Opinion
Case No. 1:09-cr-64-20
11-17-2015
UNITED STATES OF AMERICA v. NOEL DELAROSA
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
(Docs. 1217, 1292, 1298)
This matter came before the court for a de novo review of the Magistrate Judge John M. Conroy's May 22, 2015 Report and Recommendation ("R & R") in which he recommended the court deny Defendant Noel Delarosa's motion pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence on the grounds that he received ineffective assistance of counsel. (Doc. 1217.) The government opposes the motion.
Although Defendant Delarosa was self-represented when he filed his motion, on August 22, 2014, the Magistrate Judge appointed Natasha Sen, Esq. as counsel for him pursuant to 18 U.S.C. § 3006A and she filed supplemental memoranda on his behalf.
Mr. Delarosa objects to the R & R's conclusions that: (1) his trial counsel, Donald Kinsella, Esq., had not engaged in constitutionally deficient performance in failing to request a jury instruction regarding Mr. Delarosa's alleged withdrawal from the conspiracy; (2) he failed to establish that the outcome of his trial would have been different if Attorney Kinsella had not elicited information about Mr. Delarosa's prior drug trafficking conviction and status as a cooperating informant for the DEA; and (3) newly discovered evidence that witness Herman Robinson was convicted in 2015 of murder and sexual assault did not mandate a new trial or a corrected sentence. Mr. Delarosa also contends that the Magistrate Judge erred in failing to consider the impact of the retroactive two-level offense reduction contained in FCJ Federal Sentencing Guidelines Manual Amendment 782 (Nov. 1, 2014) (amending U.S.S.G. § 2D1.1(c)(2) retroactively) (hereafter "Amendment 782") on his sentence.
I. Factual and Procedural Background.
Mr. Delarosa was charged by indictment, which named twenty-two coconspirators, with conspiring to distribute cocaine and marijuana in the District of Vermont and elsewhere. On May 17, 2011, a jury in the District of Vermont found Mr. Delarosa and co-defendant Daniel Lugo guilty of conspiring to distribute 5000 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. The jury also found Mr. Delarosa (but not Defendant Lugo) guilty of conspiring to distribute 100 kilograms or more of marijuana, the second object of the charged conspiracy. This outcome reflected the evidence at trial that while Mr. Delarosa oversaw all aspects of the conspiracy, Defendant Lugo's involvement was limited to the conspiracy's cocaine distribution.
The evidence at trial was presented over several weeks and included testimony from forty-six witnesses, as well as evidence of controlled purchases, seized contraband, cell phone and financial records, travel records and car rental and purchase agreements which documented the conspiracy's drug runs. Numerous witnesses testified regarding Mr. Delarosa's leadership of a Schenectady-based drug trafficking conspiracy, how the conspiracy operated, what roles were played by the various participants, how narcotics were obtained, and the manner in which additives were used to "stretch" the cocaine supply which was later "bricked" with a compression device to make it appear as if it had not been cut. Numerous witnesses, including the drug couriers themselves, also testified how, at Mr. Delarosa's direction, cocaine and marijuana were transported to Rutland, Vermont where they were distributed by two overlapping Vermont drug conspiracies, the "Brooker organization" and the "Morrison organization." Members of the Brooker organization identified both Mr. Delarosa and Defendant Lugo and described in detail the drug deliveries they received from them and their associates and how payment was made.
The trial witnesses included members of Mr. Delarosa's trusted inner circle based out of his Schenectady, New York clothing store/barber shop "Fly-to-the-Limit," many of whom were testifying pursuant to cooperation agreements with the government, a fact that was disclosed to the jury. Although minor inconsistencies between the testimony of various witnesses were revealed, the witnesses generally testified in a consistent and corroborated manner.
In the course of the trial, it was revealed that Mr. Delarosa had worked as an informant for the DEA in New York and had done so while engaged in drug trafficking. It was also revealed that Mr. Delarosa's status as a DEA informant was known to some members of his inner circle.
