Opinion
99 CR. 157 (DLC)
August 6, 2001
Donna R. Newman, Esq., Jersey City, N.J., For the Defendant.
Daniel M. Gitner, Assistant United States Attorney.
OPINION
Pursuant to a plea agreement, Judith Monzon ("Monzon") pled guilty to conspiring to distribute and possess with the intent to distribute cocaine and cocaine base from October 1997 to January 1999. She was sentenced principally to 97 months in prison — the bottom of the guidelines range to which she had stipulated in the plea agreement ("Plea Agreement"). The Plea Agreement calculated Monzon's guidelines range based upon the amount of drugs involved in the conspiracy as well as Monzon's admitted perjury at a suppression hearing and the consequent loss of an adjustment for acceptance of responsibility.
Monzon asserts in an appeal to the Second Circuit that trial counsel ("Counsel") provided constitutionally ineffective assistance, resulting in a substantially higher sentence than she would have otherwise received. She argues, among other things, that her attorney did not adequately advise and prepare her in connection with her suppression motion. Although she concedes that she lied to Counsel regarding both the facts relevant to the suppression motion and her involvement in the drug conspiracy, she nonetheless asserts that he was obligated, among other things, to review more carefully the Government's discovery materials, advise her more fully about the Government's evidence against her, advise her more fully about the ramifications of giving false testimony, and dissuade her from perjuring herself.
On January 9, 2001, the Second Circuit granted Monzon's motion to remand this action "for further fact-finding on [Monzon's] claim of ineffective assistance of counsel." The Second Circuit has "retain[ed] jurisdiction to hear [Monzon's] claims once the record has been supplemented."
Under 28 U.S.C. § 2106, the Court of Appeals is authorized to order this Court to supplement the record with further factual findings and conclusions without formally remanding the case. United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).
On January 23, 2001, this Court set a schedule for the parties' submissions on the remanded issues. A hearing was held on July 10, 11, and 12, 2001. In addition to submitting documentary evidence, Monzon called as witnesses: Counsel; Elizabeth Iliakostas ("Iliakostas"), the certified United States interpreter and translator who translated the conversations intercepted through the Government's investigation of the drug conspiracy in this case and who prepared draft and final transcripts of those conversations; Carmen Espinal ("Espinal"), a paralegal who works with Monzon's counsel on appeal; Ramon Monzon ("Ramon"), the brother of Monzon's husband, Oscar Monzon ("Oscar"); Francia Monzon ("Francia"), Oscar's sister; Julio Maysonet, Jr. ("Maysonet"), Monzon's brother; and Monzon. The Government relied on its cross-examination of Monzon's witnesses.
The following constitutes the Court's Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
Personal History
Monzon is thirty-one years old. She is an intelligent, articulate, resourceful, and strong person. She is also a devoted mother. Her parents, Julio Maysonet and Maximina Maysonet, reside in Vega Alta, Puerto Rico. Monzon has one brother, Maysonet, and one half-brother, Orlando Montanez. Maysonet lives in New York and Orlando Montanez lives in New Jersey.
Monzon was raised by her parents in Manhattan. Monzon attended school until she became pregnant at the age of sixteen. She married Oscar in 1986, and Monzon and Oscar lived with Monzon's parents from that time until 1991. In 1987, Monzon's and Oscar's first child was born. In 1989, Monzon's and Oscar's second child was born. In 1991, Monzon, Oscar, and their two children moved to the Bronx and, in 1992, had their third child. Monzon, Oscar, and their three children moved to Hialeah, Florida in 1996. In July 1997, Oscar was arrested on charges stemming from the distribution of drugs in Florida and was incarcerated in Florida. He was ultimately sentenced to a five-year term of imprisonment on these charges.
Monzon contends that she moved to Florida to extricate Oscar from his drug business in New York and to "give [her] children a decent life and good education," and threatened to leave Oscar unless he agreed to move with her.
In 1988, Monzon received her General Equivalency Diploma. From November 19, 1998 to January 26, 1999, Monzon worked as a secretary for the Department of Welfare to Work in the Miami-Dade County Mayor's office. The director of that program reported that Monzon "was an excellent, dependable, reliable, industrious and proficient employee." Monzon was fired from this job when she was arrested on charges in the Southern District of New York. From March 1999 until August 1999, when Monzon's bail was revoked, Monzon worked as a claims processor in North Miami, Florida, for an insurance company.
Drug Conspiracy
When Oscar and Monzon lived in New York, Oscar "owned" a drug distribution business in the vicinity of 13th Street and First Avenue in Manhattan ("the Spot"), and Monzon assisted Oscar with this enterprise. Drugs were stored and packaged in Monzon's and Oscar's home. Monzon helped with the packaging. The drugs were then given to Pedro Manuel Quezada ("Quezada"), who ran the street-level business at the Spot.
After Monzon and Oscar moved to Florida, Oscar required Quezada to pay him weekly "rent" to use the Spot. After Oscar was incarcerated, Monzon was responsible for collecting the rent.
Approximately four months after Oscar was incarcerated, Oscar and Monzon agreed that they would enlist the help of Oscar's sister, Mercedes Monzon ("Mercedes"), who lived in New York, in the collection of the rent. Quezada and his wife, Adria Rodriguez ("Rodriguez") paid the rent to Mercedes, who converted the cash into money orders and sent the money orders to Monzon in Florida.
Mercedes received no money for helping her sister-in-law get these payments and had no stake or other role in the drug operation. Wiretaps reflect that Monzon called Rodriguez and Quezada to check on drug sales and rent payments, and told another dealer whose rent was overdue that he had better pay the back payments because her husband still "had pull" in the neighborhood.
This information is reflected in a letter from the Government dated April 12, 2000.
The Arrest
Monzon was arrested on January 26, 1999, in Hialeah, Florida, by uniformed Florida police officers ("Officers"), DEA agents Silverio Robert Balzano ("Agent Balzano"), Kenneth Kolinda ("Agent Kolinda"), and Michael Roman ("Agent Roman"), and NYPD Detective Maggie Cruz ("Detective Cruz") (collectively, "the Officers"). Monzon let a uniformed Hileah officer and Agent Kolinda into her home as she entered her apartment after grocery shopping. The other Officers entered soon thereafter. Monzon allowed the Officers to search her apartment, opened a safe in which a gun and money orders from New York were kept, admitted that she was one of the speakers on a recorded telephone call played for Monzon by Detective Cruz, admitted that she received money from Rodriguez and Quezada on Oscar's behalf, and expressed an interest in cooperating with the Government. Monzon was placed under arrest, and various pieces of evidence were seized from her apartment, including the gun, the money orders, Monzon's telephone bills, Monzon's credit card information, Monzon's calendar and rolodex, and a list of cellular telephone numbers.
The Complaint
In a ten-page complaint ("Complaint") dated January 27, 1999, NYPD Detective Edward Ruvane ("Detective Ruvane") affirmed that Monzon had been involved in a narcotics conspiracy from October 1998 until January 27, 1999, that involved the distribution of and possession with the intent to distribute cocaine and over 50 grams of crack cocaine. The charge carried a mandatory minimum term of imprisonment of ten years. 21 U.S.C. § 841(b)(1)(A).
