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United States v. Jaimes-Moreno

United States District Court, N.D. Illinois, Eastern Division

December 11, 2017



          John J. Tharp, Jr. United States District Judge.

         On September 25, 2013, Defendant Nicacio Jaimes-Moreno was indicted on a charge that he knowingly transported a minor in interstate commerce with the intent that the minor engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). Shortly before the trial on that charge was scheduled to begin, Defendant Jaimes-Moreno pled guilty to a lesser charge of knowingly transporting an individual (not necessarily a minor) for the purpose of engaging in criminal sexual activity in violation of 18 U.S.C. § 2421(a). As a result of the plea deal, Jaimes-Moreno's potential sentence was capped at ten years, rather than at life, and he was sentenced on March 30, 2015 to a ten-year term. He now moves under 18 U.S.C. § 2255 to vacate the judgment against him, alleging that he was denied effective assistance of counsel. For the reasons outlined below, the defendant's claims fail to satisfy the test for ineffective assistance set forth in Strickland v. Washington, 466 U.S. 688 (1984), and its progeny. The defendant cannot show that his counsel's performance was deficient, and even if he could, he was not prejudiced by the representation he received. Accordingly, the motion is denied.

         I. BACKGROUND

         A. Defendant's Offense Conduct

         In approximately 2006, the defendant lived in Mexico with his girlfriend, and Victim A, the daughter of his girlfriend. PSR at ¶ 11; GV at 1-2.[1] While living there, the defendant began to rape Victim A, who was a minor. PSR at ¶¶ 10-11; GV at 2. In 2007, the defendant moved to the United States illegally and arranged for Victim A to join him in Tulsa, Oklahoma. PSR at ¶ 12; GV at 2-3. In about May 2010, the defendant, Victim A, and Victim A's mother together moved from Oklahoma to Indiana. PSR at ¶ 13; GV at 4. Next, the defendant moved Victim A and her mother with him to Illinois in August or September 2010, when Victim A was 15 years old. R. 90 at 2; PSR at ¶ 13. Throughout their time in Oklahoma, Indiana, and Illinois, the defendant continued to rape Victim A. R. 90 at 2; PSR at ¶ 13; GV at 4-5.

         B. Procedural History

         1. Criminal Charges

         On August 28, 2013, the defendant was named in a criminal complaint charging him with knowingly transporting Victim A, a minor, in interstate commerce from Indiana to Illinois, with the intent that Victim A engage in sexual activity for which the defendant could be charged with a criminal offense, in violation of 18 U.S.C. § 2423(a). Cmplt., ECF No. 1. On September 19, 2013, the grand jury returned a one-count indictment charging the defendant with the same crime. Indictment, ECF No. 8. This charge carried a mandatory minimum term of imprisonment of ten years and a maximum term of imprisonment for life. Trial was set for October 27, 2014. ECF No. 47. As discussed further below, the defendant ultimately waived his right to a jury trial and requested a bench trial. ECF No. 59.

         2. Motions to Substitute Counsel

         After the defendant's original counsel withdrew on November 14, 2013, [2] then, on or about December 11, 2013, the Court appointed the defendant's counsel, Ralph Schindler, who is the subject of the defendant's pending motion. See ECF Nos. 25-27, 41. Three months later, on March 12, 2014, the defendant filed a pro se motion seeking substitution of counsel on the basis that “an irreconcilable conflict” had arisen between the defendant and his counsel. ECF No. 31. During a March 26, 2014 hearing (ECF No. 42), the Court denied the defendant's motion after learning that the defendant's primary concern was that he wanted more communication with his counsel. 3/26/2014 Tr. (ECF No. 120) at 5-6. During the hearing, the defendant acknowledged that he had an opportunity to talk about issues with counsel, that counsel explained what counsel was doing, and that counsel's explanations answered the defendant's questions and concerns, but nevertheless maintained that he wanted to switch counsel. Id. at 4. The Court noted that counsel had “invested a substantial period of time on [the defendant's case] already” and that the general nature of the problem did not then warrant the appointment of new counsel. Id. at 6. Accordingly, the court denied the defendant's motion and directed both the defendant and his counsel “to work harder at working together productively, ” which the defendant agreed to do. Id. at 6-7. The court specifically advised the defendant that it would reconsider the need to appoint different counsel if “Mr. Schindler and you continue to go down the road and you continue to have problems working together.” Id. at 6.