Attorney Kinsella represented Defendant Delarosa from indictment through trial. Post-trial, Mr. Delarosa sought and received the appointment of new counsel who filed a motion for a new trial on his behalf which the court denied.
The court sentenced Mr. Delarosa to a term of 300 months of imprisonment, followed by lifetime supervised release. The court, in arriving at that sentence, found that at least 50 kilograms of drugs were distributed by the conspiracy and that Mr. Delarosa destroyed evidence to avoid investigation by law enforcement, justifying an obstruction of justice enhancement. The result was a base offense level of 36 under U.S.S.G. § 2D1.1(c)(2). Although the guideline imprisonment range was life imprisonment, the court concluded that a life sentence was not warranted, and imposed a sentence substantially below the guidelines range.
Both Mr. Delarosa and Defendant Lugo appealed their convictions to the Court of Appeals for the Second Circuit. Both convictions were affirmed.
II. Conclusions of Law and Analysis.
A. Standard of Review.
A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 1999). The district judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual or legal conclusions of the magistrate judge as to those portions of a report and recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
In order to succeed on a claim of ineffective assistance of counsel, Mr. Delarosa must meet the two-pronged test established in Strickland v. Washington, 466 U.S. 668 (1984). He must show 1) that counsel's performance was so deficient that "the identified acts or omissions were outside the wide range of professionally competent assistance[,]" and 2) that the deficient performance so prejudiced his defense that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687, 690, 694. "The [ineffective-assistance-of-counsel] claim must be rejected if the defendant fails to meet either the performance prong or the prejudice prong." Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011).
B. Whether the Magistrate Judge Erred in Concluding that Attorney Kinsella was Not Ineffective by Failing to Include a Withdrawal Jury Instruction.
In his objections to the R & R, Mr. Delarosa argues that the Magistrate Judge erred in concluding that Attorney Kinsella, was not ineffective by failing to include a withdrawal jury instruction. Attorney Kinsella withdrew his request for the withdrawal charge at the preliminary charge conference because it related more to quantity of drugs involved than "withdrawal in the classic sense." (Doc. 956 at 33.) He subsequently explained that "there was no basis to argue that Mr. Delarosa had withdrawn from the conspiracy[.]" (Doc. 1227 at 7.) Mr. Delarosa claims that his offers to cooperate with law enforcement in 2007 and 2010, combined with "unreliable and at times conflicting witness testimony[,]" required his counsel to request a withdrawal instruction. (Doc. 1298 at 2.)
In order to constitute a withdrawal from a conspiracy, there must be proof of "some act that affirmatively established that [the defendant] disavowed his criminal association with the conspiracy, and that he communicated his withdrawal to the coconspirators." United States v. Minicone, 960 F.2d 1099, 1108 (2d Cir. 1992) (internal citation omitted). "[M]ere cessation of [criminal] activity is not sufficient." United States v. Flaharty, 295 F.3d 182, 192 (2d Cir. 2002). There must be some "affirmative action, either the making of a clean breast to the authorities . . . or communication of the abandonment in a manner reasonably calculated to reach co-conspirators." United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964). In addition, "the defendant must not take any subsequent acts to promote the conspiracy or receive any additional benefits from the conspiracy." United States v. Eppolito, 543 F.3d 25, 49 (2d Cir. 2008) (internal quotation marks omitted). The defendant has the burden to prove the defense of withdrawal. Id.
"A defendant is entitled to an instruction on an affirmative defense only if the defense has a foundation in the evidence." United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005) (internal quotation marks omitted). When a jury instruction on an affirmative defense is not warranted by the evidence, trial counsel's failure to request such an instruction does not constitute ineffective assistance. See Russo v. Keane, 42 F. App'x 500, 504 (2d Cir. 2002) (noting that "no reasonable jury could have concluded . . . that [defendant] had satisfied the [requirements of his] affirmative defense. Accordingly, [defendant] fails to establish the second prong of Strickland with respect to his jury charge argument[]").
