     12-4612-cr
     United States v. Cardona

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                      SECOND AMENDED SUMMARY ORDER
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     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
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 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 3rd day of December, two thousand thirteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                BARRINGTON D. PARKER,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               12-4612-cr
16
17       ARMANDO CARDONA,
18                Defendant-Appellant,
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Cheryl J. Sturm; Chadds Ford,
22                                             Pennsylvania.
23
24       FOR APPELLEE:                         S. Dave Vatti (with Robert M.
25                                             Spector on the brief), Assistant
26                                             United States Attorneys, for
27                                             Deirdre M. Daly, Acting United
28                                             States Attorney for the District
29                                             of Connecticut, Hartford,
30                                             Connecticut.

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the District of Connecticut (Covello, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED; remanded for clerical correction of the judgment.
 7
 8
 9        Defendant-appellant Armando Cardona appeals from a
10   judgment entered on November 16, 2012 in the United States
11   District Court for the District of Connecticut (Covello,
12   J.), after a jury found the Cardona guilty of one count of
13   conspiracy to possess with the intent to distribute five
14   kilograms or more of cocaine and one count of possession
15   with intent to distribute five kilograms or more of cocaine.
16   We assume the parties’ familiarity with the underlying
17   facts, the procedural history, and the issues presented for
18   review.
19
20        Cardona challenges the denial of his motion to suppress
21   various pieces of evidence, and argues that his trial
22   counsel was ineffective for failing to object to certain
23   jury instructions. We address these claims in turn.
24
25       A.   The Suppression Motion
26
27        In reviewing the denial of a motion to suppress, we
28   view the evidence in the light most favorable to the
29   government. United States v. Jackson, 652 F.2d 244, 246 (2d
30   Cir. 1981). The factual findings of a district court on a
31   motion to suppress, including assessments of credibility,
32   cannot be disturbed unless shown to be clearly erroneous.
33   United States v. Villegas, 928 F.2d 512, 517 (2d Cir. 1991).
34
35        Cardona argues that his arrest and the ensuing search
36   of his vehicle lacked probable cause. We disagree.
37
38        “Probable cause to arrest exists when an officer has
39   knowledge of facts and circumstances ‘sufficient to warrant
40   a prudent man in believing’ that an offense is being or has
41   been committed.” United States v. Edmonds, 535 F.2d 714,
42   719 (2d Cir. 1976) (quoting Beck v. Ohio, 379 U.S. 89, 91
43   (1964)). Experience of the arresting officers is a relevant
44   factor in the probable cause inquiry. See, e.g., United
45   States v. Rosario, 638 F.2d 460, 462 (2d Cir. 1980).
46


                                  2
 1        Probable cause to arrest may be based in whole or in
 2   part upon information obtained through the use of an
 3   informant, in which case the court must “assess the
 4   information by examining the ‘totality of the circumstances’
 5   bearing upon its reliability.” United States v. Smith, 9
 6   F.3d 1007, 1012 (2d Cir. 1993) (citation omitted). “[I]t is
 7   established in this circuit that evidence sufficient to show
 8   probable cause by corroborating even a previously unknown
 9   informant may be found in circumstances which do not
10   actually establish the crime itself.” United States v.
11   Rueda, 549 F.2d 865, 870 (2d Cir. 1977). “An untested
12   informant’s story may be corroborated by other facts that
13   become known to the [arresting agent], even if they
14   corroborate only innocent aspects of the story.” United
15   States v. Sultan, 463 F.2d 1066, 1069 (2d Cir. 1972). And
16   “where law enforcement authorities are cooperating in an
17   investigation . . . , the knowledge of one is presumed
18   shared by all.” Illinois v. Andreas, 463 U.S. 765, 771 n.5
19   (1983).
20
21         The law enforcement officers had probable cause to
22   arrest Cardona even though they never saw him at the motel
23   or overheard him making unequivocal statements about
24   criminal conduct. First, the Government relied on
25   information provided by Javier Morales-Gomez, who claimed
26   (upon being arrested for drug possession) that he was to
27   deliver the 30 kilograms of cocaine to Cardona. The
28   officers had not previously worked with Morales-Gomez, but
29   they verified many details of his account, including his
30   physical description of Cardona, Cardona’s nationality, the
31   specifics of Cardona’s criminal record, as well as where
32   Cardona lived and what car he drove. The corroboration of
33   these “innocent” details gave sufficient reason to believe
34   the criminal aspects of the story. See Sultan, 463 F.2d at
35   1069. Moreover, Morales-Gomez participated directly in the
36   sting operation that culminated in Cardona’s arrest. This
37   matters because an informant is more reliable if he meets
38   with the police face-to-face because he runs a greater risk
39   that he will be held accountable if his information proves
40   false. See United States v. Salazar, 945 F.2d 47, 50-51 (2d
41   Cir. 1991).
42
43        Cardona’s own actions further corroborated Morales-
44   Gomez’s account. The officers heard and recorded two calls
45   in which Cardona and Morales-Gomez arranged a meeting (i.e.,
46   a delivery of the cocaine to Cardona) at a room in a
47   particular motel, which they referred to familiarly as “the