         Less than three months before trial, on August 4, 2014, the defendant again filed a pro se motion for substitute counsel. ECF No. 52. Among other things, the defendant's motion stated that “his attorney verbally promised the [the defendant] [a] 3-4 years sentence” based on counsel's apparent plea discussions with the government, but that the defendant “did not agree with the time.” Id. at 2. The defendant also cited his concern about potentially facing new federal charges involving guns, as well as the defendant's concern about accepting a plea offer that could result in a 10-year sentence. Id. The Court held a hearing on the defendant's motion on August 21, 2014. ECF No. 59. During this dialog, the defendant complained that Mr. Schindler had told him that there was “nothing he could do” to help the defendant, but when the Court pressed the defendant to explain further, it became clear that the defendant's principal problem as to Mr. Schindler was not what he had done or failed to do to prepare for trial but rather his (Schindler's) inability to negotiate a better deal with the government. Id. at 7-9. With respect to the defendant's concerns, the Court confirmed that the government was entitled to its view of the case and that Mr. Schindler's duty as the defendant's counsel was to “assist you in defending against whatever charges the government brings at a trial if the government is unwilling to offer you a deal that is acceptable to you short of a trial. And from all that I can see in this case, . . . Mr. Schindler is doing exactly that. The court then cataloged for the defendant the types of actions that Mr. Schindler was making on his behalf:

You're entitled to competent counsel, and everything I can see of Mr. Schindler's representation in that matter suggests that he is performing his duties competently, and that's an understatement because the record in this case reflects that he is very actively doing things necessary to defend against the charges that have been brought against you. He has secured the services of investigators, he has secured or is seeking to secure the services of expert witnesses, he has interviewed and secured or has a motion pending that we'll address today to ensure that a number of witnesses for your defense are brought in from other locations at the government's expense. He has filed numerous motions to preserve your rights as guaranteed by the Federal Rules of Criminal Procedure. In short, Mr. Schindler's efforts in this case have been substantial, they have been appropriate in the view of the Court in terms of the kinds of activity that would be necessary to defend this case, and they are substantially in excess of the kinds of efforts that the court normally sees made in defending criminal cases.

8/21/2014 Tr. (ECF No. 117) at 6-7. The court denied the motion in the absence of any indication that the communication problems between the defendant and Mr. Schindler were preventing Mr. Schindler from preparing for trial or getting necessary information from the defendant. Id. at 10.

         During the same hearing, the defendant confirmed that, as indicated by the motion filed by his attorney (ECF No. 56), he was seeking a bench trial. 8/21/2014 Tr. (ECF No. 117) at 14-15. In the ensuing colloquy to ensure that the defendant's waiver of his right to a jury trial was knowing and voluntary, the defendant noted that he was taking “three different psychiatric medications” at the time, which were being prescribed for him at the MCC. Id. at 17-18. In response to the court's questions, the defendant confirmed that the medications helped him to relax and to think more clearly and that there was no reason he could not go forward with an important decision like waiving his right to a jury trial. Id. at 19. After a full colloquy, the court accepted the defendant's jury trial waiver and entered an order setting the case for a bench trial. ECF No. 59.

         3. Guilty Plea

         A pretrial conference was scheduled on October 22, 2014. At the very outset of the conference, the defendant personally requested an opportunity to engage in further plea discussions with the government. 10/22/14 Tr. (ECF No. 114) at 2. Mr. Schindler explained that the mandatory minimum sentence of 10 years carried by the indictment had been the sticking point in negotiations and the government indicated that it had offered to issue a superseding information charging a crime that carried a 10-year maximum sentence and eliminated the mandatory minimum. The court accommodated the defendant's request and delayed the start of the conference to give the parties an opportunity to confer further. Within about half an hour, the parties advised the Court that the discussion had been fruitful and that it was likely that the defendant would enter a plea of guilty to a superseding information charging a less serious crime than the indictment.

         The following day, October 23, 2014, the defendant pled guilty pursuant to a written plea declaration to a one-count superseding information, which charged him with knowingly transporting Victim A in interstate commerce from Indiana to Illinois, with the intent that Victim A engage in sexual activity for which the defendant could be charged with a criminal offense, in violation of 18 U.S.C. § 2421. Superseding Information (“SSI”), ECF No. 87. The defendant acknowledged in his plea declaration that, at the time he moved Victim A to Illinois, she was under the age of 16 and he intended to continue his sexual conduct with her in a manner that constituted criminal sexual assault, see 720 ILCS 5/11-1.20; criminal sexual abuse, see 720 ILCS 5/11-1.50; and aggravated criminal sexual abuse, see 720 ILCS 5/11-1.60. Plea Dec., ECF No. 90 at 2. But, because under § 2421, the age of the person transported is not an element of the offense, that charge carries lesser penalties than does § 2423; the defendant's conviction on the § 2421 charged reduced the maximum term of imprisonment the defendant faced from life to ten years and eliminated the mandatory minimum term of imprisonment.

