Branford v. United States

1

JOEL J. BRANFORD, Movant, v. UNITED STATES OF AMERICA, Respondent.

Nos. 1:22-cv-1264-GHW, 1:14-cr-225-GHW

United States District Court, S.D. New York

May 23, 2023

MEMORANDUM OPINION & ORDER

GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Joel J Branford is an international drug trafficker who arranged for the shipment of huge amounts of cocaine to the United States and around the world from his base in Panama. Over three years passed between his arrest and his eventual guilty plea, as Mr. Branford, and his numerous lawyers, litigated the case up to the verge of trial. At sentencing, Mr. Branford challenged the contention that the Government had, in fact, seized the cocaine that he had pleaded guilty to transporting. Despite witness testimony, the 100 plus kilos of bricks of physical cocaine tested after the seizure, and a recording of Mr. Branford discussing the seized cocaine, his lawyer argued that the container containing the cocaine was on board an entirely different ship. After a Fatico hearing, the Court found that the Government had indeed seized the cocaine, and sentenced Mr. Branford to 168 months of imprisonment-a sentence that was upheld on appeal.

Mr. Branford now challenges his conviction and sentence on several grounds. While his petition raises several arguments-ineffective assistance of counsel, Brady violations by the Government, and his asserted actual innocence-at base, Mr. Branford's petition relies principally on the factual issue that he litigated during his Fatico hearing. He argues that alleged discrepancies in shipping records show that the container containing the cocaine seized by the Government was actually on board another vessel. Thus, Mr. Branford argues, because his lawyers failed to find evidence that proved that there was no cocaine, they conducted an ineffective investigation; because the Government prosecuted him notwithstanding the prosecutors' alleged “reasonable” knowledge that there was no cocaine, the prosecutors violated Brady; and, notwithstanding his own sworn guilty plea and his recorded voice discussing the seized shipment of cocaine, Mr. Branford is actually innocent.

The Court evaluated the factual predicate for this argument during a Fatico hearing and found it to be unsupported. Because Mr. Branford's petition does not provide sufficient information to suggest that his counsel was ineffective or that he is actually innocent, and because he has waived any right to contest his sentence on the basis of a Brady violation, his petition his denied.

II. BACKGROUND

A. The Investigation, Indictment, Arrest and Extradition^[1]

This case grew out of a broader investigation by the Drug Enforcement Agency (the “DEA”) regarding the smuggling of narcotics from Panama to the Port of New York and New Jersey (the “Port”). Presentence Report, Dkt. No. 265 at ¶¶ 9-16. The Port is the busiest on the Eastern seaboard of the United States. But despite the various safeguards put in place at the Port, it was being used as a transshipment point for narcotics from around the world-particularly Panama. Id. ¶¶ 14-16.

In January 2010, law enforcement searched a Maersk vessel-the Schubert-and discovered a shipment of cocaine on board. Id. ¶¶ 17, 19. The cocaine was seized by the Government. Id. Law enforcement focused on the involvement of Mr. Branford in the conspiracy in part because of an intercepted conversation between a co-conspirator and Mr. Branford. In the call, as will be discussed later, Mr. Branford threatened his co-conspirator because he believed that he had stolen the cocaine from the vessel. Id. ¶ 20.

The indictment in this case (the “Indictment”) was filed on April 2, 2014. Dkt. No. 3. The Indictment contained two counts. Count I charged Mr. Branford with participating in a conspiracy to distribute and possess with intent to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. § 846. Count II charged him with participating in a conspiracy to important import five kilograms and more of cocaine into the United States, in violation of 21 U.S.C. § 846. Dkt. No. 3.

Mr. Branford engaged in his criminal conduct from outside of the United States. He was arrested in Costa Rica on April 6, 2014. Id. ¶ 24. He was extradited to the Southern District of New York on January 22, 2015. Id. He was arraigned shortly thereafter. Dkt. No. 9. Thus started the long path to Mr. Branford's eventual guilty plea and sentencing.

B. Legal Counsel

One striking theme of the case as it progressed was Mr. Branford's many changes of counsel over the life of the case. Over the life cycle of his criminal case, some 12 lawyers entered appearances for Mr. Branford: some retained by Mr. Branford, some appointed by the Court. Each change in counsel was implemented at Mr. Branford's request-usually, as will be seen, shortly after any adverse ruling by the Court. Mr. Branford took many opportunities to exercise his right to change his counsel. As a result, when it comes to the ineffective assistance of counsel claim at issue in this petition, it is difficult to deduce which lawyer Mr. Branford claims to have been ineffective.

