USA v. HENDRICKS et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
CRAIG HENDRICKS, 	)
)
Petitioner, 	)
)
v. 	) 	Criminal Action No. 2004-0005
) 	Civil Action No. 2010-0011
UNITED STATES OF AMERICA, 	)
)
Respondent. 	)
__________________________________________)
Attorneys:
Craig Hendricks,
Beaumont, TX
Pro Se
Joycelyn Hewlett, Esq.,
David W. White, Esq.,
St. Thomas, U.S.V.I.
Alphonso G. Andrews, Jr., Esq.,
St. Croix, U.S.V.I.
For the Government
MEMORANDUM OPINION
Lewis, Chief Judge
THIS MATTER comes before the Court on Petitioner Craig Hendricks’ (“Petitioner”)
Motion to Vacate, Set Aside, or Correct Sentence and Conviction Pursuant to Title 28 U.S.C. §
2255 (“Motion to Vacate”). (Dkt. No. 1237). Magistrate Judge Ruth Miller issued a Report and
Recommendation (“R&R”) in which she recommended that the Court deny Petitioner’s Motion to
Vacate on all grounds. (Dkt. No. 1355). Petitioner timely filed objections to Magistrate Judge
Miller’s R&R. (Dkt. No. 1358). For the reasons that follow the Court will (1) accept Magistrate
Judge Miller’s R&R as modified as stated herein; (2) deny Petitioner’s Motion to Vacate; (3) deny
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Petitioner’s request for an evidentiary hearing; and (4) decline to issue a Certificate of
Appealability.1
I. 	BACKGROUND
Petitioner, along with seven co-defendants, was charged with various federal offenses in a
twelve-count superseding indictment filed on September 30, 2004. The superseding indictment
charged that Petitioner played a leadership role in the operation of large-scale drug trafficking and
money laundering conspiracies from early 2000 until approximately April 2003. In August 2005,
a jury convicted Petitioner on eight counts—one count of conspiracy to possess with intent to
distribute cocaine and five substantive counts of possession with intent to distribute cocaine in
violation of 21 U.S.C. §§ 841 and 846; one count of conspiracy to import cocaine in violation of
21 U.S.C. §§ 952 and 963; and one count of money laundering conspiracy in violation of 18 U.S.C.
§ 1956. Petitioner was sentenced to a 40-year term of imprisonment to be followed by a 10-year
term of supervised release, and was fined $10,000. (Dkt. No. 1131). A Third Circuit panel rejected
Petitioner’s arguments on direct appeal and affirmed his conviction on August 15, 2008. United
States v. Fleming, 287 F. App’x 150 (3d Cir. 2008). The United States Supreme Court denied
certiorari on January 12, 2009. Hendricks v. United States, 555 U.S. 1125 (2009).
1 After Magistrate Judge Miller docketed her R&R, Petitioner filed a Motion for Leave to File
Supplemental Brief Pursuant to Federal Rule of Criminal Procedure 15(d) (Dkt. No. 1392) and a
corresponding Supplemental Motion to Vacate pursuant to Title 28 U.S.C. § 2255 (Dkt. No. 1393).
Petitioner also filed a Motion for Return of Interest on Fine and various corresponding supplements
(Dkt. Nos. 1410, 1412, 1413, 1420). Because the Court determined that additional information
from the Government was required before it could rule on these motions, the Court entered Orders
on August 17, 2018 and September 5, 2018 for further briefing (Dkt. Nos. 1423, 1427), and will
rule separately on the motions in due course.
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II. 	DISCUSSION
A. 	Motion to Vacate
Following the denial of his petition for certiorari, Petitioner timely filed the instant Motion
to Vacate pursuant to Title 28 U.S.C. § 2255. Petitioner raised seven grounds for post-conviction
relief, each asserted under the theory of ineffective assistance of counsel. Magistrate Judge Miller
recommended that the Court deny each of Petitioner’s seven claims in her R&R, and Petitioner
timely filed objections to her recommendations as to each of his claims. In light of Petitioner’s
objections, the Court will review his Motion to Vacate de novo. See 28 U.S.C. § 636(b)(1)(B)
(providing that “[a] judge of the court shall make a de novo determination of those portions of the
[magistrate’s] report or specified proposed findings or recommendations to which objection is
made”). However, to the extent that Petitioner’s objections “merely reiterate issues already
presented to the magistrate judge,” the determinations in the R&R with respect to those issues will
be examined under a plain error standard. Joseph v. Beard, 2015 WL 1443970, at *4 (E.D. Pa.
Mar. 27, 2015) (citations omitted).
1. 	Applicable Legal Standards
Title 28 U.S.C. § 2255 (“Section 2255”) permits a petitioner to collaterally attack his
sentence by moving “the court which imposed the sentence to vacate, set aside or correct the
sentence.” 28 U.S.C. § 2255(a). A petitioner may seek post-conviction relief where (1) a “sentence
was imposed in violation of the Constitution or laws of the United States,” (2) “the court was
without jurisdiction to impose such sentence,” (3) “the sentence was in excess of the maximum
authorized by law,” or (4) the sentence “is otherwise subject to collateral attack.” 28 U.S.C. §
2255(a). A court must grant an evidentiary hearing on the issues raised in a Section 2255 motion
“[u]nless the motion and the files and records of the case conclusively show that the prisoner is
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entitled to no relief.” 28 U.S.C. § 2255(b); United States v. Tolliver, 800 F.3d 138, 140 (3d Cir.
2015).
Ineffective assistance of counsel claims can provide a proper basis for relief under Section
2255. United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014) (citing United States v. Rad–
O–Lite of Phila., Inc., 612 F.2d 740, 744 (3d Cir. 1979)). To advance a successful ineffective
assistance of counsel claim, Petitioner bears the burden of showing that (1) “counsel’s performance
was deficient;” and (2) “the deficient performance prejudiced the defense.” Berryman v. Morton,
100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
“[B]oth deficiency and prejudice must be proven to have a valid claim for relief.” Travillion, 759
F.3d at 289–90 (citing Strickland, 466 U.S. at 687).
As to the first prong, Petitioner must show “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. A reviewing court’s “evaluation of counsel’s performance is ‘highly
deferential,’” and courts “must indulge a strong presumption that counsel’s conduct falls within a
wide range of reasonable professional assistance.” Berryman v. Morton, 100 F.3d 1089, 1094 (3d
Cir. 1996) (quoting Strickland, 466 U.S. at 689). In other words, Petitioner carries the burden to
demonstrate that “trial counsel’s actions ‘were not supported by a reasonable strategy.’” United
States v. Washington, 869 F.3d 193, 204 (3d Cir. 2017), cert. denied, 138 S. Ct. 713 (2018)
(quoting Massaro v. United States, 538 U.S. 500, 505 (2003)).
As to the second prong, Petitioner must establish prejudice through a “showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687. Petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
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different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence
in the outcome” of the proceeding. Id.
