IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

 : NO. 05-357-1

v. :

 : CIVIL ACTION

DENROY GAYLE : NO. 11-6067

M E M O R A N D U M

STENGEL, J. June 20, 2012

Denroy Gayle filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 

2255 asserting his attorney provided ineffective assistance of counsel in four aspects of 

his representation. Gayle alleges that his attorney was ineffective for (1) failing to 

properly preserve his right to confrontation by declining to object to the introduction of 

statements made by the confidential informant, (2) failing to move to suppress the 

prerecorded buy money that was recovered from his person at the time of his arrest, (3) 

failing to pursue or negotiate a plea agreement, and (4) failing to object to two of the 

Court’s jury instructions. For the reasons set forth below, I will deny Gayle’s petition in 

its entirety and refrain from issuing a certificate of appealability. 

I. BACKGROUND

A. Factual History

Sergeant Matthew Lohenitz of the Easton Police Department learned that crack 

cocaine was being sold out of a residence located at 30 South 15th Street in Easton, 

Pennsylvania. A confidential informant told Sergeant Lohenitz about the crack cocaine 

distribution in September of 2004. At Sergeant Lohenitz’s direction and in his presence, 

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the confidential informant placed a call to arrange to purchase crack cocaine from the 

residence. (Motion Tr. 37-40, May 31, 2006.)

At 11:40 a.m. on September 8, 2004, Sergeant Lohenitz drove the informant to a 

location near the house. The sergeant searched the informant to make sure he had no 

money, no contraband, no controlled substances, and no weapons. He gave the informant 

prerecorded money to make a purchase of crack cocaine. The informant left the vehicle 

and walked to the house. Sergeant Lohenitz drove to a parking lot directly across the 

street from the residence. (Trial Tr. 10-13, August 21, 2006.)

Sergeant Lohenitz observed the residence as the informant knocked on the front 

door. A black male answered the door and had a brief verbal and physical exchange with 

the informant on the front porch of the house. The black male went back inside the home 

and the informant walked to a pre-arranged meeting location where he got into the car 

with Sergeant Lohenitz and turned over a baggie. The informant told Sergeant Lohenitz 

that Denroy Gayle had sold him the drugs. Sergeant Lohenitz drove with the informant 

to another location and performed a field test on the substance in the baggie, which tested 

positive for crack cocaine. Sergeant Lohenitz obtained a police photo of Gayle. The 

informant confirmed that the person in the photograph was the person he saw and met 

with on the porch of the residence. (Motion Tr. 144, 45-48, May 31, 2006.) 

On September 9, 2004, Sergeant Lohenitz set up a similar controlled purchase at 

the same residence. At approximately 7:30 p.m., Sergeant Lohenitz met with and 

searched the informant. He provided the informant with some prerecorded buy money. 

The informant approached the home while the Sergeant watched from the nearby CVS 

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parking lot. When the informant arrived at the residence, Gayle came out the front door 

and walked into the front yard toward an alleyway. He and the informant briefly talked 

in the alleyway, exchanged something, and then parted ways. The informant gave 

Sergeant Lohenitz what proved to be more crack cocaine, packaged in a “corner tie” 

baggie just like the previous day. Sergeant Lohenitz maintained constant visual contact 

with the informant throughout the entirety of this transaction. (Trial Tr. 33-37, 44, 17, 

August 22, 2006.) 

Sergeant Lohenitz applied for and obtained a search warrant for the residence 

based on the information he learned from the controlled purchases on the two previous 

days. On the morning of September 10, 2004, members of the Easton Police Department 

executed the search warrant at the residence. Gayle and members of his family, including 

his mother, younger brother and sister, were present when the police entered the house. 

Gayle was carrying $670 in cash, in small denominations, including the prerecorded buy 

money that had been used by the informant to purchase the crack cocaine on September 

9. No other occupant of the house was found in possession of a significant amount of 

cash. (Trial Tr. 47-48, 51, 56, 72, 90-94.) 

