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Zayac v. United States

United States District Court, D. Connecticut

January 5, 2018

ANDREW ZAYAC, Petitioner,




         The petitioner, Andrew Zayac, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to section 2255 of title 28 of the United States Code on June 17, 2016. See Motion to Vacate, Set Aside or Correct Sentence (“Mot. to Vacate”) (Doc. No. 1). Zayac argues that his trial counsel was ineffective for failing to advise him of statements made by the court during a charge conference regarding the requested duress instruction and for failing to call witnesses to rebut the government's theory of motive. See Memorandum of Law in Support of Motion to Vacate (“Mem. in Supp.”) (Doc. No. 1-2) at 2. He also argues that his right to be present at a critical stage in the proceeding was violated because he was absent from the charge conference where the court discussed the potential impact of his testimony on whether a duress instruction would be given. See id. The respondent, the United States (“the Government”), opposes Zayac's Motion. See Respondent's Memorandum of Law in Opposition to Petitioner's § 2255 Motion (“Mem. in Opp.”) (Doc. No. 11)

         For the reasons set forth below, Zayac's Motion to Vacate is DENIED.


         On December 16, 2010, a federal grand jury returned the Second Superseding Indictment, charging Andrew Zayac and Heriberto Gonzalez with the following counts: kidnapping resulting in death (Count One), premeditated murder (Count Two), felony murder (Count Three), interference with commerce by robbery (Count Four), possession of marijuana with intent to distribute (Count Five), use of a firearm during and in relation to a narcotics trafficking offense (Count Six), conspiracy to use or possess a firearm in furtherance of crimes of violence and a narcotics trafficking offense (Count Seven), destruction/concealment of evidence (Counts Eight, Nine, and Ten), and conspiracy to destroy/conceal evidence (Count Eleven). See United States v. Zayac, No. 3:09-CR-00136-JCH-1 (“Zayac Criminal Docket”), Second Superseding Indictment (Doc. No. 158).

         Trial for the case began on July 14, 2011. See Zayac Criminal Docket, Minute Entry (Doc. No. 253). Zayac's counsel at trial included Bruce D. Koffsky and Martin J. Minnella. The court has previously described the trial evidence against Zayac as follows:

At trial, the government presented evidence to support the following facts. Zayac arranged a transaction with the victim, Edward Rivera, whereby Zayac would take delivery of approximately 70 pounds of marijuana. . . . On February 8, 2009, Zayac drove a blue Jeep Grand Cherokee to pick up Rivera from his apartment in the Bronx at approximately 11:42pm. Rivera transported the marijuana in two duffle bags, which were loaded into Zayac's Jeep. One witness testified that he saw silhouettes or shadows of people in both the driver and passenger side of the vehicle when Rivera got into the car. Rivera was shot twice, and died, in the backseat of Zayac's Jeep. Zayac, with Gonzalez as a passenger, then drove the Jeep to the Padanaram Reservoir in Danbury, CT. Rivera's body was removed from the backseat of the Jeep and concealed at the bottom of a steep hill behind several rocks and trees.
Zayac and Gonzalez then drove to the New Rochelle residence of Zayac's girlfriend, Stephanie DiBuono, where Zayac removed the marijuana and stored it in DiBuono's Cadillac. Zayac and Gonzalez then drove to Gonzalez's apartment in the Bronx and picked up Gonzalez's Mercedes-Benz. Gonzalez and Zayac drove to a gas station to purchase gasoline, and set Zayac's Jeep on fire, torching all evidence in the Jeep and burning both defendants. . . .

United States v. Zayac, No. 3:09-CR-00136 (JCH), 2011 WL 5238823, at *1 (D. Conn. Nov. 1, 2011).

         At trial, Zayac's defense “focused on his attempt to pin responsibility for the crimes on Gonzalez.” United States v. Zayac, 765 F.3d 112, 116 (2d Cir. 2014). Zayac did not testify at trial. See id.; Zayac Criminal Docket, Transcript Day 4 (“Day 4 Tr.”) (Doc. No. 291) at 1200-01. However, his versions of what happened was presented at trial through government witnesses, who recounted what Zayac had told investigators on four different occasions. See Zayac, 765 F.3d at 116. His account of the events changed each time. Id. The Second Circuit described Zayac's version[1] of the events as follows:

According to Zayac, sometime after Rivera got into the Jeep, Gonzalez produced a small semiautomatic handgun from his backpack, along with some zip ties. Gonzalez then ordered Rivera at gunpoint to put the zip ties on himself. Moments later, as Zayac drove the vehicle northward, Gonzalez shot Rivera in the chest. Gonzalez then told Zayac to be happy it was not him who was shot. Once near the Padanaram Reservoir in Danbury, Zayac turned down a secluded road and stopped on the shoulder. Gonzalez insisted that Zayac help him pull Rivera's body from the car. Zayac told investigators that he then returned to the driver's seat of the Jeep while Gonzalez disappeared down the roadside hill with the body for several minutes. When Gonzalez reappeared, the two men drove back to New York, where they proceeded to stow the marijuana at the home of Zayac's girlfriend before burning the Jeep.


