1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : 

 v. : CRIMINAL NO. 04-680-06

TYRONE TRADER :

AND NOW, this day of , 2014, it is hereby

O R D E R E D

that the defendant’s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 

is denied. Because the defendant has made no “substantial showing of a denial of any 

constitutional right,” in order to justify an appeal, see Santana v. United States, 98 F.3d 752, 757 

(3d Cir. 1996), no certificate of appealability will be issued. 

BY THE COURT:

__________________________________

HONORABLE JAN E. DUBOIS

Judge, United States District Court
2

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : 

 v. : CRIMINAL NO. 04-680-06

TYRONE TRADER :

GOVERNMENT'S RESPONSE TO PETITIONER’S MOTION TO VACATE,

SET ASIDE, AND CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

The United States of America, by its attorneys, Zane David Memeger, United 

States Attorney for the Eastern District of Pennsylvania, and Kathy A. Stark, and Katayoun M. 

Copeland, Assistant United States Attorneys for the District, hereby responds to petitioner’s 

Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 and states as 

follows:

I. Procedural Background

On April 13, 2005, the grand jury returned a 53-count superseding indictment 

against Petitioner Tyrone Trader, as well as co-defendants Louis Stillis, Jamal Rideout, and 

Larry Davis,1 Tyrone Smith, William Green, Kenneth Wilson, Sherron Moore, and Richard 

Robinson. Count One charged all nine defendants with conspiracy to distribute five or more 

kilograms of cocaine in Philadelphia County and Delaware County from in or about July 2003, 

to in or about December 2004, in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A). 

 1 Stillis, Rideout, and Davis proceeded to trial with Trader. 
3

In addition to the conspiracy count in which all defendants were charged, Trader 

was charged with distribution of cocaine in Counts Two, 21, 22, and 50, and with distribution of 

cocaine within 1,000 feet of a school in Counts Three, 23, and 51. 

Defendants Smith, Green, Robinson, Moore, and Wilson pled guilty before trial. 

Stillis, Trader, Rideout, and Davis proceeded to trial on January 3, 2007. On January 16, 2007, 

at the close of the government’s case, all four defendants moved for judgment of acquittal 

pursuant to Federal Rule of Criminal Procedure 29, arguing that the government had presented 

insufficient evidence of the existence of a conspiracy and of each defendant’s participation in the 

conspiracy. The district court denied all motions the same day. On January 18, 2007, the jury 

returned a verdict convicting the four defendants on all counts. 

On January 25, 2007, Trader filed a motion for judgment of acquittal or for a new 

trial on Counts One, 22, and 23, alleging that the evidence was insufficient to support his 

conviction. On June 6, 2007, defendant Trader filed a Motion to Join a Second Supplemental 

Motion that had been filed by defendant Stillis that alleging “the evidence adduced at trial was

legally insufficient to support the jury’s verdict that the conspiracy for which he was found guilty 

began in July 2003 or that the conspiracy involved the distribution of more than five kilograms 

of cocaine.” The Court permitted Trader to join in Stillis’ second supplemental motion. 

In an order and opinion dated July 16, 2007, the District Court denied Trader’s 

motions as to Count One, concluding, 

[T]he Court concludes that a reasonable juror could accept the evidence at trial as 

sufficient to support the finding of the jury that the defendants were guilty beyond 

a reasonable doubt on Count One..... As the government has described in detail,

there was sufficient evidence on the issue of drug quantity in general, and the 

duration of the conspiracy to support the jury’s verdict.
4

District Court Opinion, July 16, 2007, p. 10-11. The Court furthermore, denied Trader’s motions 

as to Counts Twenty-Two and Twenty-Three, finding, “there was sufficient evidence to establish 

that defendant Trader aided and abetted the crimes charged in Counts Twenty-Two and TwentyThree.” Id. at 14.

On August 21, 2007, trial counsel filed a motion for reconsideration of the 

Court’s denial. On August 24, 2007, Trader moved pro se for reconsideration of the denial of 

his motion for acquittal or new trial, arguing that the government failed to present sufficient 

evidence at trial that Trader should be held responsible under Count One for 5 kilograms or more 

of cocaine. On September 12, 2007, upon request of defendant, this Court granted Trader’s 

motion for appointment of new counsel. On February 22, 2008, after consideration of 

supplemental memoranda submitted by Trader’s counsel and by Trader pro se, the Court denied 

the motion for reconsideration, as well as the additional pro se motions filed by Trader. Once 

again, the Court re-iterated, “the government presented significant evidence linking defendant 

Trader to the charged conspiracy” and that furthermore, “there was sufficient evidence for the 

jury to infer knowledge on the part of defendant Trader of the [‘]illicit purposes and the nature of 

the operation of the conspiracy[’] to distribute at least [emphasis added] five kilograms of 

cocaine.” Trial Court Opinion, February 22, 2008, p. 4.

On October 31, 2007, defendant Rideout appeared for sentencing and presented a 

pro se supplement to the motion for judgment of acquittal made by his counsel during trial. The 

district court denied the motion for acquittal, but adjourned the sentencing hearing and directed 

all remaining parties to submit supplemental sentencing memoranda concerning the quantities of 

cocaine attributable to defendants Rideout, Trader, Moore, Robinson, and Davis. 
5

On June 25, 2008, Trader filed another pro se motion for judgment of acquittal. 

The district court denied the motion on June 30, 2008. On September 29, 2008, after 

consideration of the supplemental memoranda as to drug quantity, the district court sentenced 

Trader to life imprisonment on Count One and concurrent sentences of 180 months’ 

imprisonment as to Counts Three, 21, 23, and 51. Trader filed a notice of appeal on October 3, 

2008. On appeal, Trader raised the following issues: (1) in determining the minimum 

mandatory sentence applicable to Count One, the District Court plainly erred by abdicating its 

fact finding responsibilities concerning the weight of cocaine at issue in that Court when it 

exclusively relied upon and applied as fact the jury’s answer to a special interrogatory submitted 

to the jury for the required purpose of determining the applicable statutory maximum sentence; 

(2) because the evidence presented at trial proved only that appellant was a street level seller of 

cocaine, appellant is entitled to judgment of acquittal concerning the jury’s conclusion that the 

government proved beyond a reasonable doubt that the quantity of cocaine appellant knowingly 

and intentionally conspired to distribute in connection with Count One was equal to or greater 

than five kilograms; and (3) the District Court erred in the manner in which it instructed the jury 

to consider the weight issue. On July 12, 2011, the Third Circuit Court of Appeals affirmed 

Trader’s conviction in a non-precedential opinion, finding that, 

Trader was liable for all reasonably foreseeable criminal offenses committed by 

his co-conspirators during the course of, and in furtherance of, the drug 

conspiracy. See Pinkerton v. United States, 328 U.S. 640, 646-48 (1946). 

Considering Trader’s close relationship with Stillis and the other street-level 

sellers, as well as Trader’s knowledge that Stillis obtained large amounts of 

cocaine from Green, it was reasonably foreseeable to Trader that the conspiracy 

would distribute more than five kilograms of cocaine. Accordingly, we will affirm 

the District Court’s denial of Trader’s motion for judgment of acquittal or new 

trial on Count One.
6

United States v. Tyrone Trader, 3d Cir. Slip Op. (July 12, 2011), p. 11. Furthermore, the Third 

Circuit upheld this Court’s sentencing procedure, and concluded,

[C]ontrary to Trader’s argument that the District Court erred by failing to engage 

in an individualized sentencing inquiry, the relevant statutes deprived the District 

Court of discretion to choose Trader’s sentence. See United States v. Robinson, 

547 F.3d 632, 640 (6th Cir. 2008) (“[T]he district court had no occasion to 

determine the amount or kind of drugs for which Robinson was personally 

responsible because there was no range within which the court had discretion to 

choose a sentence; the quantity of cocaine involved in the conspiracy and 

Robinson’s prior felony drug convictions triggered a mandatory life sentence.”).

Id. at 8. Trader did not file a Petition for Certiorari in the Supreme Court. 

Trader filed a timely petition to vacate, set aside, or correct sentence on 

November 26, 2012.2 Trader raises nine3 claims of error in his petition. They are: (1) his 

conviction and sentence are based upon insufficient evidence; (2) the government presented

evidence of multiple conspiracies, allowing prejudicial evidence to be admitted at trial; (3) the 

government violated the Sixth Amendment by not calling the drug experts who weighed and 

tested the drug evidence, resulting in a Crawford violation; (4) the government’s use of “fact” 

witnesses to give expert testimony resulted in prejudice; (5) the government engaged in

prosecutorial misconduct; (6) ineffective assistance of trial and appellate counsel; (7) the

“Cumulative Error Doctrine” requires that a new trial be granted; (8) the unconstitutionality of 

 2 Trader mailed his final petition on November 26, 2012, and it was filed in the district court on 

December 3, 2012. Trader filed his initial petition on October 12, 2012, albeit on the wrong 

form. The District Court ordered that he be furnished with the correct form, and by order dated 

October 18, 2012, deemed any subsequent petition filed by Trader as having been filed as of 

October 12, 2012. 

3 In Trader’s initial § 2255 motion filed on December 3, 2012, he raised seven grounds as the 

basis to vacate, set aside, or correct his sentence. On August 15, 2013, Trader filed an amended 

motion under § 2255, adding two additional grounds: the unconstitutionality of his life sentence 

and abuse of discretion of the District Court in allowing the lead case agents to sit at the 

prosecution’s counsel table during trial. Procedurally, these claims are untimely, and therefore 

should be dismissed. Nonetheless, the government will address the same and refer to them 

respectively as Grounds 8 and 9.
7

his life sentence of imprisonment based upon Alleyne v. United States, 133 S. Ct. 2151 (2013); 

and (9) abuse of discretion of the District Court in allowing the lead case agents to sit at the 

prosecution’s counsel table during trial. None of the claims raised in Trader’s petition have 

merit, and his motion should be denied.

II. Statement of Facts

A. The Indictment. 

On April 13, 2005, a federal grand jury returned a superseding indictment 

charging Trader and the nine other defendants with conspiracy to distribute five or more

kilograms of cocaine in Philadelphia County and Delaware County from in or about July 2003,

through in or about December 2004, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A). In 

addition, the indictment charged defendant Trader with distribution of cocaine in Counts Two, 

21, 22 (and aiding and abetting), and 50, in violation of 21 U.S.C § 841(a)(1), (b)(1)(C) and with 

the distribution of cocaine within 1,000 feet of a school in Counts Three, 23 (and aiding and 

abetting the distribution), and 51, in violation of 21 U.S.C. §§ 860(a), 841(b)(1)(C) and 18 

U.S.C. § 2. 