The police found a digital scale in the kitchen. This digital scale was the type 

commonly used by drug dealers to break down drugs into smaller quantities for street 

sales. Subsequent testing confirmed that Gayle’s fingerprints were on the scale. The 

police also found plastic baggies in the kitchen, the type that are commonly used to 

package crack cocaine. Inside the front door was a safe that contained a total of 36.2 

grams of crack cocaine and an unloaded gun. The contents of the safe included a baggie 

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with a large piece of crack cocaine and another baggie with 29 smaller “corner tie” bags 

of crack cocaine. The packaging and appearance of the crack found in the safe was 

consistent with that of the crack Gayle sold to the informant on September 8 and 

September 9. The officers also found a loaded gun near the safe. (Trial Tr. 49-52, 61-65, 

71-81, 99, 103, 144-45.)

B. Procedural History

On June 28, 2005, a grand jury in the Eastern District of Pennsylvania returned an 

indictment charging Gayle with one count of possession with intent to distribute five 

grams or more of cocaine base (“crack”), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); 

one count of possession of a firearm in furtherance of a drug trafficking crime, in 

violation of 18 U.S.C. § 924(c); and one count of possession of a firearm by a convicted 

felon, in violation of 18 U.S.C. § 922(g). 

Gayle was initially represented by Benjamin Cooper, Esq. and Dina Chavar, Esq., 

both members of the Federal Defender Association. Gayle’s attorneys filed a motion for 

bail, various motions seeking discovery, a motion to suppress or exclude evidence, and a 

motion for a writ of habeas corpus ad testificandum to secure the present of a witness in 

support of Gayle’s pretrial motions. On December 28, 2005, I granted the Defender 

Association’s motion to withdraw as counsel due to a conflict of interest and appointed 

Michael J. Engle, Esq. to represent Gayle. Attorney Engle filed additional and 

supplemental motions and memoranda on discovery, suppression, and evidentiary issues. 

Attorney Engle also responded to the government’s pretrial motions, obtained the court’s 

permission to retain a defense fingerprint expert, and submitted proposed jury 

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instructions. On May 31, 2006, I held a hearing on the motions. Following the hearing, I 

denied Gayle’s motion to suppress physical evidence and statements but granted other 

defense motions in whole or in part. 

A jury-trial began on August 21, 2006. During the trial, Gayle’s stepfather 

testified on his behalf and stated that he had given Gayle a large amount of cash on the 

morning of September 10 to pay a water bill. A defense investigator testified about his 

interview of an individual known as Malcolm Freeman. The investigator introduced a 

written question and answer statement of his interview with Freeman, as well as an 

earlier letter authored by Freeman. In these statements, Freeman claimed that he found 

the drugs at issue on the street near Gayle’s home, and out of curiosity about what it 

would be like to be a drug dealer, began selling the drugs in that same area. He stated 

that on the evening of September 9, he left the drugs in the safe at Gayle’s home and 

went home to sleep, intending to retrieve the drugs in the morning. Freeman claimed that 

he overslept, and when he finally arrived at Gayle’s home on September 10, he learned 

that the police had been there and arrested Gayle. The defense attempted to call Freeman 

at trial, however, I appointed counsel for Freeman and Freeman invoked his Fifth 

Amendment privilege not to testify. (Trial Tr. 2-23, August 24, 2006.) 

In rebuttal, the government called Sergeant Lohenitz, who testified about the 

different physical appearances of both Freeman and Gayle, and that he was sure it was 

Gayle who met with the informant on September 8 and 9. (Trial Tr. 5.) Following a sixday jury trial, on August 29, 2006, a jury found Gayle guilty of all charges. 

