WHEELER v. UNITED STATES OF AMERICA

Filing 22

MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 5/13/2015. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MICHAEL B. WHEELER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CIVIL ACTION NO. 13-2557 (MLC)
MEMORANDUM OPINION

COOPER, District Judge
Michael B. Wheeler files a motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255 (“Motion”). (See dkt. 1.) This Court will deny the Motion,
and will decline to issue a certificate of appealability.
FACTUAL AND PROCEDURAL HISTORY
Wheeler was deployed as a lieutenant colonel in the United States Army Reserve
to Iraq on active duty to serve the Coalition Provisional Authority (“CPA”) in October
2003.1 He was appointed Deputy Chief of Staff and Deputy Civil Administrator for CPA
1

The United States, the United Kingdom, and other members of the Coalition Forces
formed the CPA in May 2003 to temporarily govern Iraq. The United Nations Security Council
passed a resolution recognizing the legitimacy of the CPA soon thereafter, and mandated that it
“promote the welfare of the Iraqi people through the effective administration of the territory”.
See S.C. Res. 1483, ¶ 4, *352 U.N. Doc. S/RES/1483 (May 22, 2003). The CPA carried out the
mandate for the next 14 months by administering humanitarian programs and reconstruction
projects. The CPA drew on funding from: (1) United States congressional appropriations; and
(2) the Development Fund for Iraq (“DFI”). See United States ex rel. DRC, Inc. v. Custer
Battles, LLC, 562 F.3d 295, 298–99 (4th Cir. 2009). The CPA was given discretion in spending
DFI’s funds. See S.C. Res. 1483, ¶ 13 (noting “funds in the [DFI] shall be disbursed at the
discretion of the [CPA]”). The CPA was replaced by the Interim Government of Iraq on June 28,
2004. See United States v. Whiteford, 676 F.3d 348, 351–52 (3d Cir. 2012).

South Central Region (“CPA-SC”), and was responsible for recommending reconstruction
projects, expediting CPA payments to contractors, and confirming that CPA-sponsored
projects were satisfactorily completed. See Crim. No. 07-76, dkt. 18, Indictment at 5.2
Wheeler was convicted of conspiracy under 18 U.S.C. § 371 for participating in a bid-rigging
scheme to direct millions of dollars in contracts to companies owned by American
businessman Philip Bloom. This Court had jurisdiction pursuant to 18 U.S.C. § 3231.
Australia, Denmark, Italy, Japan, the United States, the United Kingdom, and other
members of the Coalition Forces provided staff to the CPA. The United States provided
active-duty service members, including reserves, and civilians. Members of the American
armed forces assigned to the CPA were bound by the Uniform Code of Military Justice,
which applies “in all places”. 10 U.S.C. §§ 802(a)(1), 805. Military officers also were
bound by Part 2635 of Title 5 of the Federal Code of Regulations, which specifies
“standards for ethical conduct” for Executive Branch employees. See 5 C.F.R. §
2635.101(c). Part 2635 extends to those “on detail” to an international organization,
unless they are specifically exempted. See 5 C.F.R. § 2635.104(c). Officers are
“employees” of the Department of Defense (“DoD”) bound by, and face penalties if they
deviate from, Part 2635. See 5 C.F.R. § 2635.102(h) (“Employee ... includes officers but
not enlisted members of the uniformed services”); see also 5 C.F.R. §§ 2635.106(a),

2

The five regions of the CPA were each run by a Regional Coordinator. The CPA-SC
comprised 50% of the land mass and 48% of the population of Iraq, and included the cities of
Karbala and al-Hillah.
2

3601.101. Wheeler and a co-defendant, Curtis Whiteford, were both officers in the
United States Army Reserve. See Whiteford, 676 F.3d at 352.3
The CPA issued rules, memoranda, and orders carrying legal force in Iraq. See
http://www.iraqcoalition.org/regulations/. An August 2003 memorandum governing
contracting procedures stated: “competition is mandatory for all Contracts”; “[r]easonable
efforts will be made to obtain competitive offers by publicizing a solicitation”; “[g]rants
administered under this Memorandum will not directly or indirectly benefit any Ministry,
CPA or Coalition Forces official or employee involved in the contracting or grant-making
process”; “[p]ersons involved in the contracting process ... shall not ... [u]se public office
for private gain”; requirements on a project “may not be split to avoid the application of
these rules”; and contracts for more than $500,000 were to be approved by a special
“Award Committee”. See Whiteford, 676 F.3d at 352.
Wheeler and Whiteford were part of an alleged conspiracy to defraud the CPA that
included six others either charged with — or who pleaded guilty to — participating: (1)
Philip Bloom, an American citizen residing in Romania, who owned and managed
construction companies throughout the world, including Global Business Group Logistics
(“GBG Logistics”), which contracted with the CPA and the DoD for Iraqi construction
3

