Cabalcante v. United States

JAIME GONZALO CASTIBLANCO CABALCANTE v. UNITED STATES OF AMERICA

CIVIL NO. 4:16CV964

CRIMINAL NO. 4:09CR194(9)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

March 31, 2020

MEMORANDUM OPINION AND ORDER

The following are pending before the Court:

1. Petitioner's pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Dkt. #1);

2. Petitioner's supplemental brief in support of his 28 U.S.C. § 2255 motion (Dkt. #6);

3. Affidavit of Carlo D'Angelo (Dkt. #8);

4. Government's response to Petitioner's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 (Dkt. #10); and

5. Petitioner's reply to the Government's response to the Petitioner's § 2255 motion (Dkt. #12).

Having considered the Petitioner's motion and the responsive briefing thereto, the Court finds that the motion should be denied.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

The United States Court of Appeals for the Fifth Circuit discussed the factual and procedural history of the Petitioner's case as follows:

In October 2009, a grand jury returned a two-count indictment charging twenty-seven defendants with participation in a vast Colombian conspiracy to import cocaine into the United States. Count One charged a conspiracy offense under 21 U.S.C. § 963, alleging: (1) the defendants conspired to knowingly and intentionally import five or more kilograms of cocaine into the United States, in violation of 21 U.S.C. §§ 952 and 960; and (2) the defendants conspired to knowingly and intentionally manufacture and distribute five or more kilograms of cocaine, intending and knowing that it would be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 959 and 960. Count Two alleged that the defendants aided and abetted each other while intentionally and knowingly manufacturing and distributing five or more kilograms of cocaine, intending and knowing that it would be unlawfully imported into the United States, in violation of 21 U.S.C. § 959 and 18 U.S.C. § 2.

Nineteen of the twenty-seven defendants pled guilty, two died before they could be extradited to the United States, and two fled and remain fugitives. The four remaining defendants—appellants here—went to trial: Jaime Gonzalo Castibl Cabalcante ("Cabalcante"), Oscar Orlando Barrera Piñeda ("Piñeda"), Julio Hernando Moya Buitrago ("Moya"), and Roberth William Villegas Rojas ("Rojas").

The trial focused primarily on two drug transactions. The first transaction was a thwarted attempt in December 2007 to move at least 1,000 kilograms of cocaine from Colombia to Guatemala and, from there, to the United States-Mexico border and then into the United States. This particular plan involved a plane with tail number HP1607, and thus was often referred to by the parties as the HP1607 flight or the HP1607 deal. Cabalcante brokered the HP1607 deal by introducing the Colombian suppliers to the Mexican buyers, members of the Los Zetas drug cartel. The Zetas paid about $7.9 million for this deal—an amount that would have purchased several thousand kilograms of cocaine in 2007.

In Colombia, Carlos Eduardo Gaitan-Uribe ("Gaitan"), who was indicted in this conspiracy but died before trial, coordinated logistics by recruiting pilots, maintaining airplanes, securing clandestine airstrips, and contacting corrupt air traffic controllers. Defendant Moya, an air traffic controller who worked as a supervisor at the El Dorado International Airport in Bogota, agreed to help Gaitan get HP1607 through Colombian airspace. Defendant Piñeda was the pilot who flew HP1607 from Bogota to Panama for staging. Piñeda also coordinated the pilots who then flew the plane from Panama back into Colombia to pick up the cocaine.

HP1607's return trip to Colombia on December 20, 2007, did not go as planned. The Colombian Air Force detected the plane heading back to Colombia and sent a plane to follow HP1607 until it landed at a clandestine air strip. Because the Air Force failed to make contact with HP1607 before it landed, the Air Force dispatched a combat aircraft to the landing strip. After firing warning shots with no response, the Air Force fired at HP1607 and destroyed it. In a wiretapped call after the thwarted HP1607 flight, Piñeda commented that they "were left without Christmas" and could instead "get together and cry together" about the failed flight. The Zetas held Cabalcante responsible for the failed transaction, holding him hostage for three months.

