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Aquino v. United States


May 18, 2010


The opinion of the court was delivered by: Chief Judge Kane


On July 28, 2009, Defendant Nicholas Aquino filed a motion to vacate, correct, or set aside sentence brought pursuant to 28 U.S.C. § 2255 (Doc. No. 57) and brief in support (Doc. No. 58). In response to the Court's Miller-Mason notice of election, Aquino elected to have the motion ruled on as filed. (Doc. No. 62.) The Government was served with the motion and filed a brief in opposition to the motion. (Doc. Nos. 63, 65.) Aquino filed a reply, and the motion is now ripe before the Court for disposition.*fn1 (Doc. Nos. 68, 69.) For the reasons that follow, the motion will be denied.


From mid to late 2005, a spate of robberies occurred in Cumberland and Dauphin counties, Pennsylvania. First, on July 1, 2005, a restaurant by the name of Chronies Hangout was robbed by two masked individuals who bound the hands and feet of the employees with duct tape and displayed a .380 pistol before getting away with $5,390 cash. On July 16, 2005, a second restaurant, Croc-n-Berry's, was robbed in the same way as Chronies Hangout; $11,844.62 was stolen. On July 23, 2005, the Weis Market in Carlisle was robbed by two individuals again using duct tape to bind the employees and displaying weapons. This time, the robbers escaped with $25,941. On August 21, 2005, the Sierra Madre restaurant was robbed after closing by two masked individuals who forced the employees back into the establishment after they had just exited for the evening. The robbers evaded police despite a high speed car chase, but no money was successfully taken. On September 6, 2005, approximately $18,000 was stolen from the Weis Market in Camp Hill. During this burglary, however, only one person entered the building to conduct the robbery and bind the victims with duct tape. The perpetrator maintained cell phone contact with a second party outside the building during the robbery.

On August 23, 2006, Thomas Aquino was indicted in the Middle District of Pennsylvania for commission of these five robberies, two counts of firearm use in furtherance of the robberies, and one count of conspiracy to commit the robberies. (Doc. No. 1.) Aquino allegedly committed the robberies with Paul Butler, the two together recovering nearly $60,000. (Id. at 9-10.) By the time of Aquino's indictment, Butler had already been apprehended by the police, had named Aquino as a co-conspirator, and was cooperating with government efforts to prosecute Aquino.

At the arraignment, Attorney Dennis Boyle was appointed to represent Aquino. (Doc. No. 8.) Aquino initially entered a plea of not guilty. (Id.) On January 17, 2007, however, Aquino entered into an agreement to plead guilty to Counts Seven and Eight of the indictment: possession of a firearm in furtherance of a crime of violence and "criminal conspiracy to interfere with commerce by threats of violence." (Doc. Nos. 22, 30.) The agreement also stated that the Government would move for sentencing adjustments for acceptance of responsibility and substantial assistance if Aquino cooperated in providing more information to the Government. (Id.) During the change of plea proceeding, the Government amended the plea agreement to state that Count Seven involved "brandishing a firearm" rather than simply "possessing" one. (Doc. No. 46 at 2.)

On May 25, 2007, Aquino was sentenced to 220 months imprisonment. (Doc. No. 42.) At the sentencing hearing, Attorney Boyle made several objections to the presentence report. (Doc. No. 47.) He objected to the finding that bodily injury occurred in one of the robberies, to the enhancements for bodily injury that was caused by co-conspirator Butler, to the enhancement for abducting the victims, to the enhancement for brandishing a firearm on the basis that the firearm was only used by his co-conspirator, and to a prior arrest and conviction used to calculate his sentencing history. (Doc. No. 47 at 3-4, 6-7, 15.) The Court found in favor of the Government on all objections.

