United States District Court, D. Connecticut
RULING ON MOTION TO VACATE, SET ASIDE OR CORRECT
W. Thompson United States District Judge.
Dennis Spaulding (“Spaulding”), proceeding
pro se, filed a motion pursuant to 28 U.S.C. §
2255 to vacate, set aside or correct his sentence. He claims
that his trial attorney provided him with ineffective
assistance of counsel with respect to each of the charges
against him by conducting an inadequate pretrial
investigation, by not making use of certain testimony or
other evidence that Spaulding believes should have been used
at trial, and/or by not objecting to certain statements made
by the prosecution at trial. For the reasons set forth below,
his motion is being denied without a hearing.
FACTUAL AND PROCEDURAL BACKGROUND
September 25, 2012, a grand jury returned a 12-count
superseding indictment against East Haven Police Department
(“EHPD”) officers Spaulding, David Cari and Jason
Zullo. Zullo pleaded guilty to one count of obstruction of
justice by preparation of a false police report. Spaulding
and Cari went to trial on the charges against them. On
October 21, 2013, the jury found each of them guilty on all
counts against them. Spaulding was convicted of one count of
conspiracy to violate constitutional rights, in violation of
18 U.S.C. § 241 (Count One); one count of deprivation of
civil rights by the use of excessive force, in violation of
18 U.S.C. § 242 (Count Five); two counts of deprivation
of civil rights by false arrest, in violation of 18 U.S.C.
§ 242 (Counts Six and Nine); and two counts of
obstruction of justice by preparation of false police
reports, in violation of 18 U.S.C. § 1519 (Counts Seven
and Cari each moved for a new trial and for a judgment of
acquittal. The court denied these motions and, on January 23,
2014, the court sentenced Spaulding to a sentence of, inter
alia, 60 months in prison.
appealed, as did Cari. On appeal, they contended, among other
appellate issues, that there was insufficient evidence to
support their convictions, error in evidentiary rulings,
improper statements by the government in closing argument,
and procedural error at sentencing. On November 23, 2015, the
Second Circuit denied Spaulding's and Cari's claims
and affirmed their convictions and sentences. See United
States v. Spaulding, 631 F. App'x 5, 8 (2d Cir.
2015), cert. denied sub nom. Cari v. United States,
136 S.Ct. 1680 (2016).
government's evidence at trial established that,
beginning as early as 2008, Spaulding and Zullo began a
concerted campaign of harassing and intimidating Latino
business owners and their customers in East Haven.
Communications between Spaulding and Zullo demonstrated that
they were motivated by anti-immigrant bias. Fellow officer
David Cari joined the conspiracy when he falsely arrested
Father James Manship, an advocate for the victims of
Spaulding's and Zullo's abuse, and then prepared a
false police report to justify the arrest.
August 2008, based on concerns raised by another EHPD
officer, then-Lieutenant Henry Butler met with and advised
Spaulding about the racial profiling laws in Connecticut,
making clear to Spaulding that it was illegal to target
individuals based on race or ethnicity. Despite this warning
from his superior officer, Spaulding continued his pattern of
discrimination against Latino residents in East Haven.
respect to Spaulding and Cari, the superseding indictment,
and the evidence at trial, focused primarily on three
incidents. The first two incidents involved Latino victims
who were arrested by Spaulding without probable cause.
Spaulding assaulted one of the victims, which served as the
basis for Spaulding's conviction for use of excessive
force. The third incident involved Father Manship, who Cari
arrested without probable cause; this served as the basis for
Cari's conviction on Count Eleven (false arrest) and
Count Twelve (obstruction of justice). All three incidents
were part of the larger conspiracy to violate the
constitutional rights of East Haven's Latino residents
and Father Manship, as charged in Count One.