Mr. Delarosa argues that his 2007 confession to DEA Special Agent Ronald Arp, and subsequent cooperation, formed an evidentiary basis for the withdrawal instruction. He asserts that his 2010 offer to set-up a controlled buy with Julian Datil-Rodriguez, a cocaine dealer, further demonstrated that he was no longer conspiring to distribute drugs in Vermont after 2007. As the Magistrate Judge noted, however, these facts are "merely consistent" with a theory that Mr. Delarosa ceased conspiratorial activity in 2007. (Doc. 1292 at 35.) No clear evidence was presented showing that Mr. Delarosa either made a "clean breast" to law enforcement or that he communicated to his coconspirators that he was withdrawing from the conspiracy or even that he was withdrawing from the conspiracy's activities in Vermont. Indeed, witnesses at trial testified that Mr. Delarosa continued to direct shipments of drugs to Vermont as late as 2009, and that in 2010, a vehicle used to make drug runs into Vermont was "torched" at Mr. Delarosa's instruction in order to frustrate a government investigation of the conspiracy. In light of this evidence, Attorney Kinsella's decision to not request a withdrawal instruction was reasonable. See United States v. Salameh, 16 F. App'x 73, 77 (2d Cir. 2001) (holding trial counsel's decision not to request a withdrawal instruction reasonable in light of overwhelming evidence that defendant continued to communicate with coconspirators).
C. Whether the Magistrate Judge Erred in Concluding That Mr. Delarosa Was Not Prejudiced by Attorney Kinsella's Introduction of Evidence of Mr. Delarosa's Prior Convictions and Status as a DEA Informant.
Mr. Delarosa also challenges the Magistrate Judge's conclusion that he was not prejudiced by Attorney Kinsella eliciting information about his prior convictions and status as a DEA informant during the trial. He argues that placing his prior criminal conduct, convictions, and cooperation before the jury prejudiced the outcome of the trial, because several of the Government's witnesses were also testifying pursuant to cooperation agreements and he sought to discredit their testimony on that basis. In considering this issue, the Magistrate Judge primarily addressed the second prong of the Strickland test, which requires a showing that trial counsel's deficient performance was so prejudicial that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
The Magistrate Judge did not reach a determination on Strickland's first prong, concluding that it was unnecessary to do so because Mr. Delarosa could not prove that he was prejudiced by the disclosure of damaging information. (Doc. 1292 at 43.)
The Magistrate Judge found that this evidence in question was "undoubtedly" harmful to the defense, a finding that was not disputed by the government. (Doc. 1292 at 39.) Nonetheless, the Magistrate Judge found that eliciting evidence of Mr. Delarosa's past convictions, criminal activities and cooperation was not without a purpose, because Attorney Kinsella sought to place Mr. Delarosa's 2007 confession to Agent Arp in context to "to advance a theory that the government's witnesses were lying because they were angry at Delarosa for setting them up." Id. at 42. Mr. Delarosa made admissible, incriminating, statements to both Agent Arp and Vermont State Police Detective Sergeant Thomas McCoy which Attorney Kinsella had to explain. For example, when asked on direct examination what Mr. Delarosa had told him about people he knew in Vermont, Agent Arp responded: "I recall in a time period of um, I think the spring of '07 Mr. Delarosa told me that he used to supply individuals with cocaine, like five hundred gram quantities. And that they were young, white males that were distributing marijuana." (Doc. 913 at 77.) Sergeant McCoy testified that Mr. Delarosa told him "he had a lot of respect for the Feds and that he knew how the system worked and that . . . there was still an opportunity that he could help himself out." (Doc. 937 at 191.) According to Sergeant McCoy, Mr. Delarosa repeatedly offered to cooperate and acknowledge[d] that he knew he had "f**ked up." Id. at 193. These statements revealed Mr. Delarosa's willingness to cooperate and thus Attorney Kinsella sought to explain how this offer came about. As he was seeking to limit the drug quantity at issue by pursuing a withdrawal from the conspiracy defense simultaneously, the further explanation of Mr. Delarosa's statements was not wholly unreasonable, and establish some basis to argue that Mr. Delarosa ceased his involvement in the conspiracy when he offered to cooperate. The court however, need not reach a conclusion on the first Strickland prong because it agrees with the Magistrate Judge that Mr. Delarosa cannot satisfy the second prong of the Strickland test.