Detective Ruvane reported that electronic surveillance of Quezada's and Rodriguez's home telephone and Quezada's cellular telephone had revealed that Quezada and Rodriguez were "in charge of a street-level narcotics distribution business . . . in the vicinity of First Avenue and 13th Street, New York, New York," and that Quezada and Rodriguez charged street-level drug dealers a fee to sell drugs in that area. Detective Ruvane reported that Quezada dealt with suppliers, participated and supervised the packaging of cocaine, and monitored the drug business at the Spot, while Rodriguez advised Quezada and spoke to employees and competitors from home. Detective Ruvane also reported that Rodriguez and Quezada paid "`rent' or a fee" to Monzon and others in order to run their street-level drug business.
In support of these allegations, Detective Ruvane described eight telephone calls that were intercepted and recorded between November 2, 1998, and January 5, 1999. These telephone calls, between Quezada and Rodriguez and others, reflect Quezada's and Rodriguez's attempts to get money so that they could pay the rent owed to Monzon.
The Complaint also described in detail the circumstances of Monzon's arrest, including the Officers' assertion that Monzon consented to the Officers' entry into and search of her apartment, opened a safe in which the searching officers found a gun and money orders, admitted that her voice was on a tape played by Detective Cruz, admitted "in substance and in part" that she received "rent" from Quezada and Rodriguez, and told Agent Balzano that "she wanted to cooperate but asked `Can I have a lawyer?'" which Agent Balzano understood as a request for information and not an invocation of Sixth Amendment rights.
Monzon reviewed this Complaint several times and was entirely familiar with its contents. Monzon reviewed a copy of the Complaint with Counsel at their first meeting, and Monzon and Counsel had several subsequent meetings and telephone calls regarding Monzon's case in which they further discussed the Complaint.
January 27 Court Appearance
Monzon was brought before a Magistrate Judge in Florida on January 27, 1999, and was there represented by Victor Rocha ("Rocha"), the attorney who had represented Oscar in his Florida drug case. Monzon was released on a $2,000 bond paid by Monzon's father, and, a few days later, traveled to New York for her presentment there. At Rocha's recommendation, Monzon retained Counsel to represent her in New York.
Counsel
Counsel has been an attorney since 1968. Counsel was an Assistant District Attorney in the Manhattan District Attorney's Office from 1968 to 1971, and has been a criminal defense attorney since then. Counsel estimates that he has represented between five hundred and one thousand clients, tried hundreds of state and federal cases, and participated in several hundred, and possibly as many as one thousand, hearings. Counsel is a solo practitioner with his office in Manhattan. He has never been found by any court to have provided ineffective assistance of counsel.
Counsel and Rocha have been acquaintances for a long time, and Rocha called Counsel sometime after Monzon's Florida court appearance and told him about Monzon's case. Rocha was sympathetic to Monzon's circumstances and aware that she had only limited funds. Rocha and Counsel agreed that Counsel's fee would be $10,000 for whatever work he did on this case, what Counsel called an "accommodation fee," because it was significantly lower than what he would usually charge a client. Counsel accepted this fee to represent Monzon because the case was referred to him by Rocha, and because he also was sympathetic to Monzon's circumstances.
Counsel's and Monzon's First Meeting
Monzon met with Counsel for the first time shortly before her first court appearance in the Southern District of New York. Monzon and Francia, Oscar's sister, went together to Counsel's office, and Counsel's secretary had Monzon and Francia wait for Counsel in his waiting room. Counsel subsequently met Monzon and Francia in the waiting room, and brought Monzon into his conference room, where Monzon and Counsel spoke privately for an hour or two.
Counsel does not remember another person being present, nor does he know Francia by appearance or name.
Francia asserts that she remained with Monzon and Counsel throughout their meeting. I credit Counsel's assertion that he would not have substantive discussions about a case with a client when a third party was present because there would be no attorney-client privilege if he did so, and that it had always been his practice to meet with his clients privately. I discredit Francia's testimony that she remained with Monzon and Counsel throughout their session. Notably, she could not describe the substance of Monzon's and Counsel's conversation in any detail. I also discredit Francia's assertion that she and Monzon told Counsel that Oscar's family would be paying his fee because, among other reasons, Francia acknowledged that Counsel never took down her name or telephone number or any information about how to contact any member of Oscar's family.
At this first meeting, Monzon and Counsel reviewed the Government's Complaint. Monzon denied the allegations against her in the Complaint and denied giving the Officers permission to enter and search her apartment. Monzon also told Counsel that the recorded telephone conversation between Monzon and Rodriguez that Detective Cruz played for Monzon had concerned an old debt that Rodriguez owed Oscar, denied that that telephone conversation concerned "rent" for the Spot, and denied that she had told the Officers that the telephone call concerned "rent" for the Spot. Monzon denied any knowledge about a narcotics conspiracy, and denied telling the Officers that she was interested in cooperating.
Based on the complaint and Monzon's denial that she knew the money she had been receiving from New York came from the sale of drugs, Counsel believed that Monzon had a good chance at getting a reduced jail term, or perhaps even no jail time, if she offered her cooperation to the Government. He understood, however, that it might be a difficult decision for Monzon since it would entail her willingness to discuss Oscar with the Government. When Counsel suggested that Monzon consider giving the Government her cooperation, Monzon firmly told Counsel that she was not interested in cooperating with the Government. Counsel told Monzon that cooperation could lead to a reduced sentence or, possibly, no jail time, but also told her that he respected Monzon's decision not to cooperate. Counsel did not continue to attempt to convince Monzon to cooperate at that first meeting. Counsel also informed Monzon that she was facing a mandatory minimum of ten years if she was convicted of the crime alleged in the Complaint.
Monzon asserts that she told Counsel in her second meeting with him that she understood that the money she had been receiving from New York was from "an old drug debt." I discredit Monzon's testimony on this point because, among other reasons, Monzon did not make this assertion at her suppression hearing. She and her Counsel have both described her suppression hearing testimony as consistent with what she had previously told Counsel. At the suppression hearing, she testified that the taped telephone conversation played for her by Detective Cruz concerned a three-year-old debt owed by Rodriguez for money that Oscar had loaned Rodriguez when Oscar and Monzon lived in New York, and denied that it concerned "rent money" or "drug money." In addition, I credit Counsel's testimony that, although he had inferred that the money Monzon received was connected to the drug trade, and that she was likely to be aware that it came from some unlawful activity, he accepted her assurances that she had no understanding that it came from the sale of drugs. Monzon did not characterize the money she received from Mercedes as "rent collection," or inform Counsel at any time before the suppression hearing that she was involved in Oscar's drug business in New York or that she knew that the money she received came from the sale of drugs.
Monzon did not waiver from these lies — about the night of her arrest and her uninvolvement in the narcotics conspiracy — in her subsequent conversations with Counsel, in person and in approximately twenty telephone calls. Monzon did not reveal to Counsel that any of these statements were untrue until after the suppression hearing, over six months after this first meeting.
