ALLEN v. UNITED STATES OF AMERICA

Filing 14

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 5/14/14. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

RONALD ALLEN,

HONORABLE JEROME B. SIMANDLE
Petitioner,

Civil Action
No. 13-5186 (JBS)

v.
[Crim. No. 09-892]
UNITED STATES OF AMERICA,
OPINION
Respondent.

APPEARANCES:
Ronald Allen
No. 57405-112
U.S.P. Atwater
P.O. Box 019001
Atwater, CA 95301
Petitioner, pro se
Robert Stephen Stigall, AUSA
Office of the U.S. Attorney
District of New Jersey
401 Market Street
P.O. Box 2098
Camden, NJ 08101
-andSarah M. Wolfe, AUSA
Office of the U.S. Attorney
District of New Jersey
402 East State Street, Suite 430
Trenton, NJ 08608
Attorneys for Respondent

SIMANDLE, Chief Judge:
I.

INTRODUCTION
Petitioner Ronald Allen brings this petition to vacate, set

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

[Docket Items 1 & 9.] A jury convicted Petitioner of conspiracy
to commit mail and wire fraud in violation of 18 U.S.C. § 1349,
and on July 26, 2011, this Court sentenced Petitioner to 70
months imprisonment and three years of supervised release, as
well as restitution and other penalties. [Cr. Docket Item 51.]1
Petitioner now moves for the Court to vacate, set aside or
correct his sentence on three grounds: (1) he was deprived of
the effective assistance of counsel in violation of the Sixth
Amendment to the U.S. Constitution; (2) the Court of Appeals
improperly rejected his argument that the offenses took place
outside the applicable statute of limitations period; and (3)
the Court improperly instructed the jury regarding the statute
of limitations and the Court’s jurisdiction because it was never
established that the offense took place in the United States.
For the reasons discussed below, the Court will deny the
Petition.
II.

BACKGROUND
On December 3, 2009, a federal grand jury returned a one-

count indictment against Petitioner charging him with conspiracy
to commit wire fraud in violation of 18 U.S.C. § 1349 for his
role in a scheme to sell fraudulent insurance policies through
which Petitioner accumulated approximately $366,918.93 in

1

The Court will refer to items on Petitioner’s criminal docket
as “Cr. Docket Item __.”
2

illegal proceeds. (Indictment [Cr. Docket Item 1] ¶ 10.) On May
10, 2010, Petitioner’s counsel filed an omnibus pretrial motion
seeking, inter alia, dismissal of the Indictment on the grounds
that Petitioner was not involved in the conspiracy during the
five-year statute of limitations period. [Cr. Docket Item 13.]
The Government opposed Petitioner’s motion and argued that it
would prove at trial that Petitioner collected fraudulent
insurance premiums from his co-conspirator, Gilbert Scott
Morgan, on December 7, 2004. (USA Opp. [Cr. Docket Item 14] at
22.) After oral argument, this Court denied Petitioner’s motion
to dismiss the Indictment for violation of the statute of
limitations. [Cr. Docket Item 16.]
On December 14, 2010, a jury convicted Petitioner of
conspiracy to commit mail and wire fraud in violation of 18
U.S.C. § 1349. [Cr. Docket Item 46.] On July 26, 2011, this
Court sentenced Petitioner to 70 months imprisonment and three
years of supervised release, as well as restitution and other
penalties. [Cr. Docket Item 51.] The only objection to the
Court’s Guideline calculation was Petitioner’s counsel’s
objection to the two-point enhancement for sophisticated means
pursuant to U.S.S.G. § 2B1.1(b)(9) of the Guidelines.
(Sentencing Transcript (“Sentg. Tr.”), USA Ex. A [Docket Item
10-1] at 4-24.) The Court rejected Petitioner’s argument and
applied the two-point enhancement for sophisticated means. (Id.
3

at 44-45.) The Court determined that the base offense level was
seven pursuant to U.S.S.G. § 2B1.1, that a 14 level increase was
appropriate pursuant to U.S.S.G. § 2B1.1(b)(1)(H) because the
amount of loss was $692,736.28, and that a four-point
enhancement was appropriate pursuant to U.S.S.G. §
2B1.1(b)(2)(B) because there were more than 50 victims. (Id.)
This resulted in a total offense level of 27. (Id.) Because
Petitioner had zero criminal history points, the Guideline range
of imprisonment was 70 to 87 months. The Court imposed a
sentence of 70 months imprisonment followed by three years of
supervised release and ordered restitution of $692,736.28. (Id.
at 52-53.)
Petitioner appealed and the Third Circuit affirmed the
decision of this Court on July 11, 2012. [Cr. Docket Item 63.]
The Court of Appeals rejected Petitioner’s arguments (1) that
the charges against him were barred by the statute of
limitations; (2) that there was insufficient evidence of his
participation in the conspiracy during the statute of
limitations period; (3) that this Court erred by not instructing
the jury regarding unanimity as to a factual issue; (4) that
this Court erred by when it gave a jury instruction regarding
multiple conspiracies; (5) that this Court abused its discretion
by instructing the jury on willful blindness; and (6) that he
was entitled to a new trial due to ineffective assistance of
4