In his objections to the R & R, Mr. Delarosa argues that because the coconspirators testifying for the government had credibility problems as a result of their cooperation with law enforcement, putting his own cooperation in front of the jury allowed them to easily resolve any contested credibility issues against him. Essentially, he claims that the revelation of his own cooperation with law enforcement made it impossible to impeach the testimony of other witnesses on the basis of their cooperation. The evidence of guilt, however, was so substantial that the result would not have been different had Attorney Kinsella not elicited the evidence in question. In denying Mr. Delarosa's motion for a new trial, this court characterized the evidence as "overwhelming" with "witness after witness" testifying about how the conspiracy operated. On appeal, the Second Circuit also characterized the evidence as "overwhelming." United States v. DeLaRosa, 548 F. App'x 717, 720 n.2 (2d Cir. 2013). The Magistrate Judge concurred with those assessments, characterizing the evidence against Mr. Delarosa as "devastating." (Doc. 1292 at 44.) For that reason, "there is no realistic probability that the result of the trial would have been different absent the [alleged] argument and witness examination errors" made by Attorney Kinsella. Howell v. United States, 441 F. App'x 783, 786 (2d Cir. 2011). Mr. Delarosa has thus failed to sustain his burden to prove ineffective assistance of counsel under the second prong of the Strickland test. See id. (finding no prejudice under second prong of Strickland "in light of . . . independent evidence that [defendant] was an active participant in a scheme to distribute drugs); Harding v. Sternes, 380 F.3d 1034, 1046 (7th Cir. 2004) ("We cannot conclude that the state appellate court unreasonably applied Strickland when it held that counsel's error did not undermine confidence in the verdict in light of the jury instruction and what it properly considered as overwhelming evidence[.]").
D. Whether the Magistrate Judge Erred in Concluding that Herman Robinson's Murder and Sexual Assault Convictions Provide no Basis for a New Trial or a Corrected Sentence.
The Magistrate Judge treated Mr. Delarosa's newly discovered evidence claim arising from Mr. Robinson's 2015 murder and sexual assault convictions as a timely-filed motion for a new trial pursuant to Fed. R. Crim. P. 33. While acknowledging that the conduct giving rise to Mr. Robinson's convictions could have been used as impeachment evidence had it been known during the trial, the Magistrate Judge concluded that the testimony would likely not have changed the jury's verdict. Mr. Delarosa argues that the Magistrate Judge erred because Mr. Robinson's testimony corroborated the testimony of other coconspirators in such a "unique" way that reliance on it undermines confidence in the outcome of the trial. (Doc. 1298 at 3.)
A Rule 33 "motion for a new trial based upon previously-undiscovered evidence is ordinarily 'not favored and should be granted only with great caution.'" United States v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975) (quoting United States v. Costello, 255 F.2d 876, 879 (2d Cir. 1958)). Relief is only justified if the newly-discovered evidence "is so material and non-cumulative that its admission 'would probably lead to an acquittal.'" United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir. 1992) (quoting United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980)).
Mr. Robinson testified on the seventh day of the trial, pursuant to a written cooperation plea agreement. He described the process of "cutting" cocaine, and discussed at length how he acted as a drug courier for Mr. Delarosa. He testified that he made approximately fifty trips to New York City to purchase cocaine on Mr. Delarosa's behalf, in quantities ranging from one to two kilograms. He also went to Florida and Arizona to purchase drugs on Mr. Delarosa's behalf. Mr. Robinson provided details regarding how members of the conspiracy made drug runs. He explained that the coconspirators would often rent vehicles to transport drugs, sometimes in Mr. Delarosa's name. After Mr. Delarosa became concerned that he was holding onto the rental vehicles for too long and spending too much money on them, Mr. Robinson began to use an Oldsmobile Intrigue, equipped with a secret compartment for concealing drugs. The Intrigue was registered initially to codefendant Daniel Lugo, and then to Jaime Sangiacomo-Jackson. According to Mr. Robinson, Mr. Delarosa advised that the Intrigue had been "torched" in December 2010 because federal agents were investigating members of the conspiracy. (Doc. 838 at 32.)
