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Jacques v. United States

United States District Court, E.D. New York

July 10, 2017

GARY JACQUES, Petitioner,


          GERSHON, United States District Judge

         On June 29, 2010, petitioner, Gary Jacques, was convicted of substantive and conspiratorial importation of, and possession with intent to distribute, cocaine. The convictions were affirmed on February 6, 2014. United States v. Jacques, 555 F.App'x 41 (2d Cir. 2014). Jacques now brings a 28 U.S.C. § 2255 motion challenging his convictions, claiming ineffective assistance of counsel. In addition to responses from the government, at my request, Jacques's trial counsel, James R. Froccaro, Esq., also submitted an affidavit in response to Jacques's petition. Jacques was given until February 14, 2017 to file a reply to the submissions of the government and Mr. Froccaro, but none has been filed. For the reasons stated below, Jacques's § 2255 motion is denied.


         On October 3, 2008, in preparation for Jacques's trial, the government provided Jacques with discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure, including a narrative of oral statements made by him to law enforcement. According to the government's letter, Jacques had made a number of statements to law enforcement before he was given warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and a number of statements after he was given warnings. On October 23, 2009, 1 ordered the defendants in the case to file any motions to suppress statements, identifications, or other evidence by December 1, 2009. Jacques's counsel at the time, Thomas F.X. Dunn, Esq., did not submit any such motions. On February 1, 2010, I granted Jacques's application to substitute Mr. Froccaro as his counsel, and to relieve Mr. Dunn.

         Mr. Froccaro did not request leave to submit a motion to suppress statements until less than two weeks before trial. Although I initially denied his request because of the delay, I granted his request upon a motion for reconsideration. On June 2, 2010, he filed a motion to suppress certain of Jacques's statements. The motion addressed only those statements Jacques had made before being given Miranda warnings. His motion relied on the government's factual narrative as set forth in the government's October 3, 2008 Rule 16 letter. I granted Jacques's motion in part and denied it in part, suppressing one statement out of six.

         On appeal, Jacques did not challenge my ruling on his motion to suppress the pre-Miranda statements. Instead, Jacques argued that the statements he made after being given Miranda warnings, which were not the subject of his pretrial motion, should have been suppressed. The Second Circuit, applying a plain error standard because Jacques had not moved to suppress those statements, rejected his argument.

         Jacques now claims in his habeas petition that his trial counsel was ineffective by (1) failing to move to suppress statements Jacques made after being given Miranda warnings (his post-Miranda statements); and (2) failing to investigate and challenge the government's factual narrative in the motion to suppress the statements Jacques made before being given Miranda warnings (his pre-Miranda statements), and instead relying on the government's narrative.


         In support of his petition, Jacques filed an affidavit in which he describes his counsel's claimed failings and the favorable facts that he argues his counsel should have relied on in the motion to suppress. In it he states that Dominican law enforcement - Jacques was arrested in the Dominican Republic and extradited to the United States - told him, at the behest of American law enforcement agents, that he would be given a "heavily reduced sentence" if he were forthcoming with American law enforcement and agreed to plead guilty. He states that these assurances prompted him to make the statements in question to law enforcement. He further states that when he later asked American law enforcement agents to speak to his "family attorney Michal Arbeit, " one of the agents told him that "speaking to Mike was going to be a 'conflict of interest"' because Arbeit had previously represented Jacques's co-defendants in other cases. As for his counsel, Jacques states in his affidavit that Mr. Froccaro

never would speak to me about the circumstances surrounding my interrogation and the statements I made. On one occasion, I specifically asked him if my testimony was needed or if there was anything he needed to know about the suppression and he declined to speak about it, telling me "there is nothing we need other than the government's letter." Though I do not specifically recollect my lawyer's words, it was my strong impression he did not want me to testify about the foregoing circumstances because it may constitute a waiver of my right to refrain from testifying at trial.

         In his affidavit responding to Jacques's allegations, Mr. Froccaro states that

Mr. Jacques' assertion that I never spoke to him about the circumstances surrounding his interrogation and the statements he made to the authorities in or around when he was transported from the Dominican Republic to the United States - is not accurate. I specifically reviewed the government's letter dated October 3, 2008, with Mr. Jacques prior to moving before this Court for the suppression of certain statements made by him. I did not submit an affidavit from Mr. Jacques because Mr. Jacques indicated that the factual assertions in the government's letter were accurate.
Finally, Mr. Jacques appears to assert[] that I denied him of the opportunity to testify at trial. If he is, indeed, making this claim, it is not true. I never deny a defendant from testifying, but rather, provide an opinion to the client about the pros and cons involved -with the ultimate decision whether to testify being the client's ...

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