counsel. See United States v. Allen, 492 F. App’x 273, 276 (3d
Cir. 2012). Addressing Petitioner’s statute of limitations
argument, the Court of Appeals concluded that there was
sufficient evidence of activity in furtherance of the conspiracy
within the statute of limitations period for this Court to deny
Petition’s omnibus pretrial motion, as well as sufficient
evidence at trial that by accepting money from the proceeds of
the conspiracy, Petitioner was still a participant in the
conspiracy during the statute of limitations period. Id. at 27678. Further, the Court of Appeals found that the record was
insufficient to evaluate Petitioner’s ineffective assistance of
counsel claim and noted that Petitioner’s ineffectiveness claim
should be addressed on collateral review. (Id. at 280-81.)
On August 29, 2013, Petitioner timely filed the instant pro
se Petition to vacate, set aside, or correct sentence pursuant
to 28 U.S.C. § 2255. [Docket Item 1.] The Court gave Petitioner
due notice of his right to amend his petition to include any
additional grounds within 30 days under United States v. Miller,
197 F.3d 644 (3d Cir. 1999) on September 17, 2013, and
Petitioner indicated in response that he would not be amending
his petition. On October 17, 2013, the Court ordered the
Government to file an answer to the Petition. [Docket Item 5.]
On January 31, 2014, Petitioner filed a motion to amend the

5

Petition. [Docket Item 9.] The Government responded to the
Petition and Amended Petition that same day, January 31, 2014.
III. STANDARD OF REVIEW
Under 28 U.S.C. § 2255(a), a federal prisoner may move to
vacate, set aside or correct a sentence on the ground that the
sentence was imposed in violation of the Constitution or federal
law, the sentencing court was without jurisdiction, or the
sentence is in excess of the maximum authorized by law or is
otherwise subject to collateral attack. The district court shall
grant a hearing to determine the issues and make findings of
fact and conclusions of law. 28 U.S.C. § 2255(b). However, if
the motion, files and records of the case conclusively show that
the prisoner is not entitled to relief, the petition will be
denied. § 2255(b); see also United States v. McCoy, 410 F.3d
124, 131-32 (3d Cir. 2005) (holding a district court must grant
an evidentiary hearing unless the record before it conclusively
showed the petitioner was not entitled to relief). A hearing
need not be held if the petition raises no legally cognizable
claim, or if the factual matters raised by the petition may be
resolved through the district court’s review of the motions and
the records in the case, or, in some circumstances, if the
court, in its discretion, finds the movant’s claims to be too
vague, conclusory or palpably incredible. United States v.

6

Costanzo, 625 F.2d 465, 470 (3d Cir. 1980) (quoting Machibroda
v. United States, 368 U.S. 487, 495 (1962)).
IV.

DISCUSSION
A. Ineffective Assistance of Counsel
Petitioner argues that he was deprived of the effective

assistance of counsel in violation of the Sixth Amendment to the
U.S. Constitution. “To establish ineffective assistance of
counsel a defendant must show both deficient performance by
counsel and prejudice.” Premo v. Moore, 131 S. Ct. 733, 739
(2011). A petitioner must show (1) that “‘counsel’s
representation fell below an objective standard of
reasonableness,’” and (2) “‘a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Id. (citing Knowles v.
Mirzayance, 556 U.S. 111, 122 (2009)); see also Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). “Judicial scrutiny of
counsel’s performance must be highly deferential” and “a court
must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Id. at 689. The Third Circuit has cautioned that it is “only the
rare claim of ineffectiveness of counsel that should succeed
under the properly deferential standard to be applied in
scrutinizing counsel’s performance.” Buehl v. Vaughn, 166 F.3d

7

163, 169 (3d Cir. 1999) (quoting United States v. Gray, 878 F.2d
702, 711 (3d Cir. 1989)).
Petitioner advances eleven bases for his ineffective
assistance of counsel claim: (1) failing to object to pretrial
motion to dismiss; (2) failing to complete investigation; (3)
failing to obtain grand jury transcripts; (4) failing to file
all required pretrial motions; (5) failing to investigate and/or
impeach government witnesses; (6) failing to move for the
suppression of evidence; (7) failing to secure sworn affidavits
and declarations for defense witnesses; (8) failing to object to
unjust jury instructions; (9) withholding defense strategy from
Petitioner until the first day of trial; (10) failing to object
to the two-point sophisticated means enhancement at sentencing
and for failing to make any other objections at sentencing; and
(11) failing to move for acquittal under Fed. R. Crim. P. 29
based on the statute of limitations. The Court will address each
in turn.
1. Failure to object to pretrial motion to dismiss
Petitioner first argues that trial counsel was deficient in
failing “to object to pre-trial motion to dismiss.” (Petition
[Docket Item 1] at 5.) However, the Court construes Petitioner’s
argument as based on counsel’s failure to file a pretrial motion

