United States v. Traxel

UNITED STATES OF AMERICA v. PAUL TRAXEL, Defendant

Criminal Action No. 7:13-cr-09

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

June 30, 2020

By: Michael F. Urbanski Chief United States District Judge

MEMORANDUM OPINION

On April 30, 2019, defendant Paul Traxel filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. ECF No. 131. The government filed a motion to dismiss Traxel's petition on July 29, 2019, ECF No. 142, to which Traxel responded on September 30, 2019. For the reasons stated below, the court will GRANT the government's motion and DISMISS Traxel's petition.

I. BACKGROUND

On January 24, 2013, Traxel was indicted on five counts of distributing controlled substances and four firearm counts following a months-long investigation into his drug distribution activities. ECF No. 19. On November 4, 2013, Traxel entered into a Rule 11(c)(1)(C) plea agreement in which he agreed to plead guilty to two counts of distributing a mixture or substance containing a detectable amount of 1,4 Butanediol, a controlled substance analog, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts 3 and 6); and one count of possessing a firearm in furtherance of a drug trafficking crime and using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 8). He pled guilty the same day. ECF Nos. 70, 71, 72.

On March 10, 2014, Traxel was sentenced to 60 months each on Counts 3 and 6, to run concurrently, and to 60 months on Count 8, to run consecutively. The remaining counts were dismissed. ECF No. 79 at 2. On December 17, 2018, Traxel moved to reduce his sentence under Hughes v. United States, 138 S.Ct. 1765 (2018). ECF Nos. 122, 126. The court granted his motion on April 3, 2019 and reduced Traxel's sentence to 108 months, consisting of 48 months on Counts 3 and 6 to run concurrently and 60 months on Count 8 to run consecutively. ECF No. 129.

Traxel's § 2255 motion is based on the participation of Officer Craig Frye in the investigation that led to the charges filed against him. In April 2018, four years after Traxel was convicted and sentenced, the government filed a motion seeking disclosure of grand jury materials and potential impeachment materials regarding Officer Frye. The court granted the motion on May 16, 2018. ECF No. 114. Traxel's motion recounts much of the information disclosed about Frye, as does the government's motion to dismiss.

The complaints about Officer Frye included concerns over not following proper procedures and protocols for handling informants and drug information, making disrespectful and offensive comments about women and minority groups, making false statements in court proceedings, and not reporting expunged arrest and charge information. Based on this claimed misconduct, a Roanoke County Assistant Commonwealth's Attorney decided not to sponsor Frye's testimony in any further cases unless the testimony was corroborated by other evidence. Also, the United States Attorney determined that Frye would no longer be permitted to testify as a government witness. None of the undisclosed claimed misconduct was related to Traxel's case.

Given the above revelations about Frye, Traxel argues that he should be allowed to withdraw his guilty plea on the charges brought against him. He claims that Frye played a critical role in securing the charges and asserts that he would not have pled guilty had he known about the information bearing on Frye's credibility. However, a review of the record indicates that while Frye was involved in the investigation, he was never the only officer working on the case and that, as described below, his actions were overseen by multiple officers.

In 2011, agents working for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) began their investigation into Traxel's drug distribution activities. PSR, ECF No. 125 at ¶ 4. From August 8, 2011 through November 1, 2012, Traxel participated in six controlled buys of drugs. Frye was a Task Force Officer (TFO) with the ATF and participated in some of the buys.

On August 8, 2011, Traxel met a confidential informant (CI) and sold the CI two bottles of testosterone cypionate for $380. Testosterone cypionate, an anabolic steroid, is a synthetic version of the naturally produced testosterone hormone and is a schedule III drug. PSR, ECF No. 125 at ¶ 4, 5. ATF Roanoke Special Agent Keith Teehan supervised the CI during the controlled buy, and searched him for currency, contraband, and firearms. Frye gave the CI $400 in official government funds and equipped the CI with a wireless transmitter. The buy was monitored by Frye, ATF agents Mike Maddy and Sandy Hines, and Special Agent Chris Cummings, both visually and via the wire transmitter. Frye confirmed that Traxel was the person who sold the drugs to the CI. Rep't of Investigation prepared by Keith Teehan,ECF No. 142-1. Count 1 of the indictment was based on this buy but was dismissed as part of the plea agreement. Indictment, ECF No. 19 at 1; Plea Agrm't, ECF No. 71 at 1-2.