Counts Five, Six and Seven: Arrests of Moises Marin Without
Probable Cause, Use of Excessive Force Against Marin, and
Preparation of a False Arrest Report
Marin is a native of Ecuador and a United States citizen who
owned and operated La Bamba, an Ecuadorian restaurant located
in East Haven. Marin testified to the jury about a history of
harassment and intimidation by Spaulding of his customers,
many of whom were Latino. In addition, an individual in the
EHPD also harassed Marin by reporting him to the State's
liquor commission for alleged violations of his liquor
document the harassment, Marin followed the advice of the
State's liquor commission representative and sought to
document Spaulding's harassment by photographing his
improper conduct. On the evening of November 21, 2008, Marin
was informed that Spaulding was harassing some of his
customers who had out-of-state license plates. Marin walked
outside, approached Spaulding, and asked him to stop
harassing his customers. In response, Spaulding laughed.
Marin retrieved his camera from the restaurant and then took
two photographs of Spaulding and his squad car. When
Spaulding realized that Marin had photographed him and his
squad car, Spaulding ran to Marin, told him he was under
arrest, and pushed him to the ground. Marin testified at
trial that Spaulding repeatedly kicked him and cursed at him
during the arrest.
Spaulding put Marin in the squad car, he took Marin to the
police station. During the drive, Spaulding told him that
Spaulding did not want Latino-owned businesses operating in
East Haven. At the police station, Spaulding took Marin's
camera, deleted the two photos that Marin had taken, and then
threw the camera, rendering it inoperable. Marin was then
fingerprinted and photographed for booking; the booking photo
shows some of his injuries. Spaulding told Marin to wash his
face, and then placed him in a jail cell.
Marin's sister, Wesfalia Rocha, went to the East Haven
police station to ask about her brother. At the station,
Rocha saw three male officers and one female officer. When
Rocha approached the window to inquire about her brother, she
was told to wait. While she was waiting, she heard a male
voice say: “‘Fucking Spanish people.'”
No. 3:12-cr-00017-AWT, Tr. vol. II, 317 (Doc. No. 548 at
79:14). According to Rocha, the officers then laughed.
Spaulding was among these officers at the station, but Rocha
could not identify Spaulding as the speaker of the derogatory
an hour after Rocha arrived at the EHPD station, Marin was
released. He testified that he was in significant pain and
was fearful that, because his back was hurt, he would be
disabled. When Rocha saw her brother, she walked outside with
him and asked another brother, who had accompanied her to the
station, to call for an ambulance. Before the ambulance
arrived, Rocha photographed Marin's injuries. The
photographs of Marin's injuries, as well as his
blood-stained clothes from that evening, were submitted as
evidence at trial. An ambulance arrived in front of the
police station and transported Marin to the hospital.
hospital records indicate that Marin was pushed to the
ground, and state that Marin was assaulted, suffered a lip
laceration and suffered contusions. Although Marin testified
that Spaulding had kicked him repeatedly, the emergency room
records do not indicate that Marin was kicked.
prepared a police report regarding Marin's arrest on
November 21, 2008. That report contains several statements
that were contradicted by other evidence. For example, the
report states that on the night of his arrest, Marin was
accompanied by three other men and had “flagged
down” Spaulding, and that when Spaulding rolled down
his window, Marin became irate and started yelling very
loudly and throwing his hands in the air. According to
Spaulding's report, Marin was yelling, “‘You
fucking police tow everybodies [sic] car.' ‘You
know everyone that comes here has no license.' ‘You
know everybody is illegal, they are only in this count[r]y to
work.'” Gov't's 2255 Resp., Ex. A
(“Doc. No. 11-2”) at 72. When he testified,
however, Marin denied that he was accompanied by anyone,
denied flagging down Spaulding, and denied yelling or making
any of the statements attributed to him. In fact, Marin
testified that the expletive attributed to him in
Spaulding's report was the same expletive that Spaulding
used several times when speaking to him.