Boyle filed an appeal on Aquino's behalf, challenging the Court's findings at sentencing that an abduction occurred and that more than di minimis bodily injury occurred. (Doc. No. 40.) Aquino informed Attorney Boyle that he was dissatisfied with the grounds appealed, and when Boyle did not amend his appellate brief, Aquino wrote to the Third Circuit Court of Appeals to supplement the pleadings. (Doc. No. 58 at 46-49.) The appeal and Aquino's motion to supplement the appeal were denied. (Doc. No. 54.)

In this motion, Aquino raises two grounds of ineffective assistance of counsel by Attorney Boyle. Aquino first alleges that Boyle did not conduct adequate investigation and discovery into the facts of the case. Aquino suggests that, had Boyle conducted more investigation, he would have discovered evidence favorable to the defense, resulting in Aquino going to trial rather than taking the plea agreement. Second, Aquino argues that Boyle's representation was deficient at the sentencing and appellate stage because he "failed to use the court record and/or the police reports to the crime" to show that the abduction finding was improper. The Government contends that Aquino has failed to show prejudice under either argument.


A defendant alleging an ineffective assistance of counsel claim must show that his counsel's performance was deficient, which is to say that it "fell below an objective standard of reasonableness," and that he was prejudiced by his counsel's deficient performance. Outten v. Kearney, 464 F.3d 401, 414 (3d Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). There is a "strong presumption" that counsel acted reasonably, and "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 689-90.

A. Ineffective Assistance in Pre-Guilty Plea Proceedings

A guilty plea will stand unless it does not represent a "voluntary and intelligent choice." Hill v. Lockhart, 474 U.S. 52, 56 (1985). "Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorneys in similar cases.'" Hill, 474 U.S. at 56. In such circumstances, the prejudice question "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Id., at 58; Weeks v. Snyder, 219 F.3d 245, 257 (3d Cir. 2000). To satisfy the prejudice prong, the defendant must demonstrate that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." A reasonable probability of prejudice is a "probability sufficient to undermine confidence in the outcome." Id. The law provides that an attorney does have a duty to conduct adequate discovery and a reasonable investigation into the facts of a case, but an attorney is allowed deference in his choice of reasonable trial strategy. See Williams v. Taylor, 529 U.S. 362, 397 (2000) ("[T]rial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant's background."); Hess v. Mazurkiewicz, 135 F.3d 905, 908 (3d Cir. 1998) ("Because Ling's trial strategy allegedly resulted from incomplete investigation, however, his decisions are entitled to a lesser degree of deference."); United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997) ("[A]n attorney must investigate a case, when he has cause to do so, in order to provide minimally competent professional representation.").

Aquino asserts that Boyle did not file for discovery or have a private investigator investigate the robberies. (Doc. No. 58 at 9.) He argues that, had Boyle conducted an adequate investigation, he would have recommended that Aquino go to trial due to the weakness of the Government's evidence against him. Aquino suggests that the Government's case against him was quite weak in light of the clear self-interest of Butler, the only witness able to identify Aquino as a participant in the robberies. To support this theory, Aquino submits the following evidence which he alleges would have been seen by a jury as exculpatory: Third-parties Dennis Jenkins, Jr., and his brother were overheard as having bragged about committing two of the robberies after they occurred (id. at 9, 29); witness Ha Truong told police she suspected that the boyfriend of one of Chronies Hangout's employees may have conducted the Chronies Hangout robbery (id. at 9, 30); witness Katie Anderson and co-conspirator Luis Colon implicated Butler for two of the robberies but did not identify Aquino (id. at 10, 34); Deborah Sgrignoli, victim of the Weis Market robbery, identified Butler as a store employee with knowledge of the way money was kept in the store, but identified neither Butler nor Aquino as the robber (id. at 10, 36); and neither Audrea Battle nor Diane Nolan, both of whom knew Aquino personally, identified him as the perpetrator after watching videotape of the robbery during grand jury proceedings (id. at 10). Aquino further suggests that the evasive and suspicious behavior of Judd Goodman, owner of the Croc-n-Berry, during the police investigation should have been a factor in Boyle's decision to advise Aquino to plead guilty.