2. 	Grounds One and Two
As a first ground (“Ground One”) for post-conviction relief, Petitioner asserts that his
counsel failed to apprise him of the strength of the Government’s evidence against him and, as a
result, he “made an uninformed decision to withdraw the cooperation agreement that had been
signed under the position that the Government had absolutely no case against him.” (Dkt. No. 1237
at 20-21).2 The Government argues that Petitioner’s claim must fail because his counsel did in fact
advise him of the extent of the Government’s case against him. In support of this assertion, the
Government attaches to its response a sworn affidavit from Petitioner’s trial counsel—Andrew
Capdeville, Esq.—attesting thereto. (Dkt. No. 1280 at 4-5). Petitioner filed a reply to the
Government’s opposition—attaching his own (unsigned and unsworn) affidavit in which he attests
that Attorney Capdeville did not discuss the extent of the Government’s case with him.
(Dkt. No. 1295-1). Petitioner argues that, because an evidentiary hearing is required on a Section
2255 motion unless the record conclusively shows that Petitioner is not entitled to relief, an
evidentiary hearing is required here to resolve the conflicting accounts. Id. at 9-11.
As a second ground (“Ground Two”) for post-conviction relief, Petitioner alleges that his
counsel failed to advise him regarding the drug quantities that would be attributed to him for
2 Although Petitioner does not distinguish for purposes of his Motion to Vacate among the various
attorneys who represented him in proceedings before, during, and after trial, the Court notes that
Petitioner was represented by the following counsel throughout the course of the various
proceedings: (1) Joseph Mingolla, Esq., represented Petitioner at the time of his arrest; (2) Andrew
Capdeville, Esq., was appointed on June 25, 2003 and represented Petitioner during trial; (3)
Martial Webster, Esq., was appointed on March 28, 2006 to represent Petitioner following his trial;
and (4) John Benham, Esq., replaced Attorney Webster on May 4, 2007 and represented Petitioner
at sentencing. (Dkt. No. 1355 at 3).
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sentencing purposes under the relevant conduct provisions of the United States Sentencing
Guidelines (“Guidelines”), as well as the offense level enhancements that would apply under the
Guidelines as a result of Petitioner’s role as a boat pilot and leader of the drug trafficking
enterprise. (Dkt. No. 1237 at 24). Petitioner alleges that counsel’s failure to discuss this
information with him prevented him from making a reasonably informed decision as to whether
to 	accept 	a 	plea 	offer. 	Id. at 25. 	The 	Government 	contends—relying 	again 	on 	Attorney
Capdeville’s affidavit—that Petitioner’s counsel in fact informed him of the applicable Guidelines
provisions and explained that Petitioner’s maximum sentencing exposure was life imprisonment.
(Dkt. No. 1280 at 5-6). Petitioner disputes Attorney Capdeville’s attestations in the affidavit
attached to Petitioner’s reply. (Dkt. No. 1295-1).
Magistrate Judge Miller considered Grounds One and Two together. In examining Ground
One, she reviewed the transcripts of suppression hearings held on March 26 and March 30, 2004,
and concluded from these records that Petitioner twice acknowledged that Attorney Joseph
Mingolla—who represented Petitioner in pre-trial proceedings—warned Petitioner about the
strength of the evidence against him. (Dkt. No. 1355 at 9-11).3 She therefore rejected Petitioner’s
first claim of ineffective assistance of counsel, finding no support in the record for a showing of
deficient performance. Id. at 11.
As for Ground Two, Magistrate Judge Miller assumed arguendo that counsel failed to
advise Petitioner regarding the impact of the relevant conduct provisions of the Guidelines, “as the
3 The R&R indicates that the transcript of a March 26, 2004 suppression hearing is docketed on
the Court’s Case Management/Electronic Case Files (“CM/ECF”) system at Docket Number 1160.
It appears, however, that the full transcript was not uploaded onto CM/ECF. The original physical
transcript is labeled with Docket Number 424, and the Court has relied on the physical transcript
in its review of the record and the Magistrate Judge’s references to the March 26, 2004 suppression
hearing.
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record evidence is limited to competing affidavits.” Id. at 11. She concluded, however, that
Petitioner had failed to proffer any evidence to support a finding of ineffective assistance of
counsel under the factors identified by the Supreme Court in Lafler v. Cooper, 566 U.S. 156
(2012)—and in particular, had offered no evidence of Petitioner’s “serious consideration of a plea
offer.” Id.4 Magistrate Judge Miller found that Petitioner refused to accept responsibility for the
crimes charged both before and after his conviction, undermining his assertion that he would have
entered a plea deal had his counsel apprised him of the impact of the relevant conduct provisions
of the Guidelines. Id. at 11-12.5 She also determined that—even had Petitioner been willing to
accept a plea agreement—Petitioner had “proffered no evidence that the District Court would have
accepted a plea agreement or that his sentence thereunder would have been less severe than the
sentence actually imposed.” Id. at 12.
Petitioner focuses his objections on the Magistrate Judge’s findings with respect to Ground
Two, again asserting that the Court must grant Petitioner an evidentiary hearing because the only
evidence before it are the conflicting affidavits from Petitioner and Attorney Capdeville. (Dkt. No.
4 Where a petitioner alleges that his decision not to enter into a plea agreement was the result of
his counsel’s ineffective advice, the petitioner “must show that but for the ineffective advice of
counsel there is a reasonable probability that the plea offer would have been presented to the court
(i.e., that the defendant would have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that the court would have accepted its terms,
and that the conviction or sentence, or both, under the offer’s terms would have been less severe
than under the judgment and sentence that in fact were imposed.” Lafler v. Cooper, 566 U.S. 156,
164 (2012). A petitioner must demonstrate a reasonable probability that each of these events would
have occurred absent counsel’s deficient performance. Shnewer v. United States, 703 F. App’x 85,
88 (3d Cir. 2017).
5 Magistrate Judge Miller cited to the transcripts of the March 26 and March 30, 2004 suppression
hearings, quoting Petitioner’s statements to the effect that he had only signed an earlier cooperation
agreement because his family was threatened by federal agents, and that the Government’s
evidence against him was falsified. Id. She also cited to the transcript of Petitioner’s sentencing
hearing, at which his counsel stated that Petitioner continued to maintain his innocence of the
crimes for which he was convicted. Id. at 12.
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1358 at 2). He also challenges Magistrate Judge Miller’s findings with respect to the absence of
evidence indicating that Petitioner would have seriously considered a plea agreement or that the
District Court would have accepted the plea agreement. Finally, Petitioner asserts that regardless
of whether he would have entered into a plea agreement with the Government, he would have
entered an open guilty plea had he been advised of his sentencing exposure under the relevant
Guidelines provisions, and would therefore have benefited from a three-point offense level
reduction under the Guidelines for acceptance of responsibility. Id. at 2-3.6
Following its independent review of the record, the Court adopts Magistrate Judge Miller’s
factual findings and accepts her recommendation that Petitioner’s first ineffective assistance of
counsel claim be denied. The Court finds that Petitioner’s own testimony at a March 30, 2004
suppression hearing—wherein Petitioner acknowledges that Attorney Mingolla informed him that
his conviction at trial was likely given the Government’s evidence against him and that Petitioner’s
sentencing exposure was life in prison—belies Petitioner’s claim that counsel was ineffective in
failing to inform him about the strength of the Government’s case. (Dkt. No. 1155 at 31:9-33:13).
