United States v. Carreto, No. 06-2295 (2d Cir. 2009)

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06-2295-cr United States v. Carreto 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 4 5 August Term 2008 6 7 Argued: October 10, 2008 Decided: October 8, 2009 Docket No. 06-2295-cr(L), 06-2344-cr(con), 06-5172-cr(con) 8 - - - - - - - - - - - - - - - - - - - - 9 UNITED STATES OF AMERICA, 10 Appellee, 11 v. 12 13 14 15 16 JOSUE FLORES CARRETO, GERARDO FLORES CARRETO, and DANIEL PEREZ ALONSO, 17 - - - - - - - - - - - - - - - - - - - - 18 19 Before: PARKER and LIVINGSTON, Circuit Judges, and CHIN, District Judge.* Defendants-Appellants. 20 Appeal from judgments of the United States District 21 Court for the Eastern District of New York (Frederic Block, 22 District Judge) convicting defendants, following their guilty 23 pleas, of sex trafficking crimes. 24 alia, that the district court abused its discretion in denying * Defendants contend, inter Honorable Denny Chin, United States District Judge for the Southern District of New York, sitting by designation. 1 their motions to withdraw their guilty pleas and imposed 2 sentences that were excessive and based on improper 3 considerations. 4 improperly denied his motion for substitute counsel. 5 Alonso also contends that the district court AFFIRMED. 6 7 8 Laurie S. Hershey, Esq., Manhasset, New York, for Defendant-Appellant Josue Flores Carreto. 9 10 11 12 13 14 15 Julia Pamela Heit, Esq., New York, New York, for Defendant-Appellant Gerardo Flores Carreto. 16 17 18 19 20 21 22 Monica Ryan, Assistant United States Attorney, for Benton J. Campbell, United States Attorney, Eastern District of New York (David C. James, Assistant United States Attorney, Eastern District of New York, on the brief). 23 Stephanie M. Carvlin, Esq., New York, New York, for Defendant-Appellant Daniel Perez Alonso. CHIN, District Judge: 24 On April 5, 2005, defendants-appellants Josue Flores 25 Carreto ("J. Carreto"), Gerardo Flores Carreto ("G. Carreto"), 26 and Daniel Perez Alonso ("Alonso") pled guilty to conspiracy to 27 commit sex trafficking and related crimes. 28 months after they had rejected the Government's global plea offer 29 and just a few minutes before the start of their trial. - 2 - Defendants did so two 1 Concerned with the timing of defendants' plea, the district court 2 conducted a thorough allocution and accepted their pleas only 3 after it was satisfied that defendants were pleading guilty 4 knowingly and voluntarily. 5 Approximately one year later, as they were about to be 6 sentenced, defendants moved to withdraw their guilty pleas. 7 district court denied the motions to withdraw and sentenced J. 8 Carreto and G. Carreto principally to 50 years' imprisonment each 9 and Alonso principally to 25 years' imprisonment. 10 The Defendants appeal their convictions on several grounds. 11 For the reasons that follow, the judgments of the district court 12 are affirmed. 13 14 15 STATEMENT OF THE CASE A. The Facts From approximately 1992 until their arrests in 2004, 16 defendants operated a prostitution ring that smuggled Mexican 17 women into the United States and forced them into prostitution. 18 Defendants used violence, manipulation, and threats of physical 19 restriction to control their victims. 20 seduced women, including some who were under eighteen years of 21 age, and many of whom were, according to the Government, poor and 22 uneducated. - 3 - Defendants purposefully 1 The victims were forced to prostitute themselves in 2 brothels in Queens, Brooklyn, and Manhattan nearly every day. 3 Defendants profited financially from the prostitution activities, 4 and the victims were not allowed to keep the money they earned. 5 Immigration and Customs Enforcement agents arrested 6 defendants on January 5, 2004, when they raided apartments in 7 Queens, New York. 8 B. Four victims were found in the apartments. Proceedings Below 9 On November 16, 2004, a grand jury returned a 27-count 10 superseding indictment against defendants. The Government 11 thereafter extended plea offers to defendants, giving them the 12 opportunity to plead guilty to certain crimes in satisfaction of 13 all the charged crimes. 14 three defendants pleading guilty by February 18, 2005. The final offer was contingent on all 15 On January 6, 2005, the district court (Frederic Block, 16 District Judge) held a conference to discuss Alonso's request for 17 new counsel, as set forth in his December 20, 2004, pro se 18 letter. 