultation with his private investigator, James Dowd, Cohn had ultimately concluded that it was not a viable defense theory and that there was little, if any, evidence that he could present in support of such a theory. Tr. at 34-35. Instead, Cohn opted to present the defense theory that Guerrero was being framed just as others had framed Leonardo Flores years earlier in the state murder case in which Flores had been convicted of, inter alia , the murders of Ortega and Garrido. Id. at 35.

Cohn also testified that he and Dowd had discussed the ballistics evidence since Dowd had some expertise in the area of firearms. Id. at 36. In particular, Cohn and Dowd discussed the bullet that had been found in Ortega's clothing, and they concluded that the precise caliber of that bullet could not be determined. Id. at 37.

Cohn also testified that he was aware that there was evidence that a third person had been shot at by the shooter of Garrido and Ortega, that he did not recall ever being informed of the name of that person, and that he did not know whether Dowd had ever investigated someone by the name of " Experio." Id. at 42-43.

Finally, Cohn testified that to the extent that a two-shooter theory was ever alluded to in the trial testimony, Guerrero was identified as one of the shooters. Id. at 48.

c. Testimony of James Dowd

James Dowd testified that he has been a criminal investigator for almost twenty years following his retirement from the NYPD with the rank of detective commander. Tr. at 52. Dowd met with Guerrero " quite often" before the trial, and sought out Guerrero's advice as to where Dowd might find potential ...

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