Because the record demonstrates that Petitioner was informed about the strength of the
Government’s case even before Attorney Capdeville began representing him, it is unnecessary for
the Court to rely on the conflicting affidavits to resolve the first claim of ineffective assistance of
counsel. The Court thus concludes that Petitioner has failed to show that his counsel’s performance
was deficient with respect to Ground One.
As to Ground Two, in light of the conflicting affidavits from Petitioner and Attorney
Capdeville, the Court assumes arguendo that Attorney Capdeville failed to advise Petitioner about
6 “An ‘open’ guilty plea is a plea made by the defendant without the benefit of a plea agreement
entered into with the Government.” United States v. Booth, 432 F.3d 542, 543 n.1 (3d Cir. 2005)
(citation omitted).
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the possible impact of the applicable Guidelines provisions on Petitioner’s sentence. The Court
also recognizes that “a defendant has the right to make a reasonably informed decision whether to
accept a plea offer because knowledge of the comparative sentencing exposure between standing
trial and accepting a plea offer will often be crucial to the decision whether to plead guilty.” United
States v. Booth, 432 F.3d 542, 549 (3d Cir. 2005) (quoting United States v. Day, 969 F.2d 39, 44
(3d Cir. 1992)) (internal quotation and quotation marks omitted). Where a defendant is “seriously
misled about his sentence exposure when the likelihood of his conviction [i]s overwhelming, he
receive[s] ineffective assistance of counsel.” Day, 969 F.2d at 44. If a petitioner makes this
showing, he must also establish prejudice by demonstrating, inter alia, “a reasonable probability
that he would have accepted [a] favorable [plea] offer but for the ineffective advice of his
counsel . . . .” United States v. Vaughn, 704 F. App’x 207, 213 (3d Cir. 2017) (citing Lafler,
566 U.S. at 164).7
The Court concludes that, even assuming that Attorney Capdeville had failed to explain
the impact of the applicable Guidelines provisions on Petitioner’s sentence, Petitioner has failed
to establish the requisite showing of prejudice. The record undermines his contention that he would
have entered into a plea agreement with the Government had this information been explained.8
7 As noted above, a petitioner must also show “that the district court would have accepted the plea,
and that ‘the conviction or sentence, or both, under the offer’s terms would have been less severe
than under the judgment and sentence that in fact were imposed.’” Vaughn, 704 F. App’x at 213
(quoting Lafler, 566 U.S. at 164)
8 The Court is also skeptical that Attorney Capdeville’s alleged failure to explain the applicable
sentencing enhancements supports a finding that Petitioner was “seriously misled” about his
sentencing exposure in this case. As discussed above, Petitioner acknowledged during suppression
hearings held in March 2004 that Attorney Mingolla advised him both that a conviction was likely
at trial and that a sentence of life imprisonment could result. Effective assistance of counsel does
not require “anything approaching a detailed exegesis of the myriad arguably relevant nuances of
the Guidelines.” Day, 969 F.2d at 43. Counsel is under no requirement to provide an “exact
number” in order to reasonably inform a client regarding his sentencing exposure for purposes of
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Although Petitioner signed a cooperation agreement with the Government shortly after his arrest,
he later withdrew from the agreement and explained his reasons for doing so during suppression
hearings held on March 26 and March 30, 2004.9 Petitioner maintained that his initial decision to
cooperate with law enforcement was the product of coercion by agents who had told him that they
had evidence against his family members, and that his family members would be arrested if
Petitioner did not cooperate. (Dkt. No. 424 at 27:1-7). Petitioner also maintained that the
Government’s evidence against him was “all false,” and that agents were distorting the meaning
of taped conversations they intended to use as evidence against him. Id. at 29:6-19. In other words,
Petitioner claimed that he was innocent of the crimes charged, and that his decision to cooperate
with the Government had been made under duress. Petitioner continued to maintain his innocence
following his conviction. (Dkt. No. 1355 at 12).10
Based on this record, the Court finds that any claimed failure on Attorney Capdeville’s part
to explain the applicable Guidelines provisions was not a “but for” cause of Petitioner’s decision
not to enter into a plea agreement with the Government. Where a petitioner has maintained his
a decision regarding the acceptance or rejection of a plea deal. Shotts v. Wetzel, 724 F.3d 364, 376
(3d Cir. 2013). Because Petitioner was admittedly aware of his maximum sentencing exposure, he
should not be heard to complain that he was wronged by Attorney Capdeville’s alleged failure to
walk him through the specific Guideline provisions that could result in such a sentence.
9 Petitioner entered into a cooperation agreement in early April 2003 on the advice of Attorney
Mingolla. (Dkt. No. 424 at 26:5-13). Petitioner acknowledged at both the March 26 and March 30
hearings that he signed the cooperation agreement after Attorney Mingolla explained to him that
the Government would agree to reduce his sentence if he cooperated with law enforcement. (Dkt.
No. 424 at 26:15-23; Dkt. No. 1155 at 29:16-21). Petitioner also acknowledged that Attorney
Mingolla had informed him that, absent his cooperation with law enforcement, Petitioner’s
conviction was likely and that he was facing life imprisonment. (Dkt. No. 1155 at 31:19-32:19).
10 During his sentencing hearing, Petitioner’s counsel noted that Petitioner continued to maintain
his innocence of the crimes for which he was convicted, and the sentencing Judge therefore
refrained from questioning Petitioner about those offenses. (Dkt. No. 1355 at 12).
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innocence throughout the proceedings in a case, his ability to demonstrate that he would have
accepted a plea agreement had his attorney fully explained his sentencing exposure is undermined.
See, e.g., Osley v. United States, 751 F.3d 1214, 1224 (11th Cir. 2014) (denying an ineffective
assistance of counsel claim based on an attorney’s failure to advise a petitioner that he faced a 15-
year mandatory minimum sentence where his assertion that “he would have pled guilty had he
been properly informed” was “undermined by his repeated claims of innocence”); Garcia v. United
States, 679 F.3d 1013, 1014 (8th Cir. 2012) (holding that a petitioner failed to demonstrate that he
would have pled guilty but for his counsel’s erroneous advice where he maintained his innocence
on drug distribution charges during plea negotiations, at trial, and at sentencing). Here, the record
shows that—despite Attorney Mingolla’s warnings about the strength of the Government’s case
and 	Petitioner’s 	sentencing 	exposure 	of 	life 	imprisonment—Petitioner 	withdrew 	from 	a
cooperation agreement claiming that his cooperation had been coerced by law enforcement, and
thereafter maintained his innocence of the crimes with which he was charged. His present claim
that he would have accepted a plea agreement from the Government had Attorney Capdeville
explained the impact of particular Guidelines provisions rings hollow, particularly where the
record establishes that Petitioner had been made aware that his maximum sentencing exposure was
life imprisonment.