Because the Court did not hold an evidentiary hearing, it assumes all the above facts are true, that those facts were not investigated by Boyle, and that Aquino was not informed of that "exculpatory" evidence prior to his decision to plead guilty. United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (requiring a district court to hold an evidentiary hearing to determine any facts not conclusively determined on the record, or to accept all alleged, non-frivolous facts as true). Yet, even considering the above facts, the Court does not find that there is a reasonable probability Aquino, having been fully informed of the above and its potential trial ramifications, would have made a decision other than to plead guilty, nor does he raise a question as to the competence of Attorney Boyle for advising him to plead guilty.

First, the facts taken as true do not, as Aquino characterizes them, suggest that "two other men confessed to committing two of these robberies." (Id. at 12.) No admissible confession occurred. Rather, the police report indicates that Vince Catalano, victim of the Chronies Hangout robbery, had a tip from an unidentified source that two men were bragging about having committed the robberies in a bar. The report also emphasizes the uncertainty and unreliability of that tip. The police report describes Catalano as "evasive." (Id. at 29.) It states that he could not remember the names of the people who allegedly overheard Jenkins' admission, and he "could not g[i]ve the officer a straight answer." (Id.) Catalano's tip would have been inadmissible hearsay, and thus could not have been used in court to cast doubt upon Butler's assertions or the Government's case. Further, the report does not identify the source who actually heard the admission, so Boyle would have had no means to pursue the lead or to find a witness who could testify to its truth. Moreover, the police report implies that the investigating officer did not find Catalano's tip to be credible, further suggesting that Boyle's failure to investigate this tip did not prejudice Aquino. Because the tip was unsupported and inadmissible in court, Boyle's knowledge of this information would not have had an impact on his advice that Aquino should take the plea bargain. Although Boyle could have attempted to raise this issue in Aquino's defense had Aquino gone to trial, the tip itself would not have been available to aid the defense, and it is extremely unlikely Jenkins himself would have testified as having committed the crime. Aquino has not met his burden of putting forward evidence which, if investigated by Boyle, would cast doubt on the reasonableness of Boyle's advice to Aquino that he should plead guilty.

Indeed, the remainder of the evidence brought forward by Aquino indicates simply that other witnesses could not identify Aquino at the scenes of the crimes. The witnesses' out-of-court failures to identify Aquino, whose face was allegedly covered during the commission of the robberies, does not tend to disprove, discount, or discredit the proposed testimony of Butler, who affirmatively would identify Aquino as having committed the robberies. It simply shows they are unable to corroborate Butler.

It is true, as Aquino asserts, that Butler's testimony would have been subject to impeachment on the basis of his motive and his credibility. Yet, Aquino was aware of this weakness at the time of his decision to plead guilty because he knew Butler was the primary witness against him. He chose to accept the Government's plea agreement notwithstanding this knowledge, likely because he knew the strength of Butler's proposed testimony against him. Though Butler's position as co-conspirator makes him a less-than-ideal witness in terms of credibility, it might conversely make him an excellent witness in terms of his ability to provide detailed and convincing testimony about Aquino's role in the robberies. Butler's testimony would certainly be sufficient for a jury to find Aquino guilty of all five robberies because Butler confessed to his role in each of the robberies, also putting Aquino at the scene of all five robberies.

Aquino states that his primary defense would have been an alibi provided by his girlfriend--that he was home alone with her the nights of the robberies. Even when considered with the addition of the "exculpatory" evidence that no other witness could identify him and that a third party was overheard bragging about committing the robberies in a bar, this alibi is not particularly strong. Only one person, herself motivated to provide testimony favorable to Aquino, could refute Butler's testimony that Aquino committed the robberies. There was, then, a strong possibility the jury would have believed Butler and convicted Aquino. In light of these facts, Boyle's advice seems imminently reasonable under the circumstances. The plea bargain offered Aquino a significant benefit to the risk of standing trial: the majority of the Counts for which he was indicted were dropped in exchange for his plea of guilty to the conspiracy and gun brandishing charge. There is not a fair probability that Boyle would have changed his advice to Aquino, much less that Aquino would have chosen to go to trial, had he been aware of the anonymous tip that Jenkins admitted to committing the robbery, that a victim of one of the robberies cast suspicion upon another party, or that many victims could not identify him as the perpetrator. As a result, Aquino has not undermined the Court's confidence that he would still have chosen to plead guilty if Boyle had brought these investigatory statements--and their legal ramifications--to Aquino's attention prior to making that decision.

