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UNITED STATES v. LLOYD

October 22, 1997

UNITED STATES OF AMERICA, Respondent,
v.
MARIO LLOYD, CHARLES LLOYD, JAIRO SOTO-RODRIGUEZ, and GUSTAVO CALLE, Petitioners.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Raising a variety of claims, co-conspirators Mario Lloyd (Mario), Charles Lloyd (Charles), Jairo Soto-Rodriguez, and Gustavo Calle each filed a motion pursuant to 28 U.S.C. § 2255 asking that we amend, or in some instances vacate, the sentences we imposed on them for their roles in a cocaine distribution scheme. All four are acting pro se. For the reasons given below, we grant the motion of Mario in part and deny it in part; we deny the motion of Charles; we grant the motion of Soto-Rodriguez in part and deny it in part; and we deny the motion of Calle.

 I. Background

 Two opinions, United States v. Walker, 25 F.3d 540, 543-44 (7th Cir. 1994), and United States v. Soto-Rodriguez, 7 F.3d 96, 97-99 (7th Cir. 1993), give a full recital of the facts which underlie each petitioner's conviction. For present purposes a brief summary will suffice.

 The Lloyd drug ring, operating out of Chicago, was responsible for the distribution of hundreds of kilograms of cocaine. Mario, for whom the operation is named, acted as its chief executive, and the group netted between $ 20 and $ 30 million and earned profits of approximately $ 2 million. Mario employed Calle, Soto-Rodriguez, and his brother Charles, and he compensated all of them handsomely for their loyalty and efforts. Even after meeting his payroll and paying his expenses, however, Mario still retained "fantastic sums of cash," Walker, 25 F.3d at 543, which prompted him to conceal the money through purchases of real estate, furs, and other luxury items.

 A jury convicted Mario on one count of engaging in a continuing criminal enterprise (CCE), see 21 U.S.C. § 848, one count of conspiracy to distribute cocaine, see id. § 846, six counts of distributing cocaine, see 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2, one count of conspiracy to defraud the United States, see 18 U.S.C. § 371, two counts of conducting monetary transactions with drug money, see id. § 1957(a), two counts of money laundering, see id. §§ 1956(a)(1)(B)(i), (ii), and two counts of structuring monetary transactions to avoid currency reporting requirements, see 31 U.S.C. §§ 5322(a), 5324(3). This Court sentenced Mario to life imprisonment and imposed on him a $ 26 million fine, and the Seventh Circuit upheld the sentence on direct appeal. See Walker, 25 F.3d at 543.

 A joint trial with Mario resulted in Charles's conviction by the jury on one count of conspiracy to distribute cocaine, see 21 U.S.C. § 846, one count of distributing cocaine, see id. § 841(a)(1); 18 U.S.C. § 2, one count of conducting monetary transactions with drug money, see 18 U.S.C. § 1957(a), one count of money laundering, see id. §§ 1956(a)(1)(B)(i), (ii), and one count of structuring monetary transactions to avoid currency reporting requirements, see 31 U.S.C. §§ 5322(a), 5324(3). This Court sentenced Charles to 270 months in prison and imposed on him a $ 100,000 fine, and the Seventh Circuit upheld the sentence on direct appeal. See Walker, 25 F.3d at 543.

 Soto-Rodriguez and Calle were tried together, apart from the Lloyd brothers, and the jury convicted both on one count of conspiracy to distribute cocaine, see 21 U.S.C. § 846. The jury also convicted Calle on one count of possession with intent to distribute cocaine, see id. § 841(a)(1); 18 U.S.C. § 2. This Court sentenced Soto-Rodriguez to 210 months in prison and Calle to 293 months in prison, and the Seventh Circuit upheld both of these sentences on direct appeal. See Soto-Rodriguez, 7 F.3d at 97.

 II. Procedural Default

 Habeas corpus is not a substitute for direct appeal, so a federal prisoner who asks that this Court vacate or correct his sentence must explain both his failure to raise on direct appeal the supposed errors which taint his conviction ("cause") and the actual harm which resulted from that failure ("prejudice"). See Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). In addition, a prisoner may not raise ordinary, nonconstitutional errors in his habeas petition except to the extent that those errors form the foundation for an allegation of ineffective assistance of trial counsel. See Belford, 975 F.2d at 313 & n.1. With these principles in mind, we proceed to the petitions of the individual prisoners.

 III. Mario Lloyd

 A. Ineffective Assistance of Counsel

 Mario first claims that his trial counsel, F. Lee Bailey, rendered constitutionally ineffective assistance, and he asks that we grant him a new trial. According to Mario, Bailey was derelict for not giving an opening statement *fn1" and for using "canned" cross-examinations of the government's witnesses, both of which Mario implies were the result of Bailey's alcohol consumption during the trial. *fn2" In support of his allegation that Bailey was drunk, Mario submits two affidavits in which he states that he smelled alcohol on Bailey's breath and observed Bailey sleeping during the trial; Mario's brief adds that Bailey was intoxicated, kept a "thermos type container" with him, and often asked about a "watering hole." Pet'r Br. at 4. Mario also claims that Charles's trial counsel, Edward Genson, is willing to submit at this Court's request an affidavit swearing to these same allegations, and Mario asks that we order this submission. See Pet'rs Reply at 5 n.2, 9 (Aff. of Mario Lloyd).