For the same reasons, the record evidence also undermines Petitioner’s contention that—
even absent an agreement with the Government—he would have entered an open guilty plea and
benefitted from a three-point offense level reduction for acceptance of responsibility had Attorney
Capdeville’s assistance been effective. Moreover, even assuming that Petitioner would have
entered an open guilty plea and benefitted from the three-point offense level reduction, there is no
reasonable probability that the sentence imposed would have been less severe than the 40-year
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term of imprisonment he received. Petitioner’s offense level calculation at sentencing was 46, with
an advisory Guidelines range of life imprisonment. (Dkt. No. 1135 at 39:13-14).11 With a three-
level reduction, Petitioner’s offense level calculation would have been 43—which, under the
Guidelines, also results in an advisory sentence of life imprisonment regardless of a defendant’s
criminal history category. See U.S.S.G. § 5 Pt. A. Because the three-level reduction would not
have affected Petitioner’s advisory Guidelines range, Petitioner can show no prejudice, in that he
cannot show a “reasonable probability” that his sentence would have been different but for his
counsel’s alleged errors. Strickland, 466 U.S. at 694.
For the foregoing reasons, the Court will deny Petitioner’s second claim to ineffective
assistance of counsel.
3. 	Ground Three
In his third ground (“Ground Three”), Petitioner argues that the Government committed
prosecutorial misconduct by constructively amending the grand jury’s indictment when it redacted
the word “December” from the fourth overt act charged in Count 1 of the superseding indictment.
(Dkt. No. 1237 at 28). With the redaction, the fourth overt act alleged that Petitioner was involved
in a successful importation of 100 kilograms of cocaine from St. Martin to St. Thomas “[o]n or
about 2001” rather than “on or about December 2001.” Id. Petitioner alleges that this redaction
impermissibly broadened the scope of the conspiracy as charged in the superseding indictment,
and allowed the Government to improperly link the testimony of witness Ishmael Brathwaite
(“Brathwaite”) to the fourth overt act even though Brathwaite had left the Virgin Islands in
11 The highest offense level recognized in the Guidelines—both currently and at the time of
Petitioner’s sentencing hearing in 2007—is 43. In imposing a sentence of 40-years imprisonment,
the Judge varied downward from the advisory Guidelines range of life imprisonment.
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September 2001. Id. at 15.12 He thus asserts that his trial counsel was ineffective in failing to object
to the alleged prosecutorial misconduct.
Magistrate Judge Miller found—and this Court has confirmed—that the superseding
indictment as read to the jury omitted references to “December” in relation to the fourth overt act.
(Dkt. No. 1355 at 14). The Magistrate Judge concluded, however, that Petitioner failed to show
that “the jury convicted him for an offense other than the drug conspiracy as charged by the grand
jury in the original superseding indictment” as a result of this redaction. Id. at 15. Rather, at best,
Petitioner “called into question one of the 19 overt acts alleged in the superseding indictment in
furtherance of count one.” Id. Because the evidence at trial demonstrated numerous other overt
acts committed in furtherance of the drug conspiracy, Magistrate Judge Miller concluded that—
even if his counsel’s failure to object to the redaction in the superseding indictment constituted
deficient performance—Petitioner was unable to establish prejudice. Id. at 16. She therefore
recommended that Petitioner’s third claim of ineffective assistance of counsel be denied. Id.
Although Petitioner initially raised Ground Three under an ineffective assistance of counsel
theory, he argues in his objections to the R&R that the Court should also consider Ground Three
under a prosecutorial misconduct theory. (Dkt. No. 1358 at 4-6).13 He asserts that the redaction of
12 Petitioner and the Magistrate Judge refer to this witness as “Braithwaite.” The record indicates
that the correct spelling of the witness’ name is “Brathwaite.” (Dkt. No. 875 at 92:22).
13 Petitioner’s argument that Ground Three should be considered under a prosecutorial misconduct
theory is not properly before the Court, as “[i]t is well established that a petitioner may not include
arguments in his objections [to an R&R] that were not included in his petition.” Henderson v. Dep't
of Correction, 2015 WL 3832949, at *4 (E.D. Pa. June 22, 2015) (collecting cases).
Regardless, for the reasons discussed below, the Court concludes that Petitioner’s prosecutorial
misconduct claim must fail. To successfully attack his conviction on prosecutorial misconduct
grounds, Petitioner must establish that the Government’s alleged misconduct “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986). “[F]or due process to have been offended, ‘the
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“December” from the superseding indictment as read to the jury constituted a constructive
amendment because it allowed Brathwaite to testify as to drug shipments “that occurred in a time
frame not charged in the superseding indictment.” Id. at 5.
While the Court is perplexed by the alteration to the superseding indictment—which is left
unexplained by the record—the Court concludes that Petitioner’s third ground for post-conviction
relief fails. Under the circumstances here, the omission of the word “December” from the
description of one overt act charged in the superseding indictment did not result in a constructive
amendment.
“An indictment is constructively amended when, in the absence of a formal amendment,
the evidence and jury instructions at trial modify essential terms of the charged offense in such a
way that there is a substantial likelihood that the jury may have convicted the defendant for an
offense 	differing 	from 	the 	offense 	the 	indictment 	returned 	by 	the 	grand 	jury 	actually
charged.” United States v. Daraio, 445 F.3d 253, 259-60 (3d Cir. 2006) (citing United States v.
Miller, 471 U.S. 130, 140 (1985)) (additional citations omitted). Prejudice to a defendant results
where such a modification “broaden[s] the possible bases for conviction from that which appeared
in the indictment.” United States v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (citing United States
v. Lee, 359 F.3d 194, 208 (3d Cir. 2004)). The central question is whether a defendant was
“convicted of the same conduct for which he was indicted.” Id. (quoting United States v. Robles–
Vertiz, 155 F.3d 725, 729 (5th Cir. 1998)). “If a defendant is convicted of the same offense that
was charged in the indictment, there is no constructive amendment.” United States v. Vosburgh,
prosecutorial misconduct must be of sufficient significance to result in the denial of the
defendant’s right to a fair trial.’” Werts v. Vaughn, 228 F.3d 178, 197–98 (3d Cir. 2000) (quoting
Greer v. Miller, 483 U.S. 756, 765 (1987)) (internal quotation and additional citations omitted).
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602 F.3d 512, 532 (3d Cir. 2010) (citing United States v. Patterson, 348 F.3d 218, 227
(7th Cir. 2003)).
Here, Count 1 of the superseding indictment charged that Petitioner and others participated
in a drug trafficking conspiracy “[f]rom the early part of 2000 . . . and continuing until
approximately April, 2003.” (Dkt. No. 544 at 1). The superseding indictment thus placed Petitioner
on notice that he would have to defend against evidence of his participation in a drug trafficking
conspiracy during that period. The pertinent inquiry is whether the alteration to the superseding
indictment broadened the bases for Petitioner’s conviction such that he was convicted of an offense
that was not charged in the superseding indictment.