In their conversations, Counsel would periodically raise the issue of cooperation with Monzon. At no time prior to the suppression hearing did Monzon express any willingness even to explore the issue.
Counsel's Fee
The following facts regarding Counsel's fee are undisputed. Of his $10,000 fee for representing Monzon, Counsel received about $6,000 or $7,000. Counsel did not keep careful track of the money that he received for Monzon's defense, did not expect that he would be paid his entire fee, and was not particularly concerned about that fact. The money that Counsel did receive was paid to him in several installments by either Monzon or Maysonet. With the exception of one check sent by Monzon from Florida, the remainder of the payments was made in cash. Monzon, Maysonet, and Monzon's parents contributed to Counsel's payment.
Receipts introduced as evidence reflect that Monzon paid Counsel $2800 on February 4, 1999, and Maysonet made two additional payments of $1,000 to Counsel, on April 28, 1999, and August 2, 1999.
Counsel never sought to collect money from Oscar's or Monzon's family, and never attempted to contact Oscar's family for money or any other reason. The only telephone conversation that Counsel did have with a member of Oscar's family was with Ramon, certainly after Monzon's remand, most likely after Monzon's original sentencing date, and also after Ramon had called Counsel at least twice. In this conversation, Ramon did raise the subject of Counsel's fee, but did not represent that he had contributed to Counsel's payments.
Ramon additionally asserts, somewhat cryptically, that Counsel wanted to "get [Oscar] involved." This statement may have been an allusion to Counsel's hope that cooperation by Oscar with the Government could accrue to Monzon's benefit at sentence. Because it is undisputed that Counsel never made any attempt to contact Oscar's family, and given that Counsel did not return Ramon's telephone call until Ramon had called at least twice, the Court does not find credible Ramon's assertion that Counsel wanted Ramon to get Oscar or his family involved in the payment of Counsel's fee.
I am persuaded that Counsel was never told and never understood that any of the money that he received came from Oscar's family. Because Maysonet, Francia, and Ramon have such strong incentives at this point to help Monzon reduce her sentence, particularly considering that Maysonet is currently caring for Monzon's three children, it is difficult to assess the credibility of their testimony that Oscar's family contributed to Counsel's fee. I am convinced, however, that if Oscar's family did contribute any money to Monzon's defense, it is likely that these contributions were made after Monzon's remand. To the extent that Oscar's family did contribute towards Counsel's fee, it is in any event undisputed that they contributed because they wanted Monzon to be well represented, because they were worried about Monzon's well-being and the well-being of Monzon's and Oscar's children, and not because they wanted to prevent Monzon from cooperating against Oscar. Indeed, both Oscar's family and Monzon's family had an interest in Monzon serving as little prison time as possible, so that Monzon would be able to take care of her and Oscar's children.
Maysonet testified that, when he went to make his first payment to Counsel, Maysonet told Counsel that the money came from Ramon, and then gave Counsel Ramon's telephone number and told Counsel that he would need to contact Ramon to receive any additional money. Maysonet testified that when he delivered a second installment of money to Counsel, Counsel asked for additional money and said that his fee was "supposed to be paid in full," and Maysonet again said that Counsel should speak to Ramon. Maysonet's testimony, that Counsel was eager to receive additional payments and had Ramon's telephone number, is entirely inconsistent with the undisputed facts that Counsel was treating this as, in effect, a "pro bono case," never sought out Ramon or any member of Oscar's family, and never knowingly spoke to any member of Oscar's family until he returned Ramon's telephone calls, after Monzon had pled guilty and had been remanded. There is, as noted, no documentary evidence that anyone from Oscar's family ever contributed any money to pay Counsel.
Ramon, who contends that he collected the money donated by Oscar's family, could not make even a ballpark estimate of the amount of money he personally contributed, or the amount of money he collected from other members of his family to contribute to Monzon's defense. Ramon could not remember the amount of times that he gave money to Maysonet for Counsel, or the amount of money that he gave to Maysonet at any given time.
February 5 Court Appearance
Monzon made her first court appearance in the Southern District of New York on February 5, 1999, with Counsel. Monzon was released on a $50,000 personal recognizance bond co-signed by Maysonet and her parents. Monzon surrendered her travel documents, and was allowed to travel between Florida, the Eastern District of New York, and the Southern District of New York.
Monzon returned to Florida, where she continued to live until August 30, 1999. She only returned to New York for very brief visits for her court appearances.
February 25 Court Appearance
On February 16, 1999, Monzon and twelve others were indicted for conspiring to distribute and possess with the intent to distribute over 50 grams of crack cocaine and a detectable amount of cocaine from October 1997 to January 1999, in the Southern District of New York and elsewhere. Monzon was arraigned with her co-defendants on February 25, 1999, and pled not guilty.
Three of Monzon's co-defendants were additionally indicted for conspiring to make false statements in an application for a passport for Quezada.
March 9 Court Appearance
On March 4, 1999, a superceding indictment was filed that added an additional co-defendant and, on March 9, 1999, a pretrial conference was held, at which time Monzon again entered a plea of not guilty. The Court ordered that the Government's production of discovery materials be completed March 19, 1999, all defense motions be filed by April 30, 1999, and the Government's opposition be due by May 28, 1999. Trial was scheduled for September 13, 1999.
Rule 16 Discovery
On March 19, 1999, the Government sent Counsel Rule 16 discovery materials, which included evidence seized from Monzon's apartment on January 26, 1999, a copy of the notes taken by Detective Cruz on January 26, 1999, complaints filed against three of Monzon's co-defendants, and "line sheets" describing the substance of telephone conversations recorded from Quezada's home and cellular telephones. The Government's letter accompanying the Rule 16 discovery materials additionally reflected that dozens of audio tapes of recorded telephone conversations could be copied by defense counsel.
According to the complaint filed against Mercedes, the Government's surveillance "indicates that [Quezada] and [Rodriguez] pay rent, or a fee, to [Monzon] and others in Florida so that she and those others will ensure the organization's ability to sell drugs in the vicinity of First Avenue and 13th Street." The line sheets reflect David Quianes ("Quianes") and Rodriguez discussing "rent money," and "money owed to [Mercedes] and [Monzon] for rent," but do not reflect that Monzon used the term "rent."
Detective Cruz's notes reflect that Monzon stated on the night of her arrest that "Oscar Monzon (husband) from jail tells her to collect rent for spot in NYC" and that Mercedes sends money orders for rent sent by Rodriguez and Quezada "for drugs sold on corner NYC." Detective Cruz's notes also include a statement, signed by Monzon, that she and Mercedes were speaking on a recording of a telephone call played for her by Detective Cruz. Counsel believed that the references by Detective Cruz in her notes to "rent" could be explained as the detective's characterization of what she understood, rather than the defendant's choice of words.
