United States District Court, S.D. New York
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, Magistrate Judge.
Luis Felipe Moreno-Godoy was convicted by a jury on November 20, 2008, of conspiracy to kill United States nationals (18 U.S.C. §§ 2332(b), 3238); conspiracy to kill officers and employees of the United States (18 U.S.C. §§ 1114, 1117, 3238); conspiracy to acquire and use anti-aircraft missiles (18 U.S.C. §§ 2332g(a)(1), 2332g(b)(4), 3238); conspiracy to provide material support or resources to designated foreign terrorist organizations (18 U.S.C. §§ 2339B(a)(1), 2339B(d)(1)(E), 3238); and money laundering (18 U.S.C. § 1956(a)(3)). On February 24, 2009, United States District Judge Jed Rakoff sentenced Godoy to 300 months in prison. The United States Court of Appeals for the Second Circuit affirmed the judgment of conviction on October 24, 2011. Godoy, who is currently in prison serving his sentence, has petitioned this Court pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons stated below, Godoy's petition should be denied.
A. Proceedings in the Criminal Case
1. Godoy's Indictment, Arrest, and Extradition
Godoy and co-conspirators Monzer Al Kassar and Tareq Mousa Al Ghazi were indicted for the following offenses: (1) conspiracy to kill United States nationals in violation of 18 U.S.C. §§ 2332(b), 3238; (2) conspiracy to kill officers and employees of the United States in violation of 18 U.S.C. §§ 1114, 1117, 3238; (3) conspiracy to acquire and use anti-aircraft missiles in violation of 18 U.S.C. §§ 2332g(a)(1), 2332g(b)(4), 3238; (4) conspiracy to provide material support or resources to a foreign terrorist organization in violation of 18 U.S.C. §§ 2339B(a)(1), 2339B(d)(1)(E), 3238; and (5) money laundering in violation of 18 U.S.C. § 1956(a)(3). See Third Superseding Indictment, filed June 21, 2007 (Docket # 7 in 07 Cr. 354) ("Indictment"). In a section called "Background to the Conspiracy, " the Indictment alleged:
Since in or about the early 1970s [Kassar] has been an international weapons trafficker [who] has been a source of weapons and military equipment for armed factions engaged in violent conflicts around the world [including] such factions in Nicaragua, Brazil, Cyprus, Bosnia, Croatia, Somalia, Iran, and Iraq.... Luis Felipe Moreno Godoy, the defendant, has worked with [Kassar] in his weapons-trafficking business for approximately the last 10 years [and] [d]uring this time period, [Godoy's] role has included managing financial matters for Al Kassar, including arranging for various bank accounts to be used to conduct weapons transactions.
Id. at 1, 3.
The Indictment alleged that Godoy, Kassar, and Ghazi had agreed to provide the international terrorist group Fuerzas Armadas Revolucionarias de Colombia ("FARC") with "millions of dollars worth of weapons to be used, among other things, to kill nationals of the United States in Colombia." See id. at 5. The indictment contained details of a Government sting operation beginning in February 2007 in which "[Kassar] and [Ghazi] met with two confidential sources working with the United States Drug Enforcement Agency (the DEA') at [Kassar's] residence in Marbella, Spain, and discussed the sale of millions of dollars worth of weapons to the FARC." Id. at 6. The confidential sources told Kassar and Ghazi that "they represented the FARC, and that the FARC needed weapons to fight against the United States in Colombia, " to which Kassar allegedly replied that "his fight was also with the United States, and agreed to sell weapons to the FARC." Id . Kassar "offered to send 1, 000 men to the [confidential sources] to fight with the FARC against United States military officers in Colombia, and also offered to supply the [confidential sources] with C4 explosives, detonators, and experts to train the FARC to use them against these United States armed forces." Id. at 7-8.