At trial, Brathwaite testified that between 2000 and 2001 he and Petitioner traveled to St.
Martin to pick up approximately 150 kilograms of cocaine; loaded the cocaine onto a boat in St.
Martin; and transported the cocaine by boat from St. Martin to St. Croix and then to St. Thomas—
unloading portions of the cocaine on both islands. (Dkt. No. 875 at 98:6-109:13). Brathwaite also
testified that Petitioner paid him for his assistance in transporting the cocaine. Id. at 110:1-111:2.
Contrary to Petitioner’s assertion, Brathwaite’s testimony about drug trafficking activities
in 2000 to 2001 falls within the early 2000 to April 2003 timeframe of the conspiracy charged in
the superseding indictment. Because it related to events occurring within the timeframe of the
charged conspiracy, Brathwaite’s testimony did not result in the jury’s consideration of conduct
falling outside the scope of the charged conspiracy such as might permit the jury to convict
Petitioner for uncharged conduct.
Further, in presenting its case against Petitioner, the Government was not obligated to
prove each of the overt acts alleged in the superseding indictment, nor was it restricted to
presenting evidence related solely to the overt acts charged. See United States v. Adamo, 534 F.2d
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31, 38 (3d Cir. 1976) (noting that as a general rule in conspiracy cases, “the Government is not
limited in its proof at trial to those overt acts alleged in the indictment . . . [and] is under no
obligation to prove every overt act alleged.”); see also United States v. Price, 13 F.3d 711, 724 (3d
Cir. 1994) (recognizing that proof of an overt act is not a necessary element of a drug trafficking
conspiracy) 	(citing 	United States v. Bey, 736 F.2d 891, 893-95 (3d Cir. 1984)). 	Because 	the
Government was not restricted at trial to proof of overt acts alleged in the superseding indictment,
nor required to prove every overt act alleged, the omission of the word “December” from the
superseding indictment as read to the jury was harmless. Regardless of whether the superseding
indictment as read to the jury alleged that Petitioner participated in drug trafficking activities in
December of 2001 or in 2001 generally, Brathwaite’s testimony provided evidence of Petitioner’s
drug trafficking activities during the course of the conspiracy charged in the superseding
indictment. The jury’s consideration of this evidence as it related to the conspiracy charged in
Count 1 of the superseding indictment was proper, and the alteration to the superseding indictment
did not broaden the possible bases for Petitioner’s conviction from those charged.
Accordingly, because the possible bases for Petitioner’s conspiracy conviction were not
broadened as a result of the omission of the word “December” from the superseding indictment as
read to the jury, Petitioner cannot demonstrate that a constructive amendment of the superseding
indictment occurred here, nor can he show that he was prejudiced as a result of the alteration. The
Court will therefore deny Petitioner’s request for post-conviction relief in Ground Three.14
14 The Court further notes that the Government introduced evidence apart from Brathwaite’s
testimony to support Petitioner’s conviction on the drug trafficking conspiracy count. This
evidence included, inter alia, Anthony Ottley’s testimony regarding the purchase of six kilograms
of cocaine from Petitioner (Dkt. No. 874 at 233:1-237:15), and testimony from Drug Enforcement
Administration Agents Joe Tokarz (Dkt. No. 876 at 134:1-146:18), Bryan Bonifant (Dkt. No. 878
at 64:3-68:6), and Robert Lasky (Dkt. No. 878 at 159:12-165:3) regarding confidential source
Hector Rivera’s controlled purchase of cocaine from Petitioner.
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4. 	Ground Four
As a fourth ground (“Ground Four”) for post-conviction relief, Petitioner alleges that
Drug Enforcement Administration (“DEA”) Agent Joe Tokarz altered video evidence that he
testified was surveillance footage of a March 1, 2003 drug transaction; that additional footage was
added to the video by Special Agent Rambo; and that Petitioner’s counsel was aware of the
alterations and was ineffective in failing to request a mistrial or dismissal of the indictment on that
ground. (Dkt. No. 1237 at 31-33).
Based on her review of the trial record, Magistrate Judge Miller found—and this Court has
confirmed—that Attorney Capdeville questioned Agent Tokarz on cross-examination about his
ability to alter video footage related to a March 1, 2003 drug transaction. (Dkt. No. 1355 at 27).
Agent Tokarz testified that the footage was not altered in any way, but that additional footage from
a different incident was recorded on the same videotape. Id. Attorney Capdeville continued to
press Agent Tokarz on his ability to alter the videotape, but this line of questioning was cut off by
the Judge. Id. at 27-28. Accordingly, Magistrate Judge Miller concluded that Petitioner’s counsel
“attempted to develop an argument regarding alterations to the video evidence,” but that “the
Court’s questions undermined the effectiveness of the argument.” Id. at 28. Because the Magistrate
Judge determined that counsel was under no duty to continue to pursue a line of questioning that
the Court would not permit, she recommended that Petitioner’s ineffective assistance claim be
denied. Id. at 28-29.
In his Ground Four objections, Petitioner argues that Attorney Capdeville had an obligation
to continue questioning Agent Tokarz about the discrepancies between his testimony and written
reports regarding the modification of the video evidence. (Dkt. No. 1358 at 11-12). Having
reviewed the record, the Court adopts Magistrate Judge Miller’s factual findings and accepts her
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recommendation that Petitioner’s fourth ineffective assistance of counsel claim be denied. The
transcript reveals that Attorney Capdeville successfully elicited testimony from Agent Tokarz that
footage had been added to the video despite his earlier statement indicating that the video had not
been altered in any way. Agent Tokarz acknowledged that a DEA 6 report he created indicated
that footage from a separate incident was added to the tape by Special Agent Rambo. (Dkt. No.
877 at 63:9-64:2). The transcript also reveals that the Judge would not permit Attorney Capdeville
to phrase his questions to Agent Tokarz about alleged alterations to the video in a manner that
would 	suggest 	that 	modification 	of 	the 	images 	contained 	on 	the 	video 	was 	possible.
Id. at 66:1-67:13. Petitioner points to no evidence suggesting that images in the video were
modified, as opposed to additional footage being added to the tape. Therefore, because Attorney
Capdeville successfully elicited testimony for consideration by the jury that footage had been
added to the tape, and in light of the limitations on the questioning imposed by the Judge, Petitioner
can show no prejudice resulting from Attorney Capdeville’s decision not to examine the issue of
modifications to the video further. Accordingly, the relief requested in Ground Four will be denied.
5. 	Ground Five
Petitioner advances two claims in his fifth ground (“Ground Five”) for post-conviction
relief. First, Petitioner alleges that the Government knowingly presented perjured testimony to the
grand jury through witness Arthur Colleymore (“Colleymore”) regarding the inclusion of a non-
disclosure provision as a term of a loan agreement between Petitioner and Colleymore. (Dkt. No.