Although he was not involved in the HP1607 transaction, Defendant Rojas was involved in other cocaine transactions. Rojas was connected to the conspiracy through a drug trafficker named German Giraldo Garcia (alias "El Tio"), who was indicted in this case but remains a fugitive. El Tio worked with David Quinones ("Quinones"), Gaitan's logistics partner, to build an organization to import drugs into the United States. The main transaction concerning El Tio that the parties focused on at trial involved a deal he made in 2008 with a cocaine supplier named Jamed Colmenares (alias "El Turco"). Rojas was El Turco's right-hand man. The buyer for this $1.1 million deal was a Mexican man called "Chepa." This transaction also failed when, on October 22, 2008, the Colombian National Police intercepted a truck carrying about 1,000 kilograms of cocaine.

After Chepa held El Tio hostage for failing to deliver the cocaine, Chepa and El Tio agreed that El Tio would have to make up for the lost truck load. On November 26, 2008, El Tio had a meeting with Quinones, El Turco, and Rojas to plan their second attempt. Five days after the meeting, Rojas said over the phone that he had half the "luggage" at his house and was waiting for El Tio to tell him when to transport the load to an airplane so that it could be flown to Central America.

The Colombian National Police again thwarted this plan the very next day when the police seized 286 kilograms of cocaine found in a parked truck. Rojas paced the street in front of the parking lot while the police searched the truck. On a wiretapped call, Rojas told his boss, El Turco, that the cocaine had been seized again.

United States v. Rojas, 812 F.3d 382, 388-90 (5th Cir. 2016).

At the conclusion of "a three-week trial, a jury found four defendants," one being the Petitioner herein, "guilty of conspiring to knowingly or intentionally import five or more kilograms of cocaine into the United States in violation of 21 U.S.C. §§ 959 and 960, and all in violation of 21 U.S.C. § 963." Id. at 388. "The jury also found three of the four defendants" (one being the Petitioner herein) "guilty of aiding and abetting each other while distributing five or more kilograms of cocaine, intending and knowing that it would be unlawfully imported into the United States, in violation of 21 U.S.C. § 959 and 18 U.S.C. § 2." Id.¹

The Petitioner filed a direct appeal to the United States Court of Appeals for the Fifth Circuit. On appeal, the Petitioner raised the following issues:

1. The validity and extraterritoriality of 21 U.S.C. §§ 959 and 963;

2. Venue was not proper in the Eastern District of Texas;

3. The district court erred by failing to give two proposed jury instructions on venue;

4. The district court erred because it denied the Petitioner's motion to suppress wiretap conversations that were recorded in Columbia;

5. The district court erred because it denied the Petitioner's motion for new trial based on prosecutorial misconduct;

6. The district court erred because it declined to give the Petitioner's requested jury instruction on specific intent;

7. The evidence was insufficient to support the Petitioner's conviction;

8. The district court erred by admitting into evidence cocaine that was seized from the boat Avante;

9. The district court erred because it declined to instruct the jury on withdrawing from a conspiracy;

10. A material variance existed between the conspiracy charged and the evidence offered at trial, thus warranting a reversal of the Petitioner's conviction; and

11. The district court erred by permitting the Government to refer to the American dollar in its rebuttal argument.

The Fifth Circuit affirmed the Petitioner's conviction and sentence on January 28, 2016. The Supreme Court of the United States denied the Petitioner's petition for a writ of certiorari on June 6, 2016. On December 16, 2016, the Petitioner filed this motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence, alleging the following grounds for relief:

1. The Petitioner received the ineffective assistance of trial counsel² because counsel failed to move the trial court to reconsider his motion for new trial; and

2. The Petitioner received the ineffective assistance of appellate counsel because:

A. Counsel failed to argue on appeal that "the district court committed structural error when the judge answered 'no' to a jury's query";

B. Counsel failed to argue on appeal that "the method by which the jury reached the ultimate conclusion of guilty on Count One offends elementary principles of logic and [the] Due Process Clause of [the] Fifth Amendment";

C. Counsel failed to argue on appeal "on Count Two, [that] the government failed to prove the manufacture or distribution element and failed also in establishing a guilty principal"; and

D. Counsel failed to argue on appeal that "the trial Court erred in admitting the Petitioner's prior money laundering convictions."³

DISCUSSION AND ANALYSIS

As a preliminary matter, it should be noted that a § 2255 motion is "fundamentally different from a direct appeal." United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A movant in a § 2255 proceeding may not bring a broad-based attack challenging the legality of the conviction. The range of claims that may be raised in a § 2255 proceeding is narrow. A "distinction must be drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the other." United States v. Pierce, 959 F.2d 1297, 1300-1301 (5th...