B. Evidence of the Conspiracy.

Tyrone Smith headed a conspiracy that distributed large quantities of cocaine in 

the Delaware County area. Smith imported the cocaine in multi-kilogram shipments, which he 

then distributed to several individuals, including his cousin, William Green. Supp. App. 505-

09.4

 Green was the main supplier for Louis Stillis, who employed a number of people to 

distribute cocaine in an area of Delaware County known as Toby Farms. Stillis’ subordinates 

 4 Upon request, the government will provide the Court with the Supplemental Appendix.
8

included Tyrone Trader, Jamal Rideout, Larry Davis, Kenneth Wilson, Richard Robinson, and 

Sherron Moore.

Green’s association with Stillis began in the summer of 2003, when Stillis called 

Green and asked Green to “make a move for him” – that is, obtain cocaine from Tyrone Smith 

for Stillis. Supp. App. 520. On that first occasion, Trader drove Stillis, Green and Rideout to 

Germantown Avenue in Philadelphia, where Green met with Smith. Stillis provided $13,500 to 

Green, which Green gave to Smith in exchange for approximately a half-kilogram of cocaine. 

Supp. App. 521-25. Smith was annoyed that Green had brought Stillis, Trader, and Rideout with 

him, and told Green to do all further transactions one-on-one with Smith. Supp. App. 525. 

From that point forward, Green collected money from Stillis’ group, obtained the cocaine from 

Smith, and then delivered it back to Stillis’ group in Delaware County. Supp. App. 530. 

Green testified at trial that between summer 2003 and the end of summer 2004, he 

received a full kilogram of cocaine from Smith on at least two occasions, and did a number of 

other transactions in which he received some fraction of a kilogram of cocaine, stating that he 

did this “at least six or seven times.” Supp. App. 511-13. Green estimated that he supplied 

cocaine to Stillis about once or twice a month, and that the quantities ranged from 41⁄2 ounces 

(125 grams) to half-kilograms (500 grams). Supp. App. 516-17, 563-64, 576-77, 1145, 1206. 

Green delivered the cocaine directly to Stillis or to codefendant Kenneth Wilson. Supp. App. 

579, 1212. 

Kenneth Wilson also testified at trial, but estimated that he or Stillis picked up 

cocaine from Green about once per week, rather than once or twice per month, as stated by 

Green. Supp. App. 365-66. Stillis then took the cocaine and divided the bulk amount into 
9

smaller packages to distribute among his street sellers, usually delivering half-ounce (14 gram) 

or full ounce (28 gram) packages. Supp. App. 303, 785-88. 

Stillis stored and re-packaged the cocaine into smaller quantities at several 

locations in Delaware County. Frequently, he stored cocaine at a home shared by Tyrone Trader 

and Sherron Moore. Supp. App. 366-67, 869, 1164. Sometimes Stillis repackaged the cocaine 

himself at Trader’s home, and sometimes Trader and Moore repackaged the cocaine for Stillis. 

Supp. App. 366-67. 

Stillis also stored and repackaged cocaine at the home of Richard Savage, a 

cocaine user who regularly purchased from Stillis. Savage testified that Stillis used Savage’s 

home to repackage the cocaine into small bags for street sale. Supp. App. 714. Both Richard 

Savage and his wife Donna Savage found cocaine stashed in their home. On at least one 

occasion, Donna Savage observed a “brick,” or one entire kilogram of cocaine. Supp. App. 687, 

720. 

Kenneth Wilson testified that he delivered cocaine he received from Stillis to 

several individuals who served as sellers. The sellers to whom Wilson delivered cocaine included 

Robinson, Supp. App. 361, Moore, Supp. App. 438-41, 1151, Trader, Supp. App. 312, Davis, 

Supp. App. 307, and Rideout, Supp. App. 310-11. Stillis “fronted” the cocaine to the sellers, 

allowing them to pay him after the drugs were sold rather than when they received the cocaine. 

Supp. App. 305, 791. 

Stillis imposed a weekly quota of cocaine sales on the sellers. Generally, the sales 

quota for each seller was approximately one ounce, which the conspirators referred to as an 

“onion.” Supp. App. 787. Wilson received approximately one ounce per week, and Robinson 

typically took an ounce once every week or two. Supp. App. 303, 789. Stillis chastised sellers 
10

who did not meet their quota. In a recorded telephone call, Stillis asked Trader, “[w]hat were 

you doing all week with that punk-ass onion?” Supp. App. 1139. In another recorded call, 

Davis reported to Stillis that he was not ready for more cocaine. Stillis audibly sighed, and 

Davis replied, “[y]eah, I know, you didn’t want to hear that.” Supp. App. 1152.

The sellers, including Trader, sold the cocaine to users in the Toby Farms area. 

Some of these customers testified at trial about their cocaine purchases from Stillis’ sellers. 

Supp. App. 425-55, 1151 (David Wilkins); 455-87, 1149, 1178 (Eric Savercool); 645-72 (Alicia 

Czukiewski); 704-49 (Richard Savage); 256-65, 750-79, 1239, 1242 (Sandra Collins); 897-913, 

1209-11, 1213-19 (Angela Sanbe). The customers testified that the sellers sold the cocaine in 

bags containing approximately 0.25 grams. These bags, which sold for $20, were referred to as 

“20’s” or “Twinkies.” Supp. App. 760, 1240. On occasion, they sold larger quantities, including 

“C-notes,” or $100 sales, and “games” or “ball games,” which weighed 3.5 grams and cost 

approximately $150. Supp. App. 760, 795, 806-07, 1117, 1240. Frequently, Stillis’ subordinates 

sold cocaine at the Bridgewater Inn, a bar across the street from the Toby Farms Elementary 

School, in the Upland Borough of Chester Township. Supp. App. 427-30, 645-46, 1106. The 

defendants also sold cocaine at other locations, including Rideout’s house. Supp. App. 34-38, 

190-94, 202-05, 223-27, 653.

Customers often called Stillis directly to ask for cocaine. Supp. App. 472-73, 

1186, 1190, 1200 (Savercool); 901-03, 1213 (Sanbe); 758-59, 1238 (Collins). Stillis sometimes 

chose to meet with the buyer and make the sale himself. Supp. App. 46, 238-41, 434, 646, 705,

1106. Other times, he directed the customers to his sellers. Supp. App. 436-37, 463-64, 757, 

790-91, 1121, 1213-14. 
11

The sellers also sold to users who contacted them directly. Eric Savercool 

testified that he bought cocaine from Jamal Rideout, approaching Rideout directly for the first 

buy and working through Stillis for the second. Supp. App. 478-79. Alicia Czukiewski also 

went directly to Rideout to buy. Supp. App. 669-70. She and Richard Savage bought from 

Stillis, Trader, Rideout, and Davis, all four of the defendants who proceeded to trial, at various 

locations. Supp. App. 672, 723-24.

Customers testified that they made numerous and frequent purchases. Sandra 

Collins, who admitted to a heavy addiction, testified that she bought “20’s, 40’s, 60’s” “a couple 

times per day” in July 2003. Supp. App. 752-53. Recorded telephone calls between Collins and 

Stillis verified that, in July and August 2004, she was ordering $100 and $150 quantities. Supp. 

App. 758, 760, 762-62, 767, 1238, 1240-43, 1250. Richard Savage estimated that between July 

and December 2003, he bought cocaine from Stillis over 50 times, from Trader about 15 times, 

from Rideout around 50 times, and from Davis about 20 times. Supp. App. 709-14, 724.

Undercover state police officers testified that they bought cocaine from all four of 

the defendants who proceeded to trial, and from most of the defendants who pled guilty before 

trial. Supp. App. 27-46 (Trooper Michael Skahill); Supp. App. 163-70 (Trooper Mark 

Jenkinson); Supp. App. 190-206, 209-11 (Trooper Lois Stillwell); Supp. App. 270-84 (Trooper 

Sean Regan). Some of the sales were to undercover officers who were posing not as users, but as 

cocaine dealers purchasing for resale. These transactions were for larger quantities than the 

standard $20 to $100 sales typical for users. 

At trial, Trooper Scott Miscannon testified that on July 15, 2004, Trader and 

Stillis delivered approximately nine ounces of cocaine (actually weighing 244.3 grams) to 

Miscannon in Toby Farms. Supp. App. 234-241, 243. During the transaction, Miscannon 
12

described how Trader retrieved several clear baggies from the trunk of a coconspirator’s vehicle, 

making it look as if he were retrieving a gas can. Supp. App. 240. During the meeting, Stillis 

and Trader referred to the high quality of the cocaine. Supp. App. 265, 266. During an earlier 

purchase on May 6, 2004, by Trooper Miscannon from Stillis, Stillis told him that the quality of 

the cocaine was so good, “you can put a one on it,” meaning that the cocaine could be cut with a 

diluting agent to stretch it to twice its weight. Supp. App. 227. 

The members of the conspiracy assisted each other in avoiding law enforcement. 

On August 5, 2004, Stillis phoned Davis to warn him that “narcs” “just picked up like three 

[people] up the way.” When Davis asked who was arrested, Stillis provided several names, then 

said, “they didn’t get nobody on our squad. . . man, just shut it down.” Supp. App. 1157.

On August 21, 2004, Wilson made a pickup of cocaine from Green and was 

headed to meet Stillis to drop it off, when he noticed a vehicle following him. Suspecting it was 

an undercover police officer, Wilson contacted Stillis. As soon as he believed he had lost the 

officer, Wilson drove to Trader’s house. Supp. App. 357. In a recorded telephone conversation, 

Stillis instructed Wilson to stay at Trader’s house, where Stillis would meet him, instead of 

driving to meet Stillis at his house. Supp. App. 367, 1225.

Through physical surveillance and wiretap evidence, the investigating agents and 

troopers learned that Smith was planning to leave Philadelphia on September 10, 2004. Supp. 

App. 75. On September 9, 2004, they arrested Green, who agreed to cooperate by setting up a 

drug delivery by Smith, in the course of which Smith was to be arrested. Supp. App. 77-79. 

Stillis, Trader, Rideout, Davis, Moore, and Wilson were arrested on October 6, 2004. Supp. 

App. 99.
13

C. The Sentencing. 

On September 29, 2008, as the defendant had at least two previous convictions for 

felony drug trafficking, and the government had filed notice of these prior convictions under 

Title 21, United States Code, Section 851, and the conspiracy involved at least 5 kilograms of 

cocaine, Trader was sentenced to the mandatory minimum term of life’ imprisonment on Count 

One and concurrent sentences of 180 months’ imprisonment on Counts Three, 21, 23, and 51. 