Counsel reviewed the Rule 16 discovery materials himself, and discussed with Monzon some of the discovery, but showed few of the Rule 16 discovery materials to Monzon. Counsel informed Monzon that the Government had evidence of her conversations with others, and conversations between third parties, and explained to Monzon that recordings of these third-party conversations could be introduced as evidence against her. Monzon knew what items had been seized from her apartment and remembered signing the statement for Detective Cruz in which she had acknowledged her voice on the tape. Counsel did not get copies made of the audio tapes that the Government made available to him.
Reset Motion Schedule and May 27 Court Appearance
Pursuant to a request from Monzon's co-defendant Jessica Jimenez on behalf of all defendants, through an Order of April 30, 1999, the Court reset defendants' motions to May 28, and the Government's response to June 28, but kept the trial date of September 13, 1999. On May 27, 1999, all defendants were arraigned on a second superceding indictment. Monzon again entered a plea of not guilty.
Preparation of Suppression Motion
Counsel and Monzon agreed to file a motion to suppress the evidence seized and statements made by Monzon on the night of her arrest. Counsel's decision to file a motion to suppress was based upon Monzon's repeated and consistent representations to Counsel about the circumstances of the night of her arrest, Monzon's repeated and consistent representations to Counsel that she was not a participant in the narcotics conspiracy and did not want to cooperate, Counsel's analysis of the Government's evidence, and the benefits that would be gained were the motion successful. Counsel did not believe that the evidence he had received from the Government established that Monzon was a knowing participant in a narcotics conspiracy. Rather, he believed that the evidence, at most, reflected that Monzon received money, which, unbeknownst to her, had come from the sale of narcotics. Counsel also believed that if the suppression motion were successful, the most damning evidence possessed by the Government against Monzon — the gun, the money orders, and the Officers' testimony about her admissions to them — would be inadmissible. Counsel's decision to file the motion to suppress was also based upon the fact that, in his informal conversations with the Government, the Government had indicated that it would not accept a plea to a telephone count (which carries a four-year maximum sentence), and would only accept a plea to more than five years' imprisonment. Counsel told Monzon that the Government had not made a plea offer, and related in general terms his informal conversations with the Government regarding a possible plea.
Counsel additionally believed that Monzon was credible. Monzon had consistently and repeatedly told Counsel that she did not consent to the Officers' entry or search of her apartment, that she invoked her right to counsel, and that she was not read her Miranda rights. Although the Officers' notes and the text of the Complaint both reflected the Officers' position that the entry and search were consensual and that Monzon waived her Miranda rights, Counsel believed that there would be an opportunity at the suppression hearing to emphasize inconsistencies in the Officers' stories and to otherwise undermine their credibility. In sum, Counsel believed that Monzon's motion to suppress was meritorious.
Counsel prepared Monzon's affidavit in support of the motion to suppress based upon Monzon's repeated and detailed descriptions of the events of the night of January 26, 1999, in his office and over the telephone. Counsel did not specifically discuss with Monzon the legal standard that would govern the motion, but Monzon was well aware that the Court would be deciding whether she had consented to the Officers' entry into her home and the searches of her apartment, whether the Officers had given her her Miranda warnings, and whether she had asked to speak to an attorney.
Using Monzon's detailed descriptions of the events, Counsel prepared Monzon's affidavit, sent it to her, asked her to inform him of any inaccuracies in the document, and told her to sign and notorize the affidavit. Monzon reviewed the affidavit, did not inform Counsel of any inaccuracies, signed and notarized the affidavit, and returned the affidavit to Counsel.
Motion to Suppress
On May 28, 1999, Counsel filed Monzon's motion to suppress, accompanied by Monzon's affidavit and an affirmation by Counsel. Monzon stated in her affidavit that, on January 26, 1999, "[t]wo uniformed Hialeah Police Officers emerged from a nearby stairwell as [she] approached the door to [her] apartment" and, after asking her name, told her that "a `lady' downstairs wanted to talk to [her]." Monzon opened her door and began bringing in her groceries. After the second trip from the hall to the kitchen with her groceries, Monzon affirmed that, "as [she] turned around, [she] was confronted in [her] apartment by three men in civilian clothes who had admitted themselves into [her] apartment" and then the "lady" entered, similarly "uninvited." Monzon affirmed that the "lady" picked up a telephone bill on Monzon's table and asked if anyone but Monzon used the telephone. Monzon said no and then the "lady" asked to see Monzon's other telephone bills. At that point, Monzon affirmed, she "protested the officer's [sic] entry and their questioning and demanded to know why they were there and why they were requesting to see [her] documents." Monzon also affirmed that, at that point, she stated that she wanted to see a lawyer. Monzon affirmed that she consented to the Officers' security sweep, but as "they continued to question [her] . . . [she] realized that they were searching [her] home and opening closets and doors and not merely checking for other people." Monzon affirmed that "[her] request for counsel was spurned; the searching and questioning continued until [she] was arrested approximately two and a half-hours later." Finally, Monzon affirmed that "[d]uring the course of the search, agents located a security safe which [she] was forced to open. . . . At one point an agent started to advise me of my rights but discontinued saying, `I think you already know this.'"
3500 Material
On August 14, 1999, Counsel received a copy of the 3500 material produced for the suppression hearing scheduled for August 17 and 19. The 3500 material included handwritten notes made by Agent Balzano and Detective Cruz at Monzon's house on January 26, 1999. The content of these notes were, in large part, reflected in the Complaint. Counsel and Monzon reviewed the 3500 material before the suppression hearing.
Suppression Hearing
Counsel informed Monzon of the importance of the suppression hearing and the benefit to her case were they to be successful, as well as the possible disadvantages that she would suffer were the motion to be unsuccessful. Monzon was additionally aware of the importance of providing truthful testimony at the hearing, and was specifically informed by Counsel that there would be negative repercussions at sentencing if the Court concluded that Monzon had provided untruthful testimony.
Monzon contends that on the morning of August 17 she told Counsel that she would prefer not to testify. She admits, however, that she ultimately decided to take the stand and understood that the decision of whether to do so was hers to make. Counsel denies absolutely that Monzon told him that she did not want to testify at the suppression hearing, and said that he would never have forced her to testify at the hearing. Counsel is entirely credible on this point. Indeed, had Monzon expressed reluctance to testify, Counsel may have begun to suspect that she had not been candid with him. Monzon never gave him any reason prior to the hearing to doubt her.
The witnesses at the suppression hearing — which was held on August 17 and 19 — were Agent Balzano, Agent Kokinda, Agent Roman, Detective Cruz, and Monzon. This Court denied Monzon's motion to suppress and found that the Government's witnesses were credible and Monzon was not. The Court found that Agent Kokinda identified himself, explained that he and the other Officers were there as part of a drug investigation, and received Monzon's permission to enter her apartment and perform a security sweep.
Other agents and Detective Cruz arrived and Monzon consented to their entry into the apartment. The Court found that Detective Cruz examined the telephone bill on Monzon's table with Monzon's permission, that Agent Roman received Monzon's permission to conduct a second security sweep, that Agent Balzano received Monzon's permission to search the apartment, and that Monzon opened the safe voluntarily. The Court found that, after Detective Cruz played the telephone recording for Monzon and Monzon acknowledged that it was her voice on the recording, she "made a decision that it was in her interest to continue to talk with them." The Court found that Monzon was not in custody any time before the Miranda warnings were read to her, that the complete warnings were read to her, and that she "waived her Miranda rights and continued to answer the detectives' questions." The Court found that Monzon asked whether she could speak with an attorney, but that that was an informational request and not a request to speak to an attorney at that time.
