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Rad v. United States

United States District Court, D. New Jersey

September 7, 2018


          CHRISTOPHER RAD, Petitioner pro se

          ALEXANDER EDWARD RAMEY, Esq. UNITED STATES ATTORNEY'S OFFICE Attorney for Respondent United States of America




         Christopher Rad ("Petitioner") moves to vacate, correct, or set aside his federal sentence pursuant to 28 U.S.C. § 2255. (United States v. Rad, 3:15-cv-7740, ("hereinafter "15-7740") ECF No. 1 at 37). Respondent United States of America ("Respondent") opposes the motion. (15-7740, ECF No. 50). For the reasons stated herein, Petitioner's motion is partially denied, and no certificate of appealability will issue on the denied claims. However, for the reasons discussed infra, the Court will conduct a hearing on two of Petitioner's ineffective assistance of counsel claims.


         Petitioner was originally charged in the United States District Court for the District of New Jersey, in a one-count indictment to a conspiracy offense. (United States v. Rad, 3:2011-cr-161, (hereinafter "11-cr-161") (D.N.J. ECF No. 1.)) Two of Petitioner's co-conspirators, James Bragg and Doyle Scott Elliott, were charged and convicted in separate proceedings in the District of New Jersey. Petitioner was subsequently charged in a nine-count superseding indictment to two conspiracy offenses and seven electronic mail-related fraud offenses. (11-cr-161, ECF No. 16.)

         Petitioner's conduct related to securities fraud by employing the use of misleading spam[1] emails touting stocks with the objective of selling the stocks to the public at artificially inflated prices. Petitioner was considered the "middleman between stock promoters seeking to pump shares of stock, and computer experts located inside and outside of the United States who used various means, including spam e-mail campaigns, botnets[2], and hacking to pump the stock." (11-cr-161, ECF No. 1 at 1)(internal quotations omitted).

         On November 30, 2012, a jury found Petitioner guilty on six counts: (1) one count of conspiracy to commit securities fraud, false header spamming, and/or false registration spamming in violation of 18 U.S.C. § 371; (2) one count of conspiracy to commit unauthorized access spamming in violation of 18 U.S.C. § 371; (3) and four counts of unauthorized access spamming; aiding and abetting, in violation of 18 U.S.C. § 1037(a)(1). (11-cr-161, ECF No. 68). Petitioner was found not guilty of three counts of false registration spamming; aiding and abetting in violation of 18 U.S.C. § 1037(a)(4) and 2. (Id. at 1-2).

         Petitioner appeared for sentencing on May 13, 2013. (11-cr-161, ECF No. 104). The Probation Office calculated the offense level to be 32 and the criminal history category as I, resulting in a guideline range of 121-151 months. (PSR ¶¶¶ 120, 123, 150). The Court heard argument regarding the recommended upward departures as well as the government's recommendation for a three-level enhancement based on Petitioner's managerial role in the offense, (11-cr-161, ECF No. 104 at 6-33). Petitioner's counsel objected to the calculations. First, counsel unsuccessfully argued that the specific offense characteristics that resulted in an eighteen-level offense increase were premised on an incorrect loss calculation of $2.8 million. (Id. at 15-20). Petitioner's counsel next successfully objected to the probation office's two-level upward adjustment recommendation based on the offense having involved electronic email addresses. (Id. at 20-27). Finally, Petitioner's counsel unsuccessfully objected to the government's three-level upward departure recommendation for Petitioner's managerial role in the offense. (Id. at 27-33).

         The Court ultimately granted a six-level downward variance resulting in an offense level of 25. (Id. at 65). The Court concluded a high end-guideline sentence was appropriate and sentenced Petitioner to 71 months imprisonment followed by five years of supervised release. (Id. at 65-66).