1237 at 34). In the superseding indictment, the Government alleged that Petitioner loaned $25,000
to Colleymore in an effort to launder the illegal proceeds of his drug trafficking organization. (Dkt.
No. 544 at 22). The superseding indictment also alleged that Petitioner attempted to conceal his
involvement in the loan “by ordering the businessman [Colleymore] to sign a non-disclosure
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agreement . . . .” Id. at 22-23. At trial, however, Colleymore testified that the inclusion of the non-
disclosure agreement had been his (Collymore’s) suggestion. (Dkt. No. 879 at 274:14-20).
Petitioner thus alleges that the Government knowingly presented perjured testimony to the grand
jury in the form of Colleymore’s allegation that Petitioner had ordered the inclusion of the non-
disclosure provision in the loan agreement, and that his counsel was ineffective in failing to move
to suppress Colleymore’s testimony at trial or moving to dismiss the charges against Petitioner
based on this alleged prosecutorial misconduct. (Dkt. No. 1237 at 34-35).15
Magistrate Judge Miller concluded that Petitioner’s claim that his counsel was ineffective
in failing to object to the Government’s presentation of allegedly perjured testimony to the grand
jury was “deficient on its face.” (Dkt. No. 1355 at 19). The Magistrate Judge found that while
Petitioner had identified an inconsistency between the language of the superseding indictment and
Collymore’s trial testimony regarding the inclusion of the non-disclosure provision in the loan
agreement, such evidence was insufficient to establish that Colleymore had perjured himself before
the grand jury or that the Government had knowingly offered his perjured testimony to the grand
jury. Id. at 17-18. The Magistrate Judge also found that, even if Petitioner had presented evidence
of prosecutorial misconduct and his counsel was ineffective in failing to object thereto, Petitioner
was unable to establish prejudice in light of other evidence presented by the Government with
respect to the money laundering count. Id. at 19-20.
Petitioner counters in his objections that the inconsistency between the language of the
superseding indictment and Colleymore’s testimony at trial provides conclusive evidence that the
15 Because Colleymore’s testimony at trial was favorable to Petitioner, Petitioner’s claim that his
counsel was ineffective in failing to suppress this testimony at trial has no merit. Accordingly, the
Court addresses only Petitioner’s argument that his counsel was ineffective in failing to move to
dismiss the charges against Petitioner based on alleged prosecutorial misconduct before the grand
jury.
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Government knowingly introduced perjured testimony. He further agues that the additional
evidence of money laundering identified by Magistrate Judge Miller represents no more than
“innocuous actions” by Petitioner insufficient to support a jury’s guilty verdict on the money
laundering charge. (Dkt. No. 1358 at 7-9).
After its independent review of the record, the Court adopts Magistrate Judge Miller’s
factual findings and concludes that Petitioner’s ineffective assistance of counsel claim must fail.
First, Petitioner has not shown that the Government knowingly introduced perjured testimony to
the grand jury through Colleymore. Assuming that Colleymore’s testimony before the grand jury
with respect to the non-disclosure provision in the loan agreement conflicted with his testimony at
trial, a mere inconsistency in testimony is insufficient to establish perjury. United States v.
Mangiardi, 173 F. Supp. 2d 292, 307 (M.D. Pa. 2001) (citing United States v. Thompson, 117 F.3d
1033, 1035 (7 th Cir. 1997)).16 Rather, “[a] witness commits perjury if he or she ‘gives false
testimony concerning a material matter with the willful intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty memory.’” United States v. Hoffecker, 530 F.3d
137, 183 (3d Cir. 2008) (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)). Petitioner
has presented the Court with no evidence suggesting that Colleymore intentionally gave false
testimony to the grand jury or that the Government knowingly presented such testimony. Because
there is no evidence in the record of perjury or the Government’s knowing presentation of perjured
testimony to the grand jury, the Court concludes that Petitioner has failed to show that Attorney
Capdeville was ineffective in failing to seek the dismissal of charges against Petitioner on grounds
of prosecutorial misconduct.
16 Petitioner has not provided the Court with a transcript of the grand jury proceedings—much
less pointed with specificity to the testimony at those proceedings that he alleges was perjured.
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Further, assuming that Petitioner were able to establish that the Government knowingly
presented perjured testimony before the grand jury—which he cannot—Petitioner would be unable
to establish the requisite showing of prejudice. Even where a showing of prosecutorial misconduct
at the grand jury phase is made, a “petit jury’s guilty verdict render[s] any prosecutorial misconduct
before the indicting grand jury harmless.” United States v. Console, 13 F.3d 641, 672 (3d Cir.
1993) (citing United States v. Mechanik, 475 U.S. 66, 70–72 (1986)); see also United States v.
Bansal, 663 F.3d 634, 660 (3d Cir. 2011) (“Even if it were true that prosecutors made material
misstatements to the grand jury, each of the grand jury’s findings of probable cause was later
ratified in full by the petit jury, thus curing the defects [the defendant] now alleges.”) (citation
omitted).
Moreover, 	although 	inconsistent 	with 	the 	allegation 	contained 	in 	the 	superseding
indictment regarding the non-disclosure provision in the loan agreement, Colleymore’s testimony
at trial was favorable to Petitioner. Notwithstanding the favorable testimony regarding the genesis
of the non-disclosure provision, the jury still returned a guilty verdict against Petitioner on the
money laundering count—a verdict supported by ample evidence other than Colleymore’s
testimony.17 Accordingly, the Court concludes that any failure by Petitioner’s counsel to object to
alleged prosecutorial misconduct before the grand jury did not result in prejudice to Petitioner.
17 To establish that Petitioner conspired to launder money as charged in Count 12 of the
superseding indictment, the Government had the burden of presenting evidence that Petitioner
knowingly agreed with at least one other person to engage or attempt to engage in a financial
transaction involving the proceeds of unlawful activity with knowledge that the transaction
involved the proceeds of unlawful activity and (1) with the intent to promote the carrying on of
unlawful activity or (2) with knowledge that the transactions were designed to conceal the nature,
location, source, ownership, or control of the proceeds of unlawful activity. United States v.
Omoruyi, 260 F.3d 291, 294 (3d Cir. 2001) (citations omitted). Evidence introduced at trial related
to Petitioner’s cash payments for boat engines and parts, testimony that Petitioner stated to witness
David Peltier that he needed to move millions of dollars linked to drug runs to St. Martin, and
Petitioner’s bank account and Western Union transfer records was sufficient to allow a reasonable
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Second, 	Petitioner 	claims 	that 	the 	Government 	intentionally presented 	incomplete
testimony by Agent Jacqueline Reynolds regarding the total amount of Petitioner’s legitimate
income from his marine business based on an incomplete review of his business records, and that
his counsel was ineffective in failing to appropriately lodge an objection to this testimony.
(Dkt. No. 1237 at 36-37).