The Court concluded:
I do not find that the defendant was credible. Obviously, I watched her carefully during her testimony, as I watched the other witnesses. While she certainly testified with great emotion at certain points, in many parts of her testimony I felt she was making it up as she went along . . . . She's also lied about a number of other things, feeling, I take it, that it would incriminate her in some way or another to admit them. Her testimony, therefore, was carefully constructed to support her motion.
Monzon admits that she gave untruthful testimony at the suppression hearing.
Draft Tape Transcripts
The draft transcripts of the intercepted telephone calls, which included conversations in Spanish, were not available to Counsel until the translator submitted them to the Government some time after August 16, 1999. On August 25, 1999, after the suppression hearing was completed and two days before Monzon signed the Plea Agreement, Monzon's attorney executed the Government's standard stipulation regarding the use of its draft transcripts of the tape recorded conversations, and the Government provided the draft transcripts to Counsel. As a draft transcript reflects, Monzon herself referred to "the Spot" and "rent," in a December 9, 1998 recorded conversation between Monzon, Rodriguez, and Quianes.
Decision to Plead Guilty
About a week after this Court denied Monzon's motion to suppress, Monzon agreed to plea guilty. Monzon discussed with Counsel, over the telephone, the general terms of the Plea Agreement that she would sign. Monzon understood that the Plea Agreement was contingent on Mercedes' decision to plead guilty pursuant to a related agreement. Monzon understood that, under the terms of the Plea Agreement, Monzon would receive a term of imprisonment of between 97 and 121 months, that she was waiving her right to appeal or attack a sentence within that range, and that she was not allowed to seek a sentence below 97 months, although the Court could decide to sentence Monzon outside the 97 to 121 month range. Monzon understood, however, that it was likely that she would receive a sentence within the agreed upon range of 97 to 121 months. This range depended upon Monzon successfully completing a safety valve proffer.
Safety Valve Session
On August 27, 1999, Monzon made a safety valve proffer to the Government. Soon after the Government asked Monzon if she had ever cut or packaged any drugs, and Monzon said "no," Counsel asked to speak privately with his client. After the Government left the room, Counsel explained to Monzon that the Government most likely knew from a cooperating witness that Monzon had participated in the packaging of drugs and that the Government was not going to believe Monzon if she denied this allegation.
Counsel explained to Monzon that if the Government believed that she was lying, she would be facing a mandatory minimum term of ten years, and would be ineligible for "a two level specific defense characteristic for her honest disclosure." Monzon then, for the first time, admitted to Counsel that she had been an active participant in her husband's drug business in New York and had cut and packaged drugs in her New York apartment. Counsel then asked the Government to return to the room, and Monzon revised her earlier answer. At the end of the session, the Government "reluctantly" agreed to recommend that Monzon be given the benefit of the safety valve statute.
At around the time of the safety valve proffer, Monzon expressed, for the first time, an interest in cooperating. Counsel told her that it was too late to make a cooperation agreement with the Government. The Government had informed Counsel that it was not interested in Monzon's cooperation.
Plea Agreement
Monzon signed the Plea Agreement on August 27, 1999. Pursuant to the Plea Agreement, Monzon agreed to plead guilty to one count of violating 21 U.S.C. § 846 through conspiring to distribute and possess with intent to distribute cocaine and crack cocaine. The charge contained a ten-year mandatory minimum term of imprisonment. The Plea Agreement included the following stipulations. The conspiracy involved between 50 and 150 grams of crack cocaine, and the base offense level under the Sentencing Guidelines was 32. Monzon was entitled to a two-level reduction in her offense level because she was a minor participant in the offense and another two-level reduction because she met the "safety valve" criteria set forth in U.S.S.G. § 5C1.2, but, based upon her false testimony at the suppression hearing, Monzon merited a two-level enhancement for obstruction of justice, and no reduction for acceptance of responsibility.
The Government contends that Monzon could have been held responsible for over 1.5 kilograms of crack cocaine, which would have yielded a base offense level of 38.
In order for Monzon to be eligible for this safety-valve reduction, the Government accepted the defendant's representation that the gun in the safe was stored for her husband.
Accordingly, the applicable offense level was 30, and Monzon's guideline range was 97 to 121 months. The parties agreed that no downward or upward departure from the sentencing range was warranted, and Monzon agreed that she would not appeal or collaterally attack her sentence.
The Plea Agreement provides, in relevant part, that
the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines Range set forth above and (ii) that the Government will not appeal any sentence within or above the Stipulated Guidelines Range. This provision is binding on the parties even if the Court employs a Guidelines analysis different from that stipulated to herein. Furthermore, it is agreed that any appeal as to the defendant's sentence that is not foreclosed by this provision will be limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by) the above stipulation.
The Plea Agreement additionally provides that it was contingent on Mercedes also pleading guilty, and that if either Monzon or Mercedes sought a downward departure from the stipulated Guidelines range, the Government could void the Plea Agreement without allowing Monzon to withdraw her guilty plea. Mercedes entered her plea agreement on August 25, with a stipulated guidelines range of 57 to 71 months, and a waiver of her rights to request a departure.
Plea
After signing the Plea Agreement, Monzon pled guilty before Magistrate Judge Michael Dolinger to conspiring to distribute cocaine and crack cocaine. Monzon consented, orally and in writing, to plead guilty before Magistrate Judge Dolinger.
Before pleading guilty, Counsel instructed Monzon to answer the questions posed to her by Magistrate Judge Dolinger, to ask Counsel if she did not understand something Magistrate Dolinger said, and advised Monzon that she would have to acknowledge that she had received money from drug sales.
In her affidavit submitted in support of her claim that Counsel was ineffective, Monzon asserts that Counsel had told her to just say "yes" to everything that Judge Dolinger had asked her, and that she "did not . . . understand fully all the terms of the agreement." She changed her testimony at this hearing. Counsel testified in an entirely persuasive manner that he had never advised Monzon to simply say "yes," and noted that he was "not even sure that you could say yes to every question that's asked in the way a particular Judge might go through his plea
allocution." Indeed, Monzon's plea allocution contains not only "yes" but also "no" responses and, of course, a narrative description of her involvement in the conspiracy.
At her plea, Monzon stated, after she was sworn, that she was not under the care of a doctor, under any medication, or under the influence of alcohol or drugs. She also acknowledged that she could be charged with perjury if she gave Judge Dolinger false answers to his questions. Monzon stated that she had read the indictment filed against her, she understood what it said, she had had a chance to talk with her attorney about the nature of the charges against her and her decision to plead guilty, and she was satisfied with her attorney.