                                  3
 1   house.” Shortly after a subsequent call, Cardona’s co-
 2   defendant, Andres Alvarez, arrived at the designated room at
 3   the motel and told Morales-Gomez that he had been sent to
 4   retrieve “Papi’s stuff.” Upon taking possession of the
 5   cocaine, Alvarez was arrested.
 6
 7        The officers inferred, based on their experience, that
 8   Alvarez had been sent by Cardona as a courier (an
 9   arrangement previously alluded to in conversation between
10   Cardona and Morales-Gomez). Moreover, within minutes of
11   Alvarez’s arrest, officers surveilling the home of Cardona’s
12   wife observed Cardona drive at high speed into the parking
13   area. They moved in when he parked and arrested him.
14
15         The totality of the circumstances provided probable
16   cause for Cardona’s arrest. Cf. United States v. Gagnon,
17   373 F.3d 230, 240 (2d Cir. 2004) (holding that probable
18   cause existed to search defendant’s tractor trailer, where
19   confidential informant who was detained at border with a
20   trailer full of marijuana told officers that he was driving
21   to meet the defendant to exchange trailers, and defendant
22   subsequently arrived at the location described, at the time
23   described, in a tractor with an empty trailer that matched
24   informant’s description); Rueda, 549 F.2d at 870 (holding
25   that probable cause existed where “DEA agents were given an
26   accurate description of Rueda, and several specific details
27   given them occurred exactly as [informant] had recounted or
28   predicted”). The use of a courier is not enough to render
29   Cardona’s arrest unlawful, given Morales-Gomez’s reliable
30   information and Cardona’s own involvement up to the time of
31   his arrest.
32
33        The same information that established probable cause to
34   arrest the defendants also established probable cause to
35   believe that Cardona’s vehicle contained evidence of the
36   cocaine distribution conspiracy. See United States v.
37   Gaskin, 364 F.3d 438, 456 (2d Cir. 2004) (“Under the
38   ‘automobile exception’ to the Fourth Amendment warrant
39   requirement, police may conduct a warrantless search of a
40   readily mobile motor vehicle if probable cause exists to
41   believe the vehicle contains contraband or other evidence of
42   a crime.”). In particular, there was a fair probability
43   that items needed to conduct the transaction–-such as money,
44   cellular phones, or weapons--were in Cardona’s car. Indeed,
45   a cell phone bearing the number that Morales-Gomez dialed to
46   contact Cardona was visible on the seat of the car.
47

                                  4
 1        Because both Cardona’s arrest and the subsequent search
 2   of his car were supported by probable cause, the district
 3   court did not err in denying defendant’s motion to suppress
 4   the resulting evidence.
 5
 6        Next, Cardona claims that the protective sweep of his
 7   wife’s residence performed after his arrest was invalid.
 8   Law enforcement officers may conduct a protective sweep of a
 9   residence during the course of an arrest if they possess “a
10   reasonable belief based on specific and articulable facts
11   that the area to be swept harbors an individual posing a
12   danger to those on the arrest scene.” Maryland v. Buie, 494
13   U.S. 325, 337 (1990). This standard was satisfied because
14   the officers had reason to believe that at least one other
15   person (Cardona’s wife, whom they had seen during
16   surveillance) was likely to be in the residence and that
17   Cardona (who had been coming from and going to the
18   residence) may well have had additional associates in a
19   transaction involving 30 kilograms of cocaine, and because
20   the residence’s windows overlooked the scene of Cardona’s
21   arrest. The officers reasonably believed that associates in
22   the residence could pose a threat to the officers or to the
23   preservation of any evidence therein. See United States v.
24   Mickens, 926 F.2d 1323, 1328 (2d Cir. 1991) (upholding
25   protective sweep where “[t]he arresting officers had reason
26   to believe that defendant-appellant Kearney and her
27   mother--both of whom resided in the house--were on the
28   premises”). Moreover, the scope of the officers’ protective
29   sweep did not extend beyond the “cursory inspection” deemed
30   proper by the Supreme Court. Buie, 494 U.S. at 335. The
31   district court did not err in holding that the officers
32   lawfully entered Mrs. Cardona’s residence to perform a
33   protective sweep.
34
35        Finally, Cardona challenges the subsequent search of
36   his wife’s residence, during which moneys belonging to
37   Cardona were seized, on the ground that the consent given by
38   his wife was involuntary. “[T]he question whether a consent
39   to a search was in fact ‘voluntary’ or was the product of
40   duress or coercion, express or implied, is a question of
41   fact to be determined from the totality of all the
42   circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218,
43   227 (1973). The district court found that Mrs. Cardona is a
44   fluent English speaker and a “mature, intelligent and
45   resourceful woman”; that she had the authority to consent;
46   and that she was at all times calm and cooperative during
47   the professional and brief discussion. She also testified