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Attorney Engle filed a motion for judgment of acquittal and a new trial on Gayle’s 

behalf and argued, among other things, that the evidence was insufficient to support the 

verdict and the court should have compelled the government to disclose the identity of 

the confidential informant. On March 12, 2007, I denied the motion. On May 9, 2007, I 

sentenced Gayle to 180 months imprisonment, a term of supervised release of five years, 

a fine of $1,000, and a special assessment of $300.1 

Following the entry of judgment of the original sentence, Gayle timely filed a 

notice of appeal. Gayle was represented by Thomas C. Egan, Esquire on appeal and 

raised the following issues: the Court erred in not deviating from the crack/powder ratio 

in the sentencing guidelines; the Court abused its discretion in denying Gayle’s motion to 

compel the government to disclose the confidential informant’s identity; the Court erred 

in permitting the testimony of the government’s narcotics expert; the Court erred in 

admitting evidence of uncharged controlled purchases; the evidence was not sufficient to 

sustain Gayle’s conviction for the firearms offenses; and trial counsel was ineffective for 

failing to object to alleged hearsay statements of the confidential informant. The Third 

Circuit affirmed the judgment of sentence on November 5, 2010. United States v. Gayle, 

400 Fed. Appx. 689 (3d Cir. 2010). The Third Circuit did not review Gayle’s ineffective 

assistance of counsel claim, stating that the claim should be reserved for collateral review 

pursuant to 28 U.S.C. § 2255. Gayle timely filed the instant pro se motion to vacate, set 

aside, or correct his sentence pursuant to 28 U.S.C. § 2255. 

 

1 On November 20, 2011 Gayle filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582 and the 

2011 amendment to the crack cocaine sentencing guidelines. On December 22, 2011, I granted Gayle’s motion in 

part, reducing his sentence to 110 months imprisonment, but denied his request to impose a sentence below the 

guideline range.

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II. STANDARD OF REVIEW

A prisoner in custody may move the sentencing Court to “vacate, set aside, or 

correct” a sentence imposed “in violation of the Constitution or laws of the United 

States.” 28 U.S.C. § 2255. Section 2255 permits habeas relief for an error of law or fact 

constituting a “fundamental defect which inherently results in a complete miscarriage of 

justice.” United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (citing United States 

v. Addonizio, 442 U.S. 178, 184 (1979)).

If the court determines that the sentence was not authorized by law, was 

unconstitutional, or otherwise open to collateral attack, the court must either vacate the 

judgment, resentence the prisoner, or grant the prisoner a new trial as appropriate. Id. at 

§ 2255(b). Conversely, a court may dismiss a Section 2255 motion where the record

shows conclusively that the movant is not entitled to relief. United States v. Nahodil, 36 

F.3d 323, 326 (3d Cir. 1994).

III. DISCUSSION

Gayle alleges that his attorney was ineffective for (1) failing to properly preserve 

his right to confrontation by declining to object to the introduction of statements made by 

a confidential informant, (2) failing to move to suppress the prerecorded buy money that 

was recovered from his person at the time of his arrest, (3) failing to pursue or negotiate a 

plea agreement with the government, and (4) failing to object to two of the Court’s jury 

instructions. 

A defendant seeking relief under § 2255 on an ineffective assistance of counsel 

claim must show that: (1) counsel’s representation fell below an objective standard of 

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reasonableness under prevailing professional norms; and (2) the defendant suffered 

prejudice as a result - meaning, but for counsel’s deficient performance, the result of the 

proceeding would have been different, i.e. the deficiency deprived the defendant of “a 

trial whose result is reliable.” Id.; Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) 

(citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). Here, Gayle cannot satisfy 

either prong of the Strickland standard for any of his four ineffectiveness arguments. 

A. Gayle’s Counsel Were Not Ineffective for Failing to Preserve Gayle’s 

Sixth Amendment Right to Confrontation.

