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United States v. Morales

United States District Court, D. Massachusetts

April 6, 2017



          F. Dennis Saylor IV United States District Judge

         This is a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. Petitioner Angel Morales, also know as “Adonis, ” seeks to vacate his sentence on the ground that he received ineffective assistance of counsel in violation of his Sixth Amendment rights. In particular, he contends that his counsel failed to perform an adequate review of the evidence that was ultimately used against him at trial; failed to use documentary evidence to impeach the government's chief witness; failed to investigate the fact that the vehicle seized by the Drug Enforcement Agency, which was found to contain a hidden compartment, did not belong to him; failed to call a material witness; and failed to advise him of his right to testify on his own behalf at trial.

         I. Background

         Starting around 2008, Rancis Osiris Santana began purchasing large quantities of cocaine from a supplier in California, which he then resold. (Gov. Opp. at 2). Santana testified that, in the summer of 2009, he received a shipment of 44 kilograms of cocaine. (Id.). He contacted Morales, also known as “Adonis, ” who agreed to purchase ten “real nice ones” (that is, ten kilograms) for $33, 000 per kilogram. (Id.).

         On July 17, 2009, law enforcement intercepted a telephone call between Morales and an individual identified as “Bolo.” (Id. at 3). Morales told Bolo, “Damn, these guys got me some really nice stuff.” (Id.). He told Bolo he had received ten kilograms from “that guy, ” and offered to sell it to Bolo for $34, 000 per kilogram. (Id.). In another telephone conversation that same day, Juan Nova, also known as “Pastor”-who shared an apartment with Morales-told Bolo that “the CD arrived last night” and that “they set it for me at 33. For me and Adonis. They gave Adonis ten and they gave me ten at 33.” (Id. at 2-3).

         In October 2009, Santana purchased 54 kilograms of cocaine from a supplier in California. (Id. at 3). Law enforcement intercepted a series of telephone calls between Santana and Nova discussing the shipment and negotiating a price for purchase. (Id. at 3-4). In one of those telephone calls, Santana asked Nova, “Hasn't Adonis called to see if that stuff came or not?” (Id. at 4). Nova replied, “He's been calling me for days. He was asking me . . . last night we were talking about it, he's desperate.” (Id.). In another telephone call, Nova, attempting to negotiate a better price, told Santana that the going price for cocaine in Lawrence was $31, 500 per kilogram. (Id.). To confirm, he asked Morales, who was standing nearby, “Adonis, did he say at thirty-one and a half?” A voice in the background could be heard saying “Yes.” (Id.).

         After further negotiations, Santana agreed to sell Nova five kilograms of cocaine. (Id.). He asked if Morales wanted anything, and Nova responded that he would call him back. (Id.). Fifteen minutes later, Nova called Santana back and said, “Adonis says to . . . to send him ten, ” noting “The guy always gets ten. He gives half up front.” (Id.). Santana then told Nova to “tell Adonis that . . . that it's not to take long.” (Id.). In another recorded telephone conversation between Santana and his brother, he confirmed that Nova was going to purchase five kilograms while Morales was going to purchase ten kilograms. (Id. at 4-5).

         Prior to the sale, Santana instructed one of his associates to write down in a notebook the names of everyone who was going to purchase some portion of the 54 kilogram cocaine shipment. (Id. at 5). Among the names listed was “Adoni, ” whom Santana identified as Adonis. (Id.).

         On October 9, 2009, law enforcement officers raided Santana's apartment and arrested him and Nova. (Id.). An open box of cocaine was found on the kitchen table. (Id.). In total, approximately 54 kilograms of cocaine were recovered from the apartment and a vehicle parked nearby. (Id.).

         An investigation following Santana and Nova's arrest revealed that Morales frequently called Nova's telephone. (Id.). During the course of the investigation, Drug Enforcement Agency (“DEA”) agents observed Morales driving a blue Chrysler Pacifica. (Id. at 3). The Pacifica was later seized and found to contain a hidden compartment. (Id.).

         On October 21, 2009, a grand jury returned an indictment against Morales and six others (including Santana and Nova) for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. That same day, Morales retained attorney Robert Sheketoff, who entered an appearance on his behalf.[1]

         On October 29, 2009, Morales consented to the entry of an order of pre-trial detention. Morales was detained at the Wyatt Detention Center pending trial.

         On November 19, 2010, Morales filed a motion to dismiss appointed counsel and to appoint new counsel, citing disagreement on strategy, lack of understanding, and a failure to present his best interests. On November 22, 2010, attorney Sheketoff filed a motion to withdraw as retained counsel, citing a breakdown in the attorney-client relationship. On December 9, 2010, after a hearing, attorney Sheketoff was terminated and attorney Robert Goldstein-the subject of this ineffective-assistance claim-was appointed to represent Morales.

         On February 10, 2011, Morales, through counsel, filed a motion to continue the trial- originally scheduled for March 14, 2011-stating that recently appointed counsel needed more time to prepare for trial and file any motions to suppress. The trial was rescheduled for June 6, 2011. The trial was subsequently rescheduled again for August 1, 2011, after several defendants, including lead defendant Santana, entered changes of plea.

         On June 27, 2011, Morales, through counsel, filed a motion in limine to exclude testimony regarding the alleged drug-related “code” used by defendants as well as testimony regarding general drug-trafficking practices in the Boston area. On July 20, 2011, he filed another motion in limine to exclude references to his aliases. Those motions were denied.

         On July 25, 2011, Morales, through counsel, filed another motion to continue the trial. As reason for the continuance, he noted that the government had recently provided notice that Santana was a government witness. Attorney Goldstein requested more time in order to prepare a cross-examination of Santana. In the motion, Goldstein noted that he needed to review the many telephone conversations between Morales and Santana “in order to properly prepare to cross-examine Mr. Santana and to effectively represent the defendant.” Goldstein cited to Rompilla v. Beard, 545 U.S. 374 (2005), which held that counsel was ineffective for failing to review materials in the government's possession. Goldstein also stated that Morales himself also needed to review the telephone calls in order to assist in his defense. He also stated that he needed additional time to conduct an independent investigation of Santana, citing Cullen v. Pinholster, 563 U.S. 170 (2011). That motion was granted, and the trial was rescheduled once again, this time for October 24, 2011.

         The trial went forward on October 24, 2011. After four days of evidence, the jury returned a verdict of guilty on October 28, 2011. Sentencing was set for February 2, 2012. On November 11, 2011, Morales, through counsel, filed a motion for acquittal, challenging the sufficiency of the evidence at trial. That motion was denied on January 13, 2012.

         Between January and October of 2012, Morales, through counsel, moved five times to continue the sentencing. As grounds for the continuances, he cited, among other things, Morales's inability to access disks ...

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