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UNITED STATES v. TAI

June 19, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
CHONG WON TAI, Defendant.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 In April 1992, petitioner Chong Won Tai was convicted of three counts of extortionate extension of credit in violation of 18 U.S.C. § 894. On direct appeal, the Seventh Circuit affirmed Tai's conviction, see United States v. Tai, 994 F.2d 1204, 1214 (7th Cir. 1993), but twice partially vacated Tai's sentence and remanded the case to us for further proceedings, see id.; United States v. Tai, 41 F.3d 1170, 1178 (7th Cir. 1994); see also United States v. Tai, 66 F.3d 328 (7th Cir. 1995) (table) (affirming the modified sentence). *fn1" Tai now asks us to vacate his conviction or modify his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the petition is denied.

 I. Commerce Clause

 Tai's first argument is that his convictions should be vacated because the statute under which he was convicted, 18 U.S.C. § 894, is unconstitutional. See Pet.'s Br. at 2. Specifically, he contends that Congress exceeded the scope of its power under the Commerce Clause in prohibiting all extortionate extensions of credit, even those with no particular connection to interstate commerce. Tai acknowledges that this precise argument was squarely rejected by the Supreme Court in Perez v. United States, 402 U.S. 146, 154-55, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971), but he argues that Perez has been implicitly overruled by United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995). We find this argument unpersuasive. Lopez struck down the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), on the grounds that there was no connection between the possession of firearms in school zones and interstate commerce. See id. at 1626. Although the impact of this holding on the scope of Congress's commerce power is the subject of much discussion in scholarly circles, see, e.g., Symposium, Reflections on United States v. Lopez, 94 MICH. L. REV. 533 (1995), as well as the courts, *fn2" it is quite clear that Lopez has not disturbed the Court's holding in Perez. To the contrary, the Lopez majority cites Perez with approval, using it as an example of how Congress has the power to regulate purely intrastate activities that "substantially affect" interstate commerce. See Lopez, 115 S. Ct. at 1630; United States v. Bishop, 66 F.3d 569, 585 n.25 (3d Cir. 1995) (noting that Perez was "cited approvingly and relied upon throughout Lopez "). Perez thus remains good law, and Tai's first argument must be rejected.

 II. Wharton's Rule

 Tai next contends that the conspiracy counts of his conviction for extortionate extension of credit should be vacated under Wharton's Rule. This argument is entirely without merit. Wharton's Rule provides that an agreement between two people to commit a crime cannot be prosecuted as a conspiracy where the substantive crime inherently requires the participation of two persons for its commission. See Iannelli v. United States, 420 U.S. 770, 781-82, 43 L. Ed. 2d 616, 95 S. Ct. 1284 (1975); United States v. Morris, 957 F.2d 1391, 1403 (7th Cir. 1992). Classic examples of crimes covered by Wharton's Rule include adultery and dueling. Extortion, by contrast, can be committed by a single person acting alone. Since the cooperation of other parties is not inherent in the crime of extortion, when such cooperation occurs it may be prosecuted as a conspiracy.

 III. Effective Assistance of Counsel at Sentencing

 Tai's final argument is that ineffective assistance of counsel at sentencing resulted in his placement in a higher criminal history category than he deserved. Before Tai's initial sentencing hearing, the government urged this court to depart upward in calculating Tai's criminal history category because his presumptive category would "'not adequately reflect the seriousness of [his] past criminal conduct or the likelihood that [he would] commit other crimes.'" Government's Sentencing Mem. at 8 (quoting U.S.S.G. § 4A1.3). The basis for the government's request was its belief that Tai, while confined in the MCC pending trial and sentencing, had continued to engage in extortionate behavior. See U.S.S.G. § 4A1.3(e) (permitting an upward departure in criminal history category if the defendant has engaged in "similar adult criminal conduct not resulting in a criminal conviction"). At the sentencing hearing, the government provided evidence of Tai's continuing extortion, see Sentencing Tr. at 86-104, and persuaded this court to move Tai from criminal history category I to criminal history category III, see id. at 127. The Seventh Circuit later affirmed this upward shift. See United States v. Tai, 66 F.3d 328 (7th Cir. 1995) (table) (unpublished order dismissing appeal available at 1995 WL 551933).

 In the context of this § 2255 petition, Tai is foreclosed from arguing that our decision to depart upward was erroneous. See United States v. Scott, 997 F.2d 340, 342 (7th Cir. 1993). Apparently aware of this constraint, Tai launches a more roundabout attack on the departure, contending that his attorneys at sentencing did not provide an adequate challenge to the government's evidence of his continuing extortionate activities during his stay at the MCC. In particular, Tai focuses on the fact that his attorneys failed to call as witnesses two of the parties who were allegedly extorted, Lee Chin-Suk and Shin Chang-Sik. Tai contends that these individuals would have testified that he never attempted to extort money from them--a claim he bolsters with affidavits to that effect. See Pet.'s Br. Ex. D (affidavit of Lee Chin-Suk); Ex. E (affidavit of Shin Chang-Sik).

 To establish that he was deprived of the effective assistance of counsel, Tai must demonstrate that: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 686-87, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). With respect to the first prong--known as the "performance" prong--the Supreme Court has observed:

 
The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted--even if defense counsel has made demonstrable errors--the kind of testing envisioned by the Sixth Amendment has occurred.

 United States v. Cronic, 466 U.S. 648, 656, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). The second prong--known as the "prejudice" prong--requires the defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A defendant asserting a Sixth Amendment claim has "the heavy burden of affirmatively establishing that counsel's performance was constitutionally deficient." United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1133 (7th Cir. 1990). We may not second-guess counsel's strategic decisions. See United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997).

 Leaving aside for a moment the quality of sentencing counsel's performance, a threshold question that arises from Tai's allegations is whether a two-category increase in a defendant's criminal history level constitutes a cognizable form of prejudice. The Seventh Circuit has held that small increases in a defendant's sentence do not render the results of the trial "unreliable . . . or fundamentally unfair," Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 844, 122 L. Ed. 2d 180 (1993): to satisfy the prejudice requirement, counsel's ineffectiveness must result in a sentence that is "significantly" more harsh than it would otherwise have been. See Martin v. United States, 109 F.3d 1177, 1178 (7th Cir. 1996); Durrive v. United States, 4 F.3d 548, 551 (7th Cir. 1993). In Martin, for example, the court ...


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