United States v. Jonas

1

UNITED STATES OF AMERICA, v. BRANDON JONAS, Defendant.

No. 11-CR-366-A

United States District Court, W.D. New York

January 23, 2024

DECISION AND ORDER

HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT COURT JUDGE

Pending before the Court are: Defendant Brandon Jonas's motion seeking to compel the government to file a motion for downward departure under Guidelines Section 5K1.1 (Dkt. Nos 289, 298); Jonas's supplemental motion for a downward departure (Dkt. No. 440); and Jonas's motion for release from custody (Dkt. No. 408).^[1]For the reasons which follow Jonas's motions are DENIED.

I. Background:

A. Defendant Jonas's Prosecution:

In November of 2012, Jonas was charged, together with codefendants Misael Montalvo and Efrain Hidalgo, in a Superseding Indictment with two counts of violating 18 U.S.C. §§ 924(c)(1)(A(iii), 924(j), and 2. Specifically, those counts related to trios' involvement in the November 2004 shooting homicides of Nelson and Miguel Camacho. (Dkt. No. 68).

On March 11, 2015, Jonas, pursuant to a written plea agreement with the government, pleaded guilty to two counts of violation of 18 U.S.C. § 924(c)(1)(A)(iii) (discharge of a firearm in furtherance of a crime of violence) as lesser included counts of two counts in the Superseding Indictment pending against him. (Dkt. No. 244). As part of his plea agreement, Jonas admitted to the following facts:

On or about November 11, 2004, defendant Brandon Jonas, while aiding and abetting and being aided and abetted by Efrain Hidalgo, Misael Montalvo, and other unindicted co-conspirators, discharged a firearm during a conspiracy and attempt to forcibly steal property and extort assets from Nelson and Miguel Camacho. On or about November 11, 2004, Brandon Jonas, Efrain Hidalgo and others received information that individuals, now known to be Nelson Camacho and Miguel Camacho, might have large amounts of money or drugs and would be good targets to rob. Efrain Hidalgo, Brandon Jonas, Misael Montalvo, and other unindicted co-conspirators discussed the potential robbery and Brandon Jonas possessed an AK-47 firearm. On November 11, 2004, Misael Montalvo, driving a yellow car, drove Brandon Jonas, Efrain Hidalgo, and an unindicted co-conspirator to the vicinity of the residence of Nelson Camacho and Miguel Camacho, who lived on Niagara Street near Massachusetts Street. Brandon Jonas was armed with an AK-47 style machine gun, and Efrain Hidalgo was armed with a baseball bat. After being dropped off near the corner of Niagara and Massachusetts Streets, Efrain Hidalgo, Brandon Jonas, and an unindicted co-conspirator conducted surveillance of the residence of Nelson Camacho and Miguel Camacho. Then, after forcing entry into the residence, and in order to effectuate the robbery and extortion of assets, including large amounts of money or drugs, from Nelson and Miguel Camacho, Brandon Jonas utilized the AK-47 style firearm to shoot and kill both Nelson and Miguel Camacho. After the shootings were completed, Efrain Hidalgo, Brandon Jonas, and the unindicted co-conspirator ran from the scene of the murder to Sammy Ortiz's residence on 7th Street. The defendant admits to this conduct. (Dkt. No. 244, pp. 3-4).

The plea agreement calculated Jonas's aggregate sentencing range principally to be a term of imprisonment of 35 years. (Dkt. No. 244, ¶10).

The plea agreement also contained a cooperation section (Dkt. No. 244, pp. 9-13), which provided, inter alia, that:

Upon condition that the defendant has fully complied with all terms and conditions of this agreement, should the government determine that the defendant has provided substantial assistance in the investigation or prosecution of other persons who have committed offenses, the government will move the Court at sentencing to depart downward 2 levels from the equivalent of offense level 37 from the Guidelines as provided for in Guidelines§ 5K1.1 and Title 18, United States Code, Section 3553(e), which if granted by the Court, would result in a total offense level of 35 and a sentencing range of 292 to 365 months imprisonment. The defendant understands that the decision to make such a motion is within the sole discretion of the government and that the decision to grant such a motion, and the extent of any downward departure, are matters solely within the discretion of the Court. (Dkt.

No. 244, ¶24 [emphasis omitted]).

Following Jonas's plea, codefendant Montalvo, on March 16, 2015, pleaded guilty to conspiracy to possess with intent to distribute and to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846. (Dkt. Nos. 248, 252). In Montalvo's written plea agreement, the government reserved its right to argue that the murder of the Camacho brothers ought to be considered relevant conduct applicable to Montalvo as part of the narcotics conspiracy, while Montalvo maintained that he did not participate in the murders and that such murders were not part of his relevant conduct. (Dkt. No. 244, ¶4(c)).