Gayle contends that his trial counsel was ineffective for failing to pursue and 

preserve his Sixth Amendment right under the Confrontation Clause of the United States

Constitution because his attorney failed to challenge the introduction of the confidential 

informant’s testimony based upon Crawford v. Washington, 541 U.S. 36 (2004). Pet’r’s 

Mem. of Law at 7-16. Specifically, Gayle claims that the presentation of statements 

made by the confidential informant deprived him of a fair trial in that he was denied his 

right to cross-examine the informant. See Pet’r’s Mem. of Law at 10-16. 

Gayle’s counsel strategically used the confidential informant’s statements to 

Sergeant Lohenitz by acknowledging them during his opening statement when he 

explained to the jury, “Now, the evidence with respect to the September 8th and 

September 9th, what you will hear is that a detective in the Easton Police Department, 

employed the services of an informant, who was paid for those services. And that 

supposedly this informant instructed the police, that specifically, Denroy Gayle was 

selling drugs out of that house.” Trial Tr. 2.27, August 26, 2007. Attorney Engle made a 

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conscious decision to get out in front of the evidence of these statements by using them as 

a foundation for his defense to attack Sergeant Lohenitz’s credibility. 

During the trial, Attorney Engle repeatedly attacked the Sergeant’s account of the 

facts and questioned why the Sergeant failed to record in police paperwork the 

supposedly crucial information given by the confidential informant. See Trial Tr. 127-

140, 124-25, 166, 167, 169, 180, 184. Attorney Engle employed this strategy in his final 

closing argument which largely focused on questioning Sergeant Lohenitz’s investigation 

and the government’s inability to corroborate his testimony. As part of his closing, 

Attorney Engle highlighted for the jury that it did not have the benefit of hearing from the 

confidential informant directly to corroborate the testimony of Sergeant Lohenitz. Trial 

Tr. 5.72, August 28, 2006. He also questioned why the Sergeant failed to take any 

photographs or video footage of the narcotics purchase to paint a fuller picture that the

Sergeant was not credible.

Trial counsel’s decision to open the door to the informant’s statements and allow 

the government to present the statements without objection was a reasonable tactic used 

to advance Gayle’s trial defense strategy. Gayle’s dissatisfaction with this strategic 

decision because it was unsuccessful is not a sufficient basis for his ineffectiveness claim. 

The Constitution guarantees competent representation, but it does not guarantee success. 

Gayle’s attorney’s trial decision to use the confidential informant’s statements to attempt 

to undermine the integrity and reliability of the police investigation was reasonable and 

did not prejudice Gayle, given the other evidence against him. Accordingly, Gayle’s 

claim does not support a finding of ineffective assistance of counsel. 

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B. Trial Counsel was Not Ineffective for Failing to Move to Suppress the 

Prerecorded Buy Money.

Gayle argues that his trial counsel was ineffective for failing to move to exclude

the prerecorded buy money that was recovered from Gayle’s person at the time of his 

arrest and the execution of the search warrant on his residence. Pet’r’s Mem. of Law at 

16-22. Prior to trial, Gayle filed a motion to suppress physical evidence recovered during 

the execution of the search warrant. In that motion, his counsel challenged the probable 

cause for the search warrant and the police officers’ compliance with knock and 

announce requirements before entering the residence. If the motion had been granted, the 

cash seized from Gayle during the execution of the search warrant would have been 

excluded from evidence at trial. 

During the motion hearing, Attorney Engle, in anticipation of his ultimate trial 

defense, vigorously cross-examined Sergeant Lohenitz on the details surrounding his 

recovery of the prerecorded buy money and the documentation of that recovery. 

Attorney Engle asked extensive questions about the flaws in the police paperwork and the 

seizure of the buy money. His strategy was to suppress the prerecorded buy money 

before trial; however, I denied his motion. Nonetheless, Attorney Engle continue to 

make the most of his opportunity at the suppression hearing to uncover critical 

weaknesses in the case. He laid the foundation for impeaching the government’s primary 

trial witness. 