According to the indictment, on March 27, 2007, Kassar, Godoy, and Ghazi met with the confidential informants to further discuss the sale of the weapons and also to discuss the sale of "surface-to-air missile systems for the FARC to use to attack United States helicopters in Colombia." Id. at 10. Also on that day, Godoy allegedly "transported the [confidential sources] to an Internet cafe to permit [them] to transfer 100, 000 from the United States... to secure... transportation services for the weapons." Id. at 11. On April 5, 2007, Kassar and Godoy allegedly "received an email that had been drafted by [the confidential source] that asked [Kassar] and [Godoy]... to obtain 15 of the surface-to-air missile systems [Kassar] had previously shown to the [confidential sources], " and Kassar then called the confidential source on the telephone and "agreed to provide [him] with the surface-to-air missile systems [that he] had requested." Id. at 12-13. On May 2, 2007, Kassar and Godoy allegedly met with one of the confidential sources "and discussed the logistics of transporting the weapons." Id. at 13. On May 19, 2007, Kassar agreed to meet with the confidential source in Romania as soon as the confidential source had access to 3, 500, 000 to pay for the weapons. Id. at 16.
On June 7, 2007, United States Drug Enforcement Administration ("DEA") agents obtained a provisional arrest warrant and arrested Godoy in Bucharest, Romania. See Trial Transcripts, filed Dec. 3, 2008 (Docket ## 101, 102, 103, 168 in 07 Cr. 354) ("Tr."), 378-80. In July 2007, the Government submitted affidavits to the court in support of Godoy's extradition from Romania. See Affidavits in Support of Request for Extradition (annexed as Ex. 4 to Godoy Pet.). Collectively, these affidavits recounted the factual details regarding the FARC weapons agreement, explained the charges brought against Godoy in the Indictment, and summarized evidence that the Government had obtained in support of these charges. On October 16, 2007, the Romanian government agreed to extradite Godoy and delivered him into the custody of United States DEA personnel. See DEA Report of Investigation, dated Oct. 30, 2007 (annexed as Ex. 7 to Godoy Pet.). Godoy was then brought to the United States and placed in the Special Housing Unit ("SHU") of the Metropolitan Correctional Center ("MCC") in New York City. See Letter from Roger Stavis to MCC, dated Feb. 19, 2008 (annexed as Ex. 9 to Godoy Pet.) ("Stavis MCC Letter"). On October 18, 2007, Godoy was arraigned on the Indictment. See Minute Entry for Proceedings Held Before Judge Jed S. Rakoff, dated Oct. 18, 2007 (Docket for 07 Cr. 354).
2. Curcio Hearing Regarding Stavis
At the time of his arraignment, Godoy was represented by Jennifer Brown of the Federal Defenders. See id. On January 7, 2008, Godoy signed a stipulation for substitution of counsel which appointed Roger Stavis as his new attorney. See Stipulation for Substitution of Counsel, filed Jan. 10, 2008 (Docket # 19 in 07 Cr. 354). On April 10, 2008, Judge Rakoff held a hearing pursuant to United States v. Curcio , 680 F.2d 881 (2d Cir. 1982), to determine if there was a conflict of interest with Stavis representing Godoy, and if so, whether Godoy wished to waive the conflict. See Transcript of Proceedings Held Before Judge Jed S. Rakoff, dated Apr. 10, 2008 (annexed as Ex. B to Gov't Mem.) ("C. Hr."). At the hearing, Stavis testified that Godoy's co-defendant, Kassar, had paid him to represent Godoy throughout the criminal proceedings. See C. Hr. 21. Stavis stated that he told this to Godoy, and Godoy "was very pleased about that" because he "would not have to pay [any] fees." Id . Stavis further explained that he did not think that it "matter[ed] that Mr. Al Kassar or people associated with him were responsible for the fees [because Stavis's] loyalty would only run to [Godoy] and [he] wouldn't do anything to damage him in order to please Mr. Al Kassar." C. Hr. 21-22. Additionally, Stavis stated he would have no financial incentive to please Kassar because his fees had already been "fully paid" by Kassar, and therefore, Kassar had "no further financial obligation toward [him] whatsoever." C. Hr. 22. Godoy then testified that he remembered having such conversations with Stavis. C. Hr. 23. Judge Rakoff explained to Godoy the possibility that he would have to take an adverse position to Kassar at trial and asked Godoy whether he would still be comfortable with Stavis representing him in such a situation. C. Hr. 24. Godoy replied that he would still be "[c]ompletely satisfied" and that he had no questions in his mind about Stavis's loyalty. Id . Based on Stavis and Godoy's testimony, Judge Rakoff concluded, "I am totally satisfied that there is neither an actual nor even a potential conflict and that [Godoy] fully understands the entire situation and recognizes that, if there were even the slightest conflict, they should bring it to the attention of the Court; and that they are totally comfortable with their current counsel and feel no need and have expressed no need to consult with separate counsel." C. Hr. 26. Judge Rakoff then acknowledged the fact that "the entire funding [of Godoy's representation] was taken up front, so to speak. So that there is no moneys that will be coming directly or indirectly from Mr. Al Kassar to [Stavis] in the future, " and therefore, "there is no economic disincentive to [Godoy or Stavis] taking any position adverse to Mr. Al Kassar." Id.