B. Ineffective Assistance at Sentencing Proceedings and Appeal

Next, Aquino alleges that Boyle's performance was deficient in that he did not properly challenge the pre-sentence report or appeal the sentence. More specifically, Aquino argues that the four-level abduction enhancement awarded during sentencing was not supported by the facts put into the record during the change of plea proceeding. He suggests that Boyle's failure to raise this challenge at the sentencing hearing and again on appeal amounts to ineffective assistance. He also argues that Boyle should have admitted a police report as evidence to refute the Government's witness at sentencing, although he does not state what specific evidence in the police report would have contradicted the witnesses' testimony.

Aquino's first contention is that Boyle should have argued that the facts on the record were insufficient to support the abduction enhancement. He suggests that the record was insufficient because the facts put on the record during the change of plea proceeding did not establish that he abducted any of the victims. Though it is true that the facts pertaining to the abduction were not put on the record during the guilty plea proceeding, this contention fails.

The facts presented to the Court at the plea hearing were a summary of the facts necessary to establish the crimes to which Aquino pleaded guilty. With respect to the Sierra Madre robbery on August 21, 2005, the facts provided were that: Aquino and Butler entered the restaurant after closing time while the staff was cleaning, that Butler displayed a firearm, that an employee tripped a silent alarm, and that Aquino and Butler fled the scene. (Doc. No. 46 at 18.) This statement on the record was made because the law requires that a factual basis for the plea must be established before the Court can accept a defendant's guilty plea. Fed. R. Crim. P. 11(b)(3) ("Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea."); see also United States v. Hecht, 638 F.2d 651, 653 (3d Cir. 1981) (discussing district court's obligation to ensure guilty plea is supported by factual basis prior to accepting the plea). It is not necessary to elucidate every pertinent fact or clarify every detail that would be considered at sentencing during a plea proceeding, as Aquino's argument implies. In fact, during the change of plea hearing, the Court warned Aquino that other facts would be adduced by the probation officer prior to sentencing and that those facts would impact his sentence. The Court stated: "In your case, some of the facts that might be important in establishing your guideline range would be the amount of money that was involved, the type of weapons, whether anyone was hurt or imprisoned or threatened." (Doc. No. 46 at 15.) Accordingly, Aquino was made aware that investigation would be undertaken into the specifics of the robberies to which he pleaded guilty and that his treatment of the witnesses and victims of the crimes would be considered in the determination of his sentence.

To that end, the Government produced a witness, Martin Kieffer, to testify at the sentencing hearing that he and others were physically transported from the parking lot of the Sierra Madre restaurant back into the building during the robbery. This testimony provided factual support for the abduction enhancement sought by the Government. Boyle objected to the abduction enhancement, arguing that the movement of an employee into the building from just outside the building did not meet the definition of abduction as proposed in the sentencing guidelines. (Doc. No. 47 at 6-14.) Further, Boyle created a factual dispute by putting Aquino's version of the facts on the record, though Aquino did not testify and he offered no contrary factual evidence. Boyle also cross-examined Kieffer as to his specific knowledge and recollection of the events, challenging his assertion that the other victims were more than a few feet from the door. (Id.) Aquino's version of the robbery was aligned with Boyle's cross-examination suggesting that all employees were near or at the exit door when he began the robbery, thus they were not forced to change locations. (Id. at 8-10.) The Government countered this by stating on the record that Kieffer's statement was "consistent with the statements provided by the other two victims of this robbery," but did not provide other witness testimony. (Id. at 7.) The Court believed Kieffer's account of the facts, and then made a legal ruling that moving the victims "from outside the building back into the building . . . even though it occurred on the same property" did constitute an abduction according to the sentencing guidelines. (Id. at 14.) Given this ruling, Boyle had no further basis to object that there was insufficient information on the record to support the enhancement. Factual findings in a sentencing hearing need only be proved by a preponderance of the evidence, and the Government clearly met that standard with Kieffer's testimony that he was brought from outside the building back into it. United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en banc). Boyle did pursue this objection on appeal, but the sentence was affirmed. (Doc. No. 54.)