         Petitioner appealed to the Third Circuit arguing that "the' District Court denied him a fair trial by misinterpreting the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM") and preventing his counsel from properly defending his case." United States v. Rad, 559 Fed.Appx. 148, 149 (3d Cir. 2014). The Court of Appeals rejected this argument and affirmed the sentence. Id. at 151. Petitioner thereafter filed this § 2255 motion. (15-7740, ECF No. 1). Additionally, Petitioner filed a series of other motions in his criminal case, all of which were summarily dismissed on October 25, 2017. (11-cr-161, ECF No. 133). The Court subsequently dismissed Petitioner's motion for partial summary judgment on December 13, 2017. (15-7740, ECF No. 32). Moreover, Petitioner's initial § 2255 filing was amended on January 18, 2018. (15-7740, ECF No. 37).

         When deciding the motion, the Court considered all of Petitioner's filings which are the: original petition filed on October 28, 2015 (15-7740, ECF No. 1); supplement to the motion to vacate/set aside/correct sentence filed on November 9, 2015 (15-7740, ECF No. 4); an amended petition filed on January 18, 2018 (15-7740, ECF No. 37); "Petitioner's Habeas Petition in Lieu of Government's Answer" filed on May 21, 2018 (15-7740, ECF No. 45); a traverse filed on July 18, 2018 (15-7740, ECF No. 51); and "Submission to Court of Letter to Mr. Ramey" filed on August 1, 2018. (15-7740, ECF No. 52). Respondent filed an answer asserting that the claims should be denied on the merits on June 29, 2018. (15-7740, ECF Nos. 50).

         Petitioner raises six grounds for this Court's consideration: (1) trial counsel was ineffective for "failing to impeach the knowing use of false, perjured and conflicting testimony"; (2) prosecutor's failure to disclose potential impeachment evidence against its witness constituted misconduct; (3) (a) trial counsel was ineffective for failing to advance a meritorious defense and (b) for failing to advise Petitioner of his potential sentence exposure if convicted at trial; (4) trial counsel was ineffective for failing to investigate government witness, James Bragg's criminal history; (5) trial counsel was ineffective for failing to "properly move for judgement of acquittal" on Counts Five through Nine; and (6) trial counsel was ineffective for failing to "properly move for judgment of acquittal" on Count One.

         For the following reasons, the Court will order an evidentiary hearing on Claim 3 that raises ineffective assistance due to trial counsel's failure to advance a sound defense strategy and failure to advise Petitioner of his potential sentence exposure but will deny relief on the remaining claims Petitioner has raised.


         Section 2255 provides in relevant part that:

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). A district court must hold an evidentiary hearing on a § 2255 motion unless the "motion and the files and records of the case conclusively show" that the movant is not entitled to relief. 28 U.S.C. § 2255(b); see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). Here, the record conclusively demonstrates that Petitioner is not entitled to relief on all but one of his claims because his arguments lack merit.

         A. Prosecutorial Misconduct

         Petitioner submits that the prosecution's failure to disclose government witness James Bragg's plea and sentencing transcripts constitutes misconduct under Brady v. Maryland, 373 U.S. 83 (1963). Additionally, Petitioner argues in a separate claim that the government's knowing use of Bragg's perjured testimony constituted misconduct. Although Petitioner raises this second argument within the context of an ineffective assistance claim, the gravamen of Petitioner's claim is that the government's misconduct and his counsel's subsequent purported failure to discredit Bragg's inconsistent statements violated his constitutional rights. Petitioner also raises an additional argument that portions of FBI Agent Laurie Allen's trial testimony were untrue and that this could have been impeached had the government provided Petitioner with the purported relevant records to support her testimony. (15-7740, ECF No. 52 at 2-3).

         First, allegations involving Brady, 373 U.S. 83 are analyzed as a type of prosecutorial misconduct, which requires that certain elements be met. See Banks v. Dretke, 540 U.S. 668, 671 (2004). In that regard, Petitioner "must show that: (1) the government withheld evidence, either willfully or inadvertently; (2) the evidence was favorable, either because it was exculpatory or of impeachment value; and (3) the withheld evidence was material." Lambert v. Blackwell, 387 F.3d 210, 252 (3d Cir. 2004) (citations omitted). "[E]vidence is 'material' within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Cone v. Bell, 556 U.S. 449, 469-70 (2009).