Finally, Judge Rakoff informed Godoy that "should at any future time [he have] misgivings in this area that have not come out for some reason or that develop as a result of future activity, [he is] to personally bring them directly to the attention of the Court so that the Court can inquire further at such a time." C. Hr. 26-27. Godoy has not alleged in his § 2255 petition that he ever raised any concerns about this issue to Judge Rakoff at any time before or during trial.
3. The Motion to Dismiss the Indictment
On April 1, 2008, Godoy, together with co-defendants Kassar and Ghazi, made a motion to dismiss the indictment. See Notice of Motion, filed Apr. 1, 2008 (Docket # 27 in 07 Cr. 354) ("Mot. Dismiss Ind."); Memorandum of Law in Support of Motion to Dismiss the Indictment and Other Relief, filed Apr. 1, 2008 (Docket # 28 in 07 Cr. 354). Among other requests, the motion asked the Court to grant the following relief: "(1) to dismiss the Indictment because the Government violated their rights under the Due Process Clause during the investigation, or, alternatively, to require the Court to conduct an evidentiary hearing on the issue; (2) to dismiss Counts One and Three for factual insufficiency and because the factual allegations of Count Three fit within the excluded conduct provision of 18 U.S.C. § 2332g; (3) to dismiss Count Two because 18 U.S.C. § 1114, which criminalizes the murder of U.S. officers or employees, should not be applied extraterritorially; (4) to dismiss Count Four because 18 U.S.C. § 2339B violates the Due Process Clause; [and] (5) to remove purported surplusage from the Indictment." See Government's Memorandum in Opposition to Defendants' Motion to Dismiss and for Other Relief, filed May 5, 2008 (Docket # 31). Judge Rakoff denied the motion. See Order, filed Sept. 9, 2008 (Docket # 77 in 07 Cr. 354); see also United States v. Al Kassar , 582 F.Supp.2d 488 (S.D.N.Y. 2008).
4. Godoy's Trial and Sentencing
A joint trial for Godoy and Kassar was held from November 3 to November 20, 2008. Ghazi was tried separately. See Order, filed Oct. 27, 2008 (Docket # 89 in 07 Cr. 354). The evidence at trial was summarized by the Second Circuit as follows:
In 2005, the Drug Enforcement Administration ("DEA") set up a sting operation to apprehend [Monzer al Kassar, a Spanish national and resident] for selling arms illegally.
To this end, the DEA sent Samir Houchaimi, a confidential informant, to locate Tareq Mousa al Ghazi, a known associate of al Kassar, and set up a meeting with al Kassar. Houchaimi went to Lebanon, where al Ghazi lived, and won his trust over several months. Houchaimi told al Ghazi that he was in the weapons trade, asked to meet with al Kassar, and gave al Ghazi a fake end-user certificate [an official government document required to conduct a legal international weapons sale] for Nicaragua supplied by the DEA. Houchaimi asked al Ghazi to arrange a meeting with al Kassar, and al Ghazi agreed.