19 because the attorney had "no interest" in his case and Alonso "no 20 longer trust[ed]" him. 21 had visited Alonso seven times, for approximately an hour each Alonso requested that the court replace his attorney Counsel explained to the court that he - 4 - 1 time, over the course of the case. Counsel explained that he had 2 also provided Alonso with discovery material. 3 Alonso stated that he was sent discovery material that did not 4 pertain to him and his counsel was "not doing anything to help 5 [him] out a little bit." 6 that he provided Alonso with discovery material that pertained to 7 the other defendants because it affected Alonso and his client 8 "has to have knowledge of all the discovery that the government 9 provides." In response, Counsel explained to the district court The court, finding no basis to substitute counsel, 10 denied Alsonso's request. 11 The court instructed counsel as follows: 12 13 14 15 16 17 18 19 20 Explain very carefully why you are giving him this material, why you believe he should think about it and why it's relevant in terms of the totality of circumstances that he should be mindful of. You know what you have to do. Spend some special time, that seems to be the crux of his complaint. Now that we have fleshed it out in court I'm sure it's going to be attended to. 21 On February 16, 2005, the district court held a 22 conference to discuss whether defendants intended to accept the 23 plea offer. 24 not yet decided whether to accept the plea offer. 25 although the Government's deadline for defendants to accept the The parties informed the court that defendants had - 5 - In addition, 1 plea was February 18, 2005, Alonso's counsel had travel plans 2 requiring him to leave New York the next day, February 17, 2005. 3 The Government refused to extend the deadline, as the case was 4 scheduled for trial beginning on March 28, 2005. 5 the district court questioned Alonso's counsel as to his 6 unavailability. 7 commitments, the district court declined to relieve him of his 8 duties at the "eleventh hour." 9 counsel's travel plans, the court ordered all defense counsel to 10 Accordingly, Although sympathetic to counsel's personal Notwithstanding Alonso's meet with their clients and to return to court the next day. 11 The parties returned to court the next day, February 12 17, 2005. 13 been read to and adequately discussed with defendants. 14 defendants did not wish to plead guilty at that time. 15 to the terms of the global plea offer, the Government revoked the 16 offer as to all three defendants. 17 April 4, 2005. 18 The district court confirmed that the plea offer had The Pursuant The trial was rescheduled for As the conference was about to adjourn, Alonso handed a 19 second pro se letter, dated February 14, 2005, to the court. 20 letter, like the one prior, requested new counsel. 21 explained that everything raised in the letter had "been - 6 - The court The 1 superseded by what has happened since then" and had been "fleshed 2 out." 3 representation because he could not afford his counsel's fees. 4 G. Carreto's counsel assured the court that he would continue to 5 zealously represent his client regardless of his client's ability 6 to pay. 7 The court denied all three requests, holding that there was no 8 basis to substitute counsel. 9 G. Carreto then handed up a letter requesting new J. Carreto then orally requested a different attorney. On April 4, 2005, the trial court selected and 10 empaneled a jury. 11 commence, defendants informed the court that they wished to plead 12 guilty to the entire 27-count superseding indictment, without any 13 plea agreements. 14 their counsel to confirm that defendants understood the 15 implications of their pleas, especially as a jury had already 16 been empaneled and the trial was about to commence: 17 18 19 20 21 22 23 24 25 26 The next day, just as the trial was about to The court carefully examined the defendants and The reason why I'm taking this amount of time is because I'm confronted with a situation when defendants are willing to plead to an entire indictment -- and you are talking about serious crimes and serious time -- it is important to make sure that they understand that they may have little to risk by going forward with the trial, since it may well be by pleading they are not going to do any better. - 7 - 1 The court, after a thorough colloquy, was satisfied that 2 defendants understood the consequences of their pleas. 3 particular, they were asked if they were satisfied with their 4 attorneys, and all three defendants responded affirmatively. 