United States District Court, D. New Jersey
CHRISTOPHER RAD, Petitioner pro se
ALEXANDER EDWARD RAMEY, Esq. UNITED STATES ATTORNEY'S
OFFICE Attorney for Respondent United States of America
E. THOMPSON U.S. DISTRICT JUDGE
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.
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.
conduct related to securities fraud by employing the use of
misleading spam 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, and hacking to pump the stock."
(11-cr-161, ECF No. 1 at 1)(internal quotations omitted).
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).
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).
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).
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).
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.
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.
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.
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.
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).
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
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
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.
Prosecution's Failure to Disclose Bragg's Prior Case
Proceeding Transcripts and Plea Agreement
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,
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).
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).
Bragg's Testimony About His Cooperation
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?
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?
Q: Before that sentence, were you working with the
A: No, I was not.
(11-cr-161, ECF No. 81 at 104-105).
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.
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
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
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).
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.
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).
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.
has not met the constitutional standards set in
Napue and its progeny. Consequently, Petitioner has
not established that a Brady or Napue
Bragg's Testimony About Prior Incarceration for Using
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 computers in
violation of 18 U.S.C. § 1037(a)(2). (15-7740, ECF No.
37-2 at 32).
relevant portion of the statute provides, in part, the
(a) IN GENERAL. -Whoever, in or affecting interstate or