At trial, Attorney Engle again made effective use of what he had accomplished at 

the suppression hearing. He cross-examined Sergeant Lohenitz on the process used to 

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seize the prerecorded buy money, pointing out several perceived flaws. Gayle now 

argues that Attorney Engle should have used this opportunity to exclude the evidence due 

to the lack of a proper chain of custody. Instead, Attorney Engle decided that a more 

effective strategy was to use the flawed paperwork as a means to undermine the 

credibility of the police account of Gayle’s arrest. Gayle’s attorney correctly understood 

that there was no lapse in the chain of custody, and instead used some of the flaws in the 

paperwork to undermine Sergeant Lohenitz’s credibility. 

Sergeant Lohentiz’s testimony as the lead detective in the case established that he 

took custody of all of the evidence recorded during the execution of the search warrant. 

Both the search warrant inventory and his handwritten note on the photocopy of the 

prerecorded buy money corroborated his testimony and established that the buy money 

had been recovered from Gayle’s right front pocket along with his cell phone. An 

attempt to exclude the buy money on the ground Gayle now suggests would have 

inevitably failed. Therefore, I find that Attorney Engle’s strategic decision not to 

challenge the admissibility of the buy money on the basis of chain of custody was 

reasonable, did not prejudice the defendant, and was therefore not ineffective. 

C. Trial Counsel was Not Ineffective for Failing to Pursue a Plea 

Agreement with the Government.

Gayle asserts that his trial counsel was ineffective because he failed to pursue or 

negotiate a guilty plea agreement with the government. Pet’r’s Mem. of Law at 22-27. 

Specifically, Gayle contends that Attorney Engle failed to fully advise him on the 

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potential sentence he might face by going to trial as opposed to pleading guilty. Pet’r’s 

Mem. of Law at 25. 

However, Gayle’s decision to go to trial was not a product of ineffective 

representation, rather, Gayle insisted on his desire to maintain his innocence. Attorney 

Engle unequivocally states that “Gayle never instructed [him] to negotiate any kind of 

plea agreement.” Resp. Ex. A. In fact, “Gayle was always focused on his trial defense 

and the strategies he wanted employed by his counsel on his behalf.” Id. Gayle made the 

decision to go to trial and “[a]t no time did Gayle ever express an interest in accepting 

responsibility via a guilty plea.” In his petition, Gayle admits that “Mr. Engle asked 

petitioner if he wanted to cooperate with the government and received a direct answer as 

petitioner’s response, which was he did not . . .” Pet’r’s Mem. of Law at 22-23. 

Attorney Engle’s affidavit makes it clear that he advised Gayle of his options 

regarding pleading guilty to the charges. However, Gayle insisted he wished to proceed 

to trial. Attorney Engle was not ineffective because Gayle insisted he was innocent and 

wished to proceed to trial. See United States v. Perez, 2002 LEXIS 1974553, *5 (E.D. 

Pa. Aug 27, 2002) (“An attorney is not obligated to initiate a plea discussion with the 

government in every case . . . Moreover, whether or not to open plea discussions with the 

government is a strategic decision ordinarily not second-guessed by a reviewing court.”) 

(internal citations omitted).

Gayle could have decided to plead guilty even without an agreement of the 

government. Instead, he chose to pursue his presentation of a fabricated defense -- a 

choice for which only Gayle is to blame. Because the record establishes that Gayle 

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wanted to proceed to trial rather than plead guilty, Gayle’s claim of ineffective assistance 

of counsel fails.

D. Trial Counsel was Not Ineffective for Failing to Object to the Court’s 

Jury Instructions.

Gayle’s final claim is that his counsel was ineffective for failing to object to my 

jury instructions about the evidence the jury could consider when deciding his § 924(c) 

charge. Pet’r’s Mem. of Law at 27-29. Specifically, Gayle contends that I gave the jury 

instructions regarding the evidence required to find him guilty of the 924(c) charge and 

that I instructed the jury, “all you have to do is prove the defendant sold drugs on the 8th 

and the 9th. Then that connects him to the drugs and guns on the 10th because all drug 

dealers carry guns it’s like a chain everything connects together.” Pet’r’s Mem. of Law 

at 28. 