 The government contends that Mario cannot establish cause for his failure to raise his ineffective assistance claim on direct appeal. We disagree. A prisoner may, as the government acknowledges, wait to raise his ineffective assistance claim for the first time in his § 2255 filing if it "requires examination of facts outside the trial record." Gov't. Resp. at 19 (citing United States v. Guinan, 6 F.3d 468, 471 (7th Cir. 1993)). This rule is a sensible one, for if the ineffectiveness is not apparent from the face of the record, the appellate court -- with only the record before it -- will be hard pressed to evaluate the claim. Compare Guinan, 6 F.3d at 471, and Bond v. United States, 1 F.3d 631, 635 (7th Cir. 1993), with Olmstead v. United States, 55 F.3d 316, 320 (7th Cir. 1995) (holding that the prisoner procedurally defaulted his ineffective assistance claim when the complete factual basis for the claim appeared in the trial record), and Dugan v. United States, 18 F.3d 460, 464 (7th Cir. 1994) (same). Mario's allegation that his trial counsel was drunk during the proceedings constitutes, without question, a fact outside the record *fn3" which bears on his ineffective assistance claim. Mario has thus explained his failure to raise his ineffectiveness claim on direct appeal, and we now turn to whether he can likewise clear the prejudice hurdle.

 To establish prejudice, Mario "must shoulder the burden of showing . . . that the errors at his trial . . . worked to his actual and substantial disadvantage. . . ." United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). This Mario does not do. His motion states only that Bailey's failure to give an opening statement left the jury without a "road map" of the case *fn4" and that Bailey's cross-examinations were "canned." Pet'r Mot. at 3. Mario neither explains the theory of the case that Bailey should have presented to the jury in his opening statement nor elucidates the information Bailey might have elicited from witnesses had his cross-examinations been better. Mario thus gives us no basis to infer that Bailey's conduct at trial left some important stone unturned or some thematic question unanswered in the jurors' minds. In short, Mario has not demonstrated anything near the deprivation of "fundamental fairness" which he must show before we will consider his underlying claims. Murray v. Carrier, 477 U.S. 478, 494, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986); see generally Walker, 25 F.3d at 549 (describing the "mass of . . . evidence" against Mario).

 In any event, we reject Mario's ineffective assistance claim on the merits. To prove ineffective assistance under the now familiar standard of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), Mario must establish both that Bailey's performance was deficient and that Mario probably would have been found not guilty absent Bailey's errors. While Mario's linkage of Bailey's intoxication (if true) with his supposed errors at trial does help to "rebut the strong presumption of attorney competence and convince the Court that [Bailey's] alleged errors were uninformed blunders rather than strategic mistakes," United States v. Jackson, 930 F. Supp. 1228, 1233 (N.D. Ill. 1996) (citing United States v. Taglia, 922 F.2d 413, 417-18 (7th Cir. 1991)), Mario again -- for the reasons stated above *fn5" -- fails to establish the prejudice necessary to his claim. See, e.g., Barkauskas v. Lane, 946 F.2d 1292, 1295 (7th Cir. 1991) ("The party must present evidence, not mere conclusory allegations, that counsel overlooked exculpatory testimony."); United States v. Asubonteng, 895 F.2d 424, 429 (7th Cir. 1990) ("This court has consistently held that such conclusory allegations do not satisfy Strickland's prejudice component.").

 Further, we note that Bailey was not Mario's only attorney. In a case such as this one, where the ineffective assistance claim requires this Court to distinguish between the "strategic mistakes" of effective counsel and the "uninformed blunders" of ineffective counsel, Jackson, 930 F. Supp. at 1233, we believe that a petitioner with multiple attorneys must, as a practical matter, make a particularly strong showing that counsel's putative errors were of the latter type. Thus, even if Bailey's trial prowess arguably fell below the level which Strickland requires, Kenneth Fishman's ability to monitor and correct any of Bailey's mistakes makes Mario's case a tougher one to make. Cf. Stoia v. United States, 109 F.3d 392, 398-99 (7th Cir. 1997) (discussing multiple attorneys and ineffective assistance in the conflict of interest context).

 B. Double Jeopardy

 Mario next argues that his conviction for both CCE, see 21 U.S.C. § 848, and narcotics conspiracy, see id. § 846, violated the Double Jeopardy Clause of the Fifth Amendment. See Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996) (holding that conspiracy is a lesser included offense of CCE and that separate judgments of conviction for those two crimes constitutes double jeopardy). The government concedes the double jeopardy violation, *fn6" and we agree. Mario's conspiracy conviction merged into his CCE conviction, see, e.g., United States v. Paulino, 935 F.2d 739, 751 (6th Cir. 1991), and we accordingly vacate Mario's conspiracy conviction, as well as the life sentence and any fines stemming from that conviction, and we order that any special assessment which he paid pursuant to that conviction be returned to him. Our order is, however, conditional: in the event that Mario is ever successful in overturning his CCE conviction on grounds which do not call the ...


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