United States District Court, D. New Jersey
ANDREW Petitioner, appearing pro se
S. HERRING, Esq. THOMAS J. EICHER, Esq. Attorneys for
Respondent United States of America
HONORABLE WILLIAM H. WALLS SENIOR DISTRICT JUDGE
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.
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
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.
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.)
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.)
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 ....").)
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
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.
28, 2013 Trial Tr. 76.)
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.)
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
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 ...