8

to dismiss and “all required pre-trial motions.”2 (Id.)
Petitioner’s argument is meritless because counsel filed a
motion to dismiss in an omnibus motion on May 10, 2010. The
pretrial motion requested the following: (1) pretrial disclosure
of any evidence of prior bad acts; (2) disclosure of any
exculpatory material; (3) disclosure of any expert testimony;
(4) disclosure of defendant’s statements under Fed. R. Crim. P.
16; (5) a bill of particulars identifying the names of the
alleged co-conspirators; (6) an order requiring the Government
to preserve agent rough notes; and (7) dismissal of the
indictment based on the statute of limitations. [Cr. Docket Item
13.] The Court heard oral argument on Petitioner’s motion on
July 8, 2010 and entered an order dated July 12, 2010 granting
in part and denying in part Petitioner’s motion. [Cr. Docket
Item 16.]
The Court finds Petitioner’s assertion that counsel failed
to file all required pretrial motions both factually inaccurate
and insufficiently specific to establish ineffective assistance
of counsel. Petitioner does not explain what pretrial motions
should have been filed or what effect they would have had on the
outcome of the case. Therefore, Petitioner has failed to show
any deficiency by trial counsel or prejudice as a result.
2

Failure to file all required pretrial motions is also the
fourth ground for Petitioner’s ineffective assistance of counsel
claim listed in the original Petition.
9

Petitioner also asserts in his Amended Petition that trial
counsel should have moved for dismissal based on a lack of an
interstate commerce allegation in the Indictment. However, the
Indictment included an interstate commerce allegation.
(Indictment ¶ 2.) Therefore, the Court is unable to conclude
that trial counsel erred in failing to seek dismissal for lack
of an interstate commerce allegation. As such, the first basis
for Petitioner’s ineffective assistance of counsel claim is
meritless.
2. Failure to complete investigation
Petitioner asserts that trial counsel failed to “complete
investigation, including, but not limited to, pre-trial subpoena
requests, and arranging private investigation(s) to dispute
alleged claims in indictment.” (Petition at 5.) The Government
argues that Petitioner has failed to specify who counsel should
have subpoenaed, what testimony these witnesses would have
offered, and what effect their testimony would have had on the
outcome. In his reply, Petitioner identifies “Rick Lindsey, CEO
of Prime,” “the representative [to] the New Jersey Insurance
Department,” “Harry Briglow,” and “the person in Rotuma who had
volunteered to testify that UPIC was properly formed.” (Reply
[Docket Item 13] at 17-21.) Petitioner also provides
hypothetical testimony from these individuals, which he contends
would have been adduced at trial. However, Petitioner provides
10

no basis upon which the Court could conclude that trial counsel
was unreasonable in failing to investigate or subpoena these
witnesses.
Even if the Court were to accept Petitioner’s assertion
that counsel failed to investigate and subpoena certain defense
witnesses, Petitioner must also show prejudice. Petitioner must
show more than just a “conceivable” likelihood of a different
result. Harrington v. Richter, 131 S. Ct. 770, 792 (2011). “The
effect of counsel’s inadequate performance must be evaluated in
light of the totality of the evidence at trial: a verdict or
conclusion only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming record
support.” Grant v. Lockett, 709 F.3d 224, 235 (3d Cir. 2013)
(quoting Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006)
(internal citation and quotation omitted)).
Petitioner’s conviction was supported by ample evidence of
a conspiracy to sell fraudulent insurance policies and the
hypothetical testimony proffered by Petitioner is insufficient
to show more than a conceivable likelihood of a different
result. Testimony from Lindsey, CEO of Prime, that he approved
the Universal Pacific Insurance Co. (“UPIC”) financial statement
and agreed to the sale of Prime to Petitioner only shows the
extent of the fraud and deception employed by Petitioner and his
co-conspirators. Testimony from a representative of the New
11