Whiteford, who was a colonel, participated in the bid-rigging scheme and was
convicted with Wheeler for conspiracy under 18 U.S.C. § 371. Whiteford was deployed to Iraq
on active duty in September 2003. He was appointed CPA-SC Chief of Staff, and was the
second most senior person in the region after Regional Coordinator Michael Gfoeller. As Chief
of Staff, Whiteford was responsible for supervising staff, overseeing the budget, managing
reconstruction projects, and serving as a liaison between the CPA and Iraqi nationals.
3

projects; (2) Bruce Hopfengardner, a United States Army Reserve lieutenant colonel, who
served in al-Hillah from September 2003 to June 2004, was a CPA-SC operations officer,
reported to Whiteford, oversaw police-related construction projects, and helped train the
Iraqi police; (3) Robert Stein, a DoD contract employee, who served as CPA-SC
comptroller between November 2003 and June 2004, reported to Whiteford, and had
unmonitored access to the CPA’s vault; (4) Debra Harrison, a United States Army Reserve
lieutenant colonel residing in New Jersey and deployed to Iraq from October 2003 to July
2004, who served as a CPA-SC financial specialist and deputy comptroller directly under
the chain of command of Whiteford; (5) Seymour Morris, an American citizen residing in
Romania, who operated a Cyprus-based financial services business and worked closely
with Bloom;4 and (6) William Driver, the husband of Debra Harrison. Id. at 353.
The conspiracy arose when Bloom met with Stein and Hopfengardner at CPA
headquarters in Baghdad in December 2003. Bloom agreed to pay Stein and
Hopfengardner $100,000 up front and $10,000 per month, each, if they would help
Bloom secure CPA-SC contracts. Stein, as CPA-SC comptroller, could withdraw money
from the vault at any point. Hopfengardner, who oversaw security projects, could provide
inside bidding information to Bloom to enable him to secure contracts.
CPA-SC officials met to discuss a police academy construction project soon after
the Baghdad meeting. Whiteford, Wheeler, Hopfengardner, and Stein were present, as
4

Morris was acquitted in the jury trial where Wheeler and Whiteford were convicted.
All of these other individuals were variously charged and pleaded guilty to certain charges. See
infra note 5 and accompanying text.
4

were others who were not alleged co-conspirators, such as Regional Coordinator Michael
Gfoeller. It was collectively determined to divide the project into parts under $500,000,
thereby enabling evasion of CPA regulations mandating that contracts exceeding
$500,000 be sent to the Head of Contracting Activity for the CPA in Baghdad for review
and approval. Id. at 353–54. Gfoeller supported the idea to avoid delays. But the
co-conspirators had personal motives, as Bloom’s companies could then receive the
police-academy contracts without interference from the CPA office in Baghdad.
Stein brought Wheeler into the conspiracy in January 2004. Wheeler’s position
was crucial due to his intimate involvement in the CPA-SC contracting process. Wheeler
helped GBG Logistics secure about $5.5 million in contracts by developing “scopes of
work” aligned with its capabilities, recommending bid modifications to help it win
approval, and directing Bloom to disguise bids to hide that GBG Logistics was securing
so many contracts. Wheeler received airplane tickets, liquor, and other gifts from Bloom
in exchange. Wheeler helped smuggle money out of Iraq in July 2004; he flew to the
United States with Debra Harrison on airplane tickets purchased by Bloom. Harrison
transported $330,000 in stolen CPA funds, paid Wheeler $1,000, and covered the cost of
his hotels and meals.
Whiteford began receiving gifts from Bloom in February 2004, including a watch,
a laptop, and $10,000 in cash to buy a business-class airplane ticket home. These items
were purchased by Bloom and given to Whiteford by Stein or Hopfengardner. In March