5 Each defendant then read out loud a statement acknowledging that 6 he, together with the two co-defendants, smuggled four (or five) 7 women, identified by first name and first initial of the last 8 name, from Mexico into the United States and forced them to 9 engage in prostitution -- "commercial sexual acts" -- in brothels In 10 in Brooklyn and Queens. 11 one of the women was under the age of eighteen. 12 acknowledged using force and threats of force against the women. 13 The court then accepted each defendant's plea of guilty to all 27 14 counts of the superseding indictment. 15 Each acknowledged knowing that at least Each On April 27, 2006, more than a year later, the parties 16 appeared for sentencing. Alonso had retained new counsel. 17 new counsel stated, and the court noted, that defendants had 18 filed pro se motions to withdraw their guilty pleas. 19 alleged that (1) defendants were not adequately advised of their 20 right to testify at trial, (2) the court did not verify that the 21 plea was voluntary, and (3) counsel were ineffective in failing 22 to obtain relevant documents from Mexico. - 8 - His The motions Defense counsel 1 informed the court that they had just been made aware of 2 potentially exculpatory information contained in Mexican trial 3 transcripts involving the victims in the case. 4 The court denied defendants' motions to withdraw their 5 guilty pleas, finding that the new evidence did not "affect the 6 fact that they pled guilty" and defendants made a "reasoned 7 decision to take the[] pleas." The court also denied defendants' 8 request to adjourn sentencing. Four victims spoke and described 9 the physical and psychological harm they had suffered. The court 10 then sentenced defendants. 11 for G. Carreto that G. Carreto was "to some extent a product of 12 his environment" and was from a town in Mexico where 13 "prostitution is something that occurs very frequently," the 14 district court commented that it was important to "send a 15 message" that prostitution "is not going to be accepted in this 16 country." 17 In response to an argument by counsel The court sentenced G. Carreto principally to 50 years' 18 imprisonment, J. Carreto principally to 50 years' imprisonment, 19 and Alonso principally to 25 years' imprisonment. 20 21 DISCUSSION Defendants appeal to this Court on several grounds. - 9 - 1 The issues we address below are the only ones that warrant 2 detailed discussion. 3 A. 4 Defendants' Efforts to Withdraw Their Guilty Pleas Defendants contend that the district court erred in 5 denying their motion to withdraw their guilty pleas. 6 district court's denial of a motion to withdraw a guilty plea for 7 abuse of discretion. 8 498 (2d Cir. 2006). 9 We review a See United States v. Adams, 448 F.3d 492, A plea may be withdrawn only if "the defendant can show 10 a fair and just reason for requesting the withdrawal." Fed. R. 11 Crim. P. 11(d)(2)(B). 12 this burden, a court should consider: 13 has asserted his or her legal innocence in the motion to withdraw 14 the guilty plea; (2) the amount of time that has elapsed between 15 the plea and the motion (the longer the elapsed time, the less 16 likely withdrawal would be fair and just); and (3) whether the 17 government would be prejudiced by a withdrawal of the plea." 18 United States v. Schmidt, 373 F.3d 100, 102-03 (2d Cir. 2004). 19 The district court can also rely on a defendant's in-court sworn 20 statements that he "understood the consequences of his plea, had 21 discussed the plea with his attorney, [and] knew that he could To determine whether a defendant has met - 10 - "(1) whether the defendant 1 not withdraw the plea." 2 110, 112 (2d Cir. 2001). 3 4 5 United States v. Hernandez, 242 F.3d In denying defendants' motions to withdraw their pleas here, the district court did not abuse its discretion. First, defendants did not assert their legal innocence 6 in moving to withdraw their pleas. Second, defendants did not 7 move to withdraw their pleas until approximately a year after 8 they had pled guilty -- and only after the Government had 9 prepared for trial, a jury had been selected, and the trial was 10 about to begin. 11 1100 (2d Cir. 1992). 12 prejudiced by a withdrawal of the guilty pleas, as the Government 13 surely would have encountered difficulties were it required to 14 re-assemble its evidence after more than a year's delay. 15 See United States v. Gonzalez, 970 F.2d 1095, Third, the Government would have been Moreover, in the end, defendants simply did not show "a 16 fair and just reason" for withdrawing the guilty pleas. In their 17 motions, defendants claimed that they were not advised of their 18 right to testify at trial, the court did not verify the 19 voluntariness of their pleas, and they received ineffective 20 assistance from their respective counsel, who failed to obtain 21 the purportedly exculpatory evidence from Mexico. 