The Court noted during the sentencing hearing that “the jury found that [Trader] was a member 

of a conspiracy, the Stillis-led conspiracy, and that the conspiracy distributed between 5 

kilograms and 15 kilograms of cocaine.” Trader Sent. Hrg., September 29, 2008, p. 7. The 

Court then added, “The court finds, based on what is set forth in the Presentence Investigation 

Report, and the trial evidence and jury verdict, that the offense of conviction involves at least 

five kilograms but less than 15 kilograms of cocaine.” Trader Sent. Hrg., September 29, 2008, 

p.18. 

III. ARGUMENT

A. Procedural Issues.

1. The Court Previously Adjudicated Defendant’s Insufficiency of 

the Evidence Claim Thus the Claim Remains Inappropriate for a 

2255.

Trader’s Habeas Motion appears timely as the motion was filed within one year of 

the judgment becoming final. The defendant’s judgment became final after the denial of a 

motion for rehearing on October 28, 2011. Clay v. United States, 123 S.Ct 1072 (2003); Kapral 

v. United States, 166 F.3d 565 (3d Cir. 1999). On October 18, 2012, this Court ordered that “any 

motion for writ of habeas corpus pursuant to 28 U.S.C. § 2255 filed pursuant to the order of 
14

October 17, 2012, shall be deemed to have been filed on October 12, 2012, the date on which 

petitioner [Trader] filed his initial habeas corpus motion under 28 U.S.C. § 2255.” Order,

Document 675, Filed October 22, 2012. Therefore, Defendant’s Habeas Motion is timely.

However in his petition for post-conviction relief under 28 U.S.C. § 2255, Trader 

makes a number of claims of which were, or should have been, raised on direct appeal. Trader’s 

claim of insufficiency of the evidence should be barred from the Court’s analysis pursuant to 28 

U.S.C. § 2255(e) because the Third Circuit Court of Appeals previously adjudicated the issue on 

Defendant’s direct appeal. The statute provides that “[a]n application for a writ of habeas corpus 

in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, 

shall not be entertained if . . . such court has denied him relief, unless it also appears that the 

remedy by motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 

2255(e). 

Both in a post-trial Motion for Judgment of Acquittal and on appeal to the Third 

Circuit, Trader argued there was insufficient evidence to establish that the quantity of cocaine 

that the defendant conspired to distribute was 5 kilograms or more of cocaine and that the Court 

improperly relied on the jury’s finding in sentencing the defendant. The appellate Court rejected 

both arguments. United States v. Tyrone Trader, 3d Cir. Slip Op. (July 12, 2011). Here, Trader

yet again attempts to argue that the government presented insufficient evidence of his

involvement in the conspiracy, and the ultimate quantity attributable to him. These issues are 

virtually identical as the quantity attributable to the defendant and his involvement in the 

conspiracy was a fundamental component for the Third Circuit finding sufficient evidence to 

convict defendant of conspiracy to distribute 5 kilograms or more of cocaine. This claim should
15

be therefore dismissed. As set forth below, even if this issue could be addressed again, it has no 

merit. 

2. The Defendant has Previously Defaulted on the Majority of his 

Claims Contained in his 2255.

“A defendant who fails to raise a claim on direct appeal is barred from raising the 

claim on collateral review.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51, (2006). See 

Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 621 

(1998). The sole exception to this rule exists when a defendant can show “cause” for not raising 

the claim, and “prejudice” from not having done so. Id. 

The cause requirement for failure to raise a claim requires that “some objective 

factor external to the defense” prevented defendant from raising the claim. Coleman v. 

Thompson, 501 U.S. 722, 753 (1991). Not only must the defendant meet this high burden, but in 

order to establish actual prejudice, he must also show that the error “worked to his actual and 

substantial disadvantage, infecting his entire trial with error.” United States v. Frady, 456 U.S. 

152, 170 (1982). 

The only relevant exception to this rule remains a claim of ineffective assistance 

of counsel. In Massaro v. United States, 123 S.Ct. 1690 (2003), the Supreme Court held that a 

collateral proceeding under § 2255 is the most appropriate venue for a claim of ineffective 

assistance of counsel at trial, and that such a claim is not waived even if the defendant is 

represented by new counsel on direct appeal and does not present the issue at that time. The 

Court noted that there may be occasions when ineffectiveness is so clear on the trial record that 

the matter may be considered on direct appeal, but suggested that such cases are unusual. 
16

Following Massaro, the Third Circuit has indicated that it will rarely, if ever, consider an 

ineffectiveness claim on direct appeal. United States v. Thornton, 327 F.3d 268 (3d Cir. 2003).

Trader attempts to establish “cause” by asserting that his trial and appellate 

counsel suggested that he wait until after his appeal to present these claims. Trader argues that 

counsel suggested these claims were meritorious but chose not to bring them up at trial or on 

appeal. Trader offers no evidence in support of this claim, and none can be found from a review 

of the record, leaving only Trader’s bare assertion to support his “cause” claim. As will be 

demonstrated below, none of Trader’s claims have merit, which is a much more realistic reason 

for counsel not to have raised them. 

Even if Trader survived the first hurdle, he cannot make a sufficient showing of 

prejudice. In Bousley v. United States, 523 U.S. 614 (1998), the Supreme Court held that 

prejudice may be shown by demonstrating “actual innocence.” According to Bousley, the 

petitioner must show that in light of all the evidence, it is more likely than not that no reasonable 

juror would have convicted him. Bousley, citing Schlup v. Delo, 513 U.S. 298, 327-28 (1995) 

(actual innocence meaning factual innocence, not mere legal insufficiency). Although Trader 

makes the bald assertion that he is “actually innocent,” this assertion has no basis in reality, 

given the overwhelming evidence of his involvement in the conspiracy. 

Trader did not bring the following claims on appeal, no exception applies, and 

Trader cannot sufficiently prove cause or prejudice, thus the following claims are barred under §

2255: (1) his conviction and sentence are based upon insufficient evidence concerning the 

offenses of conspiracy to distribute 5 kilograms or more of cocaine as charged in Count One, 

distribution and aiding and abetting the distribution of cocaine as charged in Count TwentyTwo, and distribution and aiding and abetting the distribution of cocaine within 1000 feet of a 
17

school as charged in Count Twenty-Three; (2) evidence of multiple conspiracies allowed for 

prejudicial evidence to be admitted to the trial; (3) a violation of the Sixth Amendment occurred 

because Trader was not allowed to confront and cross-examine witnesses; (4) the government’s 

use of “fact” witnesses giving expert testimony was unduly prejudicial; (5) prosecutorial 

misconduct; (7) the “Cumulative Error Doctrine” requires that a new trial be granted; and (9) 

abuse of discretion of the District Court in allowing the lead case agents to sit at the 

prosecution’s counsel table during trial. As shown below, even if one or more of these 

arguments could survive this procedural hurdle, they have no merit.

Ground Six, that is, ineffective assistance of counsel, will of course be addressed 

on its own merits as it falls squarely in the exception carved out in Massaro v. United States, 123 

S.Ct. 1690 (2003).

5 This argument will fail on its merits in addition to all other arguments 

Trader advances.

Ground Eight, that is, the defendant’s claim that his sentence of lifetime’ 

imprisonment is unconstitutional based upon Alleyne v. United States, 133 S. Ct. 2151 (2013), is 

also barred as the Third Circuit has recently confirmed that the Supreme Court’s 2013 decision 

in Alleyne does not apply retroactively to cases on collateral review. United States v. Thomas 

Reyes, --- F.3d ----, 2014 WL 2747216, C.A.3 (Pa.) (June 18, 2014). Not only is defendant 

barred from raising an Alleyne claim on collateral review, but even if he were permitted, it 

provides him with no relief. 

 5 In Trader’s lengthy submission, he repeats many of the claims that he attempts to make substantively, by claiming 

that his attorneys’ failure to raise them at trial or on appeal was ineffective. In fact, none of the arguments have any 

merit, which was why counsel did not raise them at trial or on appeal. The government will address Ground Six at 

the conclusion of addressing all the grounds Trader raises.
18

B. Substantive Issues

1. Defendant Cannot Meet the Standard to Prove the Evidence was 

Insufficient. 

In Ground One, Trader claims the evidence presented at trial was insufficient to 

convict him of Count One (conspiracy to distribute 5 kilograms of more of cocaine)6, Count 22 

(distribution, and aiding and abetting the distribution of, cocaine), and Count 23 (distribution, 

and aiding and abetting the distribution of, cocaine within 1000 feet of a school). Defendant 

cannot meet the standard to establish his claim, and moreover, this claim is contradicted by the 

voluminous and compelling evidence presented at trial. This meritless claim, therefore, must be 

dismissed.

Regarding sufficiency of the evidence claims, Courts throughout the nation apply 

the “deferential standard” set out in Jackson v. Virginia, 443 U.S. 307 (1979), stating that after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319. 

See Johnson v. Louisiana, 406 U.S.356, 362; United Sates v. Voigt, 89 F.3d 1050, 1080 (3d 

Cir1996); United States v. Ozecik, 527 F. 3d 88, 93 (3d Cir. 2008).

i. Quantity

Courts throughout the nation as well as the Third Circuit apply the Pinkerton

standard for conspiracy, stating that a defendant remains “liable for all reasonably foreseeable 

criminal offenses committed by his co-conspirators during the course of, and in furtherance of, 

 6 As referenced above, defendant’s claim that the government the government did not prove at trial the quantity of 

cocaine with which he should be held responsible under Count One was previously raised by Trader on appeal to the 

Third Circuit, and therefore should be dismissed. See Trader Section 2255 brief, p. 22 (December 3, 2012); See also

Trader 3d Cir. Brief, p. 3.
19

the drug conspiracy.” United States v. Davis, 437 F. App'x 86, 88-89 (3d Cir. 2011). See

Pinkerton v. United States, 328 U.S. 640, 646–48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). 

At trial, the government presented sufficient evidence to establish beyond a 

reasonable doubt that the conspiracy involved five kilograms or more of cocaine. The testimony 

concerning the conspirators’ numerous purchases of cocaine from Smith supports the finding that 

the conspiracy involved at least five kilograms of cocaine. Green testified that he passed cocaine 

from Smith to Stillis from summer 2003 through late summer 2004. Supp. App 513. Stillis’ first 

purchase of half a kilogram of cocaine from Green took place in summer 2003 in the presence of 

Defendant (as well as Rideout) in Philadelphia. Supp. App. 520-530. This distribution chain 

continued for the next year. Supp. App. 513, 531-533, 535, 538-43, 564, 569-72, 574-80.