Jersey Insurance Department to establish that an alien insurance
company can legally write business does little to undermine
Petitioner’s participation in a conspiracy to sell fraudulent
insurance policies in New Jersey. Similarly, Petitioner contends
that Harry Briglow would testify that he introduced Petitioner
to his co-conspirator, Morgan, but he was aware of no
conversations regarding the fraudulent nature of the proposed
business with Morgan. Again, such testimony would not outweigh
the overwhelming evidence at trial of the fraudulent arrangement
between Petitioner and Morgan, and the attempts to conceal it,
including falsified documents. Finally, Petitioner asserts that
“the person in Rotuma”3 volunteered to testify that UPIC was
properly formed and had the authority to conduct insurance
business. This assertion is vague and conclusory and provides
insufficient grounds for an evidentiary hearing. See Mayberry v.
Petsock, 821 F.2d 179, 185 (3d Cir. 1987) (“[B]ald assertions
and conclusory allegations do not afford a sufficient ground for
an evidentiary hearing.”). Therefore, the Court concludes that
Petitioner has failed to present sufficient grounds for an
evidentiary hearing and failed to present sufficient evidence of

3

Rotuma is an island in the South Pacific that is merely “a
dependency of the Republic of the Fiji Islands,” as to which
this Court took judicial notice in its Order filed December 6,
2010. [Cr. Docket Item 33.]
12

prejudice to establish ineffective assistance of counsel on the
basis of inadequate investigation.
3. Failure to obtain grand jury transcripts
Petitioner argues that trial counsel was ineffective
because he failed to obtain certain grand jury transcripts. It
is undisputed that the Government failed to produce the grand
jury transcript of Government witness, Perry Slaton. Slaton flew
from Las Vegas to New Jersey to testify at trial on December 7,
2010, but the omission of his grand jury transcript was not
discovered until December 8, 2010, after Slaton had returned to
Las Vegas. The Court heard argument on the Government’s omission
the next day, December 9, 2010.
The Government explained that Slaton’s grand jury
transcript was inadvertently omitted from a disk containing the
Government’s Jencks and other materials. (Dec. 9 Trial Tr.
(“Dec. 9 Tr.”), USA Ex. E [Docket Item 10-2] at 9-10.)
Petitioner’s trial counsel stated that the omission did not
affect his cross-examination of Slaton because the grand jury
transcript did not contain exculpatory information or new
information not included in another report. Trial counsel
explained:
[A]side from my surprise when he indicated that he had
testified before the Grand Jury and that being an
unexpected answer, the contents of it are not – don’t
contain anything that would have impacted my crossexamination in any significant way.
13

. . .
It’s all Giglio. There’s nothing that – it could be used
for impeachment. And again, you know, to be perfectly
honest, I don’t believe that the Grand Jury testimony – the
only thing I could have used the Grand Jury testimony would
have been to ask him, well, you didn’t testify before the
Grand Jury about the conversation in the hotel room where
Mr. Allen was drunk, and he wasn’t asked about it, so I
don’t even know that I would have gone there for that
reason. And although the details of that conversation are
not contained in any 302, it is referenced that there was
this conversation in a hotel room in 2005 in Las Vegas
where Mr. Allen indicated in sum and substance that he got
into trouble with the Gil Morgan thing and he’s sorry that
he might have gotten Mr. Slaton in it, too.
(Id. at 5-6.) Accordingly, trial counsel did not seek any relief
and the Court found no prejudice to Petitioner. The Court
stated:
Well, in a case like this with so many documents, it’s not
surprising something can be overlooked along the way. It
seems that it’s been remedied to the degree that is
necessary and fair at this point. And I expressly find that
the omission of these relatively few documents was
inadvertent, that they were not sought to be in some way
concealed or delayed, they were listed in the Jencks list,
which itself is a very lengthy list. Most importantly, it
appears that the inadvertence has caused no harm or
prejudice to the defendant and that the door remains open
throughout the trial to any application that would take a
second look at this non-disclosure or seek in some fashion
to remedy it, including recalling the witnesses or the
arrival of stipulations and so forth.
(Id. at 12-13.)
Because trial counsel conceded that Slaton’s grand jury
transcript would not have impacted his cross-examination and the
Court determined that Petitioner suffered no harm or prejudice
as a result of the Government’s omission, the Court rejects

14

Petitioner’s argument that trial counsel was deficient in not
seeking relief due to the Government’s omission of Slaton’s
grand jury transcript.4
4. Failure to investigate and/or impeach Government
witnesses
Petitioner argues that trial counsel was ineffective in
failing to investigate and/or impeach Government witnesses.
Although Petitioner does not identify the witnesses trial
counsel allegedly failed to investigate or impeach, the Court
will consider Petitioner’s claim as to Government witness Burt
Stonefield.
Stonefield’s criminal history report was among the
documents inadvertently omitted from the disks provided to
defense counsel before trial. The Court permitted the parties to
take Stonefield’s testimony by deposition in California before
trial on November 30, 2010 due to his poor health. The omission
of Stonefield’s criminal history report was discovered on
December 8, 2010 after his deposition. The Court heard argument
on this omission on December 9, 2010.
Trial counsel stated:
We are not asking for – I want to be clear, we are not
asking for relief. We talked about possibly recalling him
or – you know, the only thing we could do is ask him were
you convicted of this crime of dishonesty and in 1990 was
this your sentence. And, you know, I suppose we, if we
4

