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Andrew v. United States

United States District Court, D. New Jersey

April 4, 2019

RANDY ANDREW, Petitioner,

          RANDY ANDREW Petitioner, appearing pro se

          JUSTIN S. HERRING, Esq. THOMAS J. EICHER, Esq. Attorneys for Respondent United States of America




         On June 28 and July 1, 2013, after a four-day trial, a jury convicted Petitioner Randy Andrew ("Petitioner") of various charges, detailed infra, related to his possession and trafficking of firearms. (See, e.g., Oct. 1, 2013 Crim. J. in United States v. Andrew, No. 2:12-cr-768-l (the "Criminal Docket") at ECF No. 73.) On September 18, 2013, this Court sentenced Petitioner to a term of imprisonment of 120 months. (See, e.g., id.) Petitioner now moves to vacate, correct, or set aside his federal sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the Court will deny the motion, and will not issue a certificate of appealability.


         On May 17, 2013, Petitioner was formally charged in a five-count superseding indictment with: (i) one count of trafficking firearms without a license, 18 U.S.C. § 922(a)(1)(A); (ii) one count of conspiring to traffic firearms without a license, 18 U.S.C. § 371; and (iii) three separate counts of being a felon in possession of a firearm on the dates of May 11, May 19, and June 9, 2010, in violation of 18 U.S.C. § 922(g)(1). (See Criminal Docket at ECF No. 57.)

         Petitioner's trial began on June 25, 2013. (See June 25, 2013 Trial Tr., Criminal Docket at ECF No. 76.) Petitioner was initially represented by Paul J. Casteleiro, Esq. At the beginning of the third day of trial on June 27, 2013, Petitioner made a formal request to represent himself and act as his own attorney for the remainder of his trial, with Mr. Casteleiro serving as stand-by counsel. (See June 27, 2013 Trial Tr. 3-10, Criminal Docket at ECF No. 78.) Petitioner was clear that Mr. Casteleiro had "done very well" and that this request was the result of Mr. Casteleiro's strategic decisions to not "bring certain things out" at trial due to the potential adverse impact that information would have on Petitioner's defense; Petitioner, on the other hand "want[ed] everything to come out, not to be used as strategy." (Id. at 7-8.) The Court - after cautioning Petitioner against proceeding pro se - granted Petitioner's request. (Id. at 7-14.) Petitioner served as his own counsel for the duration of the trial, which concluded on July 1, 2013.

         The evidence presented at trial inculpating Petitioner was overwhelming. That evidence included the testimony of: (i) Sydney Trottman, who purchased upwards of fifty guns from various individuals - including three from Petitioner - over a three-year period during which he was acting as a confidential informant on behalf of the Government (see June 26, 2013 Trial Tr. 45-102, Criminal Docket at ECF No. 77; June 27, 2013 Trial Tr. 17-60); (ii) Federal Bureau of Investigation ("FBI") Officer Augoustis Karaminas, who served as Sydney Trottman's point of contact at the FBI during Mr. Trottman's roughly three-year period of cooperation (see June 25, 2013 Trial Tr. 17-99; June 26, 2013 Trial Tr. 3-40); and (iii) one of Petitioner's co-conspirators, Peter Stewart, who helped facilitate the foregoing firearms sales to Mr. Trottman. (See June 27, 2013 Trial Tr. 60-106). All three witnesses provided compelling testimony demonstrating that Petitioner, among other things, sold Mr. Trottman: (i) a Universal Enforcer .30 caliber semiautomatic assault rifle on May 11, 2010; (ii) a Norinco MAK-90 7.62 millimeter assault rifle on May 19, 2010; and (iii) a Lorcin .38 caliber semi-automatic handgun on June 9, 2010. Michael Puskas, a special agent with the Bureau of Alcohol, Tobacco, Firearms & Explosives, also testified on behalf of the Government. (See June 27, 2013 Trial Tr. 106-133, Criminal Docket at ECF No. 78.) Special Agent Puskas testified, inter alia, about Petitioner's lack of licensure to sell those firearms. (Id. at 117.)

         The jury also viewed audio/visual recordings produced from covert surveillance equipment worn by Mr. Trottman each time Petitioner sold him a firearm. (See, e.g., June 27, 2013 Trial Tr. 18-87.) The events depicted in those audio/visual recordings were fully consistent with the testimony of Messrs. Karaminas, Trottman, and Stewart and otherwise convincingly demonstrated, among other things, Petitioner's clear and direct involvement in the sales of three firearms to Mr. Trottman on May 11th, May 19th, and June 9th. The evidence presented at trial further demonstrated that Petitioner thought the guns he sold to Mr. Trottman were purchased for a Jamaican crime lord named Dukus "to fight [a drug] war in Jamaica." (See, e.g., June 26, 2013 Trial Tr. 55-56.)