Stillis went to Green for cocaine as often as once a week. Supp. App. 365-66, 

516-17. The quantities varied from 4.5 ounces (125 grams), to one half kilogram. Supp. App. 

576-77; 1206; 525. Using the lowest amount purchased, 4.5 ounces, throughout a 60 week 

conspiracy, the total amount of cocaine Stillis bought from Green alone would exceed 7.5 

kilograms. The amount is likely understated as Wilson testified that Stillis sometimes bought 

larger quantities. And of course, in turn, Stillis’ distributors, including Trader, distributed the 

cocaine.

The evidence also supported the finding that the quantity of cocaine that the 

organization distributed exceeded the amount that it purchased, because the cocaine was 

“stepped on” or “cut” (diluted) with Inositol or another substance by street level sellers. At trial, 

seller Richard Robinson (“Robinson”) testified that the sellers at least doubled the weight of 

what Stillis gave them when cut. Supp. App. 853-54. Police corroborated this testimony by 

finding two bottles of Inositol, a chemical agent that dealers use to cut cocaine, in Wilson’s car 
20

when he was arrested on unrelated charges. Supp. App. 916. Also, when Stillis delivered 125 

grams of cocaine to Trooper Miscannon on May 6, 2004, Stillis assumed that Miscannon would 

want to maximize his profit as a drug dealer. Stillis suggested that Miscannon “put a one on” the 

4.5 ounces of cocaine meaning that Miscannon could double the volume of the cocaine by 

“cutting” it one to one with an equal amount of an inert chemical agent like Inositol. Supp. App. 

227. Thus, although the testimony about the amount of cocaine that Smith supplied to the 

conspiracy would in and of itself support a finding that the conspiracy distributed more than five 

kilograms of cocaine, the evidence suggests that the amount of the mixture or substance 

containing cocaine that the conspiracy ultimately distributed was well in excess of five 

kilograms.

Alternatively, the quantities that the individual sellers received from Stillis also 

show the volume that the conspiracy distributed. Wilson testified that he received about one 

ounce per week from Stillis for 15 months. Supp. App. 303. Robinson testified that he 

replenished his cocaine inventory once every one or two weeks, receiving somewhere between a 

“ball game” (3.5 grams) to two ounces from Stillis. Supp. App. 789. Evidence showed that 

Stillis expected Trader to sell one ounce per week and Stillis berated the defendant when he did 

not meet his quota. Supp App. 1139. The evidence established at trial showed that Rideout and 

Davis sold quantities of cocaine as well and that Stillis retained a certain amount to sell himself.

Lastly, adding the quantities of cocaine from the individual transactions testified 

to at trial gives an illustration, albeit incomplete, of the amount of cocaine the conspiracy 

distributed. Many users bought cocaine in increments ranging from $20 per quarter gram, or 

“Twinkies,” to $150 per 3.5 grams, or a “ball game.”
21

The quantities of cocaine most precisely measured are sales to undercover state 

troopers. On July 15, 2004, Stillis and Defendant sold Trooper Miscannon 9 ounces (244 grams) 

for $4,200. Supp. App. 234-41. Other conspirators sold Troopers 230 grams of cocaine from 

August 6, 2003 through May 6, 2004. Supp. App. 168-78; 198-202; 189-98; 202-05; 222-27.

Just this handful of sales to undercover officers amounted to nearly a halfkilogram of cocaine, hinting at the bulk this conspiracy was ultimately able to move. And of 

course, only a fraction of the drug sales distributed by the conspirators were to undercover 

officers. Of the drug users in the community who bought cocaine from the conspiracy, only a 

few testified at trial, giving calculated estimates of the quantities they regularly purchased which 

also corroborated the broader evidence.

For example, David Wilkins bought cocaine from Stillis once or twice a week for 

six to eight months, sometimes buying a “20,” or a quarter-gram costing $20. Supp. App. 431-

31; 1106-07. Wilkins also bought from Defendant about six or seven time. Supp App. 436-37.

Eric Savercool purchased from several conspirators and the Defendant was recorded via wiretap 

discussing those purchases with other conspirators. Supp. App. 470-75; 1178; 1185-86; 1204-05. 

Another user purchased from Defendant fifteen times and at least one hundred times from other 

conspirators. Supp. App. 723-24. Sandra Collins also purchased drugs from Defendant at least 20 

times as well as over a hundred times from other conspirators. Supp. App. 752-54. Alicia 

Czukiewski purchased from Stillis and Defendant 19 or 20 times. Supp. App. 646-47.

Thus, just these few customers testified that they were regularly, often daily, able 

to buy quarter-grams, half-grams, full grams, and larger quantities. Users testified to hundreds of 

such transactions in a short period of time. This evidence corroborated the larger picture painted 

by Green of a conspiracy which dealt in many kilograms of cocaine, certainly more than five.
22

In arguing otherwise, Trader simply isolates transactions and remains in denial of 

the jury’s ability to draw reasonable inferences from the evidence. In light of all of this 

overwhelming evidence, the jury’s finding of the quantity of cocaine was amply supported. The 

jury could (and did) reasonably find that the government proved beyond a reasonable doubt that 

the defendant was part of a conspiracy that distributed five kilograms or more of cocaine.

The application of Pinkerton provides that the actions of a conspirator or many 

conspirators make all those involved in the conspiracy responsible for the crimes committed in 

furtherance of their agreement. Pinkerton liability eviscerates the defendant’s insufficiency of 

the evidence claim regarding the quantity of cocaine as Trader remains liable for whatever 

quantity the conspiracy distributed as a whole as long as it was reasonably foreseeable to him.

Considering defendant’s conspiratorial relationship with Stillis, it was reasonably foreseeable to 

defendant that the conspiracy involved five kilograms or more of cocaine. Accordingly, the 

evidence produced at trial proved that defendant conspired to distribute five kilograms or more 

of cocaine. Supp. App. 520-525, 241. Trader did not need to personally distribute or know of the 

actual distribution of five kilograms or more of cocaine to be convicted, thus defendant’s 

argument remains based solely in the misapplication of law and should not prevail.

ii. Aiding and Abetting

Trader asserts in Ground One, in addition to his claim of insufficient evidence of 

his participation in the conspiracy to distribute 5 kilograms or more of cocaine, that there was 

insufficient evidence to convict him of distribution, and aiding and abetting the distribution of,

cocaine as charged in Count 22, and distribution, and aiding and abetting the distribution of,

cocaine within 1000 feet of a school as charged in Count 23. His discussion, however, 

addresses only Count 23. 
23

Regarding aiding and abetting, “the government must prove [beyond a reasonable 

doubt]: (1) that the substantive crime has been committed; and (2) that the defendant charged 

with aiding and abetting knew of the commission of the substantive offense and acted with intent 

to facilitate it.” United States v. Petersen, 622 F.3d 196, 208 (3d Cir. 2010) quoting United States 

v. Soto, 539 F.3d 191, 194 (3d Cir.2008). Additionally, “The government must also prove that 

the defendant had the specific intent of facilitating the crime . . . mere knowledge of the 

underlying offense is not sufficient for conviction.” Id. Specific intent requires “the additional 

deliberate and conscious purpose of accomplishing a specific and prohibited result.” Pierre v. 

Att'y Gen., 528 F.3d 180, 189 (3d Cir.2008). 

In United States v. Soto, the defendant accompanied his girlfriend on the straw 

purchases of handguns knowing that the guns were to be resold and that he would receive some 

of the proceeds from resale value of the weapon. 539 F.3d 191, 194 (3d Cir.2008). Soto’s 

conviction survived an appeal on which the sufficiency of the evidence of his aiding and abetting 

charge was questioned. Id. at 194-195. 

In United States v. Cartwright, the defendant succeeded on appeal because “there 

[was] simply no evidence in this record from which to infer a conclusion that Cartwright had 

knowledge of the nature of the transaction.” 359 F.3d 281, 290 (3d Cir. 2004). The defendant 

appeared to associate with a known drug dealer while under surveillance. Immediately following 

the arrest of the drug dealer, the defendant appeared to walk quickly into a store where a gun and 

several other items appeared to corroborate the defendant’s involvement in the drug transaction. 

Id. at 283-286. The defendant was convicted at trial but his conviction was overturned on appeal 

because the court held that the evidence that provided the basis for his appeal appeared too 

speculative on which to base a conviction. Id. 291-292. 
24

Here, like Soto and unlike Cartwright, there exists overwhelming evidence that 

Trader had precise and explicit knowledge of the circumstances providing a basis for his charges. 

As previously stated, defendant distributed the cocaine provided by Stillis. Supp. App. 520-525. 

Furthermore, Miscannon testified that during the course of the nine ounce sale of cocaine on July 

15, 2004, by Stillis and Trader, Trader advised Miscannon of the superior quality of the cocaine, 

which alone suffices to establish the “knowing” threshold to establish his role in aiding and 

abetting the transaction. Supp. App. 241.

2. Defendant’s Claim of Multiple Conspiracies is without Basis 

Trader’s Ground Two is based upon the allegation that the government introduced 

evidence at trial that pointed to multiple conspiracies as opposed to a single conspiracy, and 

therefore, the Court improperly admitted evidence at trial regarding cocaine suppliers Tyrone 

Smith and William Green, thereby prejudicing defendant. Defendant, once again, misreads the 

law, misapplies the facts, and ignores the record.

The elements of a charge of conspiracy are: “an agreement, either explicit or 

implicit, to commit an unlawful act, combined with intent to commit an unlawful act, combined 

with intent to commit the underlying offense, may be proven entirely by circumstantial 

evidence.” State v. Kapp, 781 F.2d 1008, 1010 (3d Cir.1986); see also United States v. 

Applewhaite, 195 F.3d 679, 683 (3d Cir.1999) citing United States v. McGlory, 968 F.2d 309, 

321 (3d Cir.1992). Indirect and circumstantial evidence can be utilized as evidence of a 

conspiracy because “secrecy and concealment are essential features of successful conspiracy.” 

Blumenthal v. United States, 332 U.S. 539, (1947). The government does not have to prove that 

a defendant committed all of the acts necessary for an offense, but rather the existence of a 

conspiracy or agreement to commit those acts. Id. See also United States v. Perez, 280 F.3d 318, 
25

342 (3d Cir.2002). Furthermore, courts require that the defendant agreed with at least one, not 

all, indicted conspirators. United States v. Kelly, 892 F.2d 255, 259 (3d Cir. 1989). The 

government must offer evidence that a defendant knew the essential nature of the plan and was 

connected with the plan, even if the defendant did not know all of the details of the plan, or the 

other participants in the plan. United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.1999). 