Al Kassar arrived at the arranged meeting in Beirut holding the end-user certificate Houchaimi had given to al Ghazi. The meeting was fruitful, ending with al Kassar inviting Houchaimi to his mansion in Spain to further discuss the Nicaraguan arms deal.
At the meeting in Spain (in February 2007), Houchaimi introduced al Kassar to "Carlos" and "Luis" - two undercover DEA agents posing as members of FARC (a left-wing Colombian terrorist organization) - and al Kassar introduced his associate, Luis Felipe Moreno Godoy. The DEA agents told al Kassar they were interested in buying weapons for FARC's use against the U.S. military in Colombia. They gave al Kassar a list of weapons they wanted, which included anti-aircraft missiles ("SAMs"). Al Kassar agreed to negotiate.
Over the next several months, in the presence of Godoy and al Ghazi, al Kassar negotiated an arms deal with the two DEA agents. The negotiators discussed at length FARC's intent to use the weapons against Americans and U.S. assets. When al Kassar left the room during a break in negotiations, al Ghazi advised the DEA agents how to negotiate effectively with al Kassar. At the end of March, 2007, when the parties had agreed to basic terms (including the sale of SAMs), Godoy took the DEA agents to an Internet cafe and helped them transfer a down payment (100, 000) to a bank account controlled by al Kassar.
The next day (after confirming receipt of the down payment), al Kassar again met with the DEA agents to discuss details. Before the meeting, al Ghazi again counseled the DEA agents on how best to secure the sale. At the meeting - again in the presence of Godoy and al Ghazi - al Kassar gave the DEA agents schematics for the SAMs he was selling and explained how he planned to smuggle the weapons into Colombia through a cargo ship destined for Suriname (with al Kassar, as usual, translating for al Ghazi).
In May 2007, al Kassar and Godoy facilitated a meeting between the DEA agents and the captain of the ship that would smuggle the weapons. Before the meeting, the DEA agents wired another payment ($135, 000) to a bank account controlled by al Kassar. Afterward, al Kassar and Godoy visited arms factories in Bulgaria and Romania to secure the weapons.
In June 2007, the DEA agents agreed to meet al Kassar and Godoy in Bucharest to make final payment. Al Kassar stayed in Spain, however, and sent Godoy and al Ghazi to pick up the money. Pursuant to valid arrest warrants and in coordination with the DEA, Romanian authorities arrested al Ghazi and Godoy in Bucharest. The same day, Spanish authorities arrested al Kassar at the Madrid International Airport; he was carrying fake end-user certificates for the FARC weapons and documents confirming final arrangements to ship the weapons from Romania to Suriname. A search of al Kassar's mansion yielded documents establishing his and Godoy's participation in other arms deals and confirming that al Kassar controlled the bank accounts into which the DEA agents had wired money.
Godoy and al Ghazi were extradited here from Romania in October 2007. During the flight, al Ghazi agreed to waive his Miranda rights and admitted to the DEA agents that: (1) he knew al Kassar was selling weapons, including SAMs, to FARC; (2) he knew that FARC was a terrorist organization, which planned to use the weapons to kill Americans; and (3) he facilitated the deal because he was promised a 125, 000 commission.
United States v. Al Kassar , 660 F.3d 108, 115-116 (2d Cir. 2011) (footnotes omitted).
Among the witnesses at trial were DEA Agent John Archer, who testified about his role in orchestrating the sting operation, Tr. 331-617, and the two confidential informants, Carlos and Samir, who testified about their interactions with the defendants during the operation, Tr. 620-958, 972-1086. Additionally, the Government presented "hours of undercover video and audio recordings made by the DEA informants during which all three defendants discussed the details of the proposed weapons deal and agreed to provide the requested weapons" and "physical evidence, primarily documents - including those provided by al Kassar to the informants to advance the weapons deal, those al Kassar had in his briefcase at the time of his arrest, and those found during the court-authorized search of al Kassar's mansion." See Brief for the United States of America Opposing the Appeal of Monzer Al Kassar, Luis Felipe Moreno Godoy, and Tareq Mousa Al Ghazi (2d Cir. filed Nov. 30, 2010) (No. 09-1051), at 25.