B. Defendant Jonas's Cooperation and Codefendant Montalvo's Sentencing Proceedings

With the trial of Jonas and codefendant Montalvo scheduled to commence on March 17, 2015, Jonas, on March 6, 2015, appeared at the United States Attorney's Office to participate in a proffer. (Dkt. No. 419, ¶3). At that time, Jonas was shown the factual basis of Hidalgo's plea agreement, who previously pled guilty on February 26, 2015 (Dkt. No. 235), which, in pertinent part, identified Jonas as the person who utilized the AK-47 style firearm to shoot and kill both Nelson and Miguel Camacho. (Dkt. No. 239, ¶5(k); Dkt. No. 419, ¶3). While initially denying his involvement in the murders, in a subsequent proffer conducted on March 10, 2015, Jonas admitted to his role in the homicides. (Dkt. No. 419, ¶¶3-6). Notably, Jonas stated that he, Hidalgo, and another individual were dropped off in a yellow-colored car in the area in which the murders took place. While Jonas stated that he did not remember knowing who the driver of the yellow car was at the time, he told the government that he recalled the driver being older than him and being heavy-set. According to the government, Jonas's description of the vehicle (yellow car), and of the driver (older than him and heavy set), were consistent with the vehicle and physical descriptors attributable to codefendant Montalvo. (Dkt. No. 419, ¶7).

Following such proffer, a plea agreement, which included a cooperation section, was presented to Jonas, and on March 17, 2015, Jonas, as previously described, entered into the plea agreement. (Dkt. No. 419, ¶¶8-9).

On April 20, 2015, after Montalvo pleaded guilty and in preparation for Jonas's anticipated testimony as a witness at Montalvo's sentencing hearing, Jonas met with the government. (Dkt. No. 419, ¶10). According to the government, during that meeting Jonas changed his description of the person who drove him, Hidalgo, and another individual to the scene of the murders of Nelson Camacho and Miguel Camacho. According to the government, while Jonas continued to assert the driver drove a yellow car, “he [wa]s not sure who the driver [wa]s” and his description of the driver changed from that which he previously provided as he now stated that the driver “had dark hair, was thin, spoke Spanish and had a mustache." (Dkt. No. 419, ¶10).

In the government's view, the description of the driver given by defendant Jonas during the April 20, 2015, witness preparation session, “differed significantly from his pre-plea and plea agreement descriptions, and changed to a description [that was] inconsistent with Montalvo's physical appearance.” (Dkt. No. 419, ¶10). The government further indicated that the discrepancies in the descriptions of the driver given by Jonas caused the government to treat such information as “exculpatory information” which they not only had to provide to Montalvo's lawyer, but which Montalvo himself was able to use at the sentencing hearing. (Dkt. No. 419, ¶10). As a result of his discrepancies in the descriptions he gave of the driver, Jonas was not called as a witness at Montalvo's sentencing hearing (Dkt. No. 419, ¶10),^[2]which was held over a three-day period in May of 2015 and during which the Court heard from nine witnesses and received numerous items of evidence. (Dkt. Nos. 264-266; Dkt. No. 372, p.5). Not only was Jonas not called as a government witness at Montalvo's sentencing hearing, based upon Jonas's changed description of the driver of the vehicle, Montalvo's counsel called-as a defense witness-the FBI Special Agent to whom Jonas provided such changed description. (Dkt. No. 453, p. 3).

On June 17, 2020, the Court issued a Decision and Order regarding Montalvo's sentencing hearing, finding, inter alia, by a “preponderance of the specific evidence before it that [] Montalvo planned, aided and abetted the armed burglary and robbery during which the murders [of the Camachos] occurred....” (Dkt. No. 372, pp. 2-3). Specifically, this Court found that Montalvo “drove Jonas, Hildalgo, and the juvenile, with the loaded AK-47 rifle and an aluminum baseball bat, to the vicinity of the victims' apartment in his yellow automobile and dropped them off expecting them to use the AK-47 and baseball bat to commit the burglary and robbery. He did not accompany them further and drove away from the scene.” (Dkt. No. 372, p. 9).

With respect to Jonas's role in those murders, the Court based upon the evidence presented at Montalvo's sentencing hearing, found as follows:

After Hildalgo smashed in the door to the victims' apartment with his shoulder sometime after 9:00 p.m., Jonas ran inside and immediately shot Nelson Comacho in the arm with the AK-47, nearly blowing the victim's arm off. Nelson Comacho asked for help. * *

...