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2004, Whiteford and Bloom exchanged emails about starting an airline company in Iraq,
and Bloom offered Whiteford the job of president. Whiteford could not accept the
position at that time because he was on active military duty. But Whiteford emailed
Bloom information in May 2004 for the proposed airline, including tips about airports in
Iraq that would be controlled by the Iraqi government or remain under the control of the
Coalition Forces, and how to apply to provide airline services. Whiteford later asked
Bloom to help in acquiring a sports car. Also in May 2004, Whiteford accepted a
business-class airplane ticket home that had been purchased by Bloom.
Stein, Hopfengardner, Wheeler, Whiteford, and others helped Bloom to obtain $8
million in CPA-SC contracts for construction of, inter alia, a police academy in al-Hillah,
a Regional Tribal Democracy Center in al-Hillah, and a library in Karbala. Stein
regularly stole money from the vault of CPA-SC and gave it to Bloom, who
wire-transferred the funds to foreign bank accounts. Bloom used the stolen funds and his
own finances to buy watches, laptops, airplane tickets, and cars for his co-conspirators.
Stein, Whiteford, and Hopfengardner — as the bid-rigging and contract-steering to
Bloom continued — discussed forming a private security company. To that end, Stein
and Hopfengardner requisitioned weapons through CPA-SC in early 2004 for use by the
proposed company after the CPA dissolved. Stein arranged delivery of the weapons to a
military base in Fort Bragg, North Carolina, where Whiteford would pick them up. When
the weapons were not ready in time, Harrison and Wheeler agreed to help. Specifically,
Wheeler and Harrison retrieved the weapons from North Carolina and drove them to
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Stein’s home when they returned to the United States in July 2004. Stein allowed
Wheeler to keep several pistols, a machine gun, and a silencer.
Stein, Bloom, and Hopfengardner entered into plea agreements with the federal
government in 2006 and agreed to serve as cooperating witnesses against others in the
conspiracy.5 While plea negotiations ensued, federal authorities began to investigate
Wheeler. In July 2005, FBI Agent Courtland Jones telephoned Wheeler and asked if he
had moved weapons from Fort Bragg to Stein’s home. Wheeler responded affirmatively.
On November 30, 2005, Wheeler met with an attorney for advice on investigation
questions. The attorney advised him to cooperate with questioning, but to call him if he
“got stumped”. A group of federal agents, including Jones, arrived at Wheeler’s home
that same day while Wheeler was standing in his driveway. Wheeler told the agents he
had spoken with an attorney, who had instructed him to cooperate but to call if he “got
stumped”. Whiteford, 676 F.3d at 355. The agents arrested Wheeler, handcuffed him,
and directed him to sit in their van. After about ten minutes, the agents removed the
handcuffs and gave Wheeler an Advice of Rights form, which he signed. The agents then
questioned Wheeler concerning the weapons from Fort Bragg. Wheeler told the agents
that the weapons were in his bedroom closet. Wheeler signed a form consenting to a

5

Bloom pleaded guilty to conspiracy, bribery, and money laundering, and was sentenced
to 46 months in prison and ordered to forfeit $3.6 million. Stein pleaded guilty to, inter alia,
conspiracy and bribery, and was sentenced to 108 months in prison and ordered to forfeit $3.6
million. Hopfengardner pleaded guilty to conspiracy and money laundering, and was sentenced
to a 21-month prison term and ordered to forfeit $144,500.
7

search of his residence. The agents searched the home, and recovered many weapons not
registered in his name. The agents then interrogated Wheeler in his kitchen for 90
minutes. When Wheeler’s daughter arrived home, the interrogation ended and Wheeler
was transported to the office of the local sheriff. Wheeler asked to call his attorney while
in the car, and the agents terminated any further questioning.
A Grand Jury returned a 25-count indictment against Whiteford, Wheeler,
Harrison, Morris, and Driver on February 1, 2007. Whiteford and Wheeler were charged
with conspiracy to commit offenses against the United States, in violation of 18 U.S.C. §
371; bribery, in violation of 18 U.S.C. § 201(b)(2); and eleven counts of honest services
wire fraud, in violation of 18 U.S.C. §§ 1343 and 1346. The Indictment listed the aims of
the conspiracy, i.e., bribery, wire fraud, interstate transportation of stolen property, and
possession and transportation of unregistered firearms. Wheeler was also charged with
interstate transportation of stolen property, in violation of 18 U.S.C. § 2314, and
smuggling bulk cash, in violation of 31 U.S.C. § 5332. See Crim. No. 07-76, dkt. 18.
Harrison and Driver were severed from the case before trial and pleaded guilty to
certain offenses. Wheeler sought to suppress his post-arrest statements and the weapons
recovered from his home in a pretrial motion, which this Court denied on March 20,
2008. The jury trial against Whiteford, Wheeler, and Morris began on September 8,
2008. The jury returned a verdict on November 7, 2008, finding Whiteford guilty of
conspiring to commit bribery and interstate transportation of stolen property, and Wheeler
guilty of conspiring to commit four crimes in the Indictment. The jury found Whiteford
8

and Wheeler not guilty of all remaining charges, and Morris not guilty of any charge.
Whiteford and Wheeler filed post-judgment motions, which this Court denied on March
20, 2009. This Court sentenced Whiteford to imprisonment of 60 months with two years
of supervised release, and Wheeler to imprisonment of 42 months with three years of
supervised release. Whiteford was ordered to pay $16,200 in restitution, and Wheeler to
pay $1,200.
Wheeler and Whiteford directly appealed, arguing: (1) insufficiency of the
evidence to establish participation in the conspiracy; (2) failure to grant a new trial in the
interests of justice; and (3) error in refusal to grant “use immunity” to a co-conspirator.
Wheeler also claimed error in the denial of his motion to suppress, and both Wheeler and
Whiteford challenged the sentences imposed. The convictions and sentences as to
Wheeler and Whiteford were affirmed on April 13, 2012. Whiteford, 676 F.3d at 351–65.
Wheeler now brings this Motion, arguing: (1) the Court lacked jurisdiction over
the criminal matter because all of his acts were extraterritorial; (2) the Court violated his
Sixth Amendment right of confrontation of witnesses against him in allowing a lab report
regarding the weapons; (3) the Court erred in denying him the right to confront the
certifying analyst of the gun lab report; and (4) appellate counsel was ineffective. (See
dkt. 1 at 12.) The Government responded, and Wheeler replied. (See dkts. 17 & 19.)
LEGAL STANDARD
A prisoner in federal custody under a federal sentence “may move the court which
imposed the sentence to vacate, set aside or correct the sentence” upon the grounds that:
9