         Relying on this version of the events, Mr. Koffsky requested, on Zayac's behalf, a duress charge as to Count One for kidnapping, Count Four for robbery, and Counts Eight through Eleven relating to destruction or concealment of evidence. See Zayac Criminal Docket, Transcript Day 5 (“Day 5 Tr.”) (Doc. No. 292) at 1207. To invoke a duress defense, Zayac had to present evidence of “(1) a threat of force directed at the time of the defendant's conduct; (2) a threat sufficient to induce a well-founded fear of impending death or serious bodily injury; and (3) a lack of a reasonable opportunity to escape harm other than by engaging in the illegal activity.” Zayac, 2011 WL 5238823, at *4 (quoting United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005)). The court declined to instruct the jury on duress in Zayac's case because it found that, even accepting Zayac's versions of the events told through the government's witnesses, Zayac had a reasonable opportunity to escape. See Day 5 Tr. at 1214, 1241-43. Specifically, the court found that Zayac could have escaped when he was in the car alone at the top of the embankment while Gonzalez was disposing of the body. See id. at 1214-16.

         On November 22, 2011, the jury convicted Zayac of Counts One (kidnapping), Three (felony murder), Four (robbery), Five (possession with intent to distribute marijuana), Seven (conspiracy to use or possess a firearm in furtherance of violent crimes or a narcotics trafficking offense), Eight to Ten (destruction/concealment of evidence), and Eleven (conspiracy to destroy/conceal evidence). See Zayac Criminal Docket, Jury Verdict (Doc. No. 269). Zayac was found not guilty of Count Two for premeditated murder.[2] See id. Zayac then filed a Motion for Acquittal and a Motion for a New trial on August 2, 2011. See Zayac Criminal Docket, Motion for a New Trial and Motion for Judgment of Acquittal (Doc. No. 274). He argued, inter alia, that the court erred in not sending the duress charge to the jury. See Zayac Criminal Docket, Memorandum in Support of Motion for Acquittal and for New Trial (Doc. No. 285) at 10-13. The court denied the Motion. See Zayac, 2011 WL 5238823.

         On November 21, 2011, the court sentenced Zayac to life imprisonment on Counts One and Three; 20 years each on Counts Four, Seven, Eight, Nine, and Ten; and five years on Counts Five and Eleven, all to run concurrently. See Zayac Criminal Docket, Judgment (Doc. No. 324).

         On November 23, 2011, Zayac appealed the judgment to the Second Circuit. See Zayac Criminal Docket, Notice of Appeal (Doc. No. 326). He again argued, inter alia, that the court erred in denying his request for a duress instruction. See Zayac, 765 F.3d at 119-20. The Second Circuit affirmed the court's judgment, holding that “no rational juror could have found that Zayac lacked a reasonable opportunity to escape, ” and that this opportunity occurred before the kidnapping and robbery were complete. Id. at 121-23.

         After the Supreme Court decided Yates v. United States, 135 S.Ct. 1074 (2015), the parties filed a Joint Motion to Dismiss Counts Eight Through Eleven, which the court granted. See Zayac Criminal Docket, Joint Motion to Dismiss Counts Eight Through Eleven (Doc. No. 349); Zayac Criminal Docket, Order Granting Motion to Dismiss (Doc. No. 350).

         Zayac filed the current Motion to Vacate on June 17, 2016, requesting the court to vacate his conviction and grant him a new trial. See Mot. to Vacate. He raises two claims of ineffective assistance of counsel and one claim of violation of his right to be present at a critical stage of the proceedings. See Mem. in Supp.


         “Because collateral challenges are in tension with the society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack.” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (internal quotation marks omitted). Section 2255 of title 28 of the United States Code permits a federal prisoner to move to vacate, set aside, or correct his sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a) (2016). Therefore, relief is available “under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).

         The petitioner bears the burden of proving he is entitled to relief by a preponderance of the evidence. See Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011). In deciding a section 2255 motion, the court must hold a hearing, “unless the motion and the files and records of the case conclusively show that the plaintiff is entitled to no relief.” 28 U.S.C. § 2255(b). However, a petitioner is not automatically entitled to a hearing, and no hearing is required where a petitioner's “allegations are ‘vague, conclusory, or palpably incredible.'” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). To determine whether a prisoner is entitled to an evidentiary hearing on the motion, the court looks “primarily to the affidavit or other evidence proffered in support of the application in order to determine whether, if the evidence should be offered at a hearing, it would be admissible proof entitling the petitioner to relief.” LoCascio v. United States, 395 F.3d 51, 57 (2d Cir.2005) (quoting Dalli v. United States, 491 F.2d 758, 760 (2d Cir.1974)). “The petitioner must set forth specific facts which he is in a position to establish by competent evidence.” Id. (quoting Dalli, 491 F.2d at 761).