As to Aquino's suggestion that Boyle should have moved for admission of the police report from the investigation into the Sierra Madre restaurant incident to corroborate Aquino's version of the facts, Aquino fails to indicate how anything disclosed in the police report would have influenced the Court's finding that an abduction occurred. The Court notes that the police report may have been admissible at sentencing, provided it had a "sufficient indicia of reliability," United States v. Leekins, 493 F.3d 143, 149 (3d Cir. 2007), but Aquino states only that the police report would have "no doubt provided the same account as the Government's factual basis." (Doc. No. 58 at 14.) Presumably, Aquino means that he believes that the police report is consistent with the factual basis the Government provided at the change of plea proceeding, which account does not include any detail about the movement of the victims into the building from outside the building. As discussed above, the Government's presentation of facts at the change of plea hearing does not indicate a contradiction to the facts provided by Kieffer at sentencing, but rather, indicates simply that it was a brief overview of the incident. The averments at the plea hearing leave open the question of precisely what movement occurred at the commencement of the robbery. That question was answered by Kieffer's testimony during the sentencing hearing. Accordingly, Aquino has produced no evidence that would have impacted the Court's finding that Kieffer's account of the situation was accurate. Put otherwise, because Aquino provides no evidence of how the police report would have cast doubt on the Court's finding that the victims were forced to change locations, he has not shown any prejudice from Boyle's failure to introduce this evidence, either during sentencing or on appeal.

Last, Aquino states in a footnote that Boyle "declined to argue the 2-level bodily injury enhancement for the Carlisle[] Weis Market robbery at sentencing[,] thereby[] surrendering Nicholas' right to argue against this enhancement on appeal should he be successful appealing the abduction enhancement." (Doc. No. 58 at n.7.) To the extent Aquino intends to raise this argument, it is meritless. Not only did Boyle raise the objection at sentencing, but also, it had no impact on the guideline range, therefore no prejudice was suffered. (Doc. No. 47 at 3.) Aquino apparently concedes this, implying that it only would have had an impact had the appeal on the abduction issue been successful. Because the Court's application of the abduction sentencing enhancement was affirmed on appeal, Aquino has shown no prejudice for Boyle's failure to pursue this, or any other objection.


As required by Rule 11 of the Rules Governing Section 2255 proceedings, the Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." To merit the issuance of a certificate of appealability, the defendant must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). As stated above, Aquino has not shown that he was prejudiced by any of defense counsel's alleged inadequacies. Accordingly, reasonable jurists would agree that he has not made a showing of the denial of a constitutional right. There exists no basis for a certificate of appealability with respect to this motion.


For the foregoing reasons, Aquino's motion to vacate, correct, or set aside sentence on the basis that his attorney, Dennis Boyle, was ineffective for inadequately investigating the facts prior to advising him to plead guilty and for failing to submit police reports in support of his objection to the abduction enhancement at sentencing will be denied. A certificate of appealability shall not issue in this case.

An order consistent with this memorandum follows.


AND NOW this 18th day of May 2010, upon consideration of Nicholas Aquino's motion to vacate, set aside, or correct sentence pursuant to 18 U.S.C. § 2255, IT IS HEREBY ORDERED that the motion is DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania

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