     12-4612-cr
     United States v. Cardona

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 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 27th day of November, 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; 387 Ring Rd.,;
22                                             Chadds Ford, PA.
23
24       FOR APPELLEES:                        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.

                                                  1
 1
 2        Appeal from a judgment of the United States District
 3   Court for the District of Connecticut (Covello, J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 6   AND DECREED that the judgment of the district court be
 7   AFFIRMED.
 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 make object to
23   certain 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).
16
17         The federal agents had probable cause to arrest
18   Cardona even though they never saw him at the motel or
19   overheard him making unequivocal statements about criminal
20   conduct. First, the Government relied on information
21   provided by Javier Morales-Gomez, who claimed (upon being
22   arrested for drug possession) that he was to deliver the 30
23   kilograms of cocaine to Armando Cardona. The agents had not
24   previously worked with Morales-Gomez, but they verified many
25   detail sof his account, including his physical description
26   of Cardona, Cardona’s nationality, the specifics of
27   Cardona’s criminal record, as well as where Cardona lived
28   and what car he drove. The corroboration of these
29   “innocent” details gave sufficient reason to believe the
30   criminal aspects of the story. Sultan, 463 F.2d at 1069.
31   Moreover, Morales-Gomez participated directly in the sting
32   operation that culminated in Cardona’s arrest. This matters
33   because an informant is more reliable if he meets with the
34   police face-to-face because he runs a greater risk that he
35   will be held accountable if his information proves false.
36   United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991).
37
38        Cardona’s own actions further corroborated Morales-
39   Gomez’s account. The agents heard and recorded two calls in
40   which Cardona and Morales-Gomez arranged a meeting (i.e., a
41   delivery of the cocaine to Cardona) at a room in a
42   particular motel, which they referred to familiarly as “the
43   house.” Shortly after that call, Cardona’s co-defendant,
44   Andres Alvarez, arrived at the designated room at the motel
45   and told Morales-Gomez that he had been sent to retrieve
46   “Papi’s stuff.” Upon taking possession of the cocaine,
47   Alvarez was arrested.

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


                                  4
 1        Next, Cardona claims that the protective sweep of his
 2   wife’s residence performed after his arrest was invalid.
 3   Law enforcement officers may conduct a protective sweep of a
 4   residence during the course of an arrest if they possess “a
 5   reasonable belief based on specific and articulable facts
 6   that the area to be swept harbors an individual posing a
 7   danger to those on the arrest scene.” Maryland v. Buie, 494
 8   U.S. 325, 110 S. Ct. 1093, 1099-1100, 108 L. Ed. 2d 276
 9   (1990). This standard was satisfied because Cardona had
10   been using the residence to arrange the meeting with
11   Morales-Gomez; Cardona was seen coming and going frequently;
12   the arrest took place directly in front of the residence,
13   and the officers had reason to believe that Cardona’s wife
14   (who owned the residence) or associates of Cardona were
15   present in the residence and posed a threat to the officers
16   or to the preservation of any evidence therein. See United
17   States v. Mickens, 926 F.2d 1323, 1328 (2d Cir. 1991)
18   (upholding protective sweep where “the arresting officers
19   had reason to believe that defendant-appellant Kearney and
20   her mother--both of whom resided in the house--were on the
21   premises”). Moreover, the scope of the agents’ protective
22   sweep did not extend beyond the “cursory inspection” deemed
23   proper by the Supreme Court. Buie, 110 S. Ct. at 1099. The
24   district court did not err in holding that the agents
25   lawfully entered Mrs. Cardona’s residence to perform a
26   protective sweep.
27
28        Finally, Cardona challenges the subsequent search of
29   his wife’s residence, during which money and cocaine
30   belonging to Cardona were seized, on the ground that the
31   consent given by his wife was involuntary. “The question
32   whether a consent to a search was in fact ‘voluntary’ or was
33   the product of duress or coercion, express or implied, is a
34   question of fact to be determined from the totality of all
35   the circumstances.” Schneckloth v. Bustamonte, 412 U.S.
36   218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). The
37   district court found that Mrs. Cardona is a fluent English
38   speaker and a “mature, intelligent and resourceful woman”;
39   that she had the authority to consent; that she confirmed
40   her consent both orally and in writing; that she was not
41   treated as a suspect during the investigation; that no
42   weapons were drawn during her discussion with the agents;
43   and that she was at all times calm and cooperative during
44   the professional and brief discussion.
45
46        In making these findings, which are supported by the
47   record, the district court credited the officers’ testimony

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 1   that there was no coercive conduct, and cited internal
 2   contradictions in Mrs. Cardona’s competing versions of
 3   events and the fact that her testimony at the suppression
 4   hearing that she had refused consent was contradicted by her
 5   prior sworn affidavit. Cardona has failed to show that the
 6   district court committed clear error in crediting the
 7   agents’ testimony rather than Mrs. Cardona’s. See United
 8   States v. Mendez, 315 F.3d 132, 135 (2d Cir. 2002) (“Where
 9   the district court’s factual findings are premised upon
10   credibility determinations, we grant particularly strong
11   deference to those findings.”). Thus, although the consent
12   was given after the agents performed a protective sweep of
13   the residence, which did involve a substantial show of
14   authority, the district court did not clearly err in finding
15   that Cardona’s wife gave valid consent for the search. Cf.
16   United States v. Ceballos, 812 F.2d 42, 46, 51 (2d Cir.
17   1987) (holding that consent was voluntarily given even
18   though the police forcibly arrested the defendant prior to
19   his consent to search).
20
21        Accordingly, the district court properly denied
22   Cardona’s motion to suppress.
23
24       2.   Ineffective Assistance of Counsel
25
26        Cardona next raises various claims of ineffective
27   assistance of counsel based on his trial counsel’s failure
28   to challenge specific jury instructions.
29
30        “[T]his Court has expressed a base-line aversion to
31   resolving ineffectiveness claims on direct review.” United
32   States v. Khedr, 343 F.3d 96, 99-100 (2d Cir. 2003)
33   (citation omitted). As the Supreme Court has explained, “in
34   most cases a motion brought under § 2255 is preferable to
35   direct appeal for deciding claims of ineffective assistance”
36   because the district court is “best suited to developing the
37   facts necessary to determining the adequacy of
38   representation dur-ing an entire trial.” Massaro v. United
39   States, 538 U.S. 500, 504, 505 (2003). “When an
40   ineffective-assistance claim is brought on direct appeal,
41   appellate counsel and the court must proceed on a trial
42   record not developed precisely for the object of litigating
43   or preserving the claim and thus often incomplete or
44   inadequate for this purpose.” Id. at 504-05.
45


                                  6
 1        Cardona’s claims of ineffective assistance were not
 2   raised in the district court and would be illuminated by
 3   fact-finding. “[E]xcept in highly unusual circumstances,”
 4   the attorney whose performance is challenged should be
 5   afforded an “opportunity to be heard and to present
 6   evidence, in the form of live testimony, affidavits or
 7   briefs” to explain the decision-making process. Sparman,
 8   154 F.3d at 52; see also Khedr, 343 F.3d at 99-100.
 9
10        Accordingly, we decline to rule on Cardona’s claims
11   that his trial counsel rendered constitutionally ineffective
12   assistance
13
14        For the foregoing reasons, and finding no merit in
15   Cardona’s other arguments, we hereby AFFIRM the judgment of
16   the district court.
17
18                              FOR THE COURT:
19                              CATHERINE O’HAGAN WOLFE, CLERK
20




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