Following her review of the record, Magistrate Judge Miller concluded that, in fact, Agent
Reynolds testified on direct examination that she had reviewed only some business records from
Petitioner’s legitimate business. (Dkt. No. 1355 at 21-22). On cross-examination, Attorney
Capdeville elicited further testimony from Agent Reynolds that the business records she reviewed
were limited to those receipts seized following the execution of a search warrant on Petitioner’s
home. Id. at 24. Accordingly, Magistrate Judge Miller concluded that there was no evidence that
the Government introduced perjured testimony through Agent Reynolds, and further, that
Petitioner had failed to establish that his counsel’s performance with regard to his cross-
examination of Agent Reynolds was deficient. Id. at 24-25. Petitioner claims in his objections that
Attorney Capdeville was aware of additional documents relevant to Petitioner’s income from his
legitimate business, and that he was ineffective in failing to rely on those documents to impeach
Agent Reynolds. (Dkt. No. 1358 at 10).
After its de novo review, the Court rejects Petitioner’s objections. The record reveals that
Attorney Capdeville specifically questioned Agent Reynolds as to whether she had examined all
receipts related to Petitioner’s business, and Agent Reynolds replied that she had examined only
those receipts that were seized following the execution of a search warrant at Petitioner’s
jury 	to 	convict 	Petitioner 	on 	Count 	12 	even 	without 	Colleymore’s 	testimony.
(Dkt. No. 1355 at 19-20).
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residence. (Dkt. No. 1355 at 24). Thus, the introduction of additional documents pertaining to
Petitioner’s legitimate business income would not have served to impeach Agent Reynolds’
testimony.
Moreover, while Petitioner now questions Attorney Capdeville’s decision not to enter other
records of income derived from Petitioner’s business as evidence, he fails to meet his burden of
demonstrating that this decision was not supported by a reasonable trial strategy. For example,
Petitioner provides no evidence as to what the business records would establish regarding the total
amount of legitimate income Petitioner was earning through his business. If the total amount of
this legitimate income was insufficient to explain the Government’s evidence of Petitioner’s
financial transactions—including bank account records evidencing numerous deposits of less than
$10,000 each into various accounts, and $68,000 in Western Union transactions—Attorney
Capdeville could 	have 	reasonably concluded 	that 	introducing the 	additional 	evidence of
Petitioner’s legitimate income would be harmful to his defense, as it would leave those transactions
unexplained.
Given the “strong presumption” that a defense attorney acts “for tactical reasons”—which
has “particular force where a petitioner bases his ineffective-assistance claim solely on the trial
record,” Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (quoting Massaro, 538 U.S. at 505)—the
Court concludes that Petitioner has failed to show that Attorney Capdeville was ineffective in
failing to introduce additional business records into evidence. Further, because Petitioner has
presented no evidence indicating that the introduction of these records would have undermined the
Government’s evidence that his financial transactions involved income derived from unlawful
sources, Petitioner has failed to establish that any prejudice resulted from Attorney Capdeville’s
performance. See, e.g., United States v. Massara, 174 F. App’x 703, 710 (3d Cir. 2006) (rejecting
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an ineffective assistance of counsel claim where a petitioner failed to assert “what information []
more witnesses, further investigation, or more extensive cross-examination would have revealed”).
The ineffective assistance of counsel claims raised in Ground Five of Petitioner’s Motion to Vacate
will be denied.
6. 	Ground Six
As a sixth ground (“Ground Six”) for post-conviction relief, Petitioner alleges that—
because he was detained in Puerto Rico and flown to St. Croix daily during the trial of this matter,
and because his counsel was unable to communicate with him by phone while he was held in
Puerto Rico—he was denied the opportunity to consult with his counsel during critical stages of
the case, particularly with respect to the review of Jencks materials disclosed during trial. (Dkt.
No. 1237 at 38-42). The Government responds that the trial court appropriately addressed issues
that arose with respect to Petitioner’s ability to communicate with counsel during trial such that
Petitioner was not, in fact, denied access to counsel. (Dkt. No. 1280 at 7-9). The Government also
argues that Petitioner fails to show that any prejudice resulted from alleged difficulties in
communication. Id.
Magistrate Judge Miller determined that Petitioner’s claim in Ground Six, although
“couched as ineffective assistance of counsel,” was in fact a Sixth Amendment denial of access to
counsel claim. (Dkt. No. 1355 at 29). Because Petitioner’s argument that he was denied access to
counsel as a result of his detention in Puerto Rico during trial was rejected by a Third Circuit panel
on Petitioner’s direct appeal, Magistrate Judge Miller determined that Petitioner was barred from
raising the claim again in his Motion to Vacate, and therefore recommended that it be denied. Id.
Petitioner argues that a decision by the Court to address his denial of assistance claim would not
constitute relitigation of a claim he presented on direct appeal to the Third Circuit, as he is now
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raising 	the 	claim 	in 	the 	context 	of 	his 	claim 	for 	ineffective 	assistance 	of 	counsel.
(Dkt. No. 1358 at 12-13).
Following its independent review of the record, the Court finds that Petitioner argued on
direct appeal “that he was denied access to counsel because he was held in Puerto Rico during the
trial”—a claim which a Third Circuit panel “carefully considered” and concluded was without
merit. United States v. Fleming, 287 F. App’x 150, 152, 155 (3d Cir. 2008). In general, “issues
resolved 	in 	a 	prior 	direct 	appeal 	will 	not 	be 	reviewed 	again 	by 	way 	of 	a 	§ 	2255
motion . . . .” Travillion, 759 F.3d 281 at 288 (citing United States v. DeRewal, 10 F.3d 100, 105
n. 4 (3d Cir.1993)); see also Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986) (holding
that “section 2255 may not be employed to relitigate questions which were raised and considered
on direct appeal”) (collecting cases). While Petitioner brings this claim under an ineffective
assistance of counsel theory, his Motion to Vacate asserts that it was the trial court and the United
States Marshals Service that impeded his ability to communicate with counsel. (Dkt. No. 1237 at
38-42). Petitioner also recognizes in his Motion to Vacate that his counsel brought the
communication issues to the attention of the court during trial. Id. at 39. Because Petitioner’s
Motion to Vacate does not allege that his counsel’s performance was deficient but rather asserts
that his ability to access counsel was denied, his sixth ground for relief amounts to a request that
this Court relitigate the denial of access to counsel claim that the Third Circuit panel resolved on
direct appeal—despite Petitioner’s claims to the contrary. See, e.g., Powell v. United States, 2015
WL 3544843, at *3 (D.N.J. June 1, 2015) (refusing to consider issues raised in a Section 2255
motion by a petitioner who previously raised those issues on direct appeal and then sought “to
reassert those claims by calling them ineffective assistance of counsel claims”). The Court refuses
to do so, and will deny the request for post-conviction relief raised by Petitioner in Ground Six.