(1) “the sentence was imposed in violation of the Constitution or laws of the United
States”; (2) “the court was without jurisdiction to impose such sentence”; or (3) “the
sentence was in excess of the maximum authorized by law”. 28 U.S.C. § 2255(a).
A court, in considering a § 2255 motion, must accept the truth of a movant’s
factual allegations unless they are frivolous on the basis of the existing record. See
United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). A court must “give a liberal
construction to pro se habeas petitions.” Rainey v. Varner, 603 F.3d 189, 198 (3d Cir.
2010). A court may deny the motion without holding an evidentiary hearing if “the
motion and the files and records of the case conclusively show that the prisoner is entitled
to no relief”. 28 U.S.C. § 2255(b).
DISCUSSION
A.

Jurisdictional Claims
Wheeler argues that the Court lacked jurisdiction because all of his alleged acts

(except the conspiracy to possess and transport unregistered firearms offense) were
extraterritorial. Wheeler also contends that the CPA — for which he worked — was not
an entity of the United States, and therefore the indictment failed to allege an offense
under 18 U.S.C. § 371, which applies only to conspiracies to defraud the United States.
These arguments are without merit.
1.

Conspiracy to Defraud the United States

Wheeler argues that: (1) the CPA promulgated its own rules and orders under Iraqi
law and not the laws of the United States; and (2) the DFI was not under the custody or
10

control of the United States and its funds were “Iraq funds”. (Dkt. 1 at 4.) He argues that
the CPA and DFI were not American entities, and thus there was no jurisdiction to charge
him under § 371 because it applies only to conspiracies to defraud the United States. The
Government counters that Wheeler is barred from relitigating this issue because it was
raised and rejected on direct appeal.
Section 2255 generally may not be employed to relitigate issues that were raised
and considered on direct appeal. See United States v. DeRewal, 10 F.3d 100, 105 (3d Cir.
1993); United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (stating issues
resolved on direct appeal not reviewable unless raised to support ineffective-assistanceof-counsel claim). This matter was decided on the direct appeal brought by Wheeler, and
thus this Court need not revisit his recharacterized jurisdictional claim here.
The jurisdictional argument is without merit nonetheless. The Government did not
have to allege or prove that the CPA was an entity of the United States, and the argument
that a conviction under § 371 requires that the United States be the “intended target of the
conspiratorial scheme” has already been rejected. Whiteford, 676 F.3d at 359–60.
Section 371 has both an “offenses” prong and a “defraud” prong, and only the latter
requires that the conspirators intend to harm the federal government. Id. As Wheeler and
Whiteford were charged, tried, and convicted of violating the offenses prong of § 371,
“the status of the CPA as a U.S. entity has no bearing” here. Id. at 360. The underlying
offenses for which Wheeler was “found guilty of conspiring to achieve - bribery,
interstate transportation of stolen property, wire fraud, and unlawful possession of
11

weapons - do not require the United States to be the intended target of the criminal
activity.” Id. This claim will be denied.
2.

Extraterritoriality Claim

Wheeler argues that the Court lacked jurisdiction because the alleged conspiracy
acts (except conspiracy to possess and transport unregistered firearms) occurred in Iraq.
The Government counters that this claim must be denied as procedurally defaulted
because Wheeler could have raised this claim on direct appeal and failed to do so.
A claim not raised on direct appeal “may not be raised on collateral review unless
the petitioner shows cause and prejudice” or actual innocence. Massaro v. United States,
538 U.S. 500, 504 (2003). “The procedural-default rule is neither a statutory nor a
constitutional requirement, but it is a doctrine adhered to by the courts to conserve
judicial resources and to respect the law’s important interest in the finality of judgments.”
Id. Under the cause and prejudice standard, “a convicted defendant must show both (1)
cause excusing his ... procedural default, and (2) actual prejudice resulting from the errors
of which he complains.” United States v. Pelullo, 399 F.3d 197, 220–21 (3d Cir. 2005)
(internal quotes and cites omitted). A defendant must show that “some objective factor
external to the defense impeded counsel’s efforts to raise the claim” to establish “cause”
for procedural default. McCleskey v. Zant, 499 U.S. 467, 493 (1991) (internal quotes and
cites omitted). “Examples of external impediments which have been found to constitute
cause in the procedural default context include interference by officials, a showing that