Defense counsel argued to the jury that Kassar and Godoy lacked the required intent to enter into the conspiracy because they were in fact working with Spanish authorities and had planned to turn in the informants for engaging in illegal activity. Tr. 298-308. In support of this defense, they provided video testimony from two Spanish officials, Chief Inspector Jose Villarejo and Commissioner Enrique Castano. Tr. 1357-59. On November 20, 2008, the jury returned a verdict convicting both Godoy and Kassar of all five counts in the indictment. See Jury Verdict, dated Nov. 20, 2008 (Docket for 07 Cr. 354). On February 24, 2009, Judge Rakoff sentenced Godoy to 300 months imprisonment on counts one, two, and three and to lesser sentences on counts four and five. See Judgment, filed Mar. 11, 2009 (Docket # 120 in 07 Cr. 354). All sentences were to run concurrently. Id.
B. Direct Appeal
Godoy, Kassar, and Ghazi filed a joint appeal raising the following arguments:
[I] The government lacked jurisdiction to prosecute because of an insufficient nexus between their actions and the United States.
[II] The government's investigation constituted "outrageous conduct" in violation of their due process rights.
[III] The district court erred in denying their motion to introduce exculpatory classified evidence.
[IV] The convictions under 18 U.S.C. § 2332g (acquiring and exporting SAMs) must be overturned because: the statute does not criminalize conspiracy; the jury was improperly instructed as to scienter; the defendants' actions fall under the statute's exception for authorized conduct; and there was insufficient evidence of conspiracy.
[V] The convictions under 18 U.S.C. § 2339B (aiding a known terrorist organization) must be overturned because: the statute requires that the aid be intended to support the illegal activities of the terrorist organization, or, in the alternative, the statute violates the Fifth Amendment's Due Process Clause by not requiring such intent.
Al Kassar , 660 F.3d at 117. On September 21, 2011, the Second Circuit rejected all of these claims and affirmed the convictions of the three defendants. See id. Godoy filed a petition for certiorari in the United States Supreme Court, but his petition was denied on May 14, 2012. See Godoy Pet. at 3.
C. The Instant Motion
Godoy filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on April 9, 2013. See Godoy Pet. In the petition, Godoy asserts multiple grounds for relief, including ineffective assistance of counsel claims, a claim that he was denied conflictfree representation in violation of his Sixth Amendment rights, and several other claims unrelated to his counsel's performance. See id. at 5-9. The Government filed a response to Godoy's petition on August 20, 2013, see Gov't Mem, and Godoy filed a reply brief on October 3, 2013, see Godoy Reply.
II. LAW GOVERNING REVIEW OF SECTION 2255 PETITIONS
Section 2255(a) of Title 28 of the United States Code provides that
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Relief under this statute is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in [a] complete miscarriage of justice." Graziano v. United States , 83 F.3d 587, 590 (2d Cir. 1996) (citation and internal quotation marks omitted). "Because collateral challenges are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Yick Man Mui v. United States , 614 F.3d 50, 53 (2d Cir. 2010) (internal quotation marks and citation omitted).
In considering a § 2255 petition, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b). On the other hand, "if it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Puglisi v. United States , 586 F.3d 209, 213 (2d Cir. 2009) (internal quotation marks, alteration and citations omitted).
