The opinion of the court was delivered by: Debevoise, Senior District Judge
On October 17, 2006, the court sentenced Defendant, Adriana Cuartas, to a term of 120 months imprisonment, 5 years supervised release, and a special assessment in the amount of $100. The Court of Appeals affirmed Defendant's conviction and sentence on July 1, 2008. In July, 2008, Defendant filed two motions (which will be treated as a single motion) pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside or correct her sentence on the ground that she was deprived of effective assistance of counsel.
On August 10, 2005, a grand jury returned a one-count superseding indictment charging Defendant with conspiracy to distribute and to possess with intent to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 846. Defendant moved to suppress her post-arrest statements as well as consensually monitored and recorded telephone conversations between Defendant and a confidential informant working with law enforcement.
Defendant's moving papers accurately recite that the case involved a controlled substance delivery operation, which began in August, 2004, when a confidential informant located in Bogota, Colombia, advised United States narcotics agents that two kilograms of heroin were to be delivered to the Newark, New Jersey area. The shipment was intercepted and seized by United States law enforcement personnel, who then arranged for a controlled delivery of "sham" heroin to the intended recipients in Newark. Defendant and a co-defendant, Elizabeth Olaya, arrived to meet with the informant and were arrested.
Defendant contends that when agents interviewed her immediately after her arrest she repeatedly denied knowing anything about the drugs until the agents confronted her with pictures of her children. She testified at a subsequent suppression hearing before Judge Hayden:
The agent stood over me, pointing and placing his finger on the photographs. While he did that, he yelled at me, saying, in substance and in part, "look at your kids. You need to help us. You need to cooperate now. You need to cooperate now if you ever want to see your kids again. If you don't help, then you won't ever see your kids again."
The primary agent told me that Elizabeth Olaya, my friend of 20 years, had told them she was in Newark to buy drugs. He told me that I needed to acknowledge the events that had occurred so I could be with my kids. Finally, I told the agents what they wanted to hear so that I could see my kids again. After that, the agents took me back to the cell. Several hours later, the agents brought me back to the small room I had been in earlier. Elizabeth was there also. . .
Judge Hayden denied the suppression motion, stating:
I need not make findings about the vulnerability of this particular person. But I do point out that the agents' remark, 'think of your children,' would of course be profoundly affecting to any parent. I don't find standing alone it is improper. And I do find that Ms. Cuartas is a grown up, a woman raising a child, holding down a job with education and that such a person would not be overwhelmed by this remark in its poignancy.
Defendant proceeded to trial at which she testified on her own behalf and denied her guilt. During jury selection a potential juror identified herself as a Colombian and stated that she worked as a retail store manager. The government challenged the juror and when the Court questioned the Assistant United States Attorney why he believed she should be challenged he responded:
She indicated she was a store manager of a retail store. Her husband was a manager of the retail store. One of the government's primary witnesses has been convicted of shoplifting. The government believes that the witness may have been bias [sic] to that witness on that basis.
After discussion at sidebar defense counsel suggested that the shoplifting would not come out during the questioning of the witness. The government stated that in that event it would have no objection to the juror being seated. However, by that time the juror had left the courtroom.
The jury convicted Defendant. At the sentencing hearing the court found that while Defendant was the principal actor in the exchange she could not be characterized as an organizer, leader, manager or supervisor subject to a two-level increase. Nevertheless, the court also held that Defendant was subject to ...