Petitioner has not identified any other transcripts omitted or
withheld by the Government.
15

think that’s important for the jury to know, we would ask
the Court that we be allowed to introduce the fact that –
there be a stipulation that he was convicted of this crime
and the parameters of what Rule 609 would permit. At this
point that is not what we’re seeking, although we would
like to reserve that consideration of that.
(Dec. 9 Tr. at 7-8.) Trial counsel did not make any request
regarding Stonefield’s prior conviction.
The Court finds trial counsel’s decision not to seek relief
related to Stonefield’s prior conviction to be a strategic
decision inappropriate for reconsideration on collateral review.
See Jones v. Barnes, 463 U.S. 745, 754 (1983) (“For judges to
second-guess reasonable professional judgments and impose on
appointed counsel a duty to raise every ‘colorable’ claim
suggested by a client would disserve the very goal of vigorous
and effective advocacy that underlies” counsel’s role as an
advocate). Further, Petitioner provides no explanation for how
he was prejudiced by trial counsel’s decision not to seek relief
for the Government’s omission. Therefore, trial counsel’s
decision not to seek relief due to the omission to Stonefield’s
criminal history does not support Petitioner’s claim of
ineffective assistance of counsel.
5. Failure to move for the suppression of evidence
Petitioner asserts that trial counsel failed to “move for
the suppression of evidence.” (Petition at 5.) Petitioner’s
assertion is unsupported by any facts or argument. Petitioner

16

fails to specify what evidence should have been suppressed and
why. Accordingly, Petitioner’s claim that trial counsel failed
to move for the suppression of evidence does not support his
claim for ineffective assistance of counsel or provide grounds
for an evidentiary hearing. See United States v. Thomas, 221
F.3d 430, 437 (3d Cir. 2000) (“[V]ague and conclusory
allegations contained in a § 2255 petition may be disposed of
without further investigation by the District Court.”); Mayberry
v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987) (“[B]ald assertions
and conclusory allegations do not afford a sufficient ground for
an evidentiary hearing.”).
6. Failure to secure sworn affidavits and declarations
for defense witnesses
Similarly, Petitioner makes the conclusory assertion that
trial counsel failed to secure “sworn affidavits and
declarations for what were to be defense witnesses.” (Petition
at 5.) Petitioner fails to identify individuals for whom trial
counsel allegedly should have secured affidavits or explain how
such affidavits would have changed the outcome at trial.
Therefore, for the same reasons discussed above, Petitioner’s
claim for ineffective assistance of counsel is meritless to the
extent it relies on counsel’s alleged failure to secure
affidavits of unidentified defense witnesses.
7. Failure to object to unjust jury instructions

17

Petitioner argues that trial counsel was deficient in
failing to object to unjust jury instructions. Petitioner
alleges two specific errors: (1) trial counsel’s failure to
request a “multiple conspiracy” jury instruction and (2) trial
counsel’s failure to request a “‘unanimity’ instruction when it
became clear that there was a ‘Prime’ conspiracy and a UPIC
conspiracy.” (Reply at 14.) However, the Government notes that
trial counsel requested and obtained, over the Government’s
objection, a jury instruction regarding multiple conspiracies
and withdrawal. (Dec. 13 Trial Tr. (“Dec. 13 Tr.”), USA Ex. F
[Docket Item 10-2] at 72-87.) As such, Petitioner’s argument
that trial counsel failed to request a multiple conspiracy
instruction is factually inaccurate and thus meritless.5
Turning to the unanimity instruction, Petitioner argued on
direct appeal that this Court erred by not instructing the jury
sua sponte regarding unanimity as to which company Petitioner
and his co-conspirator agreed to use to perpetrate the fraud.
See Allen, 492 F. App’x at 278-79. The Court of Appeals found
that this Court did in fact instruct the jury as to the
necessity for a unanimous verdict. Id. The Court of Appeals also