The jury was informed that Mr. Robinson was testifying pursuant to a cooperation plea agreement in a separate drug case. On cross examination, Mr. Robinson admitted that he violated his conditions of release and lied to his probation officer about using marijuana. Mr. Robinson also admitted that he planned to steal $48,000 from Mr. Delarosa, and lie about what happened to the money. At best, evidence that Mr. Robinson was subsequently convicted of two unrelated crimes would have established that he was violent as well as a drug dealer and a thief. See United States v. Estrada, 430 F.3d 606, 618 (2d Cir. 2005) ("crimes of violence generally have limited probative value concerning [a] witness's credibility") (internal quotation marks omitted). For that reason, the evidence "would not have materially increased the jury's likelihood of discrediting the witness[.]" United States v. Spinelli, 551 F.3d 159, 165 (2d Cir. 2008).
The government corroborated Mr. Robinson's testimony with respect to the Oldsmobile Intrigue through the testimony of Ms. Sangiacomo-Jackson, who was the mother of Mr. Delarosa's seven-month old child, and who testified that Mr. Robinson asked her to register the Intrigue in her name, explaining that "he was going to be using the car for the purposes of teaching his wife how to drive and . . . driving his kids back and forth to school." (Doc. 913 at 61.) Although the Intrigue was parked at her residence, Ms. Sangiacomo-Jackson testified that she never drove the vehicle. In January 2010, Mr. Robinson left a note on Ms. Sangiacomo-Jackson's door, asking her to contact him right away. She did so, and Mr. Robinson told her that she needed to report the Intrigue as stolen. Mr. Robinson said that "he was being investigated by the federal government," and the car was "gone." Id. at 64. Ms. Sangiacomo-Jackson asked Mr. Robinson to leave, and then asked Mr. Delarosa about the Intrigue. Mr. Delarosa replied that he was aware of the investigation, and asked Ms. Sangiacomo-Jackson to see if the car was still there. She did so, and found the Intrigue was missing. Despite not having any independent knowledge about the "theft," Ms. Sangiacomo-Jackson reported the car stolen to the Niskayuna, New York police department.
There was thus independent evidence that Mr. Delarosa was aware the Intrigue was being disposed of in order to conceal evidence of a crime. Mr. Robinson's testimony, therefore, only served to establish that he disposed of it at Mr. Delarosa's direction, which was consistent with the testimony of virtually all of the coconspirators that Mr. Delarosa acted as the decision-maker for the conspiracy.
Mr. Robinson's testimony was also corroborated by physical evidence which documented the conspiracy's drug runs. In particular, the government produced Amtrak tickets showing that Mr. Robinson traveled to Florida in November 2007 and Arizona in June 2009. Both tickets were purchased in cash, and pursuant to Amtrak's policy Mr. Robinson's identification was shown upon purchase.
At most, the new evidence "merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable." United States v. Parkes, 497 F.3d 220, 233 (2d Cir. 2007) (quoting United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996)). Thus, the court could not conclude that Mr. Delarosa would most likely not have been convicted with the benefit of the new evidence. See United States v. White, 972 F.2d 16, 21 (2d Cir. 1992) (noting that the controlling issue in Rule 33 analysis is "the effect the evidence would have on the jury's verdict had it been submitted at this trial[]"); United States v. Shaw, 354 F. App'x 439, 446 (2d Cir. 2009) (finding no error in denying a Rule 33 motion when newly discovered evidence "would not likely have led to a different outcome at trial") (internal quotation marks omitted). Even if the new evidence undermined Mr. Robinson's credibility and constituted "previously-undiscovered evidence" for the purposes of Rule 33, it would not justify a new trial. See United States v. Aguillar, 387 F.2d 625, 626 (2d Cir. 1967) ("[t]he discovery of new evidence which merely discredits a government witness and does not directly contradict the government's case ordinarily does not justify the grant of a new trial."); United States v. Bolden, 355 F.2d 453, 461 (7th Cir. 1965) ("[cooperating witness's subsequent] conviction was not evidence that was in existence at the time of the defendant's trial and therefore did not constitute evidence upon which a new trial could be based[]").