Contrary to his recollection, I never gave any such instruction. Instead, I adapted 

the instruction from the Ninth Circuit Model Jury Instructions since there was not a 

standard Third Circuit Instruction then available. According to the Trial Transcripts, I 

instructed the jury that in order for the defendant to be found guilty of possession of a 

firearm in furtherance of a drug-trafficking crime, the government was required to prove 

beyond a reasonable doubt “that the defendant committed the drug-trafficking offense 

charged in Count 2 of the indictment . . . that the defendant possessed a firearm . . . and, 

that the defendant possessed a firearm in furtherance of a drug-trafficking offense he 

committed as charged in Count 2.” Trial Tr. 5.137, August 28, 2006. This instruction 

was proper and counsel made a reasonable decision not to object to it. 

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Gayle also contends that I instructed the jury that, because Malcolm Freeman did 

not appear in person and take the stand, “don’t give defense witness Mr. Freeman’s 

statements to (sic) much weight. A notarized statement doesn’t mean anything it is not 

like he came up here and took the stand like you seen the government’s witness do.” 

Pet’r’s Mem. of Law at 28. Again, Gayle inaccurately portrays my instruction to the 

jury. 

During deliberations, the jury requested the two written statements of Malcom 

Freeman that were read into the record by the defense investigator. I permitted those 

statements to be given to the jury. Counsel for the government asked the court to clarify 

for the jury a paragraph in the second writing that read, “the person making the statement 

– the person signing the statement – understand that he is making that statement with 

knowledge of the penalties under Pennsylvania law for unsworn falsification to 

authorities . . .” Trial Tr. 6.13. I instructed the jury not “to be concerned with that 

Pennsylvania statute or what is says or what the penalties for unsworn falsification would 

be.” Trial Tr. 6.13. I explained that the statement was unsworn, not given under oath and 

that the paragraph should not be considered for any other purpose other than to say that 

the person signing it verified that it was true and correct. I made it clear that it was the 

jury’s decision to decide whether Freeman’s statement was believable or not. 

Gayle maintains that my instruction was prejudicial in that it “destroyed the 

credibility of Freeman’s affidavit which help (sic) the government’s case and removed 

the burden from the government and placed it on the defendant to prove his innocence of 

possessing the guns for the 924(c) and 922(g) Counts.” Pet’r’s Mem. of Law at 29. 

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Contrary to his belief, Gayle’s claim fails because my instruction explained that 

Freeman’s statement was not given under oath and reminded the jury that it was their 

decision whether or not to accept the statement as true. The instruction did not shift the 

burden to the defendant to prove his innocence. Because this instruction was proper, it 

did not warrant an objection from Gayle’s counsel. The instruction was reasonable and 

in no way prejudiced Gayle. Accordingly, Gayle’s final contention that his trial counsel 

was ineffective for failing to object to my jury instruction fails. 

E. Gayle’s Petition Does Not Merit a Certificate of Appealability.

Gayle fails to establish a substantial showing of the denial of a constitutional right. 

In order for the Court to issue a certificate of appealability, Gayle must establish that he 

has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 

2255(c)(2). To present a substantial showing, “[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. 473, 484 (2000). For the reasons set 

forth above, Gayle has not come close to making a substantial showing of the denial of a 

constitutional right. Accordingly, I will not issue a certificate of appealability because 

there is no merit to the defendant’s claims. 

IV. CONCLUSION

For the reasons set forth above, I find there was no ineffective assistance of 

counsel and no violation of the defendant’s Sixth Amendment rights. Accordingly, I will 

deny Gayle’s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 

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2255. Because the defendant failed to make a substantial showing of the denial of a 

constitutional right, I will decline to issue a certificate of appealability. 

An appropriate Order follows.

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