The issue of whether a single conspiracy or multiple conspiracies exist remains a 

fact question to be decided by a jury. United States v. Curran, 20 F.3d 560, 572 (3d Cir. 1994). 

At trial or on appeal the defendant carries the burden in showing that “first, that there was such a 

variance [that multiple conspiracies occurred rather than one] and, second, that the variance 

prejudiced one of his substantial rights.” United States v. Quitero, 38 F.3d 1317, 1337 (3d Cir. 

1989). Moreover, there exists a strong presumption that courts must sustain the jury's verdict if 

there is substantial evidence, viewed in the light most favorable to the government, to support a 

finding of a single conspiracy. Glasser v. United States, 315 U.S. 60, 62 (1942). See United 

States v. Smith, 789 F.2d 196, 200 (3d Cir. 1986). 

The Third Circuit employs a three step analysis in determining whether one or 

multiple conspiracies exist in an indictment in United States v. Kelly. 892 F.2d 255, 259 (3d Cir. 

1989). First, the Court examines whether there was a common goal among the conspirators. Id.

Second, the Court looks at the nature of the scheme to determine whether “the agreement 

contemplated bringing to pass a continuous result that will not continue without the continuous 

cooperation of the conspirators.” Id., quoting United States v. Perez, 489 F.2d 51, 62 (5th Cir. 

1973). Third, the Court examines the extent to which the participants overlap in the various

dealings. Id. See also United States v. Russell, 134 F.3d 171, 182 (3d Cir. 1998). But see United 

States v. Padilla, 982 F.2d 110, 115 (3d Cir. 1992) (Noting “that the Kenny factors are most 
26

useful to show the existence of a single conspiracy, that the absence of one factor does not 

necessarily defeat an inference of the existence of a single conspiracy.”). Multiple conspiracies 

exist instead when “separate networks operat[e] independently of each other.” United States v. 

Barr, 963 F.2d 641, 648 (3d Cir. 1992).

In Kapp the court held that an implicit agreement was not established when Kapp 

received fraudulent paperwork in purchasing a vehicle but an agreement was established when 

Kapp provided another set of fraudulent documents to the subsequent owner of the same vehicle. 

Kapp, 781 F.2d at 1010-11. Here, the Court need not even employ this attenuated circumstantial 

rationale. Early on in the conspiracy, Trader drove Green and Stillis to Philadelphia to purchase 

approximately a half-kilogram of cocaine from Tyrone Smith. Supp. App. 520-528. 

Furthermore, Trader witnessed, facilitated, and aided in the selling of cocaine on numerous 

instances. Supp. App. 241. Defendant even allowed Stillis to use his home as a place to store 

and cut the cocaine. Supp. App. 366-67. The facts show that Trader did in fact arrive at an 

agreement with other conspirators to distribute cocaine and did commit the unlawful act. 

Furthermore, trial testimony suggests that defendant knew of other parties and the supply chain 

that provided him with the controlled substance. 

Importantly, during the course of the Court’s charge to the jury, this Court 

advised the sitting jurors that the defendant contended the government had failed to prove the 

existence of an overall conspiracy and rather that there were either multiple conspiracies at play 

and/or that the defendant was not a member of the conspiracy. Court’s Charge to Jury, January 

18, 2007, 72-74. The jury verdict is not only amply supported by the trial evidence, but they 

clearly rejected the defendant’s multiple conspiracy argument and found that there was a single 
27

conspiracy, that the defendant was a member of it, and that he conspired to distribute five 

kilograms or more of cocaine.

Defendant attempts to suggest that at his sentencing hearing, when this Court 

referred to a “Stillis led” conspiracy, that conclusively proved that he could only be held 

responsible for the cocaine distributed by Stillis and his distributors. He is once again mistaken. 

Though the Court referred to Stillis’ leadership role, as Stillis was Trader’s cocaine supplier, this 

does not by any stretch of the imagination mean that there were multiple conspiracies. Contrary 

to this, the facts presented at trial proved that one conspiracy existed—from Smith to Green, 

Green to Stillis, and Stillis to several street level dealers including Trader. Supp. App. 505-09. 

Indeed, the facts presented neatly fit the Kelly test for a single conspiracy. Trader, Stillis, Green 

and Smith had the common goal of selling cocaine. Trader relied on the performance of Stillis, 

who relied on the performance of Green, who relied on the performance of Smith, and all relied 

on the performance of the distributors like the defendant to market the cocaine and reap the 

proceeds. Lastly, the relationship of the conspirators turned on the cocaine distribution. Unlike 

the Barr case, here there was nothing to suggest the existence of multiple conspiracies. United 

States v. Barr, 963 F.2d 641.

3. Defendant’s 6th Amendment right to confront witnesses were not 

violated as defendant misapplies the law concerning fact and 

expert witnesses. 

In his third and fourth claim of error, defendant asserts that his 6th Amendment 

right to confront his witnesses was violated alleging that non-expert witnesses were allowed to 

testify as experts. Once again, he is simply wrong and his claim should be dismissed as 

meritless. 
28

“Testimonial statements of witnesses absent from trial have been admitted only 

where the declarant is unavailable, and only where the defendant has had a prior opportunity to 

cross-examine.” Crawford v. Washington, 541 U.S. 36, 59 (2004). In reaching this decision, the

Supreme Court relied on the United States Constitution’s Sixth Amendment’s Confrontation 

Clause. The holding in Melendez-Diaz v. Massachusetts has advanced the understanding of the 

application of the Sixth Amendment’s Confrontation Clause. 557 U.S. 305, (2009). In 

Melendez-Diaz, a 2009 decision, the Court found that affidavits that asserted that the defendant 

possessed cocaine of a certain weight, as the prosecution claimed, fell within the “core class of 

testimonial statements” covered by the Confrontation Clause. Melendez-Diaz, 557 U.S. at 310-

11 quoting Crawford 541 U.S. at 54. Thus, the admission of the certificates violated a 

defendant’s Sixth Amendment right to confront the witnesses against him because the defendant 

maintained the right to “be confronted with” the persons giving this testimony at trial.

Melendez-Diaz, 557 U.S. at 310-11.

In Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714, (2011), the United States 

Supreme Court overturned New Mexico’s Supreme Court holding that surrogate testimony 

sufficed the Confrontation Clause because the person responsible for testing “simply transcribed 

the resul[t] generated by the gas chromatograph machine” of the defendant’s DUI and presented 

no interpretation and exercised no independent judgment.

Trader only cites to a small portion of the record as an example of a purported 

Crawford violation, though he asserts that “many instances” occurred which violated his Sixth 

Amendment rights. The Government’s careful review of the record could not locate any such 

instances. Defendant only points to the following instance as a violation of the Crawford

standard:
29

Ms Stark: And what is Government Exhibit Number 54?

Miscannon: It’s a report of drug property collected. Which is basically a lab report from 

the Drug Enforcement Administration.

Ms. Stark: And with respect to the weight of the controlled substance contained in 

Government Exhibit 54, and the content of the controlled substance, what was the content 

of the controlled substance?

Miscannon: The active ingredient of cocaine, hydrochloride.

Trial Transcript, January 8, 2007, 20-21. 

This case is unlike Bullcoming as Miscannon’s testimony did not serve as a 

surrogate for another’s testimony. Trooper Miscannon was an undercover officer who testified 

about purchasing cocaine from defendant. Miscannon’s testimony related to the cocaine

purchase, the field test, and the results of the laboratory test of the cocaine he purchased from 

defendant. He did not testify as to the processes of the test or the accuracy—merely that the 

report generated corresponded with cocaine he purchased from defendant. Trader misapplies the

Federal Rules of Evidence by suggesting that officers are not qualified to render conclusions 

from forensic examinations of confiscated substances. Miscannon’s testimony remained within 

the province of factual testimony. He did not offer testimony concerning specific testing 

procedures—simply that the tests and conclusions corresponded with the evidence Miscannon

recovered. Furthermore, it cannot be said that a Crawford violation occurred as opposing 

counsel had the opportunity to, and did in fact, cross examine Trooper Miscannon at trial, 

therefore no violation of the Sixth Amendment Confrontation occurred in this instance. Trial 

Transcript, January 8, 2007, 36 - 56. 
30

Most importantly, however, defendant’s claim is belied by the fact that the 

conclusions of the lab report referred to by Trooper Miscannon were stipulated to by the 

defendant. During the course of trial, Assistant United States Attorney Stark read into the 

record a stipulation that had been signed by the defendant and defendant’s counsel prior to trial. 

The stipulation read: 

The defendants and Government agree that the substances obtained by the 

Pennsylvania State Police and/or the Drug Enforcement Administration 

and analyzed pursuant to the lab report numbers set forth below, 

confiscated on the dates noted, contain a detectable amount of Schedule II 

controlled substance, namely cocaine. And weighed the amounts indicated 

below within the meaning of Title 21, United States Code, Sections 841 

(a) and (b), Section 846 and Section 860 . . . . The defendants and 

Government agree and stipulate that this stipulation and its attachments 

are admissible in evidence without the necessity of calling the individual 

chemists to verify the chemical composition and the weights of the 

substances listed above.

Trial Transcript, January 12, 2007, 153–155. Given the stipulation, defendant has no basis for 

his claim that a violation of his Sixth Amendment Right to cross examine witnesses concerning 

the lab reports occurred and the methods of testing which generated the lab reports.

With regard to defendant’s Ground Four claim that Trooper Skahill impermissibly

testified as an expert as opposed to a fact witness at trial, once again, defendant misstates the 

facts. At a sidebar prior to Trooper Skahill’s testimony, Judge DuBois stated that “I think to 

simplify matters, we will permit him [Skahill] to testify as a fact witness, not as an expert 

witness.” Trial Transcript, January 5, 2007, 28. Trooper Skahill testified about surveillance that 

he conducted with the assistance of a confidential informant. He testified as to the information 

gained through surveillance. Once again, defense had the opportunity to (and did) cross examine 

the witness. These circumstances should eviscerate any claim based on the Crawford/MelendezDiaz line of cases. Secondly, after careful review of the record in concert with Judge DuBois’s 
31

instruction, neither Trooper Skahill’s testimony nor any non-expert’ testimony breached any of 

the evidentiary rules argued by defendant.

4. There Exists no Legitimate Basis for Defendant’s Claim of 

Prosecutorial Misconduct

In Ground Five, Trader alleges prosecutorial misconduct occurred, thereby 

entitling him to a new trial. Contrary to defendant’s assertions, there was no misconduct, and his 

conviction must stand.

Prosecutorial misconduct occurs when the prosecutor employs “arguments 

calculated to inflame the passions or prejudices of the jury.” ABA Standards for Criminal Justice 

3-5.8(c) (2d ed. 1980); See Berger v. United States, 295 U.S. 78, 88, (1935); Darden v. 