Magistrate Judge Dolinger explained to Monzon that she was pleading guilty to having conspired with others to distribute and possess with the intent to distribute over 50 grams of crack cocaine, that she could face a maximum term of life imprisonment and a mandatory minimum term of ten years and five years supervision, and that violating her term of supervision could result in additional imprisonment. Judge Dolinger explained to Monzon that she was waiving her right to go to trial and her rights at trial, and Monzon stated that she understood.
Monzon stated that she understood the nature of the charges to which she was entering a plea, the range of penalties she was subject to, that no threats had been made against her to cause her to plead guilty, and that she had received no promises beyond those outlined in the Plea Agreement. Monzon affirmed that she had discussed the Plea Agreement and all of its pertinent terms with her attorney, and that she understood that she could be sentenced above or below the guidelines range of 97 to 121 months stipulated in the Plea Agreement, but that if she was sentenced to 121 months or less, she was giving up her right to appeal the sentence.
Monzon additionally stated that she understood that her Plea Agreement was contingent on the agreement entered into with Mercedes, and that if either Monzon or Mercedes sought to withdraw their plea or seek departures from their stipulated guidelines ranges, the Government could withdraw the agreements although Monzon and Mercedes would remain bound by their guilty pleas. Monzon affirmed that her plea was voluntary and made of her own free will. Monzon, in her allocution, stated that she made telephone calls for about a year to collect money from Rodriguez and Quezada in Manhattan, that that money was owed to Oscar from the sale of drugs, and that she kept the money.
Everything that Monzon said during her plea was true, Monzon understood everything that was asked of her, and Monzon understood that she could not ask for a sentence of less than 97 months and was waiving her right to appeal any sentence of 121 months or less.
Although Monzon testified at the hearing on her ineffectiveness claim that she had not lied to Judge Dolinger during her plea allocution, Ms. Newman attempted to establish at the hearing that Monzon did not understand that she was waiving her right to appeal. On cross-examination, however, Monzon acknowledged that she had understood at the time that she pled guilty that, under the terms of the Plea Agreement, she could not appeal a sentence below 121 months.
Post-Plea
Following her plea, Counsel took Monzon to the Probation Department. Monzon was interviewed by the Probation Department and then she returned to Florida. Counsel did not submit any materials to the Probation Department, but did advise Monzon to obtain letters from doctors and family members in preparation for sentencing.
On August 30, 1999, Monzon's bail was revoked when the Government learned that Mercedes was preparing to flee to the Dominican Republic. Maysonet flew to Florida and retrieved the children and Monzon's belongings from her apartment. Monzon and her children had continued to live in Hialeah following her plea. Since her bail was revoked, Monzon's children have been living with Maysonet in Manhattan.
At Mercedes' sentencing conference on December 3, 1999, the Court advised the parties that it was, sua sponte, considering a departure based on Mercedes' extraordinary family circumstances. Mercedes' sentence was adjourned to February 25 at 4:15 p.m.
February 25 Sentencing Hearing
Monzon's sentence was scheduled for 10:30 a.m. on February 25, 2000. Counsel did not submit a sentencing memorandum on Monzon's behalf.
On February 25, 2000, Counsel confirmed to the Court that he and the defendant had reviewed the Pre-Sentence Report together, discussed it, and had no objections. That report recommended a sentence of 97 months' imprisonment. After the Court listed the many letters it had received on the defendant's behalf, including a letter, dated December 29, 1999, from Monzon, the Government requested that it have an opportunity to review the letters if the Court were going to use them for any purpose other than deciding where within the guidelines range to impose sentence.
In the December 29 letter, Monzon wrote:
I admit to your honor that I have committed a big mistake, the biggest one that I have committed in my entire life. I would like you to know that I am sorry I regret it from the bottom of my heart. I am very ashamed of everything that has happened. . . . I admit I have committed a mistake and I am really sorry your honor. I'm sorry for all the trouble I have put you and the United States of America through. I regret everything that has happened. Your honor I promise and swear to you that I will never do anything that will get me into trouble or cause the separation of my children and I again in my life. I have learned my lesson I learned it in a hard way but I did. I am very sorry for everything your honor.
The Court indicated that it would not depart from the guidelines range without giving notice and an opportunity to be heard. The Court made findings on the minor role adjustment, the safety valve issues, and the defendant's obstruction of justice through her perjurious testimony at the suppression hearing.
Defense counsel asked that the defendant be sentenced at the low end of the guidelines range. He expressed sorrow at the defendant's testimony at the suppression hearing. He attributed the differences between her testimony and the recollection of the government agents to a "difference in perspective" between "violators" and those pursuing them. He also expressed his gratitude to the Government for allowing his client the benefit of the safety valve, which allowed the defendant "to escape the severest consequences."
Before the Court announced sentence, it observed that this case was a "horrible tragedy." It described the defendant as a smart and able person and a devoted mother who had chosen to profit from her husband's drug business. The Court then began to pronounce the sentence, including the imposition of 97 months in prison. In the midst of the Court's description of the terms of Monzon's supervised release, Monzon became extremely distraught and sentencing was adjourned until the afternoon.
In the intervening hours, Counsel had his only memorable face-to-face conversation with Ramon, who expressed only his concern for Monzon. Also, for the first time, Monzon told Counsel that she had been abused by Oscar. Counsel's inquiries elicited, however, that Oscar had never abused her physically and that she had never gone to a hospital or to the police regarding the abuse and had never sought an Order of Protection against him. Of course, Oscar had been in jail since July 1997.
At the afternoon session, which began at 2:35 p.m., Counsel asked to postpone Monzon's sentence for two weeks. The Court denied the application and completed the description of the sentence. When the Court inquired whether there was any legal reason other than those already argued why the sentence just described should not be imposed, Counsel indicated that there were legal reasons that he could not address at that time.
Referring to the Court's earlier observation that the defendant had made choices that brought her before the Court — and engaging in what Counsel called, at the hearing on Monzon's ineffective assistance of counsel claim, "some loitering . . . trying to make the best of what [Monzon] said to [Counsel]" — Counsel indicated that he would be able to demonstrate that the defendant had no choice in doing what she did, and that he needed two weeks to determine if there was anything to present to the Court that could affect the sentence. The Court noted that defense counsel was "experienced" and granted the requested adjournment. Later that afternoon, the Court departed below the guidelines range to which the parties had stipulated and sentenced Mercedes principally to time served based upon her extraordinary family circumstances.
Downward Departure Motion
On March 1, 2000, Counsel met with the Government, seeking the Government's consent to allow him to make a downward departure motion despite the terms of the Plea Agreement. The Government did not consent to this modification of the Plea Agreement.
On March 8, 2000, Monzon's attorney submitted a letter seeking a downward departure on Monzon's behalf based upon her family circumstances. With that letter, Counsel additionally submitted a psychotherapist's evaluation of the emotional health of Monzon's children, copies of Monzon's youngest son's and Monzon's mother's medical records, and a letter reflecting that Maysonet's wife was pregnant with twins.