         The defendant stated in his plea declaration that he had “read the charge against him contained in the superseding information, and that charge has been fully explained to him by his attorney.” Id. at 1. The defendant also stated in his declaration that he fully understood the nature and elements of the crime with which he was charged and understood that it carries a maximum sentence of 10 years imprisonment. Id. at 1-2. As to role of the Sentencing Guidelines, the defendant acknowledged that he “[understood] that in imposing sentence the Court will be guided by the United States Sentencing Guidelines, ” and “that the Sentencing Guidelines are advisory, not mandatory, but that the Court must consider the Guidelines in determining a reasonable sentence.” Id. at 3. The defendant further acknowledged that “the sentencing judge is neither a party to nor bound by this Plea Declaration and may impose a sentence up to the maximum penalties” [of 10 years]. Id. at 7. The defendant's declaration more specifically addressed the calculation of the applicable sentencing range under the Sentencing Guidelines:

Based on the facts now known, the anticipated offense level is 25, which, when combined with the anticipated criminal history category of V, results in an anticipated Sentencing Guidelines range of 100 to 125 months imprisonment. Defendant and his attorney acknowledge that the above Guidelines calculations are preliminary in nature, and are non-binding predictions upon which neither is entitled to rely. Defendant understands that further review of the facts or applicable legal principles may result in the conclusions that different or additional Guidelines provisions apply in this case. Defendant understands that the Court ultimately determines the facts and law relevant to sentencing, and that the Court's determinations govern the final Guideline calculation.

Id. at 6.

         The defendant further acknowledged that: (1) “no threats, promises, or representations have been made, nor agreements reached, other than those set forth in this Plea Declaration, to cause defendant to plead guilty;” (2) “he has read this Plea Declaration and carefully reviewed each provision with his attorney;” and (3) “that he understands and voluntarily accepts each and every term and condition of this Plea Declaration.” Id. at 11.

         At the outset of the defendant's change of plea hearing, the defendant acknowledged that his responses to the court would be under oath and that he was required to tell the truth. Plea Tr., ECF No. 115 at 4-5. The defendant affirmed that he had adequate opportunity to discuss the superseding charge with counsel and that he had no further questions that he needed to discuss with his attorney about the superseding information. Id. In response to the Court's questions, the defendant indicated that he does not communicate in English, has little schooling, and limited ability to read and write Spanish, but also confirmed that he had nonetheless gone over documents with his attorney and a translator and that the defendant was satisfied that he was given full information about those documents. Id. at 6-8.

         While under oath at the October 23, 2014 change of plea hearing, the defendant advised the Court as follows concerning his competency to enter a plea:

Court: Are you presently taking any medications?
Defendant: Yes.
Court: What medications?
Defendant: Three types of medications; psychiatric drugs and also for high blood pressure.
Court: All right. Do any of those drugs affect your ability to understand what's going on?
Defendant: No.
Court: In fact, do those drugs help you to better understand and think clearly?
Defendant: Yes.
Court: Now, you said some of those drugs are psychiatric drugs. Are you presently being treated for any psychiatric or mental condition?
Defendant: Yes.
Court: What is the general nature of that problem?
Defendant: The psychiatrists have not diagnosed me yet. We are in the evaluation process.
Court: Is that a process that's begun while you have been in custody?
Defendant: Yes.
* * * * *
Court: Is there any reason, Mr. Moreno, that you do not feel that you are able mentally because of these psychiatric problems to make very important decisions that are going to affect your life?
Defendant: No.
* * * * *
Court: And you feel fully capable this morning of making important decisions?
Defendant: Yes.

Id. at 9-10. The Court asked the defendant's counsel whether, “based on [his] extensive interactions with the [the defendant], ” counsel had “any reason to question his competence to waive indictment and enter a plea of guilty, ” to which counsel replied, “None, your honor. I believe he is more lucid today than he has ever been in his life.” Id. at 11. The government likewise indicated that it had no reason to question the defendant's competence to waive indictment and to enter a plea of guilty. Id. The court thus found the defendant to be “competent to waive indictment and to enter a plea to the charge contained in the information.” Id.[3]

         At the change of plea hearing, the defendant confirmed his signature on the plea declaration and confirmed, in response to the Court's questions, that he had a full and adequate opportunity to review the plea declaration and to discuss it with his attorney and had no further questions. Id. at 22-23. The defendant further represented that the information set forth in the plea declaration was truthful and accurate. Id. at 23. In making his decision, the defendant acknowledged that no one forced him in any way to plead guilty and that he signed the declaration because he thought it was the best thing to do in view of his circumstances. Id. The defendant affirmed that no one promised him anything in order to convince him to plead guilty to the charge in the information and, specifically, that no one promised the defendant anything about his eventual sentence in his case. Id. at 23-24.

         The defendant further told the court that he had spoken with his attorney about the Sentencing Guidelines, including an explanation that, based on the facts of the case and based on the defendant's criminal history category, the Guidelines would produce a recommended sentence. Id. at 24-25. The defendant acknowledged his understanding that the guideline range is only a recommendation that that is not binding on the Court. Id. at 25. The defendant further indicated to the Court his understanding of his potential sentence, as follows:

Court: All right. So do you understand that no one - [not] Mr.
Schindler, not the government, not even me at this point-can tell you what your sentence in this case is going to be yet? Do you understand that?
Defendant: Yes.
Court: Your sentence could be anywhere from a very short sentence up to the 10-year maximum that the law allows on the charge that you wish to ...

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