Wainwright, 477 U.S. 168, 192 (1986). Specifically, the issue focuses on whether the alleged 

misconduct was “sufficiently prejudicial” to violate a defendant's due process rights. United 

States v. Bates, 46 F. App'x 104, 110 (3d Cir. 2002). See United States v. Scarfo, 685 F.2d 842, 

849 (3d Cir.1982).

In Bates the prosecutor spoke about an unrelated incident in which the defendant 

allegedly killed a homeless person and the effects of the conviction on the respective police 

departments and local governments.7 Bates, 46 F. App’x at 110-113. The court held that these 

statements did not amount to prosecutorial misconduct. Id. Numerous examples of misconduct 

exist in other Circuits. (See United States v. Mannava, 565 F.3d 412 (7th Cir. 2009) (prosecutor's 

repeated harping at trial on theme that defendant had been attempting to “rape” a 13-year-old 

“was undoubtedly trying to inflame the jury”); United States v. Crooks, 83 F.3d 103 (5th Cir. 

1996) (prosecutor asks jury to stop defendant drug dealer from preying on young children during 

 7 Referring to the Virgin Island Police Department and Government.
32

Christmastime); Miller v. Lockhart, 65 F.3d 676 (8th Cir. 1995) (prosecutor refers to victim's 

family wanting death verdict; suggests, without support in evidence that defendant escaped from 

jail before, and bemoans unfair burden that life imprisonment places on taxpayers); United States

v. Payne, 2 F.3d 706 (6th Cir. 1993) (prosecutor refers to plight of poor children, pregnant 

women, diaperless babies, corporate layoffs, and Christmastime in postal-theft prosecution).

Though the defendant suggests there are several instances where prosecutorial 

misconduct occurred, an analysis of excerpts cited by Trader8 as well as the government’s 

careful review of the record show the record is void of any prosecutorial misconduct. The 

instances the defendant chooses to cite merely show basic interactions between the Court, the 

prosecutor, and the defense. The record is void of instances that even come close to resembling

the standard set out by Bates, 46 F. App’x at 110, that is misconduct “sufficiently prejudicial” to 

violate a defendant's due process rights. Id.

Trader claims the following represent instances of prosecutorial misconduct: a 

witnesses’ reference to gun purchases, eliciting hearsay, the search and seizure of “inadmissible”

contraband, a “blank” exhibit list, an “inadmissible” post-arrest interview of Trader, an 

“unauthenticated” voice identification of Trader, and testimony of “dual” witnesses. Trader not 

only misconstrues the standard necessary to establish prosecutorial misconduct, but his recitation 

of record is factually wrong. 

During the course of a lengthy two-week trial, Trader cites to six9 instances of 

purported “prosecutorial misconduct.” During the course of testimony by Trooper Skahill 

 8 These instances appear to be inadvertently listed under Ground Four of Trader’s petition. Trader Section 2255, p. 

38, December 3, 2012.

9 Trader seventh claim of purported misconduct is “the prosecution improperly elicited law enforcement officers as 

dual witnesses[.]” As this is the same ground raised under defendant’s Ground Six, the government has addressed

the “dual witness” complaint under Trader’s Ground Six claim of error. 
33

regarding how the investigation into this cocaine trafficking organization commenced, and 

referenced the fact that members of the Pennsylvania State Police began making purchases of 

cocaine and firearms. Supp. App. 20. Upon objection by one of the four defendants’ defense 

counsel, this Court sustained the objection, and instructed the jury to disregard the testimony 

regarding the firearms. Supp. App. 20-21, 41. The jury is presumed to follow Court's 

instruction to disregard inadmissible evidence “unless there is an overwhelming possibility that 

the jury will be unable to follow the court's instructions ... and a strong likelihood that the effect 

of the evidence would be devastating to the defendant," See U.S. v. Thomas, 315 F.3d 190, 203 

(3d Cir. 2002), quoting Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)). The presumption is 

therefore, that the jury did indeed follow the Court’s instruction. Even if the testimony was 

improperly admitted initially, there was no prejudice to Trader. This elicited testimony hardly 

rises to the level of “prosecutorial misconduct” intended to “inflame the passions or prejudices of 

the jury.” ABA Standards for Criminal Justice 3-5.8(c) (2d ed. 1980). 

The same holds true for Trader’s argument regarding hearsay testimony. Supp. 

App. 78. The Court instructed the jury to disregard the hearsay testimony and struck it from the 

record. Supp. App. 78. Again, the jury is presumed to follow the Court’s instruction. 

Trader’s reference to the government improperly eliciting testimony regarding the 

“confiscation of contraband from a residence uninvolved in the charged offenses” is factually 

incorrect and belied by the record. Trader Section 2255 Pet., p.9. The government elicited 

testimony regarding the results of a search warrant executed at the residence of Tyrone Smith, 

one of the cocaine suppliers to this conspiracy. Supp. App. 80-84. The Court appropriately 

overruled defense counsel’s objection, and allowed the government to elicit testimony regarding 

the numerous items seized from the cocaine supplier’s residence, such as two and a half 
34

kilograms of cocaine, numerous empty kilogram wrappers of cocaine, money counters, and owe 

sheets, to list but a few. Supp. App. 89. Again, a claim of prosecutorial misconduct with 

respect to this elicited testimony is inappropriate and must be dismissed. 

Trader’s complaint that “the government submitted a blank exhibit list,” is 

similarly, simply wrong. Trader Section 2255 Pet., p. 9. Trader refers to an instance in a two 

week trial where the government marked an exhibit during the course of trial that had previously 

been unmarked. As defense counsel noted on the record at the time of the admission of the 

exhibit, they were aware of the existence of the exhibit being marked (empty kilogram wrappers 

of cocaine) and had been provided a list of what had been seized. Supp App. 92. Accordingly, 

the Court appropriately overruled defense counsel’s objection. Supp. App. 93. 

Trader claims that the government improperly elicited testimony regarding post 

arrest interview of Trader and that the government improperly attempted to authenticate Trader’s 

voice. The government elicited testimony from Trooper Skahill regarding the fact that Trader, 

like many of the other defendants, was arrested on October 6, 2004, and that at the time of his 

arrest, Trooper Skahill had the opportunity to speak to the defendant. Trooper Skahill further

testified that based upon this conversation, he recognized that the voice of Tyrone Trader as 

being the voice of the person intercepted recordings during the course of the Title III wiretap. 

Supp. App. 99-101, 106. Defense counsel objected to elicited testimony regarding the 

defendants being given the opportunity to cooperate, and the Court sustained that objection, and 

instructed the jury to disregard the witness’s testimony regarding the subject matter, but that they 

could consider the witness’s ability to recognize the voice of the defendant on any tape recorded 

conversations. Supp. App. 101-105. Again, Trader’s claim of prosecutorial misconduct is 

meritless. Importantly, 
35

Assuming arguendo that any purported instances of “misconduct” occurred, they 

certainly do not rise to the level of prosecutorial misconduct. They are neither “arguments 

calculated to inflame the passions or prejudices of the jury[,]” (ABA Standards for Criminal 

Justice 3-5.8(c) (2d ed. 1980)), nor are they “sufficiently prejudicial” to violate a defendant's due 

process rights. Bates, 46 F. App’x at 110. Unlike instances of prosecutorial misconduct that

typically involve statement/arguments made by the prosecutor during opening or closing 

statements, the instances cited by Trader, are common interactions between the Court and 

counsel. They certainly were not so inflammatory as to deprive the defendant of due process.

5. Defendant Cannot Satisfy the Standard for a Claim of Cumulative 

Error.

In Ground Seven of his claim, Trader maintains he should be granted a new trial 

under the “Cumulative Error Doctrine.” “A cumulative-error analysis merely aggregates all the 

errors that individually have been found to be harmless, and therefore not reversible, and it 

analyzes whether their cumulative effect on the outcome of the trial is such that collectively they 

can no longer be determined to be harmless.” Darks v. Mullin, 327 F.3d 1001, 1018 (10th 

Cir.2003). To obtain relief under 28 U.S.C. § 2255, a defendant must show a "constitutional 

trial error [that] 'had substantial and injurious effect or influence in determining the jury's 

verdict."' Hassine v. Zimmerman, 160 F.3d 941, 950 (3d Cir. 1998) (quoting Brecht v. 

Abrahamson, 507 U.S. 619, 623 (1993)). Under this "actual prejudice" standard, Brecht, 507 

U.S. at 637, a constitutional error is "not harmless if the court is in 'grave doubt' as to whether the 

error had a substantial and injurious effect." Hassine, 160 F.3d at 955. In making this 

determination, this Court looks at the "record as a whole," including the weight of the evidence 

otherwise admitted, Brecht, 507 U.S. at 638-39, and the "case as presented to the jury by the 
36

prosecution and the defense," United States v. Montalvo, 331 F.3d 1052, 1058-59 (9th Cir. 

2003), to determine if the error substantially influenced the jury's verdict. In determining 

whether there has been a constitutional trial error, this Court looks at clearly established law at 

the time the defendant's conviction became final. See Williams v. Taylor, 529 U.S. 362, 380 

(2000). “Cumulative errors are not harmless if they had a substantial and injurious effect or 

influence in determining the jury's verdict, which means that a habeas defendant is not entitled to 

relief based on cumulative errors unless he can establish “’actual prejudice.’” Albrecht v. Horn, 

485 F.3d 103, 139 (3d Cir. 2007) quoting Brecht, 507 U.S. at 637, 113 S.Ct. 1710. See Whitney, 

280 F.3d at 258-59 & n.18 ii. United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir. 1994). 

Herrera-Genao, 419 Fed. Appx. at 292 (holding that unraised claims receive plain error review).

The Third Circuit has established a high hurdle for successful cumulative error 

claims. In United States v. Powell, 444 F. App'x 517 (3d Cir. 2011) (non-precedential) cert. 

denied, 132 S. Ct. 1907, 182 L. Ed. 2d 777 (U.S. 2012), the Third Circuit found that “[t]he 

cumulative effect of each non-error does not rise to constitutional error; as the saying goes, zero 

plus zero equals zero. Powell at 522. In United States v. Chirstie, 624 F.3d 558 (3d Cir. 2010), 

where the Court found a harmless error did occur, in view of the “overwhelming evidence of 

guilt,” the court “readily conclude[d] that, taken together, the purported errors do not entitle 

Christie to a new trial.” Id. at 572.