12

the factual or legal basis for a claim was not reasonably available to counsel, and
ineffective assistance of counsel.” Pelullo, 399 F.3d at 223 (internal quotes and cites
omitted). “[F]utility cannot constitute cause if it means simply that a claim was
unacceptable to that particular court at that particular time.” Bousley v. United States,
523 U.S. 614, 623 (1998) (internal quotes and cite omitted). A procedural default caused
by the tactical decision of counsel, ignorance of the law or facts, or inadvertence that is
short of constitutional ineffectiveness is binding on a habeas petitioner. See Murray v.
Carrier, 477 U.S. 478, 485–87 (1986); see also Engle v. Isaac, 456 U.S. 107, 134 (1982)
(stating where basis for “claim is available, and other defense counsel have perceived and
litigated that claim, the demands of comity and finality counsel against labeling alleged
unawareness of the objection as cause for a procedural default”).
Wheeler fails to demonstrate cause or some “external” impediment as to this
jurisdictional claim. He fails to proffer any reason for not raising this claim before,
during or after trial, or on direct appeal.
Wheeler also cannot show actual prejudice as to this extraterritoriality claim
because it is substantively without merit. The presumption against the extraterritorial
effect of legislation does not apply to “criminal statutes which are, as a class, not logically
dependent on their locality for the government’s jurisdiction, but are enacted because of
the right of the government to defend itself against obstruction, or fraud wherever
perpetrated, especially if committed by its own citizens, officers, or agents.” United
States v. Bowman, 260 U.S. 94, 98 (1922). The Bowman criminal statute was “directed
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generally against whoever presents a false claim against the United States, knowing it to
be such, to any officer of the civil, military or naval service or to any department thereof,
or any corporation in which the United States is a stockholder, or whoever connives at the
same by the use of any cheating device, or whoever enters a conspiracy to do these
things.” Id. at 101. For this category of offenses, “to limit [a given statute’s] locus to the
strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the
statute and leave open a large immunity for frauds as easily committed by citizens on the
high seas and in foreign countries as at home.” Id. at 98.
An exercise of extraterritorial jurisdiction is appropriate when a statute targets a
crime primarily involving government personnel or assets because, consistent with
Bowman, the nature of the offense targeted makes the presumption against extraterritorial
jurisdiction inappropriate. See, e.g., United States v. Delgado-Garcia, 374 F.3d 1337
(D.C. Cir. 2004) (holding convictions under 18 U.S.C. § 1324 for conspiracy to induce
aliens to illegally enter, or to attempt to bring illegal aliens into, United States applied
extraterritorially); United States v. Cotten, 471 F.2d 744 (9th Cir. 1973) (involving
civilian United States citizens in Vietnam charged with conspiracy to defraud United
States, in violation of 18 U.S.C. § 371, and theft of Government property, in violation of
18 U.S.C. § 641); United States v. Campbell, 798 F.Supp.2d 293 (D.D.C. 2011)
(involving Australian citizen charged with soliciting bribe in violation of 18 U.S.C. §
666(a)(1)(B), for receiving more than $10,000 in federal monies related to contracts in
Afghanistan funded by United States Agency for International Development).
14

Wheeler was charged and convicted of conspiracy to commit crimes against the
United States under 18 U.S.C. § 371 — the same criminal statute at issue in Cotten —
based on the substantive crimes of bribery (18 U.S.C. § 201), honest services wire fraud
(18 U.S.C. §§ 1343, 1346), and interstate or international transportation of stolen property
(18 U.S.C. § 2314).6 The bribery aspect of the conspiracy to secure contracts from the
CPA, which was funded by Congressional appropriations, necessarily implicates a crime
against the United States regardless of whether the relevant conduct occurred in Iraq. See
Cotten, 471 F.2d at 750 (holding “Bowman implicitly gives extraterritorial effect to 18
U.S.C. § 371”). Therefore, the extraterritoriality claim is without merit because 18 U.S.C.
§ 371 is not subject to the presumption against extraterritorial jurisdiction based on the
nature of the alleged substantive offenses as crimes against the United States.
Wheeler also argues that his alleged acts fall under the Uniform Code of Military
Justice for DoD service members, and not under federal criminal law. “[S]imply because
a member of the armed forces may be punished by military court martial for an offense
provides no justification for concluding that a District Court lacks jurisdiction to punish
him for the same offense, if such offense is violative of a federal law.” United States v.
Walker, 552 F.2d 566, 567 (4th Cir. 1977); see Grafton v. United States, 206 U.S. 333,
348 (1907) (holding federal courts have concurrent jurisdiction with military courts over

6

Wheeler’s conviction of possession of unregistered firearms in violation of 26 U.S.C. §
5861(d) is not the subject of his extraterritoriality argument because the firearms were in his
possession in the United States. Further, except for the bribery conduct, most of the relevant
conduct related to the other substantive offenses occurred in the United States.
15

violations of American law by military personnel); see also 18 U.S.C. § 3231 (“The
district courts of the United States shall have original jurisdiction, exclusive of the courts
of the States, of all offenses against the laws of the United States. Nothing in this title
shall be held to take away or impair the jurisdiction of the courts of the several States
under the laws thereof.”). Moreover, Wheeler was no longer in military service when the
investigation occurred and the Indictment was issued. This jurisdictional claim by
Wheeler is without merit.
B.