Case law reflects that a hearing is required in § 2255 cases "where the petitioner has made a plausible claim." Morales v. United States , 635 F.3d 39, 45 (2d Cir. 2011) (addressing ineffective assistance of counsel claims) (citing Puglisi , 586 F.3d at 213) (quotation marks omitted). To warrant a hearing, a petitioner's "application must contain assertions of fact that [the] petitioner is in a position to establish by competent evidence." United States v. Aiello , 814 F.2d 109, 113 (2d Cir. 1987); see also LoCascio v. United States , 395 F.3d 51, 57 (2d Cir. 2005) ("[M]ere generalities or hearsay statements will not normally entitle the applicant to a hearing, since such hearsay would be inadmissible at the hearing itself.") (internal quotation marks, punctuation, and citations omitted). The court must determine whether, viewing the record "in the light most favorable to the petitioner, the petitioner, who has the burden, may be able to establish at a hearing a prima facie case for relief." Puglisi , 586 F.3d at 213. If any material facts are in dispute and a petitioner can identify the available sources of the relevant evidence, a petitioner's claims will warrant a hearing. See id. at 213-14 (noting that "a petitioner may need only to identify available sources of relevant evidence rather than obtain it as in civil cases"). Nonetheless, "[a]iry generalities, conclusory assertions and hearsay statements will not suffice because none of these would be admissible evidence at a hearing." Aiello , 814 F.2d at 113-14. Furthermore, the Court is not required to presume the credibility of factual assertions "where the assertions are contradicted by the record in the underlying proceeding." Puglisi , 586 F.3d at 214.
However, even when a hearing is required, "the statute itself recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner.'" Chang v. United States , 250 F.3d 79, 85 (2d Cir. 2001) (quoting Machibroda v. United States , 368 U.S. 487, 495 (1962)); see 28 U.S.C. § 2255(c) ("A court may entertain and determine such motion without requiring the production of the prisoner at the hearing."). Depending on the allegations in the petition, a "court may use methods under Section 2255 to expand the record without conducting a full-blown testimonial hearing." Chang , 250 F.3d at 86 (citing Blackledge v. Allison , 431 U.S. 63, 81-82 (1977)). Potential methods available to a court to supplement the record include "letters, documentary evidence, and, in an appropriate case, even affidavits.'" Id . (quoting Raines v. United States , 423 F.2d 526, 529-30 (4th Cir. 1970) (footnote omitted)); accord Pham v. United States , 317 F.3d 178, 184 (2d Cir. 2003) (the Second Circuit "permits a middle road of deciding disputed facts on the basis of written submissions") (internal quotation marks and citation omitted).
A full testimonial hearing should be conducted if it would "offer any reasonable chance of altering [the court's] view of the facts." See Chang , 250 F.3d at 86. A petitioner's statement is "sufficiently credible to warrant a hearing where it is accompanied by some objective evidence.'" Puglisi , 586 F.3d at 216 (citation omitted). Nonetheless, "[t]o obtain an evidentiary hearing, Petitioner must... set forth in an affidavit specific facts supported by competent evidence, raising detailed and controverted issues of fact which, if proved at a hearing, would entitle him to relief." Boakye v. United States , 2010 WL 1645055, at *6 (S.D.N.Y. Apr. 22, 2010) (citations omitted); accord Petrucelli v. United States, 2009 WL 4858081, at *13 n.1 (S.D.N.Y. Dec. 15, 2009) ("To warrant an evidentiary hearing, a habeas petitioner must raise detailed and controverted issues of fact supported by competent evidence."). A testimonial hearing need not take place if it would not succeed in providing additional material facts. See, e.g., Ortega v. United States, 2012 WL 2478277, at *8 (S.D.N.Y. June 27, 2012); accord Fermin v. United States , 859 F.Supp.2d 590, 602 (S.D.N.Y. 2012) (petitioner's "failure to provide specific facts about any conversations to support his claim suggests that a testimonial hearing would do nothing to reveal such facts").
Godoy's habeas petition makes multiple claims raising ineffective assistance of counsel. Godoy alleges that during the pre-trial proceedings Stavis provided ineffective assistance of counsel by: (1) failing to move for dismissal of the indictment on double jeopardy grounds; (2) failing to move for dismissal of the indictment on grounds that it was motivated by vindictiveness and malice; (3) failing to move for dismissal of count three of the indictment (charging Godoy with conspiracy to acquire and use anti-aircraft missiles) on sentencing manipulation/entrapment grounds; (4) failing to move ...