C. The Wiretap Suppression Hearing

On August 17, 2015, Mr. Branford filed a motion to suppress evidence, including Title III wiretap evidence. Dkt. No. 18. The motion was filed by Mr. Branford's first, retained, counsel, Anthony Ricco. In support of the motion, Mr. Ricco filed an affidavit acknowledging that the “voice of Joel Branford was intercepted in connection with the expected delivery of over one hundred kilograms of cocaine expected to arrive secreted in a container aboard a shipping vessel near the end of January 2010.” Dkt. No. 35.

While the motion was pending, Mr. Branford terminated Mr. Ricco as his counsel. In his motion requesting leave to withdraw, Mr. Ricco wrote that “the government provided a substantial volume of Rule 16 discovery materials in this case. The defense has reviewed the Rule 16 discovery materials and as a result thereof has, in fact, filed substantive pre-trial motions .... Notwithstanding the above efforts, Joel Branford has exercised his right to counsel and has terminated my services as counsel and has now retained attorney Harry Joel Slovis ....” Dkt. No. 42.

Thus, when the Court held a suppression hearing with respect to the motion on January 28, 2016, Mr. Branford was represented by Mr. Slovis. See January 28, 2016 Hearing Tr. (“Suppression Hearing Tr.”), Dkt. No. 56. The hearing focused on the admissibility of a January 9, 2010 call intercepted through a Title III wiretap. In the call, Mr. Branford and a co-conspirator discuss the missing cocaine that had been seized by law enforcement from a container ship at the Port. Mr. Branford discusses the Maersk line. Dkt. No. 196-2 (“The info, the info you're giving me is not the same info that I got on the computer ‘cause I got this n***a I got the . . . like the bosses of the Maersk line ....That's my n***a. Like he be . . . traveling all over and sh*t and that's who I get my info from.”). Mr. Branford later threatens his co-conspirator as a result of the missing cocaine. The recording was damning evidence that Mr. Branford understandably wanted to suppress.

But in order for Mr. Branford to suppress the call, he had to demonstrate that he had standing to do so. And to demonstrate his standing, Mr. Branford had to acknowledge that the voice on the recording, talking about missing “work,”^[2] shipments on the Maersk line, and threatening his co-conspirator was his. Thus, during the hearing, Mr. Branford's counsel examined him under oath as follows:

MR. SLOVIS: On January 29, were you on a call with a person on the other end of the phone?

THE DEFENDANT: Yes.

MR. SLOVIS: It was your voice?

THE DEFENDANT: Yes.

MR. SLOVIS: And you heard the tape. Have you heard it?

THE DEFENDANT: I got the tape on November 13.

MR. SLOVIS: And that's you, correct? THE DEFENDANT: Yeah.

Suppression Hearing Tr. at 17:11-24.

Although the Court concluded that Mr. Branford had standing to challenge the wiretap, the Court denied Mr. Branford's motion. Id. at 23:7. But for purposes of this motion, Mr. Branford testified under oath that he talked with a co-conspirator about “work”-drugs-on a Maersk shipment, and threatened the co-conspirator who told him that the drugs were missing.

The Court denied the motion to suppress on January 28, 2016 and scheduled trial to begin in June of 2016. See generally Suppression Hearing Tr. Two days later, Mr. Branford wrote the Court pro se, asking that the Court relieve his retained counsel and appoint counsel under the Criminal Justice Act (the “CJA”). Mr. Branford asserted that he did not believe that his retained counsel had his best interest in heart and that Mr. Branford was indigent. Dkt. No. 52. On February 11, 2016, the Court appointed Mr. Rosenberg as counsel for Mr. Branford, Dkt. No. 53, and later, after conducting a Curcio hearing, authorized the appointment of a second CJA counsel, Clara Kalhous, to represent him as well. Dkt. Nos. 64, 65.

On May 4, 2016-now a little over a month before the scheduled trial date-Mr. Branford's counsel wrote asking for a change of counsel because “Mr. Branford lacks confidence in his attorneys and . . . there are fundamental disagreements in the handling of his case.” Dkt. No. 68. After two conferences about the request, the Court granted Mr Branford's request and appointed Robert Radick as Mr. Branford's new attorney. Dkt. No. 71. Mr. Branford was fortunate, in that Mr. Radick came into the case not only by himself but with several fellow attorneys from his law firm, Morvillo Abramowitz Grand Iason & Anello P.C.: Lawrence Bader and Priya Raghavan entered notices of appearance on Mr....