On January 6, 2012, Traxel met the CI in Norfolk, Virginia and sold the CI six 25 milliliter bottles of steroids and a plastic bottle containing 135.7 grams of liquid containing 1,4 Butanediol, a recreational drug that is considered a controlled substance analog of gama-hydroxybutric acid (GHB), which acts as an intoxicant and has been labeled a "date rape" drug. The steroids were identified as testosterone enanthate, which is an anabolic steroid and Schedule III drug, and trenbolone enanthate, a steroid and Schedule III drug. PSR, ECF No. 125 at ¶ 4, 6. Frye was involved in this buy, but it did not form the basis of any of the charges against Traxel, presumably because it was alleged to have occurred in another jurisdiction.

On June 15, 2012, Frye supervised the CI during a controlled buy of GHB from Traxel. Frye was assisted by Special Agent Tom Gallagher, Roanoke Police Officers Mike Maddy, Bill Fike, Chris Atkins, Kelly Jennings, and Michael Nedd. Frye and Gallagher met with the CI prior to the buy and Frye searched the CI for currency, contraband, and firearms and then equipped the CI with a wireless transmitter which contained a digital recorder. Other officers searched the CI's vehicle for the same items and equipped the vehicle with a repeater. Frye gave the CI $3,000 in government funds to complete the transaction. After negotiations between Traxel and the CI via text, the CI met with Traxel and obtained a gallon of clear liquid, later determined to be GHB, in exchange for the $3,000 in government funds. Gallagher, Atkins, Fike, and Nedd were already at the meeting location when the CI arrived, and Frye, Maddy, and Jennings followed the CI to the meeting location. After the buy, the CI released the gallon container to Frye who maintained care and custody of it until it was securedin a temporary locker at the ATF Roanoke, Virginia field office, as witnessed by Agent Gallagher. Rep't of Investigation prepared by Frye, ECF No. 142-2. Count 2 of the indictment was based on this buy but was dismissed as part of the plea agreement. Indictment, ECF No. 19 at 1. Plea Agrm't, ECF No. 71 at 1-2.

On July 18, 2012, Teehan supervised the CI during a controlled purchase of 2 gallons of GHB and a firearm from Traxel. Teehan was assisted by ATF agents Mike Cilento, Craig Chillcott, Special Agent Chris Cummings, Investigator Chris Crawford, Gallagher, and Hines. Frye is not listed in the report as participating in this buy. Rep't of Investigation, ECF No. 142-3. Counts 3, 4, and 5 were based on this buy. Counts 4 and 5 were dismissed and Traxel pled guilty to Count 3. Indictment, ECF No. 19 at 2-3; Plea Agrm't, ECF No. 71 at 1-2.

On July 26, 2012, Teehan supervised the CI during a controlled buy of two gallons of GHB and a firearm from Traxel. Teehan was assisted by Cilento, Gallagher, ATF Special Agents Billy Cunningham, Doug Moore, Hines, Chillcott, Cummings, and Frye. Frye participated in the buy by searching the CI's vehicle and equipping the CI with a wireless transmitter which contained digital recorders. At the buy location, Traxel exchanged the suspected GHB and a firearm for $3,500 in government funds. All participating law enforcement officers monitored the exchange both visually and via the wire transmitter and audio recordings of the transaction were made on the digital recorder possessed by the CI. After the transaction, Frye recovered the wire transmitter and digital recorder from the CI and searched him with negative results. The CI told Frye that Traxel had approximately one gallon of suspected GHB remaining in the rear of the vehicle. Rep't of Investigation, prepared by Keith Teehan, ECF No. 142-4. Counts 6, 7, and 8 were based on this buy. Count 7 wasdismissed and Traxel pled guilty to Counts 6 and 8. Indictment, ECF No. 19 at 3-4. Plea Agrm't, ECF No. 71 at 1-2.

On November 2, 2012, Teehan supervised the CI during the controlled purchase of 100 ecstasy pills from one of Traxel's associates. There is no mention of Frye in the incident report related to this controlled buy. Rep't of Investigation prepared by Keith Teehan, ECF No. 142-5. Count 9 was based on this buy and was dismissed as part of the plea agreement. Indictment, ECF No. 19 at 4; Plea Agrm't, ECF No. 71 at 1-2.

On December 21, 2012, Agent Cilento swore out a complaint against Traxel and Traxel was arrested on December 27, 2012. ECF No. 1, 3. On January 24, 2013, Traxel was indicted on the drug and firearm counts. On January 23, 2013, the day before his arrest, Traxel met with ATF officers in Roanoke for a proffer-style interview with counsel and Assistant United States Attorney Donald Wolthuis present. Agents Frye and Teehan conducted the interview. Traxel gave details about his and others' drug activities and explained how he had come to possess the firearm. Mot., ECF No. 131 at 5.

On January 31, 2013, Traxel again...