5

Petitioner also argues that trial counsel should have moved for
acquittal “based on multiple conspiracies.” (Am. Petition
[Docket Item 9] at 12.) However, counsel’s decision to seek a
multiple conspiracy jury instruction rather than move for
acquittal was a strategic decision that this Court declines to
second-guess on collateral review.
18

stated that “[t]here is no requirement that the Court, sua
sponte, render a jury instruction regarding unanimity as to the
means by which he engaged in the conspiracy.” Id. at 279.
Accordingly, Petitioner’s argument regarding a unanimity
instruction was raised and rejected on direct appeal and this
Court declines to revisit it now. See United States v. DeRewal,
10 F.3d 100, 105 n.4 (3d Cir. 1993) (“Section 2255 generally
‘may not be employed to relitigate questions which were raised
and considered on direct appeal.’”) (quoting Barton v. United
States, 791 F.2d 265, 267 (2d Cir. 1986)).
8. Failure to disclose defense strategy until the day
of trial
Petitioner argues that trial counsel withheld the defense
strategy until the first day of trial. The Court finds
Petitioner’s bald allegations insufficient to support a claim
for ineffective assistance of counsel. Petitioner fails to
identify anything improper about trial counsel’s strategy or how
withholding it until the day of trial prejudiced him. Petitioner
has not identified a trial strategy that would have differed
from counsel’s, nor one that would have changed the outcome at
trial. Therefore, the Court rejects Petitioner’s claim for
ineffective assistance of counsel on this ground.
9. Failure to object at sentencing

19

Petitioner argues in ground one of his Petition and part
(x) of ground two that trial counsel failed to raise any
objections at sentencing besides counsel’s objection to the twopoint sophisticated means enhancement. In his Amended Petition,
Petitioner notes that trial counsel should have argued for a
three-level reduction in the offense level for interruption of
the offense pursuant to U.S.S.G. § 2X1.1 and that the
enhancement for the number of victims was incorrect.
The Court first addresses Petitioner’s argument that trial
counsel should have argued for a three-level reduction under
U.S.S.G. § 2X1.1. Petitioner argues that “the evidence at trial
was that policies were sold by Morgan based on a pending but not
completed acquisition of Prime by Allen. When Prime issued a C&D
letter, insurds [sic] were informed, and given the option of a
refund in June 2004 or having coverage from UPIC. This ended the
alleged conspiracy as regards Prime.” (Am. Petition [Docket Item
9] at 9.) However, Petitioner misapplies U.S.S.G. § 2X1.1 to the
facts of his case. U.S.S.G. § 2X1.1(b)(2) provides:
If a conspiracy, decrease by 3 levels, unless the defendant
or a co-conspirator completed all the acts the conspirators
believed necessary on their part for the successful
completion of the substantive offense or the circumstances
demonstrate that the conspirators were about to complete
all such acts but for apprehension or interruption by some
similar event beyond their control.
U.S.S.G. § 2X1.1(b)(2). The commentary for Section 2X1.1 states:

20

In most prosecutions for conspiracies or attempts, the
substantive offense was substantially completed or was
interrupted or prevented on the verge of completion by the
intercession of law enforcement authorities or the victim.
In such cases, no reduction of the offense level is
warranted. Sometimes, however, the arrest occurs well
before the defendant or any co-conspirator has completed
the acts necessary for the substantive offense. Under such
circumstances, a reduction of 3 levels is provided under
§2X1.1(b)(1) or (2).
Commentary to U.S.S.G. § 2X1.1.
The evidence at trial was clear that the conspiracy was
substantially completed before the scheme was interrupted.
Petitioner’s argument that the conspiracy ended when insureds
were “given the option of a refund in June 2004 or having
coverage from UPIC” ignores the fact that the conspiracy was
ongoing and not limited to Prime. Petitioner and his coconspirators obtained hundreds of thousands of dollars before
the scheme could be considered interrupted. As such, the Court
rejects Petitioner’s contention that trial counsel should have
argued for a three-level reduction under U.S.S.G. § 2X1.1(b)(2)
because such a reduction was not warranted.
The Court next considers Petitioner’s argument that the
Court erred in applying sentencing enhancements for loss amount
and number of victims and that trial counsel was deficient for
failing to object to these enhancements. Petitioner contends
that the “victim count was not caused by Allen, but by Morgan
and Petrillo.” (Am. Petition at 12.) Additionally, “Petrillo’s

21

‘sales’ were not based on any material misrepresentation or
omission of Allen or even Morgan as required by statute.” (Id.
at 11.) Petitioner misstates the facts adduced at trial.
Petrillo’s sales were based on Petitioner’s issuance of
fraudulent insurance policies from Petitioner’s fictitious
company, UPIC, and Petrillo sent more than $100,000 from these
sales to Morgan, who distributed a portion of the proceeds to
Petitioner. Petrillo participated in an additional scheme, but
he was also involved in the same scheme as Petitioner.
Under the Guidelines, Petitioner is responsible for the
amount of loss resulting from the offense and all the victims of
the offense. The Guidelines define “actual loss” as “the
reasonably foreseeable pecuniary harm that resulted from the
offense.” U.S.S.G. § 2B1.1 App. n.3(A)(i). “Reasonably
Foreseeable Pecuniary Harm” is defined as “pecuniary harm that
the defendant knew or, under the circumstances, reasonably
should have known, was a potential result of the offense.” §
2B1.1 App. n.3(A)(iv). In Petitioner’s case, he knew that Morgan
and others were selling fraudulent Prime and UPIC insurance
policies and he received a portion of the proceeds. This Court
found Petitioner responsible for the actual loss resulting from
the offense, $692,736.28. See Presentence Report, USA Ex. B
[Docket Item 10-1] ¶¶ 64, 76. As such, the 14-point enhancement
was proper pursuant to U.S.S.G. § 2B1.1(b)(1)(H).
22