The ATF Report and Confrontation Clause Claims
Wheeler contends that the Court erred in admitting a report by the Bureau of

Alcohol, Tobacco, Firearms & Explosives (“ATF Report”) regarding testing performed
on the firearms and silencers seized from Wheeler and his co-conspirators. The testing
confirmed that the seized firearms were subject to the registration requirements under 26
U.S.C. § 5841. Wheeler contends that the admission of the ATF Report, and the
testimony of the certifying analyst (who did not prepare the ATF Report), rather than the
analyst who conducted the testing, violated his Sixth Amendment right to confront the
person who had prepared it. Wheeler also claims that his appellate counsel was
ineffective for refusing to file a letter raising the decision in Bullcoming v. New Mexico,
131 S.Ct. 2705 (2011), on direct appeal as a supplemental authority pursuant to Federal
Rule of Appellate Procedure 28(j).
The Government argues in response: (1) Wheeler waived his right to confront the
witness against him when his counsel stipulated to the admission of the ATF Report at
16

trial; (2) Wheeler is now barred from raising a violation of the Confrontation Clause here
because he did not raise the claim on direct appeal; (3) the stipulation to admit the ATF
Report is not excused by an intervening change in the law; (4) the decision by counsel not
to raise the claim on direct appeal does not constitute ineffectiveness and thus does not
provide cause to excuse the failure to challenge the ATF Report at trial; and (5) prejudice
cannot be shown given the substantial weight of evidence establishing that the firearms
were subject to the registration requirements of 26 U.S.C. § 5841.
1. Stipulation by Counsel Operates as Waiver of Confrontation Clause Rights
The stipulation by trial counsel for Wheeler operated as a waiver of his
Confrontation Clause rights. His trial counsel stipulated to the admission of the ATF
Report at trial, and he made no objection regarding the testimony of Special Agent
William Baudhuin as to the ATF Report.7 Therefore, Wheeler’s rights under the
Confrontation Clause were not violated. See United States v. Merchant, 376 Fed.Appx.
172, 178 (3d Cir. 2010) (finding admission of lab reports concluding that drugs sold by
defendant during controlled buys were cocaine, without live testimony from analysts who
wrote them, did not violate Confrontation Clause, given defendant’s stipulation that
reports could be admitted without further testimony or proof); Fakhouri v. Thompson, No.
12-756, 2014 WL 4165635, at *23 (M.D. Pa. Aug. 20, 2014).

7

The only objections made by trial counsel for Wheeler regarding the testimony of
Baudhuin involved a hearsay objection concerning how some weapons were ordered and
shipped, and an objection based on a failure by the Government to provide counsel with the
written summary of expert testimony intended to be offered at trial. (Dkt. 16, Answer at 12 n.3.)
17

Any contention that the stipulation by counsel concerning the ATF Report was not
a valid waiver under the Confrontation Clause because Wheeler did not personally waive
the right is without merit; a personal waiver is not required. United States v. Williams,
403 Fed.Appx. 707, 708 (3d Cir. 2010) (citing Janosky v. St. Amand, 594 F.3d 39, 48 (1st
Cir. 2010); United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999); United States v.
Stephens, 609 F.2d 230, 232–33 (5th Cir. 1980); United States v. Cooper, 243 F.3d 411,
418 (7th Cir. 2001); United States v. Gamba, 541 F.3d 895, 900–01 (9th Cir. 2008); and
United States v. Aptt, 354 F.3d 1269, 1282 (10th Cir. 2004).) The stipulation by counsel
for Wheeler as to the ATF Report and the testimony of Special Agent Baudhuin
constituted a waiver of his rights under the Confrontation Clause.
2. Confrontation Clause Is Procedurally Defaulted
Wheeler also is procedurally barred from raising this Sixth Amendment claim for
the first time here because he did not raise it on direct appeal. If a defendant procedurally
defaults on a claim by failing to raise it on direct review, the claim may be raised in
habeas only if the defendant can first demonstrate either cause and actual prejudice, or
actual innocence. Bousley, 523 U.S. at 622. Wheeler argues that the Bullcoming
decision represents an intervening change in the law sufficient to establish cause for not
raising this claim on direct appeal. He also appears to argue that the ineffective
assistance of his appellate counsel in failing to raise this issue on direct appeal is cause
for a procedural default. See Murray, 477 U.S. at 488. This Court rejects both arguments
and finds that Wheeler cannot establish cause for his procedural default.
18