As in Powell, the defendant does not establish a legitimate basis for any sort of 

error on the claims brought in his petition. Even if error occurred, Christie provides that where 

overwhelming evidence of guilt exists, a handful of harmless errors do not contravene the Sixth 

Amendment. Trial can withstand a handful of errors as long as the evidence remains strong. 

Here, no errors occurred, and even if an error did in fact occur, the overwhelming evidence of 
37

Trader’s guilt eviscerates a claim of prejudice brought by a handful of insignificant errors as in 

Christie.

6. Defendant’s Sentence was Lawful

In Ground Eight, defendant claims is his lifetime sentence of imprisonment is 

unconstitutional based upon Alleyne v. United States, 133 S. Ct. 2151 (2013). Like defendant’s 

other claims of error, this too lacks merit.

A stated above, the Third Circuit has recently confirmed that the Supreme Court’s 

2013 decision in Alleyne does not apply retroactively to cases on collateral review. United 

States v. Thomas Reyes, --- F.3d ----, 2014 WL 2747216, C.A.3 (Pa.) (June 18, 2014). Hence, 

Trader barred from raising an Alleyne claim on collateral review. 

Even if Trader were permitted to raise a claim under Alleyne, it provides him with 

no relief. Defendant argues that since his mandatory minimum sentence was increased from 10 

years to lifetime’ imprisonment as a result of two prior felony drug trafficking convictions, a jury 

should have made findings regarding these prior convictions. This conclusion is a clear 

misapplication of the law. Alleyne held that, other than a prior conviction, any fact that triggers 

or increases a mandatory minimum sentence must be submitted to a jury and proved beyond a 

reasonable doubt. Id. Accordingly, it would have been improper for the issue of the defendant’s 

prior convictions to be submitted to the jury. 

Here, the jury was asked to determine the quantity ranges stated in the statute, 21 

U.S.C. § 841(b)(1), as required in order to establish the statutory maximum penalty, see 

Apprendi v. New Jersey, 530 U.S. 466 (2000), and any mandatory minimum penalty, see 

Alleyne v. United States, 133 S. Ct. 2151 (2013). The jury specifically made a finding under 

Count One’s conspiracy to distribute cocaine, regarding the quantity of cocaine that was 
38

attributable to the each defendant, that is, 5 kilograms or more, under Title 21, United States 

Code, Section 846. As a conviction for this offense yields a statutory maximum of lifetime 

imprisonment, Alleyne is applicable. See Title 21, U.S.C., Section 841(a)(1), (b)(1)(A). See

Alleyne v. United States, 133 S.Ct. 2151, 2158 (2013) (holding that, other than a prior 

conviction, any fact that triggers or increases a mandatory minimum sentence must be submitted 

to a jury and proved beyond a reasonable doubt); United States v. Blair, 734 F.3d 218, 227-28 

(3d Cir. 2013), (Alleyne did "nothing to restrict the established exception under AlemendarezTorres that allows judges to consider prior convictions" for purposes of enhanced penalties). 

Accordingly, the Court’s determination that the defendant had two prior felony drug trafficking 

convictions,10 that yielded a mandatory minimum sentence of life, was appropriate, and 

defendant’s claim must be dismissed.

7. The Trial Court did not Abuse its Discretion

In his Ninth claim of error, Trader asserts that that the District Court abused its 

discretion by allowing the lead case agents to sit at the prosecution’s counsel table during trial, 

arguing that since they were witnesses at trial, they should have been sequestered. As this Court 

committed no error, and all authority stands against this view, defendant’s assertion in this regard 

is baseless and should be dismissed.

Federal Rule of Evidence 615 states that "an officer or employee of a party that is 

not a natural person, after being designated as the party’s representative by its attorney" shall not 

be excluded from the courtroom. Fed. R. Evid. 615(b). Because Trooper Skahill was officer of 

the Pennsylvania State Police and one of the case agents whom the government designated as its 

 10 The defendant did not challenge the fact that he had two qualifying felony drug trafficking convictions at the time 

of his sentencing hearing, nor does he do so in his Section 2255 Petition. Trader Sentencing Hrg., September 29, 

2008, p. 6.
39

representative, he could not be excluded from the courtroom. See United States v. Gonzales, 918 

F.2d 1129, 1137-38 (3d Cir. 1990) (compiling cases holding that "the government case agent 

responsible for a particular investigation should be permitted to remain in the courtroom, even 

though the agent will often testify later on behalf of the government. Such an exception is 

envisioned by Rule 615(2), and it is further supported by legislative history."). See also United 

States v. Strauss, 473 F.2d 1262 (3d Cir. 1973).

The legislative history squarely supports the government's right to designate an 

agent to be present to assist during trial. The Senate committee which approved Rule 615 stated: 

Many district courts permit government counsel to have an investigative agent at 

counsel table throughout the trial although the agent is or may be a witness. The 

practice is permitted as an exception to the rule of exclusion and compares with 

the situation defense counsel finds himself in -- he always has the client with him 

to consult during the trial. The investigative agent's presence may be extremely 

important to government counsel, especially when the case is complex or involves 

some specialized subject matter. The agent, too, having lived with the case for a 

long time, may be able to assist in meeting trial surprises where the best-prepared 

counsel would otherwise have difficulty. Yet, it would not seem the Government 

could often meet the burden under rule 615 of showing that the agent's presence is 

essential. Furthermore, it could be dangerous to use the agent as a witness as 

early in the case as possible, so that he might then help counsel as a nonwitness, 

since the agent's testimony could be needed in rebuttal. Using another, 

nonwitness agent from the same investigative agency would not generally meet 

government counsel's needs. 

This problem is solved if it is clear that investigative agents are within the group 

specified under the second exception made in the rule, for "an officer or employee 

of a party which is not a natural person designated as its representative by its 

attorney." It is our understanding that this was the intention of the House 

committee. It is certainly this committee's construction of the rule. 

S. Rep. No. 1277, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 

7051, 7072-73. Accordingly, the Court in this case properly permitted the case agents to remain 

in the courtroom.
40

8. Ineffective Assistance of Counsel

The applicable standard for evaluating claims of ineffective assistance of counsel 

is set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court in Strickland 

held that a claim of ineffective assistance of counsel requires a showing that defense counsel’s 

performance was deficient and that the defendant was prejudiced by counsel’s deficient 

performance. The first part of the test requires Trader to show that counsel’s performance fell 

below an objective standard of reasonableness as defined by the prevailing professional norms, 

such that the Defendant was effectively denied the “counsel” guaranteed by the Sixth 

Amendment. Id. at 687. In applying the “professional norms” standard, “judicial scrutiny of 

counsel’s performance must be highly deferential,” and courts “must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Id. at 689. To be entitled to relief, Trader must also show that counsel’s 

unprofessional errors actually prejudiced him. Id. at 687. In order to satisfy the prejudice 

component, the defendant must show that “there is reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. 

Defendant cannot meet this high burden.

In Ground Six, Trader bases his claim of ineffective assistance of counsel on trial 

counsel’s failure to argue the sufficiency of the evidence, failure to object to the counts of aiding 

and abetting, and failure to argue multiple conspiracies. As analyzed above, these claims have 

no merit and therefore, cannot rise to the level of ineffective assistance of counsel. Contrary to 

defendant’s claims, both trial and appellate counsel argued sufficiency of the argument. Trial 

counsel did object to the counts of aiding and abetting, Supp. App. 973-974, and finally, the 

Court gave a charge to the jury with respect to multiple versus a single conspiracy. Court’s 
41

Charge to Jury, January 18, 2007, 72-74. Additionally, defense counsel’s 

unwillingness/reluctance to raise frivolous arguments and issues functions as an illustration of 

prudent and thoughtful advocacy—not ineffective counsel. Counsel cannot be ineffective for a 

failure to raise an issue that lacks merit. Government of Virgin Islands v. Lewis, 620 F.3d 359, 

372 (3d Cir. 2010); Real v. Shannon, 600 F.3d 302, 309 (3d Cir. 2010); Werts v. Vaughn, 228 

F.3d 178, 202 (3d Cir. 2000); Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998).

Defendant also argues his claim of ineffective assistance of counsel due to 

counsel’s failure to object to a Crawford violation. Trader’s present argument appears to focus 

on the testimony of law enforcement officers throughout trial. Defendant misapplies Crawford 

as Trader’s trial counsel had the opportunity to, and did, cross examine the witnesses. Thus, as 

argued above, no Crawford violation occurred. Furthermore, careful review of the record does 

not reveal any such instance. Similarly, Trader argues his counsel was ineffective by failing to 

object to the “dual” testimony of law enforcement officer. As argued above, there is no merit to 

this claim. Law enforcement officers testified as fact witnesses concerning their observations. 

They did not testify concerning laboratory testing, the process of laboratory testing, or the 

accuracy of laboratory tests. Moreover, at sidebar, defendant’s counsel, the government, and the 

Court collectively agreed that the law enforcement officer’s testimony, specifically Trooper 

Skahill’s testimony with which defendant takes umbrage, would be limited to fact, rather than 

expert, testimony. Trial Transcript, January 5, 2007, 28. The record reveals no instances of 

expert opinion offered by Trooper Skahill. 

Additionally, defendant argues his claim of ineffective counsel due to counsel’s 

failure to object to prosecutorial misconduct. As set forth above, no incidents of prosecutorial 

misconduct occurred, rather has cited routine interactions before the Court that were properly 
42

handled and do not rise to the level of prosecutorial misconduct. On occasions where the Court 

sustained an objection made by defense counsel, where appropriate, a cautionary or limiting 

instruction was given to the jury. In short, a review of the record reveals no misconduct by the 

prosecution. 

Lastly, Trader argues that his counsel’s failure to object to the timing of the filling 

of the 21 U.S.C. § 851 notice amounted to ineffective assistance of counsel, claiming the filing 

of the notice evidences “vindictive” intent on the part of the government. Title 21, United States 

Code, § 851 states that:

(1) No person who stands convicted of an offense under this part shall be 

sentenced to increased punishment by reason of one or more prior convictions, 

unless before trial, or before entry of a plea of guilty, the United States attorney 

files an information with the court (and serves a copy of such information on the 

person or counsel for the person) stating in writing the previous convictions to be 

relied upon. Upon a showing by the United States attorney that facts regarding 

prior convictions could not with due diligence be obtained prior to trial or before 

entry of a plea of guilty, the court may postpone the trial or the taking of the plea 

of guilty for a reasonable period for the purpose of obtaining such facts. Clerical 

mistakes in the information may be amended at any time prior to the 

pronouncement of sentence.

21 U.S.C.A. § 851 (West).

Once again, defendant’s claim is baseless. The docket shows that the government 

filed with the court and served Trader with notice of prior convictions pursuant to this section on 

June 30, 2006, close to six months before trial. 