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7. 	Ground Seven
As a seventh ground (“Ground Seven”) for post-conviction relief, Petitioner alleges that
his counsel failed to object to the quantities of drugs attributed to Petitioner by the Probation Office
in its Presentence Report (“PSR”), and that this failure to object permitted the Court at sentencing
to summarily accept information provided by the Probation Office without making individualized
findings as to the drug quantities attributable to Petitioner—thus increasing his Guidelines
sentencing range. (Dkt. No. 1237 at 42-44). Following her review of the transcript of Petitioner’s
sentencing hearing, Magistrate Judge Miller concluded that Petitioner’s counsel “specifically
objected to the drug quantity listed in the PSR,” and that the Court appropriately reviewed the
evidentiary basis for the PSR’s factual findings regarding drug quantity during the sentencing
hearing. (Dkt. No. 1355 at 29-35). The Magistrate Judge therefore concluded that Petitioner’s
ineffective assistance claim based on counsel’s alleged failure to object to the drug quantities as
determined in the PSR was meritless. Id. at 35.
In 	his objections, Petitioner repeats his 	allegation that the Court failed to make
individualized findings with respect to the drug quantities that could be attributed to Petitioner for
sentencing purposes. (Dkt. No. 1358 at 13-14). Accordingly, the Court will review the Magistrate
Judge’s determinations on Ground Seven for plain error. Joseph, 2015 WL 1443970 *4.
The transcript of Petitioner’s sentencing hearing reveals that the Judge entertained
arguments by the Government and Attorney Benham—Petitioner’s counsel at the time—regarding
the drug quantities that should be attributed to Petitioner for sentencing purposes based on the
evidence introduced at trial.18 Attorney Benham specifically objected to the drug quantities
18 In drug trafficking conspiracy cases, “an individual defendant may be held accountable for
amounts of drugs involved in reasonably foreseeable transactions conducted by co-conspirators
. . . [where] the amounts distributed by the defendant’s co-conspirators were distributed ‘in
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attributed to Petitioner in the PSR. (Dkt. No. 1355 at 31-32). The Judge then reviewed evidence
regarding the quantities of cocaine trafficked during the conspiracy as introduced at trial through
the testimony of witnesses Brathwaite, Ottley, Schoenbohm, Peltier, and Clarke, as well as law
enforcement testimony regarding confidential source Rivera’s purchases of cocaine. Id. at 33. With
respect to Petitioner’s involvement, the Judge credited the testimony of witness Brathwaite, who
testified at trial that he and Petitioner traveled to St. Martin to pick up 150 kilograms of cocaine,
and that prior to that trip he and Petitioner had traveled by boat from St. Thomas to Tortola to pick
up 50 kilograms of cocaine. (Dkt. No. 1135 at 33).19 The Judge found, in light of Brathwaite’s
testimony with regard to “his description of the method of concealment of cocaine and modes of
transportation of the cocaine,” that Brathwaite was “an experienced drug dealer, and an
experienced compatriot of Mr. Hendricks,” and concluded that “the amounts of cocaine trafficked
were those which Mr. Brathwaite stated they were.” Id. at 34.
Attorney Benham argued that this “anecdotal evidence” of witnesses was insufficient to
allow the court to make a determination regarding drug quantity. Id. at 34. The Judge rejected this
furtherance of the . . . jointly-undertaken . . . activity,’ were ‘within the scope of the defendant’s
agreement,’ and were ‘reasonably foreseeable in connection with the criminal activity the
defendant agreed to undertake.’” United States v. Collado, 975 F.2d 985, 995 (3d Cir. 1992) (citing
U.S.S.G. § 1B1.3, Application Note 1). A district court must make an “individualized inquiry into
the circumstances surrounding [a] defendant’s involvement in the conspiracy . . . to ensure that the
defendant’s sentence accurately reflects his or her role.” Id. at 995. However, there is no
requirement that “the district court hold extensive hearings to make explicit, particularized findings
as to the exact date on which each defendant committed to the conspiracy or the precise contours
of each conspirator’s agreement.” United States v. Rennert, 374 F.3d 206, 214 (3d Cir.
2004), vacated in part on other grounds sub nom. Miller v. United States, 544 U.S. 958, 125
(2005). Rather, a district court must “provide a procedure” through which “the parties may argue
contested sentencing issues”—which is most often undertaken at the sentencing hearing itself.
United States v. Kluger, 722 F.3d 549, 563 (3d Cir. 2013) (citation omitted).
19 While the Judge considered the testimony of various other witnesses, Brathwaite’s testimony
with respect to drug quantities was essential to his determination that Petitioner was responsible
for trafficking 150 kilograms of cocaine or more.
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argument and appropriately applied a preponderance of the evidence standard in determining—
based on the evidence introduced at trial—that Petitioner was responsible for the trafficking of 150
kilograms or more of cocaine. (Dkt. No. 1355 at 34-35); see, e.g., United States v. Freeman, 763
F.3d 322, 338 (3d Cir. 2014) (holding that district court’s reliance on the testimony of a co-
conspirator was appropriate in calculating the drug quantities attributable to a defendant at the
sentencing phase).
Petitioner’s claim that Attorney Benham failed to object to the drug quantity findings
contained in the PSR is simply false, and his claim that the sentencing court failed to make
appropriate findings regarding the drug quantities attributable to him is belied by the record.
Accordingly, 	finding 	no 	plain 	error, 	the 	Court 	will 	adopt 	Magistrate 	Judge 	Miller’s
recommendation and will deny the ineffective assistance of counsel claim raised in Ground Seven
of Petitioner’s Motion to Vacate.
B. 	Request for Evidentiary Hearing and Certificate of Appealability
Petitioner requests an evidentiary hearing on the claims raised in his Motion to Vacate. A
court must grant an evidentiary hearing on the issues raised in a Section 2255 motion “[u]nless the
motion and the files and records of the case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b); United States v. Tolliver, 800 F.3d 138, 140 (3d Cir. 2015). As
discussed above, the Court has determined that the record in this matter conclusively establishes
that Petitioner is not entitled to relief on any of the claims raised in his Motion. Petitioner’s request
for an evidentiary hearing will therefore be denied.
Pursuant to 28 U.S.C. § 2253(a), a final order from a Section 2255 proceeding shall be
subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
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However, unless a judge issues a Certificate of Appealability (“COA”), such an appeal may not be
taken. 28 U.S.C. § 2253(c)(1)(B).
In Barnes v. United States, 2018 WL 1905642 (D. Del. Apr. 23, 2018), the court described
the standard for issuing a COA:
A certificate of appealability is appropriate only if the movant “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The movant must
“demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Id. at *5. Here, the Court is dismissing Petitioner’s Motion after determining that his claims are
meritless. The Court is persuaded that reasonable jurists would not find this assessment debatable
or wrong. Accordingly, the Court will decline to issue a COA.
III. 	CONCLUSION
For the reasons stated above, the Court will (1) accept Magistrate Judge Miller’s R&R as
modified as stated herein; (2) deny Petitioner’s Motion to Vacate; (3) deny Petitioner’s request for
an evidentiary hearing; and (4) decline to issue a Certificate of Appealability. An appropriate Order
accompanies this Memorandum Opinion.
Date: 	September 27, 2018 	_______/s/_______
WILMA A. LEWIS
Chief Judge
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