a. Intervening Change in the Law
Wheeler contends that the 2011 Bullcoming decision represents an intervening
change in the law sufficient to establish cause for the failure to raise the claim on direct
appeal. Bullcoming held that the admission of a lab report concluding that defendant’s
blood alcohol content was above the legal driving limit, without the in-court testimony of
the analyst who had prepared the report, amounted to a violation of the Confrontation
Clause. See 131 S.Ct. at 2717.
But the Government argues that the notion that the admission of a forensic report
could violate the Confrontation Clause was not a novel claim or reasonably unavailable to
Wheeler at the time of his 2008 trial, and thus he cannot show an intervening change in
the law to establish cause for his default in raising the claim at trial. This Court agrees.
Indeed, in 2004, well before Wheeler’s trial began, the Supreme Court held that
testimonial statements of witnesses absent from trial could violate the Confrontation
Clause of the Sixth Amendment. Crawford v. Washington, 541 U.S. 36 (2004).
Six months before Wheeler’s trial began, moreover, the Supreme Court granted
certiorari on the issue of whether admission of a forensic report could violate the
Confrontation Clause. See Melendez-Diaz v. Massachusetts, 552 U.S. 1256 (2008). In
June 2009, the Supreme Court eventually ruled that the admission of a narcotics lab report
without the in-court testimony of the preparing analyst violated the Confrontation Clause.
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 325 (2009). Further, the Court noted that

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“[m]any States have already adopted the constitutional rule we announce today, while
many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause
right after receiving notice of the prosecution’s intent to use a forensic analyst’s report”.
Id. at 325–26 (footnote omitted).
There are also several federal circuit court cases that were issued before Wheeler’s
trial in which the admissibility of forensic reports were challenged on Confrontation
Clause grounds. See, e.g., United States v. Washington, 498 F.3d 225 (4th Cir. 2007);
United States v. Springer, 165 Fed.Appx. 709 (11th Cir. 2006); United States v. Feliz,
467 F.3d 227, 228 (2d Cir. 2006); Sherman v. Scott, 62 F.3d 136 (5th Cir. 1995);
Manocchio v. Moran, 919 F.2d 770 (1st Cir. 1990). Thus, this Court finds that Wheeler
cannot plausibly argue that his Confrontation Clause challenge was so novel or legally
unavailable at the time of trial so as to establish cause for his procedural default based on
an intervening change in the law.
b. Ineffective Assistance of Counsel
Wheeler argues that his appellate counsel was ineffective for failing to raise this
Confrontation Clause violation on direct appeal. The Sixth Amendment guarantees that
the accused shall enjoy the right to have the assistance of counsel for the defense in all
criminal prosecutions. Wheeler must show deficient performance and resulting prejudice
as set forth in Strickland v. Washington, 466 U.S. 668 (1984), to succeed here. See
Premo v. Moore, 562 U.S. 115 (2011) (holding that to establish ineffective assistance of

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counsel, defendant must show both deficient performance by counsel and prejudice).
Wheeler must show that the performance of counsel (viewed as of the time of the conduct
of counsel) was inadequate and “fell below an objective standard of reasonableness,” in
that “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687–88.
Wheeler must then show that the deficient performance prejudiced the defense. In other
words, Wheeler must prove that there was “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694; see also Rainey, 603 F.3d at 197–98.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky,
559 U.S. 356, 371 (2010). The “Strickland standard must be applied with scrupulous
care”, because an “ineffective-assistance claim can function as a way to escape rules of
waiver and forfeiture and raise issues not presented at trial”. Harrington v. Richter, 562
U.S. 86, 105 (2011). “It is all too tempting to second-guess counsel’s assistance after
conviction or adverse sentence”, but “[t]he question is whether an attorney’s
representation amounted to incompetence under prevailing professional norms, not
whether it deviated from best practices or most common custom.” Id. (internal quotes
and cites omitted). In determining whether the stipulation in this case was “objectively
reasonable,” this Court is bound by the express warning set forth in Strickland against

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using hindsight to second-guess the tactical decisions of counsel. Strickland, 466 U.S. at
689.
Wheeler must show, with reasonable probability, that but for the professional
incompetence of counsel, the outcome of the proceeding would have been different in
order to establish the prejudice part of an ineffective assistance of counsel claim. Id. at
694. “It is not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding. Virtually every act or omission of counsel
would meet that test.” Id. at 693.
“Claims of ineffective assistance of appellate counsel are also governed by the
Strickland standard.” Lusick v. Palakovich, 270 Fed.Appx. 108, 110 (3d Cir. 2008). But
it is the responsibility of counsel on appeal to decide which issues to raise, and counsel
does not have an obligation to raise every potentially meritorious claim. Jones v. Barnes,
463 U.S. 745, 751–52 (1983). Thus, a choice not to pursue an issue on appeal that the
defendant would like to raise is not, on its own, a basis for an ineffective assistance of
counsel claim. Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996).
The record here unequivocally shows that trial counsel stipulated to the admission
of the ATF Report, and thus Wheeler waived his right to confront the person who had
prepared it. As discussed above, a stipulation by counsel to the admission of a lab report
operates as a valid waiver of the Confrontation Clause rights of a defendant, and cannot
be raised on appeal. See Virgin Islands v. Rosa, 399 F.3d 283, 290 (3d Cir. 2005); see