22 assertions were meritless. These To the contrary, the district court - 11 - 1 conducted a thorough allocution that fully complied with Rule 11 2 of the Federal Rules of Criminal Procedure. 3 The district court advised defendants of their right to 4 proceed to trial and informed defendants that, if they went to 5 trial, they would have the right to testify. 6 instructed defendants: 7 you wish to do so, you could not be required to testify." 8 9 Indeed, the court "while you have the right to testify, if The court also ensured that the pleas were taken knowingly and voluntarily. Concerned with defendants' decision 10 to plead guilty as trial was about to begin, the Court asked 11 defendants' counsel to explain why their clients were pleading 12 guilty at the "eleventh hour," as they "could do no worse if they 13 went to trial and were convicted." 14 explained their respective client's reasoning -- that they were 15 throwing themselves on the mercy of the sentencing judge. 16 response, the court explained that no promises were being made to 17 defendants and "that the sentence might well be more strict than 18 they would hope it to be." 19 clients were aware of the uncertainties regarding sentencing. 20 Moreover, the court verified with each defendant individually Each counsel, in turn, In The attorneys indicated that their - 12 - 1 that his plea was voluntary and not based on any extrinsic 2 promises. 3 Lastly, the alleged exculpatory Mexican trial 4 transcripts brought to the district court's attention at 5 sentencing did not warrant withdrawal of the pleas. 6 transcripts did not alter the fact that defendants had knowingly 7 and voluntarily pled guilty to the charges against them. 8 Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn 9 declarations in open court carry a strong presumption of The See 10 verity."). Indeed, although defense counsel represented that the 11 transcripts showed that three of the victims had testified -- in 12 an exculpatory manner -- in Mexico, the record showed that both 13 the defendants and the victims had not been in Mexico since prior 14 to January 2004. 15 while they were still in Mexico could not have significantly 16 undermined defendants' admissions that they smuggled the victims 17 into the United States and forced them into prostitution here. 18 Moreover, these transcripts -- unverified, in Spanish, and 19 without translations -- were submitted to the court literally as 20 the sentencing was about to begin, more than a year after 21 defendants had pled guilty. Hence, whatever the victims might have said Understandably, the court refused to - 13 - 1 attach any significance to them.2 2 Accordingly, the district court did not abuse its 3 discretion in denying defendants' motion to withdraw their guilty 4 pleas. 5 B. Alonso's Request for New Counsel 6 Alonso appeals the district court's denial of his 7 request to substitute counsel. We review the district court's 8 denial for abuse of discretion. 9 252 F.3d 238, 241 (2d Cir. 2001). See United States v. Simeonov, To determine whether the trial 10 court abused its discretion, we consider: 11 defendant's request for new counsel; (2) the adequacy of the 12 trial court's inquiry into the matter; (3) whether the conflict 13 resulted in a total lack of communication between the defendant 14 and his attorney; and (4) whether the defendant's own conduct 15 contributed to the communication breakdown. 16 John Doe No. 1, 272 F.3d 116, 122-23 (2d Cir. 2001). 17 (1) the timeliness of United States v. Alonso's request for new counsel was addressed almost 2 Defendants' contention that their counsel were ineffective because they failed to obtain the transcripts is more appropriately considered in the form of a petition under 28 U.S.C. § 2255. See Massaro v. United States, 538 U.S. 500, 50405 (2003) (indicating that "in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance," because the district court is the "forum best suited to developing the facts necessary to determining the adequacy of representation"). - 14 - 1 immediately by the district court and the court inquired 2 adequately into the matter. 3 communication between Alonso and his counsel. 4 Alonso's counsel had met with him seven times, for approximately 5 an hour each time. 6 length of their meetings and was satisfied with the attention 7 that counsel had given to the case. 8 client with discovery materials. 