Counsel asked this Court to grant a sua sponte departure for Monzon, as it had for Mercedes, because Mercedes' and Monzon's family circumstances were comparable. Counsel stated that Monzon's remand, three days after her guilty plea, prevented any pre-sentencing evaluation of her circumstances in Florida, or of the fact that Oscar "has psychologically battered and dominated her throughout their marriage and even from his jail cell."
Counsel asserted that had the Probation Department had this additional information, they would have evaluated differently the potential grounds for departure. Counsel recognized that a motion for a downward departure was in violation of the Plea Agreement, but asked this Court to consider Counsel's letter without considering Monzon to be in violation of the Plea Agreement.
The Government responded, on March 9, to oppose Counsel's motion. The Government asserted that Counsel's motion was in violation of the Plea Agreement and that, regardless, it was without merit. The Government filed a supplemental letter on April 12, in which it asserted that it had sufficient evidence to prosecute Monzon for participation in a conspiracy that involved over 1.5 kilograms of crack cocaine that would, with her obstruction of justice at the suppression hearing, have resulted in a sentence of 235 to 293 months — but that "taking an extremely conservative, but principled approach to the evidence and taking account of all the defendant's circumstances," the Government had decided to stipulate to the smaller quantity of drugs. The Government also stated that it had allowed Monzon to receive a sentence below the ten-year mandatory minimum term of imprisonment by agreeing that she qualified for the safety valve provision, despite the gun found in her safe with the money orders representing drug proceeds.
April 14, 2000 Sentencing
At sentencing, on April 14, 2000, Counsel again indicated that he hoped the Court would, sua sponte, depart for his client as the Court had for Mercedes, given what he considered the strong similarities between them. He expressed regret that, for a variety of reasons that he explained, he had not presented a more complete picture of the defendant's family circumstances to the Probation Department. He observed that while the Court was not critical of him for moving for a departure in violation of the Plea Agreement's terms, he was getting "heat" from the United States Attorney's Office for doing so, but considered it his professional responsibility to make the motion. He described the "elements of coercion" that affected Monzon's decision to participate in her husband's drug activities, and then acknowledged that he had erred in moving to suppress and putting Monzon on the stand. He stated:
I am very sorry that I ever made a motion to suppress in this case. I am very sorry that I put my client on the witness stand. I am proud of her that she wasn't about to run away and was going to face whatever was coming her way. I wish the gravity of this situation could have been brought home to me a little more clearly. I didn't regard the recorded evidence of my client's behavior as sufficient to support a conspiracy. I regarded it as sufficient to demonstrate the knowing receipt of narcotic proceeds. I had asked the government to send me what it regarded as its incriminating conversations that my client was a participant in so I could evaluate it in light of what I had learned during my client's brief visits to New York. I saw nothing that would indicate that she was guilty of anything beyond a lesser included offense and I knew she would probably have to testify if there were a trial and explain the circumstances of why she was now involving herself in the collection of money. Had the government seen fit to make her disclosures to me, I would have viewed this case very differently and there would have been no motion to suppress and she would have appeared before you under the same setting that her sister-in-law appeared before you, entitled to acceptance without being subjected to the unfortunate results and fallout from it, from her motion to suppress, and they would have been in the identical plea range.
In the sentencing hearing on Monzon's ineffectiveness claim, Counsel explained that he meant to refer to the crime of receiving criminally derived property, and not to a lesser included offense.
This Court denied Monzon's motion for a downward departure, and sentenced her principally to 97 months' incarceration.
Oscar Monzon
Oscar was indicted in the Southern District of New York on April 20, 2000, when he was included in the fifteenth superceding indictment in this case. He was charged with conspiring to distribute narcotics and conspiring to extort narcotics traffickers. Oscar was arraigned by this Court on May 19, 2000. The parties agreed to sever Oscar's case from that of the other defendants charged in the conspiracy, and his case was assigned to the Honorable Robert J. Ward in this District for trial. On November 3, 2000, Oscar was found guilty by the jury on all counts. Sentence is scheduled for August 16, 2001.
CONCLUSIONS OF LAW
Monzon has appealed to the Second Circuit on the grounds that Counsel provided ineffective assistance of counsel both because his representation was constitutionally inadequate and because he represented her despite a conflict of interest.
A. Constitutionally Inadequate Assistance
In order to prevail on a claim of ineffective assistance of counsel, petitioner must show that "(1) counsel's performance was unreasonably deficient under prevailing professional standards, and, (2) but for counsel's unprofessional errors, there exists a reasonable probability that the result would have been different." United States v. Torres, 129 F.3d 710, 716 (2d Cir. 1997). A "reasonable probability" is one "`sufficient to undermine confidence in the outcome.'" Flores v. Demeskie, 215 F.3d 293, 304 (2d Cir. 2000) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). There is a strong presumption that counsel's conduct falls within the "`wide range of reasonable professional assistance.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 688-89).
The right to effective counsel, however, may be violated by "even an isolated error of counsel if that error is sufficiently egregious and prejudicial." Murray v. Carrier, 477 U.S. 478, 496 (1985).
On appeal, Monzon asserts that Counsel committed numerous errors sufficient to render his pre-plea services constitutionally defective. Specifically, Monzon asserts that Counsel: (1) abandoned his responsibilities to Monzon; (2) failed to review discovery; (3) failed to discuss the evidence with Monzon; (4) failed to discuss the "applicable law" with Monzon; (5) failed to prepare Monzon for testifying at the suppression hearing; and (6) filed a suppression motion which, "in light of the overwhelming evidence, was frivolous and greatly prejudiced his client." These alleged attorney errors should be considered "in the aggregate." Lindstadt, 239 F.3d at 199.
Monzon's claims are without merit. Counsel demonstrated, throughout his representation of Monzon, that he was committed to her and her alone. His representation of her was not unreasonably deficient or even deficient. Counsel's performance during Monzon's safety-valve proffer was particularly effective, in that he rescued Monzon from committing herself to a ten-year mandatory minimum sentence. Counsel's performance following the February 25 sentencing was extremely bold, in that he jeopardized his relationship with the Government in order to advocate for Monzon. Counsel's advocacy in both instances was clearly guided by his evaluation of what was in Monzon's best interest, as was his representation of Monzon throughout the pendency of her case.
Counsel reviewed the discovery that he received from the Government. Counsel reviewed with Monzon, by showing the documents to her or by relating to her their substance, those portions of the evidence he found to be relevant. Counsel reasonably believed that the discovery he received from the Government added little to the Complaint's allegations, and Monzon and Counsel had repeatedly reviewed the Complaint in detail.
Monzon complains that Counsel did not confront her with evidence that she was lying to him. She asserts that she was hoping he would do so, so that she would be forced, finally, to tell him the truth. Despite repeated questioning by Counsel, prior to the suppression hearing, however, Monzon maintained her innocence, and nothing in the discovery materials in his possession before the hearing established that she was lying to him. Counsel evaluated the Government's evidence, compared it to his client's statements to him, and analyzed her case in light of all of that information. There is no credible evidence that Monzon wished at any point before the suppression hearing to tell him the truth. It is true that Counsel believed her, but that cannot be attributed to ineffective assistance.