report also states that because Marin was yelling at
Spaulding, a crowd had started to form around Spaulding's
police car, and that, in response, Spaulding got out of his
car and ordered the crowd to disperse. But Marin testifed
that no crowd ever formed, and that the only time Spaulding
got out of his car was to follow Marin after Marin
photographed him. Also, the report states that Marin resisted
arrest, but Marin denied resisting arrest. Finally, the
report states that Marin's actions resulted in a crowd
forming around Spaulding and that an unknown male pulled on
Marin's arm in an attempt to free Marin from
Spaulding's grasp. Marin also contradicted that
the arrest, Marin appeared in state court and was granted
“accelerated rehabilitation, ” the equivalent of
a six-month probationary period after which the charges were
dismissed. After Marin's arrest, Spaulding began to
follow him and twice stopped him without any proper reason.
Marin became frightened and concerned that if he got a ticket
or was arrested again, he could lose his liquor license and
his business. Consequently, he went to Ecuador for four
months to avoid any further contact with Spaulding.
Five, Six and Seven charged Spaulding for his conduct in
connection with the arrest of Marin. Count Five charged that
he used excessive force against Marin, in violation of 18
U.S.C. § 242. Count Six charged Spaulding with false
arrest, in violation of 18 U.S.C. § 242, and Count Seven
charged Spaulding with obstruction of justice by preparation
of a false police report about Marin's arrest, in
violation of 18 U.S.C. § 1519.
Counts Nine and Ten: Arrests Jose Luis Alvarracin and John
Espinosa Without Probable Cause and Preparation of a
False Police Report
January 21, 2009, four friends, Jose Luis Alvarracin, John
Espinosa, Xavier Criollo and Wellington Salinas, gathered at
the house where Espinosa and Alvarracin lived. All four men
were born in Ecuador; Espinosa was a United States citizen.
After a brief discussion, they decided to go to La Bamba for
dinner. Salinas drove but did not have a driver's
license; Alvarracin and Espinosa rode in the back seat. While
they were driving to La Bamba, Spaulding began to follow
them. When they pulled into the La Bamba parking lot,
Spaulding turned on the lights of his police car. After
Salinas stopped the car in the parking lot, Spaulding
approached the driver's side of the car.
Spaulding asked Salinas for his license and registration,
Salinas explained that he did not have a license, but handed
Spaulding the car registration and his New Haven
identification card. Criollo, who was sitting in the front
passenger seat, handed Spaulding his driver's license.
Espinosa testified that Spaulding looked at the license, said
it was “not good.” No. 3:12-cr-00017-AWT, Tr.
vol. V, 817-18 (Doc. No. 569 at 84:16, 85:2). According to
Alvarracin, Spaulding added, “All you fucking Spanish
drivers drive without a license.” Gov't's 2255
Resp., App. (“Doc. No. 11-1”) at 186:22-23 (Tr.
vol. VI, 1095). When Alvarracin asked Spaulding why he was
treating them that way, Spaulding responded, “Do you
want to be arrested?” Doc. No. 11-1 at 188:7 (Tr. vol.
VI, 1097). When Alvarracin said that they had done nothing
wrong, Spaulding placed him under arrest.
time, Officer Zullo had arrived on the scene and searched
Criollo. Criollo, who was now outside the car, repeatedly
asked the officers to return his license. In response,
Spaulding told Criollo that he was going to be arrested and
then arrested him. Around the same time, Espinosa asked
Spaulding if he could exit the car. After Spaulding responded
in the affirmative, Espinosa got out. Then, when Espinosa
asked the officers why they were arresting Criollo, Spaulding
arrested Espinosa too. At some point after that, Salinas was
arrested and placed in the patrol car with Espinosa.
four arrestees-Espinosa, Criollo, Salinas, and
Alvarracin-were transported to the East Haven police station.
At the police station, Officer Zullo pushed Alvarracin into a
wall, pulled him off, and then pushed his head into the wall.
Alvarracin fell to ground, bleeding from his forehead and
asking for help. Another police officer came to assist
Alvarracin and placed him in a cell. Alvarracin asked for
medical help, but instead of providing help, Zullo tried to
grab Alvarracin through the cell bars ...