         In his Motion, Zayac presents three grounds for vacating his sentence. First, Zayac argues that his Fifth Amendment due process and confrontation rights, as well as his Sixth Amendment right to a fair trial, were violated because he was not present at a charge conference in which the court expressed that it could not make a decision with respect to the duress charge until after hearing his testimony. See Mem. in Supp. at 2. Second, he argues that trial counsel rendered ineffective assistance in violation of the Sixth Amendment right to counsel by failing to inform him of those statements made by the court during the charge conference. See id. Zayac argues that the statement indicated that the court's decision whether or not to instruct the jury on duress depended on his testimony, and that, had he been aware of the court's view, he would have testified at trial. See id. Finally, he argues that trial counsel was also ineffective for failing to call three available witnesses to rebut the government's theory of his motive. See id.

         A. Right To Be Present at a Critical Stage

         Zayac argues that his constitutional right to be present at a critical stage of the trial was violated because he was absent during a charge conference in which the court made “rulings bearing on Mr. Zayac's Fifth Amendment right to testify.” Mem. in Supp. at 13. Specifically, Zayac argues that he had a right to be present “to hear the Court's view that a duress instruction could more likely be granted if he testified.” Id. At the charge conference, which occurred before the government rested, Mr. Koffsky indicated that the defense would be requesting a jury instruction on duress. See Zayac Criminal Docket, Transcript Day 3 (“Day 3 Tr.”) at 779. The court responded that it would have to hear Zayac's testimony before determining whether or not sufficient evidence had been raised to permit a duress charge to go to the jury.[3] See Day 3 Tr. at 791-807. Zayac's Motion characterizes the court's statements as a “preliminary ruling.” See Mem. in Supp. at 5, 7.

         In response, the Government makes three arguments. First, the Government contends that Zayac did not have a due process right to be present at the charge conference. See Mem. in Opp. at 15-17. Second, the Government argues that Zayac cannot show actual prejudice. See id. at 18. Finally, the Government argues that Zayac waived this claim because he failed to raise it on direct appeal. See id. at 17-18. The court agrees with the Government's first argument that Zayac's due process rights were not violated by his absence at the charge conference, and therefore, it is not necessary for the court to address the Government's remaining two arguments.

         The Due Process Clause protects a criminal defendant's right to be present “at any stage that is critical to the outcome of the trial and if his presence would contribute to the fairness of trial.” Monroe v. Kuhlman, 433 F.3d 236, 246 (2d Cir. 2006); see also Jones v. Murphy, No. 3:10-CV-49, 2010 WL 3829129, at *9 (D. Conn. Sept. 21, 2010), aff'd, 694 F.3d 225 (2d Cir. 2012). The Supreme Court has defined a critical stage as one in which the defendant's “presence has a relation, reasonably substantial, to the fulness [sic] of his opportunity to defend against the charge.” United States v. Gagnon, 470 U.S. 522, 526 (1985). Thus, due process requires the defendant's presence “to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. The defendant's presence is not required “when presence would be useless, or the benefit but a shadow.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-107 (1934)).

         The Second Circuit has held that proceedings involving only questions of law are not critical stages triggering the defendant's due process rights. See United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994); United States v. Rivera, 22 F.3d 430, 438-49 (2d Cir. 1994); Fed. R. Crim. P. 43(b)(3) (stating that the “defendant need not be present” if “[t]he proceeding involves only a conference or hearing on a question of law”). Following this rule, the Second Circuit has made clear that the Due Process Clause does not require the defendant's presence “at a charge conference dealing only with the legal questions involved in formulating a proper set of jury instructions.” Rubin, 37 F.3d at 54; see also United States v. Greenidge, 199 F.3d 1324 (Table), at *1 (2d Cir. 1999); Salley v. Graham, No. 07CIV455 (GEL), 2008 WL 818691, at *4 (S.D.N.Y. Mar. 27, 2008); Coke v. Superintendent, Green Haven Corr. Facility, No. 06-CV-811 (MAT), 2010 WL 475274, at *5 (W.D.N.Y. Feb. 5, 2010). This is because “[t]he content of the instructions to be given to the jury is purely a legal matter, and a conference to discuss those instructions is thus a conference on a question of law at which a defendant need not be present.” Rivera, 22 F.3d at 438-49.

         As Zayac's argument turns on his absence from a charge conference, the court finds that he had no right under the Due Process Clause to be present at the conference and, therefore, that his due process rights were not violated.

         Zayac makes two attempts to argue that a due process right can require a defendant's presence at a charge conference. First, he relies on Fourth Circuit precedent in United States v. Rhodes, 32 F.3d 867 (4th Cir. 1994). See Mem. in Supp. at 12-13. He argues that Rhodes interpreted Supreme Court precedent in Rogers v. United States, 422 U.S. 35, 39-40 (1975), to indicate that the defendant's absence from discussion on jury instructions can implicate his due process rights. See Mem. in Supp. at 12-13 (quoting Rhodes, 32 F.3d at 873 (“Gregorio[‘s holding] that the defendant has ...

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