United States District Court, D. Vermont
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DOCS. 1217, 1292, 1298)
Christina Reiss, Chief Judge
This matter came before the court for a de novo review of the Magistrate Judge John M. Conroy's May 22, 2015 Report and Recommendation ("R & R") in which he recommended the court deny Defendant Noel Delarosa's motion pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence on the grounds that he received ineffective assistance of counsel. (Doc. 1217.) The government opposes the motion.
Mr. Delarosa objects to the R & R's conclusions that: (1) his trial counsel, Donald Kinsella, Esq., had not engaged in constitutionally deficient performance in failing to request a jury instruction regarding Mr. Delarosa's alleged withdrawal from the conspiracy; (2) he failed to establish that the outcome of his trial would have been different if Attorney Kinsella had not elicited information about Mr. Delarosa's prior drug trafficking conviction and status as a cooperating informant for the DEA; and (3) newly discovered evidence that witness Herman Robinson was convicted in 2015 of murder and sexual assault did not mandate a new trial or a corrected sentence. Mr. Delarosa also contends that the Magistrate Judge erred in failing to consider the impact of the retroactive two-level offense reduction contained in FCJ Federal Sentencing Guidelines Manual Amendment 782 (Nov. 1, 2014) (amending U.S.S.G. § 2D1.1(c)(2) retroactively) (hereafter "Amendment 782") on his sentence.
I. Factual and Procedural Background.
Mr. Delarosa was charged by indictment, which named twenty-two coconspirators, with conspiring to distribute cocaine and marijuana in the District of Vermont and elsewhere. On May 17, 2011, a jury in the District of Vermont found Mr. Delarosa and co-defendant Daniel Lugo guilty of conspiring to distribute 5000 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. The jury also found Mr. Delarosa (but not Defendant Lugo) guilty of conspiring to distribute 100 kilograms or more of marijuana, the second object of the charged conspiracy. This outcome reflected the evidence at trial that while Mr. Delarosa oversaw all aspects of the conspiracy, Defendant Lugo's involvement was limited to the conspiracy's cocaine distribution.
The evidence at trial was presented over several weeks and included testimony from forty-six witnesses, as well as evidence of controlled purchases, seized contraband, cell phone and financial records, travel records and car rental and purchase agreements which documented the conspiracy's drug runs. Numerous witnesses testified regarding Mr. Delarosa's leadership of a Schenectady-based drug trafficking conspiracy, how the conspiracy operated, what roles were played by the various participants, how narcotics were obtained, and the manner in which additives were used to "stretch" the cocaine supply which was later "bricked" with a compression device to make it appear as if it had not been cut. Numerous witnesses, including the drug couriers themselves, also testified how, at Mr. Delarosa's direction, cocaine and marijuana were transported to Rutland, Vermont where they were distributed by two overlapping Vermont drug conspiracies, the "Brooker organization" and the "Morrison organization." Members of the Brooker organization identified both Mr. Delarosa and Defendant Lugo and described in detail the drug deliveries they received from them and their associates and how payment was made.
The trial witnesses included members of Mr. Delarosa's trusted inner circle based out of his Schenectady, New York clothing store/barber shop "Fly-to-the-Limit, " many of whom were testifying pursuant to cooperation agreements with the government, a fact that was disclosed to the jury. Although minor inconsistencies between the testimony of various witnesses were revealed, the witnesses generally testified in a consistent and corroborated manner.
In the course of the trial, it was revealed that Mr. Delarosa had worked as an informant for the DEA in New York and had done so while engaged in drug trafficking. It was also revealed that Mr. Delarosa's status as a DEA informant was known to some members of his inner circle.
Attorney Kinsella represented Defendant Delarosa from indictment through trial. Post-trial, Mr. Delarosa sought and received the appointment of new counsel who filed a motion for a new trial on his behalf which the court denied.
The court sentenced Mr. Delarosa to a term of 300 months of imprisonment, followed by lifetime supervised release. The court, in arriving at that sentence, found that at least 50 kilograms of drugs were distributed by the conspiracy and that Mr. Delarosa destroyed evidence to avoid investigation by law enforcement, justifying an obstruction of justice enhancement. The result was a base offense level of 36 under U.S.S.G. § 2D 1.1 (c)(2). Although the guideline imprisonment range was life imprisonment, the court concluded that a life sentence was not warranted, and imposed a sentence substantially below the guidelines range.
Both Mr. Delarosa and Defendant Lugo appealed their convictions to the Court of Appeals for the Second Circuit. Both convictions were affirmed.
II. Conclusions of Law and Analysis.
A. Standard of Review.
A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 1999). The district judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual or legal conclusions of the ...