United States District Court, E.D. New York
OPINION AND ORDER
GERSHON, United States District Judge
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.
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.
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.
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
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
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.
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
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 ...