The same is true of the enhancement for the number of
victims. Evidence at trial established that Petitioner
participated in a scheme with 74 victims. See Presentence Report
¶¶ 64, 77. Those victims and their losses were thoroughly
documented and even today the Petitioner does not contest
particular details. Accordingly, the Court properly applied a
four-point enhancement pursuant to U.S.S.G. § 2B1.1(b)(2)(B).
Because the enhancements applied at sentencing were proper,
no objection at sentencing was warranted. Accordingly, trial
counsel cannot be considered deficient for failing to object to
the above enhancements and, even if he could, Petitioner is
unable to show prejudice from such a failure.6
10. Failure to move for acquittal based on statute of
limitations

6

In fact, trial counsel argued in a written sentencing memo that
the enhancements for the number of victims and sophisticated
means would result in a sentence disproportionate to the goals
of sentencing and to the sentences of his co-conspirators. (Def.
Sentencing Memo (“Def. Memo”), USA Ex. G [Docket Item 10-1] at
2.) Trial counsel also objected to the two-point enhancement for
sophisticated means, on which the Court heard extensive argument
at sentencing. (Sentg. Tr. at 4-24.) Trial counsel also argued
in the sentencing memo and at the sentencing proceeding for
reductions based on the factors in 18 U.S.C. § 3553(a),
including Petitioner’s age, health, marital status and
supportive community, employment status, minimal criminal
history, need for restitution, marginal deterrent effect, and
need to avoid unwarranted sentencing disparities. (Def. Memo at
6-7; Sentg. Tr. at 26-36.) Having considered these arguments,
the Court sentenced Petitioner to 70 months imprisonment, at the
bottom of the Guideline range. (Sentg. Tr. at 44-51.)
23

Petitioner further argues that trial counsel was deficient
for failing to file a motion for acquittal under Fed. R. Crim.
P. 29 because his involvement in the fraudulent scheme fell
outside the statute of limitations period. Petitioner raised his
argument regarding the statute of limitations on direct appeal
and the Third Circuit rejected it.
Petitioner merely reprises his statute of limitations
argument in this § 2255 Petition. As here, the Court of Appeals
noted on direct appeal that “Allen argue[d] that this case is
untimely because the conspiracy was concluded and perfected . .
. on November 24, 2004, when the last policy was bought and sold
by UPIC, [ ] the moneys [ ] disbursed by coconspirators was not
in furtherance of the conspiracy, but the conspiracy in fact was
completed in total upon the last sale of the UPIC policy, which
was prior to December 3rd, about ten days earlier.” Allen, 492
F. App’x at 276 (internal quotation and citation omitted). The
Court of Appeals concluded that “there was sufficient evidence
of activity that falls within the SOL and activity in
furtherance of the conspiracy after December 3, 2004 that
Allen’s argument must fail. The District Court committed no
error on this point.” Id. at 277. The Court of Appeals also
found that Petitioner did not affirmatively withdraw from the
conspiracy prior to the running of the statute of limitations
period. Id. at 278. The Court explained:
24

There was testimony from one of the FBI Special Agents that
RRG received wire transfers for funds from March 23, 2004
to December 7, 2004. “[I]n order to establish a prima facie
case, he [the defendant] must demonstrate either that he
gave notice to his co-conspirators that he disavows the
purpose of the conspiracy or that he did acts inconsistent
with the object of the conspiracy.” [United States v.
Antar, 53 F.3d 568, 583 (3d Cir. 1995)].
Allen did not demonstrate that he had given notice to
Morgan or any other co-conspirators that he would no longer
be involved in the conspiracy. By accepting money from the
proceeds of the conspiracy, Allen acted consistently with
the intent of the conspiracy . . . . We find that Allen was
still a participant in the conspiracy during the SOL
period.
Id.
Because Petitioner’s argument was already raised and
rejected on direct appeal, the Court declines to address it
again. See United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d
Cir. 1993) (“Section 2255 generally ‘may not be employed to
relitigate questions which were raised and considered on direct
appeal.’”) (quoting Barton v. United States, 791 F.2d 265, 267
(2d Cir. 1986)). Further, even if the Court were to consider it
in light of his claim for ineffective assistance of counsel,
Petitioner would be unable to show prejudice or harm from
counsel’s failure to move for acquittal on statute of
limitations grounds.7
B. Statute of Limitations