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also Merchant, 376 Fed.Appx. at 178; Williams, 403 Fed.Appx. at 708. Moreover, a
personal waiver is not required. Id. Thus, on these facts, Wheeler has failed to
demonstrate that he received ineffective assistance of appellate counsel, and accordingly
cannot show cause to excuse the failure at trial to challenge the ATF Report.
Wheeler also fails to demonstrate that appellate counsel was “unreasonable” in not
arguing that the decision of this Court to admit the ATF Report was plain error. See
United States v. Underwood, 246 Fed.Appx. 92, 95 (3d Cir. 2007) (holding that when
petitioner fails to preserve admissibility issue for appeal, the district court’s decision to
admit evidence is reviewed for plain error). Indeed, a decision by counsel to stipulate to
evidence and thereby waive the confrontation rights of a client is “a legitimate trial tactic
and part of a prudent trial strategy as long as the decision does not constitute ineffective
assistance of counsel.” See Williams, 403 Fed.Appx. at 709. In this case, neither
Wheeler nor any of his co-defendants challenged the conclusions in the ATF Report or
objected to their admission. Moreover, Wheeler presents no argument, and the record is
barren of any evidence, to rebut the ATF Report in any way. Wheeler has not shown any
evidence that the firearms were not covered by the registration requirements under 26
U.S.C. § 5841. More importantly, nothing in the record suggests that counsel for Wheeler
had any evidence with which to cross-examine or rebut the technician who prepared the
ATF Report sufficient to undermine the credibility or admissibility of the report.
Accordingly, the claim of ineffectiveness of appellate counsel is without merit.

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c. Wheeler Cannot Show Actual Prejudice
Wheeler fails to demonstrate the actual prejudice necessary to overcome any
procedural default regarding the failure to challenge the ATF Report at trial. As noted
above, in order to obtain collateral review on his procedurally defaulted claim, Wheeler
must show either cause for the procedural default and actual prejudice, or that he is
actually innocent. See Parkin v. United States, 565 Fed.Appx. 149, 151 (3d Cir. 2014)
(citing Bousley, 523 U.S. at 622). Prejudice exists where errors at trial “worked to
[petitioner’s] actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). To show
actual prejudice after proving cause, Wheeler must show a reasonable probability that the
result of the trial would have been different if the claimed errors in procedural default had
not occurred. Strickler v. Greene, 527 U.S. 263, 283 (1999).
The Government argues here that even if the ATF Report had not been admitted at
trial, there was other substantial and overwhelming uncontested evidence establishing that
the weapons obtained from Wheeler’s residence were indeed subject to the registration
requirements of 26 U.S.C. § 5841. For instance, Special Agent Baudhuin testified at trial
as to his own examination of the firearms recovered, specifically noting that the overall
length, the barrel length, the appearance, the sights, the receivers, the safeties, the selector
switches, and the movement of the actions in combination confirmed for him that the
rifles in question were, in fact, machine guns. (See 10-2-08 Trial Tr., vol. XII at 181–83,
194–96, 200–01.) Baudhuin also testified that the firearms were marked as “restricted
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government law enforcement use only,” and that such a marking is a “giveaway” that the
weapon “has to be registered either with a law enforcement entity or with the United
States government.” (Id. at 181–83.) Baudhuin further testified that the silencer was in a
box labeled “sound suppresser,” and that he confirmed this information by observing the
shape, threading, and the “ports” built into the interior of the device. (Id. at 187–90.)
Additionally, based on the serial numbers on the firearms, other documents admitted at
trial established that they were registered to the United States Army as machine guns.
(See dkt. 16-3 at 32–43 (originally Exhibit G-2); 9-15-08 Trial Tr., vol. V at 40–43
(stipulating to admission of Exhibit G-2).)8

Based on the testimony of Baudhuin concerning his own examinations and
findings, and other evidence, Wheeler cannot demonstrate that the admission of
the conclusions of the ATF Report without the in-court testimony of the preparer
worked to his “actual and substantial disadvantage”. See Frady, 456 U.S. at 170.
Consequently, Wheeler has failed to satisfy the prejudice part of the procedural
default analysis.
CERTIFICATE OF APPEALABILITY
This Court will deny a certificate of appealability because Wheeler has not
demonstrated “a substantial showing of the denial of a constitutional right” as required
under 28 U.S.C. § 2253(c)(2). See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
8

The documents also establish that Exhibit G-6 was registered to the Army as a silencer.
(See dkt. 16-3 at 44.)
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CONCLUSION
This Court will deny the Motion and decline to issue a certificate of appealability.
The Court will issue an appropriate order.

s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: May 13, 2015

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