         In addition to this highly incriminating evidence, during his pro se cross-examination of Messrs. Trottman and Stewart, Petitioner readily and repeatedly acknowledged that he sold guns to Mr. Trottman on multiple occasions. (See, e.g., June 27, 2013 Trial Tr. 38 (Petitioner asking Mr. Trottman "How much money were you supposed to give me on May 19th for [the MAK-90] assault weapon?"); id at 102 (Petitioner, during his cross-examination of Mr. Stewart, indicating that he himself "received five hundred dollars" for the May 11th assault rifle sale); see also Id. at 103-04 (Court cautioning Petitioner that "in the course of serving as [his] own attorney . .. [y]ou are incriminating yourself and you're doing it willingly ....").)

         In that regard, Petitioner's defense strategy appeared to be based on the legally incorrect premise that although Petitioner undisputedly sold guns to Mr. Trottman on three occasions without any license to do so, he was not guilty of the gun trafficking and felon in possession of firearm charges for which he stood trial because he only sold those firearms in response to the requests of Mr. Trottman, who, in turn, purchased those weapons at the behest of the FBI solely for the purpose of securing criminal convictions of third-parties. In other words, it appears that Petitioner mistakenly believed - and, as evidenced by the claims raised in this habeas matter, continues to believe - that because he sold those guns only after being implored to do so by Mr. Trottman - who himself was attempting to purchase those weapons for the purpose of securing criminal convictions and not for use in "real" crimes - Petitioner should have been acquitted at trial of the crimes charged against him in the May 17, 2013 superseding indictment. In that respect, the jury was instructed on - and allowed to consider whether - the defense of entrapment applied to Petitioner's case. The Court explained, inter alia, that:

A defendant may not be convicted of a crime if he was entrapped by the Government to do the acts charged. The Government is permitted to use undercover agents, deception, and other means of providing opportunities for unwary criminally minded persons to commit a crime. But the law does not permit the Government to induce an unwary, innocent person in committing a criminal offense.

         (June 28, 2013 Trial Tr. 76.)

         Ultimately the jury found Petitioner guilty on all five counts charged in the superseding indictment. (See June 28, 2013 Trial Tr. 86-100; July 1, 2013 Trial Tr. 6-9.) This was wholly unsurprising in light of the abundant evidence and testimony presented at trial inculpating Petitioner. On October 1, 2013, this Court sentenced Petitioner to 120 months' imprisonment. (See Oct. 1, 2013 Crim. J., Criminal Docket at ECF No. 73.)

         Petitioner never filed a direct appeal. Instead, on or about October 10, 2014, Petitioner initiated the current § 2255 action pro se. (ECF No. 1.) Petitioner thereafter submitted several supplemental filings containing the relevant habeas claims that are presently before the Court. (See Pet'r's July 13, 2016 Am. § 2255 Mot., ECF No. 7; Pet'r's Jan. 4, 2017 Mot. to Supp. Pleading, ECF No. 10) (collectively, the "§ 2255 Motion"). Petitioner's § 2255 Motion advances the following arguments:

Ground One: The prosecution team . . . [withheld] information, and impeachment evidence ... by not disclosing impeachment evidence of audio visual DVD recording of debriefing at Stuyvesant Avenue and Mountain View Place, in Irvington New Jersey....
Ground Two: The government withheld evidence [of the audio visual DVD recording of agents debriefing informant at Stuyvesant Avenue And Mountain View Place in Irvington New Jersey and] the prosecution team suppressed [this] evidence that was favorable to the [Petitioner] after multiple request[s] for evidence.
Ground Three: The prosecution withheld information and location [related to a] government informant moving on same street location as [P]etitioner.
Ground Four: The prosecution team withheld audio visual footage [from July 15, 2010 through July 17, 2010] that coincided with [text messages introduced into evidence at trial and] were exculpatory and material....
Ground Five: .. . [Trial counsel] was ineffective for not requesting [ ] audio visual [DVD] debriefing of agents and informant on Stuyvesant Avenue and Mountain View Place in Irvington New Jersey. [Counsel] failed to investigate audio visual debriefing of informant which was part of the overall discovery evidence in his possession which would have helped him develop a strategy for trial.
Ground Six: Ineffective assistance of counsel . . . [because counsel] did not call Mark McCargo to testify ... to the information of [Petitioner] after [P]etitioner clearly stated that informant had been exposed in front of another coconspirator by [Petitioner] where [Petitioner] told Mark McCargo that informant was an agent of the government.
Ground Seven: Ineffective assistance of counsel . . . [where Petitioner] . . . asked [trial counsel] what was meant by the term reversible error and [trial counsel] said it ...

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