7

For the same reasons, the Court rejects Petitioner’s suggestion
that appellate counsel was deficient for failing to appeal en
banc the Court of Appeals’ decision regarding the statute of
limitations. (Am. Petition at 1.)
25

In ground three of his Petition, Petitioner argues that the
“Appellate level never weighed . . . evidence in determining
true time of offense in question.” (Petition at 6.) Petitioner
asserts that both the District Court and Court of Appeals
“failed to recognize that the sole evidence examined had been
the testimony of Petitioner’s co-conspirator.” (Id. at 7.)
Petitioner misstates the evidence and misunderstands the
role of the court at trial and on appeal. First, as discussed
above, there was additional evidence of Petitioner’s
participation in the fraudulent scheme beyond the testimony of
his co-conspirator. Second, the jury weighs the evidence at
trial, not the district court or the court of appeals on review.
See United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d
Cir. 2013) (“[W]e ‘must be ever vigilant . . . not to usurp the
role of the jury by weighing credibility and assigning weight to
the evidence, or by substituting [our] judgment for that of the
jury.’”) (quoting United States v. Brodie, 403 F.3d 123, 133 (3d
Cir. 2005)); United States v. Cothran, 286 F.3d 173, 175 (3d
Cir. 2002) (“It is not our role to weigh the evidence or to
determine the credibility of the witnesses.”). As previously
discussed, the Court of Appeals found that “there was sufficient
evidence of activity that falls within the SOL and activity in
furtherance of the conspiracy after December 3, 2004 that
Allen’s argument must fail.” Allen, 492 F. App’x at 277.
26

Accordingly, the Court rejects Petitioner’s argument regarding
the court’s role in weighing the evidence on the statute of
limitations issue.
C. Jury Instructions
Petitioner argues that the Court improperly instructed the
jury regarding the statute of limitations and the Court’s
jurisdiction because it was never established that the offenses
took place in the United States. Petitioner acknowledges that
the Court of Appeals addressed his statute of limitations
argument, but not his argument regarding the failure to
establish jurisdiction.
The Government correctly notes that Petitioner’s argument
fails on procedural and substantive grounds. First, claims that
could have been, but were not, raised on direct appeal are not
reviewable on a writ of habeas corpus unless the defendant
“establishes ‘cause’ for the waiver and shows ‘actual prejudice
resulting from the alleged . . . violation.’” Reed v. Farley,
512 U.S. 339, 354 (1994) (quoting Wainwright v. Sykes, 433 U.S.
72, 84 (1977)). Cause “must be something external to the
petitioner, something that cannot fairly be attributed to him,”
Coleman v. Thompson, 501 U.S. 722, 753 (1991), for example, “a
showing that the factual or legal basis for a claim was not
reasonably available to counsel.” McCleskey v. Zant, 499 U.S.
467 (1991) (citation omitted). A defendant establishes
27

“prejudice” by showing that the error “so infected the entire
trial that the resulting conviction violates due process.” U.S.
v. Frady, 456 U.S. 152, 169 (1982) (citation and internal
quotation omitted). Here, Petitioner did not raise his
jurisdictional argument on direct appeal. He has not identified
anything external that caused his failure to raise this argument
on direct appeal, nor has he identified any new facts explaining
his failure. Moreover, this is not a case that constitutes a
“fundamental miscarriage of justice.” Coleman v. Thompson, 501
U.S. 722, 748 (1991) (citation and quotation omitted).
Therefore, Petitioner’s argument regarding a failure to
establish jurisdiction is procedurally barred.
Even if Petitioner’s argument were not barred, there was
sufficient evidence at trial to establish that the offense
occurred within the United States. Petitioner was located in the
United States during the offense and multiple witnesses
testified to Petitioner’s presence at meetings in furtherance of
the conspiracy in Las Vegas and Southern California. Further,
all of the victims of the fraudulent scheme were located in the
United States and Petitioner received the proceeds of the scheme
in the United States. Therefore, Petitioner’s argument regarding
a lack of jurisdiction is meritless.

28

V.

CONCLUSION
For the reasons explained above, the Court finds that no

evidentiary hearing is necessary and the Court will deny the
Petition to vacate, set aside or correct his sentence. An
accompanying Order will be entered.
VI.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c)(1)(B), “[u]nless a circuit

justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from the final
order in a proceeding under section 2255.” A certificate of
appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” §
2253(c)(2). To satisfy that standard, a petitioner must
demonstrate that “jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
Here, jurists of reason could not disagree with the Court’s
resolution of Petitioner’s constitutional claims. Under the
standard recited above, the Court will deny a certificate of
appealability.
May 14, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
29