It is difficult to construct an argument whereby six months’ notice constitutes 

“vindictive” intent on the part of the Government, and defendant does not provide examples 

other than a claim that the government filed the notice when he refused to plead guilty. "A 

charging decision does not levy an improper 'penalty' unless it results solely from the defendant's 

exercise of a protected legal right, rather than the prosecutor's normal assessment of the societal 
43

interest in prosecution." U.S. v. Goodwin, 457 U.S. 368, 380 n. 11 (1982)(emphasis added).

"Put another way, the defendant must show that (1) the prosecutor harbored a genuine animus 

toward the defendant ... and (2) the defendant would not have been prosecuted except for the 

animus." U.S. v. Sanders, 211 F.3d 711, 717 (2d Cir. 2000) (internal quotation marks omitted).

Trader’s claim that the Government sought an enhanced sentence because he 

refused to plead guilty fails to state a cognizable claim of vindictive prosecution. In fact, the 

reverse is true. The Government’s delay in filing the notice while plea negotiations are 

underway inures to the benefit of any defendant facing an enhanced penalty because of prior 

drug convictions. Conversely, during the time in question, United States Attorneys were 

instructed, via the “Ashcroft Memorandum,” to charge, and prove at trial, the most serious 

offense committed by a given defendant, and thus had little discretion to not file a notice of prior 

convictions on any defendant proceeding to trial. 

In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Supreme Court held that 

there was no violation of due process even though the prosecutor advised that increased criminal 

charges would be filed if the defendant refused to plead guilty to lesser charges, and then did 

indeed increase the charges when the defendant did plead to the lesser charges. After accepting 

"the basic legitimacy of plea bargaining," even though "the plea may have been induced by ... 

fear of the possibility of a greater penalty upon conviction after a trial," the Court explained that: 

[w]hile confronting a defendant with the risk of more severe punishment clearly 

may have a discouraging effect on the defendant's assertion of his trial rights, the 

imposition of these difficult choices is an inevitable-and permissible-attribute of 

any legitimate system which tolerates and encourages the negotiation of pleas. It 

follows that, by tolerating and encouraging the negotiation of pleas, this Court has 

necessarily accepted as constitutionally legitimate the simple reality that the 

prosecutor's interest at the bargaining table is to persuade the defendant to forgo 

his right to plead not guilty. 
44

434 U.S. at 364.

Defendant appears to suggest that the mere filing of the notice of prior 

convictions after he refused to plead guilty created the requisite "presumption of vindictiveness." 

Bordenkircher repudiates that claim, as the First Circuit squarely held in U.S. v. Jenkins: 

Here, as in Bordenkircher, the prosecutor tried to induce a plea by agreeing to 

lenient treatment for the defendant.... [T]he prosecutor agreed, as part of his plea 

offer, to refrain from filing a section 851 enhancement information, an 

information that was undisputedly supported by the facts. In both cases, the plea 

negotiations were unsuccessful, and the defendants faced higher penalties as a 

result. In neither case was a presumption of vindictiveness warranted. 

537 F.3d 1, 4 (1st Cir. 2008); see also U.S. v. Cooks, 52 F.3d 101, 106 (5th Cir. 1995) (no 

presumption of prosecutorial vindictiveness where the government filed an § 851 enhancement 

notice after the defendant withdrew his guilty plea).

Not only has Defendant failed to sustain his burden of establishing a prima facie 

case of vindictiveness, but he has not even attempted to meet his burden of persuasion on the 

claim. He bears the affirmative burden of proving vindictiveness, because "a prosecutor's 

charging decision is presumptively lawful," U.S. v. Wilson, 262 F.3d 305, 315 (4th Cir. 2001) 

(citing U.S. v. Armstrong, 517 U.S. 456, 464 (1996) (addressing claims of selective 

prosecution)). Having proffered no evidence of actual vindictiveness beyond the legally 

deficient fact of the filing of the notice of prior convictions, defendant has utterly failed to 

sustain his burden. See U.S. v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006) (defendant failed to 

sustain his burden of proving actual vindictiveness, where "he did not offer sufficient evidence of 

prosecutorial animus to meet this burden, [and] primarily relied on the Government's filing of the 

Section 851 enhancement during the time that it was trying to convince Cooper to plead guilty"). 

For that reason as well, this claim should be rejected.
45

IV. A HEARING ON DEFENDANT’S MOTION IS UNNECESSARY

Under 28 U.S.C. § 2255, a motion may be denied without a hearing if "the motion 

and files and the records of the case conclusively show that the prisoner is entitled to no relief." 

28 U.S.C. § 2255. This Court has adopted the following rule for determining when the district 

court must conduct an evidentiary hearing under § 2255: 

When a motion is made under 28 U.S.C. §2255 the question of whether to order a 

hearing is committed to the sound discretion of the district court. In exercising 

that discretion the court must accept the truth of the movant's factual allegations 

unless they are clearly frivolous on the basis of the existing record. Further, the 

court must order an evidentiary hearing to determine the facts unless the motion 

and files and records of the case show conclusively that the movant is not entitled 

to relief. Government of the Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d 

Cir.), cert. denied, 469 U.S. 829, 105 S. Ct. 113, 83 L.Ed.2d. 56 (1984). 

Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989), cert. denied, 500 U.S. 

954 (1991). See also Rule 4(b) of the Rules Governing Section 2255 Proceedings (preliminary 

consideration by the district court); and Rule 8 of the Rules Governing Section 2255 Proceedings 

(evidentiary hearings before the district court).

The foregoing requirements "do not mean that an evidentiary hearing must be 

held whenever [a] movant's ineffective assistance claim presents a close question." Government 

of the Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir.), cert. denied, 469 U.S. 829 

(1984). Rather, the district court "need only supplement the factual record when the merits of 

the section 2255 motion may turn on the truth of a non-frivolous allegation." Id. The Court is 

not required to conduct an evidentiary hearing where the record adequately reveals the facts 

necessary to review the claim. See Dall v. United States, 957 F.2d 571, 573 (8th Cir. 1992); 

compare United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) ("the discretion of the district 

court summarily to dismiss a motion under § 2255 is limited to cases where the motion, files and 
46

records show conclusively that the movant is not entitled to relief" (citations omitted)). Where 

the record indicates that the claim for relief is without merit, the "refusal to hold a hearing will 

not be deemed an abuse of discretion." Government of the Virgin Islands v. Nicholas, 759 F.2d 

1073, 1075 (3d Cir. 1985). As discussed above, defendant has failed to allege any facts that 

support his claims. There is therefore no need for an evidentiary hearing.11

V. A CERTIFICATE OF APPEALABILITY SHOULD NOT ISSUE

If the District Court denies a § 2255 motion, the petitioner can only appeal if he 

obtains a certificate of appealability. 28 U.S.C. § 2253. The law permits the issuance of a 

certificate of appealability only of the applicant has made a substantial showing of the denial of a 

constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000); 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

The application for such a certificate should first be made to the District Court. 

Local Rule 22.2 provides as follows:

At the time a final order denying a petition under 28 U.S.C. § 2254 

or § 2255 is issued, the district judge will make a determination as to 

whether a certificate of appealability should issue. If the district judge 

issues a certificate, the judge must state the specific issue or issues that 

satisfy the criteria of 28 U.S.C. ' 2253. If an order denying a petition 

under § 2254 or § 2255 is accompanied by an opinion or a magistrate 

judge’s report, it is sufficient if the order denying the certificate 

references the opinion or report.

See also United States v. Williams, 158 F.3d 736, 742 n.4 (3d Cir. 1998) (“as a matter of 

practice...an unsuccessful movant in a § 2255 case should in the first instance seek a certificate 

of appealability from the district court.”). Accordingly, in the interests of judicial economy, the 

 11 Likewise, defendant has raised no claims that require supplementation of the record via testimony of defense 

counsel, such as a claim that defendant’s request to testify or call certain witnesses was ignored by counsel. Here, 

all of the defendant’s claims may be reviewed, and resolved, on the record as it exists. 
47

government requests that in addition to denying the instant petition, this Court also find that 

Trader has failed to make a substantial showing of a denial of any constitutional right.

In order to present a “substantial showing of the denial of a constitutional right” to 

justify an appeal, the mere allegation of a constitutional wrong, such as deprivation of the right to 

effective counsel, is insufficient; the petitioner must make a substantial showing of such an error. 

Santana v. United States, 98 F.3d 752, 757 (3d Cir. 1996). To do this, “[t]he petitioner 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. at 484. Further, the claim must be 

constitutional in nature; there may be no certificate of appealability for an issue which presents 

only a statutory or sentencing guideline question. United States v. Cepero, 224 F.3d 256, 262-68 

(3d Cir. 2000)(en banc).

Defendant’s § 2255 petition fails to raise an issue of constitutional magnitude, 

therefore, no certificate of appealability should issue.

VI. CONCLUSION

Claims not raised on appeal are not appropriate for habeas corpus petitions. This 

includes Petitioner’s arguments concerning prosecutorial misconduct, the timing of the § 851 

notification, cumulative error doctrine, arguments concerning the testimony of law enforcement 

officers at trial, and non-sequestration of testifying lead case agents. Secondly, claims already 

adjudicated on appeal are not appropriate for habeas corpus petitions. This includes the 

Petitioner’s arguments concerning the sufficiency of the evidence regarding a single conspiracy, 

controlled substance quantity, and aiding and abetting. Lastly, ineffective assistance of counsel 

remains the only viable argument Petitioner retains—but this too must fail. Petitioner advances 

each argument individually and raises several as a demonstration of ineffective assistance of 
48

counsel in Ground Six. Comprehensive analysis of each claim determines every argument void 

of merit, thus Petitioner cannot prevail. It is well settled that a failure to raise a frivolous issue or 

make a frivolous argument, is not ineffective but rather, good advocacy. 

Accordingly, for the foregoing reasons, the government respectfully requests that 

the defendant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence be 

denied, that the court find a hearing is not necessary, and that a Certificate of Appealability not

issue.

Respectfully submitted,

ZANE DAVID MEMEGER

United States Attorney

___/s/_________________________________

KATHY A. STARK

Assistant United States Attorney

____/s/________________________________

KATAYOUN M. COPELAND

Assistant United States Attorney
49

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Government=s Response to 

Defendant=s Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. ' 2255 has been 

served by first class mail, postage prepaid, upon:

Tyrone Trader

Prison Number 40143-066

USP Pollock

Post Office Box 474701

Des Moines, Iowa 50947-0001

______/s/______________________________

KATAYOUN M. COPELAND

Assistant United States Attorney

Dated: __June 30, 2014________