                                  5
 1   that multiple officers told her that she was not in any
 2   trouble.
 3
 4        In making these findings, which are supported by the
 5   record, the district court credited the officers’ testimony
 6   that there was no coercive conduct, and cited internal
 7   contradictions in Mrs. Cardona’s competing versions of
 8   events and the fact that her testimony at the suppression
 9   hearing that she had refused consent was contradicted by her
10   prior sworn affidavit. Cardona has failed to show that the
11   district court committed clear error in crediting the
12   officers’ testimony rather than Mrs. Cardona’s. See United
13   States v. Mendez, 315 F.3d 132, 135 (2d Cir. 2002) (“Where
14   the district court’s factual findings are premised upon
15   credibility determinations, we grant particularly strong
16   deference to those findings.”). Thus, although the consent
17   was given after the officers performed a protective sweep of
18   the residence, which did involve a substantial show of
19   authority, the district court did not clearly err in finding
20   that Cardona’s wife gave valid consent for the search. Cf.
21   United States v. Ceballos, 812 F.2d 42, 46, 51 (2d Cir.
22   1987) (holding that consent was voluntarily given even
23   though the police forcibly arrested the defendant prior to
24   his consent to search).
25
26        Accordingly, the district court properly denied
27   Cardona’s motion to suppress.
28
29       2.   Ineffective Assistance of Counsel
30
31        Cardona next raises various claims of ineffective
32   assistance of counsel based on his trial counsel’s failure
33   to challenge specific jury instructions.
34
35        “[T]his Court has expressed a base-line aversion to
36   resolving ineffectiveness claims on direct review.” United
37   States v. Khedr, 343 F.3d 96, 99-100 (2d Cir. 2003)
38   (citation omitted). As the Supreme Court has explained, “in
39   most cases a motion brought under [28 U.S.C.] § 2255 is
40   preferable to direct appeal for deciding claims of
41   ineffective assistance” because the district court is “best
42   suited to developing the facts necessary to determining the
43   adequacy of representation during an entire trial.” Massaro
44   v. United States, 538 U.S. 500, 504, 505 (2003). “When an
45   ineffective-assistance claim is brought on direct appeal,
46   appellate counsel and the court must proceed on a trial
47   record not developed precisely for the object of litigating

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 1   or preserving the claim and thus often incomplete or
 2   inadequate for this purpose.” Id. at 504-05.
 3
 4        Cardona’s claims of ineffective assistance were not
 5   raised in the district court and would be illuminated by
 6   fact-finding. “[E]xcept in highly unusual circumstances,”
 7   the attorney whose performance is challenged should be
 8   afforded an “opportunity to be heard and to present
 9   evidence, in the form of live testimony, affidavits or
10   briefs” to explain the decision-making process. Sparman v.
11   Edwards, 154 F.3d 51, 52 (2d Cir. 1998); see also Khedr, 343
12   F.3d at 99-100.
13
14        Accordingly, we decline to rule on Cardona’s claims
15   that his trial counsel rendered constitutionally ineffective
16   assistance.
17
18        For the foregoing reasons, and finding no merit in
19   Cardona’s other arguments, we hereby AFFIRM Cardona’s
20   conviction. However, we note nostra sponte that the
21   judgment from which Cardona has appealed states,
22   inaccurately, that he “pled guilty to count[s] One and Two
23   of the Indictment.” (Judgment at 1 (emphasis added).)
24   Accordingly, the matter is remanded for entry of an amended
25   judgment accurately stating that Cardona was found guilty on
26   those counts following a jury trial.
27
28                              FOR THE COURT:
29                              CATHERINE O’HAGAN WOLFE, CLERK
30
31
32
33




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