         When assessing Brady violations, the Supreme Court has unequivocally rejected any distinction between impeachment evidence and exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). "[A] constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." Id. at 678. Additionally, the Third Circuit "recognize[s] that the Bagley inquiry requires consideration of the totality of the circumstances, including possible effects of non-disclosure on the defense's trial preparation." United States v. Perdomo, 929 F.2d 967, 971 (3d Cir. 1991) (citation omitted).

         Allegations involving the prosecution's knowing use of perjured testimony is governed by the rule articulated by the Supreme Court in Napue v. Illinois, 360 U.S. 264 (1959). There the Court held that the state violates the Fourteenth Amendment's due process protection when it "knowingly presents or fails to correct false testimony in a criminal proceeding." Id. at 269. Moreover, "[a] conviction must be set aside even if the false testimony goes only to a witness's credibility rather than the defendant's guilt." Haskell v. Superintendent, 8 66 F.3d 139, 146 (3d Cir. 2017). To establish such a claim, Petitioner must show that: (1) "[the witness] committed perjury, (2) the [prosecution] knew or should have known that the testimony was false, (3) the false testimony was not corrected, and (4) there is a reasonable likelihood that the perjured testimony could have affected the judgment of the jury." Id. (citation omitted).

         1. Prosecution's Failure to Disclose Bragg's Prior Case Proceeding Transcripts and Plea Agreement

         James Bragg, an internet company proprietor who provided spamming services to Petitioner, was eventually charged and convicted as a co-conspirator in the United States District Court for the District of New Jersey. In 2009, Bragg, who was then awaiting sentencing for an unrelated offense in Michigan, agreed to cooperate with the government in their investigation against Petitioner. Bragg was later called by the government to testify at Petitioner's trial. Bragg described the start of his, business relationship with Petitioner and the nature of the service he provided. Bragg testified that he was charged and awaiting the disposition of a case being prosecuted in the Eastern District of Michigan when he began working with Petitioner. He also testified that he was awaiting sentencing in the current conspiracy prosecution pending against him in the District of New Jersey and volunteered to cooperate with the government in their case against the Petitioner. (11-cr-161, ECF No. 81 at 35, 138-40).

         Petitioner argues that Bragg's trial testimony was inconsistent with statements he provided at his 2009 debrief with the Assistant United States Attorney ("AUSA") prosecuting Petitioner's case in New Jersey; with Bragg's statements to the Michigan and New Jersey sentencing courts; and with his answers to Petitioner's interrogatories dated four years after Petitioner's trial. (15-7740, ECF No. 37-1 at 2-3).

         Petitioner first asserts that Bragg's trial testimony included false statements that he was not in prison for using proxies, and he was not working with the government before his Michigan sentence. (Id. at 2).

         a. Bragg's Testimony About His Cooperation

         At Petitioner's trial, the following colloquy between Bragg and the AUSA took place:

Q: Did you get sentenced as part of the Ralsky case?
A: Yes, I did.
Q: What were you sentenced to?
A: A year and a day.
Q: Did you do any cooporation where you were given credit for cooperation as part of the Ralsky case?
A: No.
Q: You were sentenced to a year and a day.
Did you have to serve a sentence as part of that case?
A: Yes, I did.
Q: When was the sentence, if you remember, the exact dates or approximate dates, did you serve with respect to Alan Ralsky?
A: From the end of 2008, roughly end of 2008 until toward the end of 2009, I believe. I'm sorry, that's incorrect. 2009, I was released in 2010, in May of 2010.
Q: 2009 to 2010 was the date of your sentence?
A: Yes.
Q: Before that sentence, were you working with the Government?
A: No, I was not.