Mr. Delarosa further argues that relying on Mr. Robinson's testimony for the drug quantity and obstruction of justice enhancements at sentencing "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) (internal quotation marks omitted). Under Application Note 4(D) to the Commentary to U.S.S.G. § 3C1.1, "destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding" results in a two-level increase to the base offense level. The Magistrate Judge found that the obstruction of justice and drug quantity enhancements did not increase Mr. Delarosa's sentence because the court imposed a significantly below-guidelines sentence under 18 U.S.C. § 3553(a). Although Mr. Delarosa objected to the facts supporting the obstruction of justice enhancement at sentencing, those facts were supported by a preponderance of the evidence. See United States v. Archer, 671 F.3d 149, 161 (2d Cir. 2011) ("the standard for proving . . . facts [supporting a guideline enhancement] is a preponderance of the evidence[]"). The trial testimony of Mr. Robinson and Ms. Sangiacomo-Jackson clearly established that Mr. Delarosa obstructed justice by having the Intrigue disposed of and falsely reported as stolen in order to impede the government's investigation of the conspiracy.
E. Whether the Magistrate Judge Erred by Failing to Consider the Impact of Amendment 782 on Mr. Delarosa's Sentence.
Mr. Delarosa's sole objection to the R & R with respect to the length of his sentence is that the Magistrate Judge did not consider the impact of Amendment 782 on his sentence. He argues that applying Amendment 782 in addition to disregarding the sentencing enhancements results in a guidelines range below the 300 month sentence imposed by the court. Because this issue was not raised before the Magistrate Judge, the court "has the discretion to consider, or decline to consider" it. Wells Fargo Bank N.A. v. Sinnott, 2010 WL 297830, at *2 (D. Vt. Jan. 19, 2010). In doing so, the court should consider, among other things, "whether manifest injustice will result if the new argument is not considered." Id. at *4. That standard is not met here. Even if Amendment 782 were applied, it would not reduce Mr. Delarosa's sentence because his original guideline sentence of life imprisonment was based on a base offense level of 36 and a criminal history category of III and the court here determined that the two-level enhancement for obstruction of justice was proper. Amendment 782 would reduce the guidelines range in this case to 360 months to life. Because the court imposed a sentence below the amended guidelines range, Mr. Delarosa is not eligible for a sentence reduction. See U.S.S.G. § 1B1.10(b)(2)(A) ("[T]he court shall not reduce the defendant's term of imprisonment . . . to a term that is less than the minimum of the amended guideline range[.]"); Dillon v. United States, 560 U.S. 817, 822 (2010) ("§ 1B1.10(b)(2)(A) forecloses a court acting under § 3582(c)(2) from reducing a sentence 'to a term that is less than the minimum of the amended guideline range.'"). Mr. Delarosa's request for reconsideration of sentencing under § 2255 must therefore be DENIED.
Requests for the retroactive application of a sentencing guideline amendment are properly raised by motion pursuant to 18 U.S.C. § 3582(c), which authorizes a sentencing court to reduce a defendant's sentence in light of retroactive guideline revisions. See United States v. Colon, 961 F.2d 41, 45 (2d Cir. 1992) (holding that 18 U.S.C. § 3582(c)(2) "authorize[s], but not require[s], sentencing courts to reduce sentences in light of guideline revisions"). --------
CONCLUSION
For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's R & R (Doc. 1292) and DENIES Mr. Delarosa's motion to vacate his conviction and sentence and for a new trial (Doc. 1217). SO ORDERED.
Dated at Burlington, in the District of Vermont, this 17th day of November, 2015.
/s/_________
Christina Reiss, Chief Judge
United States District Court