9 Alonso was confused by some of the materials, requested that There was not a total lack of To the contrary, The court inquired as to the frequency and Counsel also provided his The court, understanding that 10 counsel spend some "special time" explaining the materials to his 11 client. 12 denial of Alonso's request was based on a detailed inquiry that 13 assured the court that substitution of counsel was not warranted. 14 The district court did not abuse its discretion.3 15 C. Counsel agreed to do so. Accordingly, the court's The District Court's Comments at Sentencing 16 Defendants argue that the district court commented on 17 their national origin during sentencing and that these comments 18 compromised the appearance of justice. 19 rejected, as the record contains nothing to suggest that the 20 district court improperly considered, or appeared to improperly 3 This argument is Moreover, it should be noted that when Alonso pled guilty, he told the district court that he was satisfied with his attorney. - 15 - 1 consider, defendants' national origin in sentencing them. 2 Our judicial system takes seriously the proposition 3 that "not only must justice be done, it also must appear to be 4 done." 5 Cir. 1989). 6 adverse role in the administration of justice, including at 7 sentencing." 8 1994). 9 national origin in a negative or seemingly negative manner, at a United States v. Edwardo-Franco, 885 F.2d 1002, 1005 (2d "A defendant's race or nationality may play no United States v. Leung, 40 F.3d 577, 586 (2d Cir. When a sentencing judge comments on a defendant's 10 minimum, the appearance of justice is compromised. 11 district court improperly considers a defendant s national origin 12 is a question of law, and thus this aspect of a sentencing is 13 reviewed de novo. 14 (2d Cir. 2007). 15 Whether a United States v. Kaba, 480 F.3d 152, 156-57 At sentencing here, defendants' national origin was 16 initially raised by defense counsel. G. Carreto's counsel argued 17 that his client was a "product of his environment" and that 18 "prostitution is something that occurs very frequently" in his 19 hometown in Mexico. 20 you suggesting because prostitution may be rampant in Mexico that 21 the United States of America should condone it . . . when it 22 happens here?" In response, the district court asked: The court continued: - 16 - "You don't think it's "Are 1 necessary to perhaps send a message to others who may want to 2 come to the United State because they think prostitution is A- 3 okay and everything else that happened here is okay?" 4 speaking about deterrence, the court added: When 5 6 7 8 9 10 11 12 13 14 15 I'm not going to speak about Mexico. I have great respect for the country, Mexico. I can only talk about the laws of the United States which I am familiar with. . . . And it's, I think, terribly important in particular in this case to send a message loud and clear that people -- I don't care where they come from, whether they come from the United States, Mexico, any place. If they commit these crimes in the United States, they re going to be treated harshly by the law. 16 The record shows that defendants' national origin 17 played no "adverse role" in the district court's sentencing 18 decision. 19 defendants' country of origin, it did so only in response to 20 defense counsel's suggestion that G. Carreto should be treated 21 more leniently because prostitution was acceptable in his 22 hometown in Mexico. 23 sentencing of defendants was intended to serve as a message to 24 people in Mexico. 25 defendants' national origin was not being considered, and that 26 the court's intent was to send a message to anyone who would 27 engage in these types of crimes, no matter where they came from, Although the district court did refer to Mexico, Moreover, the district court did not say its Indeed, the court explicitly stated that - 17 - 1 whether it was Mexico or elsewhere. 2 referencing Mexico in this case are different from the statements 3 referencing national origin or countries of origin in United 4 States v. Leung, 40 F.3d 577 (2d Cir. 1994), and United States v. 5 Kaba, 480 F.3d 152 (2d Cir. 2007). 6 district court referred to the publicity a sentence might receive 7 in the defendant's ethnic community or native country and 8 explicitly stated its intention to seek to deter others sharing 9 that national origin from violating United States laws in the In both Leung and Kaba, "the 10 future." 11 origin was not improperly considered. 12 CONCLUSION 13 14 Kaba, 480 F.3d at 157. Accordingly, the statements Here, defendants' national For the foregoing reasons, we AFFIRM the judgment of the district court. 15 - 18 -