(11-cr-161, ECF No. 81 at 104-105).

         Petitioner maintains that Bragg's testimony about his prior government cooperation and his prior conviction were untruthful. First, with respect to Bragg's testimony about the tenure of his government cooperation, Bragg's testimony about when his cooperation started is not exactly untrue. As previously quoted, the prosecutor posed the question as follows: "Before that sentence, were you working with the Government?" At the time of Bragg's interview with federal prosecutors on August 6, 2009, he was incarcerated at the Federal Bureau of Prisons Detention Center in Milan, Michigan, awaiting sentencing. (15- 7740, ECF 37-2 at 26). Bragg met with federal prosecutors during this period of incarceration to discuss his activities with Petitioner. (Id.) Petitioner refers to the government's trial exhibit, FBI Form 302, memorializing their August 6, 2009, debrief with Bragg as well as the cooperation agreement dated October 24, 2009, to support his argument that Bragg's testimony that he did not cooperate prior to the start of his sentence constituted perjury.

         Petitioner also refers to Bragg's answers to Petitioner's interrogatories filed in 2016. There, Bragg does not contradict his trial testimony by any means. In fact, his answers reflect his failure to recall the exact start of his cooperation.

         Moreover, despite Petitioner's insistence that Bragg's answer to the interrogatory further supports that Bragg's trial testimony was not truthful; Bragg's interrogatory response that his debrief while at the Milan Detention Center only pertained to Berg's activities, could also just be a result of Bragg's difficulty recalling the details of a then seven-year old meeting.

Interrogatory No. 12
You answered that you "never talk to anyone about this case until I was in prison." By prison do you mean the prison that you served your sentence in, and NOT the pre-trial holding center in Michigan?
ANSWER: Do not remember exactly when my first talk was. But it was in Milan Prison in Michigan, and these talks did not involve you only your partner Berg.
Please state the location of the prison that you served your sentence in.
ANSWER: Michigan and Arizona.
Do you understand that your Michigan sentence did not begin until after you were sentenced on 11/24/2009, and that you were retroactively credited the time you spent in the pre-trial holding/detention center?
ANSWER: Yes but due to the time passed I can not give you exact dates as I have no record of this.

(15-7740, ECF 37-2 at 10).

         The record supports Petitioner's submission that Bragg was not sentenced in the Eastern District of Michigan until November 24, 2009. Although Bragg's sentence did not officially begin until his sentence was imposed, Bragg was detained pending sentencing in a federal detention facility at the time of the debrief and subsequent official cooperation agreement. Taken within this context, Bragg's testimony at Petitioner's trial does not suggest dishonesty but rather that he conflated the start of his sentence with the start of any time which he spent in custody in connection with his Michigan offense.

         Nonetheless, Petitioner maintains in his traverse that Bragg's use of the word "sentence" should be taken in the literal sense and should demonstrate Bragg's willingness to commit perjury at Petitioner's trial. (15-7740, ECF No. 51 at 12-13).

         Bragg's testimony about when his government cooperation commenced is not inconsistent or indicative of dishonesty, when assessed within context. Moreover, Petitioner has not established how this truthful testimony renders the government responsible for using purportedly perjured testimony.

         Petitioner has not met the constitutional standards set in Napue and its progeny. Consequently, Petitioner has not established that a Brady or Napue violation occurred.

         b. Bragg's Testimony About Prior Incarceration for Using Proxies

         Petitioner also maintains that Bragg's testimony about his prior conviction is inconsistent with Bragg's 2009 conviction in the Eastern District of Michigan and with his statements during the 2009 debrief. In 2009, Bragg pled guilty to, among other things, bulk e-mailing using proxy[3] computers in violation of 18 U.S.C. § 1037(a)(2). (15-7740, ECF No. 37-2 at 32).

         The relevant portion of the statute provides, in part, the following:

(a) IN GENERAL. -Whoever, in or affecting interstate or foreign ...

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