As the draft transcripts reveal, Monzon did refer to "the Spot" and "rent" in a December 9, 1998, tape recorded conversation. A recording of this conversation was available to Counsel after March 19, 1999, but Counsel did not request a copy of the recording and was, therefore, unaware of these statements until sometime after August 16, 1999, when he received copies of the draft transcripts. Counsel's decision not to order and review the tape recordings available to him prior to bringing the motion to suppress was, however, reasonable in light of his review of the line sheets of the calls and his reasonable belief that the Government had quoted the most pertinent conversations in the Complaint. Based upon the fact that evidence that Monzon had used the term "rent" would have "affected some judgments" that Counsel made in his representation of Monzon, but would not have affected his decision to file a motion to suppress, there is no reason to believe that the result in Monzon's case would have been different had Counsel reviewed these tapes. In any event, a decision not to listen to tape recordings of the wiretapped conversations without the Government first identifying those conversations on which it was relying and providing draft transcripts of the conversations is within the wide range of reasonable professional assistance provided by counsel in this district.
Counsel discussed with Monzon the legal concepts that she needed to understand to litigate her case. Counsel described to Monzon, in substance, the benefits of cooperation, the sentence that Monzon was likely to receive, the importance of testifying truthfully at the suppression hearing, and the sentence reductions and enhancements that she could receive based upon her behavior. Counsel did not specifically advise Monzon of the law applicable to the suppression of evidence, but it was unnecessary to do so, as Monzon already understood what the critical issues were for the suppression hearing.
Counsel's decision to file the motion to suppress was entirely reasonable considering Monzon's repeated assertions to Counsel, Counsel's evaluation of the strength of the evidence that the Government had produced to him, and the benefits that Monzon would gain were the suppression motion to be successful.
Although Monzon's representations to Counsel about the night of her arrest were inconsistent with the allegations described in the Complaint and the discovery Counsel received, it was reasonable under the circumstances for Counsel to believe that Monzon's description was credible, and that Counsel would be able to reveal inconsistencies in the Officers' testimony at the suppression hearing. It was reasonable for Counsel to conclude, based upon Monzon's familiarity with the Complaint, that Monzon was aware that the Officers' testimony would contradict her own.
Monzon contends that the motion was "worthless" since there was "nothing particularly incriminating" obtained from the search. To the contrary, the evidence of the money orders, documentary evidence of her knowledge of the alleged co-conspirators, her statements admitting collection of rent from a drug spot, and the gun were all incriminating, and, if suppressed, reasonably could be expected to weaken the Government's case against Monzon.
Counsel adequately prepared Monzon for the suppression hearing. It was reasonable for Counsel to believe, based upon his review of the Complaint and Monzon's affidavit with her, that she was prepared to give her direct testimony. Counsel additionally identified to Monzon aspects of her direct testimony that the Government would dispute. Although Counsel could have better prepared Monzon for the cross-examination that she would face at the suppression hearing, Counsel's failure to do so does not amount to ineffective assistance of counsel, particularly in light of Monzon's awareness — through her discussions with Counsel, her review of the Complaint, and her knowledge that she was, in fact, lying about the circumstances of her arrest — that her version of the facts would be challenged by the Government. In sum, Counsel's representation of Monzon was effective, and the decisions he made throughout Monzon's case were reasonable and professional in light of the information that he received from the Government and from Monzon.
B. Conflict of Interest
Monzon additionally asserts that Counsel provided ineffective assistance of counsel because he labored under a conflict of interest. A defendant has suffered ineffective assistance of counsel based upon a conflict of interest if her attorney has "an actual conflict of interest that adversely affected the attorney's performance because it resulted in an actual lapse in representation." Amiel v. United States, 209 F.3d 195, 198 (2d Cir. 2000).
To establish an actual conflict of interest, the defendant must show that "the attorney's and defendant's interests diverge[d] with respect to a material factual or legal issue or to a course of action." United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000) (citations omitted). To establish an "actual lapse in representation," a defendant must establish "the existence of some plausible alternative defense strategy not taken up by counsel" and that "the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." Id. (citation omitted) (emphasis in original). If a defendant can establish an "actual conflict of interest" and an "actual lapse in representation," a court is entitled to presume that the actual conflict of interest prejudiced the defendant. United States v. White, 174 F.3d 290, 295 (2d Cir. 1999). If a defendant can only establish a potential conflict of interest, she must also show prejudice. See Amiel, 209 F.3d at 198.
Counsel provided Monzon with conflict-free representation. The evidence reflects that Counsel had no allegiance to anyone but Monzon. Counsel had no motive to act in any way contrary to Monzon's best interests. Counsel agreed to take Monzon's case for a pittance and made no attempt to collect his fee. Counsel never directly received money from Oscar's family, and if some of the money that he received from Monzon or Maysonet did come from Oscar's family, he was unaware of that fact. Compare Amiel, 209 F.3d at 198-99 (defendant's attorney paid by defendant's mother, who was a co-defendant).
Defendant has demonstrated no lapse in Counsel's representation. Counsel discussed with Monzon the benefits of cooperation and asked Monzon periodically whether she was interested in cooperating with the Government against her co-defendants and against Oscar. Monzon repeatedly, consistently, and emphatically stated that she was innocent and uninterested in cooperating. Counsel also discussed with Monzon the possibility of pleading guilty. It was because Monzon insisted that she was innocent of any wrongdoing, and insisted that she did not consent to the Officers' entry, search, or questioning on the night of January 26, 1999, that Counsel decided to file the motion to suppress. For these same reasons, even assuming that Counsel labored under a potential conflict of interest, Monzon can establish no prejudice that befell her as a result of this alleged conflict.
In sum, Monzon has established no more than that her own allegiances to Oscar and Oscar's family affected the decisions that she made regarding her defense. If Monzon did feel pressure from Oscar or Oscar's family not to cooperate with the Government or reveal to Counsel the extent of her involvement in the narcotics conspiracy alleged in the Complaint, Counsel was never made aware of these facts and any unfortunate results that occurred as a result of Monzon's unwillingness to consider cooperation and her decision to perjure herself cannot be attributed to Counsel's ineffectiveness or any conflict of interest.
Monzon was likely motivated, however, not by any pressure from either Oscar or his family, but by her own evaluation of what course of action she should follow. She knew that she had actively participated in her husband's drug business in New York, collected the rent payments from the Spot after Oscar was incarcerated, and used the rent to pay her expenses in Florida for years. She likely decided that admitting her guilt to her attorney would not help her avoid jail and that she should instead lie to him and pursue the motion to suppress the evidence seized from her apartment.
Monzon admits that she lied to Counsel regarding her involvement in the drug conspiracy and the circumstances of her arrest, and continued to lie in her affidavit submitted in support of her motion to suppress and at her suppression hearing. Monzon admits that, even after having lost the suppression hearing because she was not a credible witness, she attempted to lie again during her proffer session with the Government. I am convinced that Monzon also lied in her October 6, 2000 affidavit, and continued to lie during her testimony at this hearing on her ineffective assistance of counsel claim.
SO ORDERED: