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United States v. Robbins

United States District Court, W.D. New York

June 27, 2018


          DECISION & ORDER


         Before the Court is Petitioner Jerry Robins' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The parties have briefed the issue and the Court has determined to decide the motion without oral argument.

         I. BACKGROUND

         The government charged Petitioner Jerry Robbins in a twenty-six count Indictment on September 15, 2010. See dkt. # 1. Generally, the government alleged that Petitioner laundered money for drug dealers through his business, Finish Line Auto Sales. According to the government, Petitioner sold automobiles to persons he knew to be drug dealers for cash, titled those vehicles in the names of third parties, and then failed to file currency reports mandated by federal law for cash transactions of more than $10, 000. Such practices, the government alleged, were a means by which persons engaged in illegal drug sales could dispose of the cash from those sales and make the money appear to come from a legitimate source.

         Count 1 of the Indictment charged Petitioner with conspiracy to engage in money laundering. Count 2 alleged money laundering in a sale to an undercover officer. Counts 3 through 9 charged money laundering with respect to specific transactions. The Indictment listed a particular vehicle, purchase price, and date of transaction, but alleged that the criminal conduct was of the same type for each transaction. Counts 10 through 16 charged defendant with engaging in monetary transactions within the United States involving property valued greater than $10, 000 which was derived from a specified unlawful activity. The government also charged Petitioner with aiding and abetting on Counts 3 through 16. Counts 17 through 25 charged Petitioner with violating certain laws related to reporting cash transactions over $10, 000. Each of those counts referenced specific transactions. Count 26 charged Petitioner with violating laws prohibiting the destruction of property subject to seizure.

         After a trial, the jury returned a verdict of guilty against Petitioner on Counts 3, 7, 8, 17, 19, 24 and 25. The jury acquitted the Petitioner on all other Counts. After an appeal, the United States Court of Appeals for the Second Circuit on January 9, 2017 determined that the facts were insufficient to convict Petitioner on Count 7, vacated his conviction on that Count, and remanded for resentencing. See dkt. # 238. The Court then resentenced Petitioner. See dkt. # 255. Petitioner immediately filed a motion to vacate pursuant to 28 U.S.C. § 2255. See dkt. # 256. He later filed a motion for bail pending the outcome of his petition. See dkt. #265. The government has responded to the motion to vacate, and Petitioner filed a reply brief. See dkt. #s 259, 264.


         Petitioner seeks to set aside his sentence pursuant to 28 U.S.C. § 2255. A § 2255 challenge is limited to claims 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." 28 U.S.C. § 2255. Thus, relief pursuant to section 2255 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)(quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)) (internal quotation marks and citations omitted). In a Section 2255 proceeding, a petitioner bears the burden of proof by a preponderance of the evidence. See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000). “Airy generalities, conclusory assertions and hearsay statements will not suffice because none of these would be admissible evidence at a hearing.” United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987).

         III. ANALYSIS

         Petitioner raises several grounds for why his motion should be granted.[1] Petitioner grounds each of these arguments as violations of his right to effective assistance of counsel. “The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process.” Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). The right to counsel is not satisfied simply because counsel is present: “the right to counsel is the right to effective assistance of counsel.” Id. at 377. An ineffectiveness claim asserts “that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” Id. at 374. “To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” United States v. Pitcher, 559 F.3d 120, 123 (2d Cir. 2009). In evaluating counsel's performance, the Court “must ‘indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance'” and “‘[t]he reasonableness of counsel's performance is to be evaluated from the counsel's perspective at the time of the alleged error and in light of all the circumstances.'” Raysor v. United States, 647 F.3d 491, 495 (2d Cir. 2011) (quoting Kimmelman, 477 U.S. at 365).

         A. Testimony of Henry Lloyd

         Petitioner argues that his counsel denied him effective assistance of counsel by failing properly to impeach the testimony of Henry Lloyd. The Court summarized Lloyd's testimony in addressing Petitioner's post-trial motion:

Henry Lloyd also testified. See dkt. # 160. Lloyd testified that he had pled guilty to money laundering involving “[s]elling drugs and buying vehicles.” Id. at 4. Lloyd had previously pled guilty to “possessing or selling crack cocaine” and spent a year in jail. Id. at 5-6. Lloyd testified that he was “dealing drugs” from 2005 to 2008. Id. at 6-7. Moreover, he admitted that he had been selling drugs “[f]or a long time. Since I was like 14, 15-years-old.” Id. at 7. He sold crack and cocaine. Id. He made “[a] lot” of money doing so, and worked with others to sell and distribute the drugs. Id. Lloyd imported drugs to Buffalo from Atlanta and Houston. Id. at 8. He imported large quantities of drugs and generated $100, 000s in income from reselling them. Id. at 9-10. After selling the “kilos” of drugs, Lloyd would “[b]uy clothes, jewelry, cars and property.” Id. at 11. The funds for these purchases came from “drug money.” Id. Buying such goods, however, generated “concerns.” Id. Drug dealers like Lloyd could not “put them in our name because we don't have no income to show-legal income to show where it's coming, from where the money is coming from.” Id. They could not put the money in the bank, and could not “put nothing over 10, 000 with the IRS.” Id. Lloyd used a landscaping business “[t]o hide [his] drug money.” Id. at 12. Lloyd also hid money in “[s]afety deposit boxes, stash houses.” Id. He also used women for “buying vehicles, buying houses and stash the money there, family members.” Id. He looked for people with “a steady job” to make these purchases “[t]o show that they can afford whatever stuff I'm trying to purchase, like property or vehicles.” Id. at 13. Such purchasers had an intimate relationship with Lloyd, either as a family member or a girlfriend. Id.
Lloyd testified that he had known the Defendant as a car dealer for around ten years. Id. at 13-14. Lloyd purchased a number of cars from Defendant, beginning when he was 17 years old. Id. at 14. He paid for that first vehicle with cash. Id. at 15. Lloyd testified that Defendant had asked him how a young man could have so much cash, and asked him where the money came from. Id. Lloyd “told him I sell drugs.” Id. Defendant knew one of Lloyd's friends, who had recently been arrested for “drugs and a gun.” Id. Defendant asked how the friend was doing, and then asked Lloyd “you selling crack, you sell butter, you sell-do your shit be good.” Id. at 16. Lloyd testified that “butter” referred to crack. Id. Lloyd assured Defendant that it was. Lloyd testified that he showed Defendant crack cocaine. Id. He “pulled out a pocket full of eight balls and quarters and showed it to” Defendant. Id. at 16. An “eight ball” is 3.5 grams of crack. Id. at 17. He showed Defendant sixteen of them. Id. at 18.
Lloyd further testified that he was a low-level dealer at the time he first purchased a vehicle from Defendant, but that he eventually became a higher-level operative. Id. at 18-19. To become a “bigger” dealer, Lloyd related, he had to find “bigger customers.” Id. at 19. To attract such customers, he needed “[f]lashy cars, jewelry.” Id. Having such goods indicates that a person is a “drug dealer” in the “drug world.” Id. “It draws attention and it brings people to you and they ask, do you have drugs for sale.” Id. Lloyd testified that a number of other persons he knew to be drug dealers had purchased vehicles from Defendant. Id. at 42-45. Lloyd testified that he bought two other cars from Defendant, an Infiniti Q56 and a Ford Windstar. Id. at 21-22. With the assistance of Mitchell, he and a friend, Tyrone Pennick, purchased the Ford Windstar for $4, 000. Id. at 22-23. They drove the vehicle around Buffalo “and sold drugs out of it.” Id. at 23. Eventually, Lloyd testified, he traded that vehicle in on the Infiniti. Id. He and Pennick purchased the vehicle from Defendant in May 2007. Id. at 24-25. They agreed to pay $35, 000 for the vehicle after receiving $3, 000 for a trade-in on the Windstar. Id. at 25-26. They had cash sufficient to pay for the vehicle, but Defendant insisted on receiving cashier's checks and money orders for the vehicle. Id. at 26. Lloyd presumed Defendant did not want to take more than $10, 000 in cash. Id. at 27. Lloyd went to his bank and deposited $9, 000 in cash. Id. at 27. He testif ied that he deposited $9, 000 “[b]ecause the bank has to fill out a tax form if you deposit over $10, 000.” Id. at 27. Lloyd testified that the $9, 000 was “drug money.” Id. Lloyd then wrote a check for the car from the account of his landscaping business. Id. at 30. Pennick and another woman obtained money orders and cashiers checks for the rest of the purchase price of the vehicle. Id. They used “drug money” to obtain these papers as well. Id. at 31. None of these checks were for more than $10, 000, as they wanted to avoid filling out a tax form on the money. Id. They wanted to “conceal where the money came from.” Id. at 32.
After obtaining these various checks, they returned to Defendant's business. Id. Lloyd left, and Pennick waited for Defendant to arrive. Id. A few hours later, Pennick picked Lloyd up in the Infiniti Q56. Id. at 32-33. The vehicle was titled in Latese Mitchell's name. Id. at 33. Mitchell was asked to put the Infiniti in her name; they “transferred the plates from the van, because the van was in her name[.]” Id. at 33. Lloyd testified, however, that he had written a check to Defendant's shop for the vehicle, and that he and Pennick were the persons who drove the Infiniti. Id. at 33. They used the car for about eight months, and then Pennick gave the vehicle “back to [Defendant], told him to sell it on his lot.” Id. at 34. He did so after Defendant “told him that the IRS raided the shop and was asking questions about the drug dealers that brought the car[.] . . . Tyrone thought the main reason why they raided the shop is because of the cars that he bought from” Defendant. Id. at 35. Lloyd testified that after Defendant sold the vehicle he gave Pennick around $6, 000. Id. at 40.

See dkt. # at 11-14. The Court found this testimony sufficient to convict Petitioner on Count 8. Id. at 14-15.

         The Court concluded, in relevant part, that:

A rational juror could find the evidence sufficient to prove beyond a reasonable doubt that the vehicles were purchased with money from drug transactions-Lloyd testified as much, and the jury would only have to credit his testimony to find this element proved. Likewise, the jury would need only to find Lloyd credible to conclude that Defendant knew that Lloyd sold drugs and sought to purchase vehicles with the funds from that operation. The circumstantial evidence available to come to that conclusion was plentiful; Lloyd testified that he had shown Defendant the drugs he was selling when he was seventeen. He also testified about Defendant's response to that information, which could lead a jury to conclude that Defendant was a willing participant in Lloyd's efforts to dispose of the cash he obtained from these sales. The testimony of Lloyd and Mitchell also provided the jury with ...

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