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U.S. v. BARRAGAN-RANGEL

April 30, 2002

UNITED STATES OF AMERICA,
V.
JOSE TOBIAS BARRAGAN-RANGEL,



The opinion of the court was delivered by: Elaine E. Bucklo, United States District Court

  MEMORANDUM OPINION AND ORDER

Jose Barragan-Rangel was charged with conspiracy to import more than 100 kilograms of mixtures containing marijuana from Mexico into the United States (count I), attempt to import (count II), and witness tampering (count III). On November 5, 1999, he pleaded guilty to the conspiracy count in a blind plea, and the government dismissed the remaining counts. He directly appealed to the Seventh Circuit, and his appeal was dismissed. He now brings this motion under 28 U.S.C. § 2255 to vacate his sentence on the grounds that his plea was involuntary because he received ineffective assistance of counsel and he was not properly informed of the nature of the charges against him as required by Fed. R. Crim. P. 11(c)(1).

I.

Barragan-Rangel raised neither of these arguments on direct appeal, so to prevail on a § 2255 motion, he must show "cause and prejudice" for the failure to raise them on direct appeal.*fn1 Menzer v. United States, 200 F.3d 1000, 1005 (7th Cir. 2000). "Cause" means that the failure to raise the claims was due to some external objective impediment, such as the unavailability of the factual or legal bases for a claim, or interference by state officials. Cawley v. DeTella, 71 F.3d 691, 696 (7th Cir. 1995). Barragan-Rangel had separate counsel on appeal, so ineffective assistance of appellate counsel may be cause for default if he can demonstrate that his attorney's performance was deficient and that he was prejudiced. McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996) (citing Strickland v. Washington, 466 U.S. 668 (1984)). "Prejudice" means that the outcome would have been changed had the error not been made. Wright v. Clark, 96 F. Supp.2d 757, 759 (N.D. Ill. 2000). Thus, to overcome his procedural default, he must show that, if his appellate counsel had raised the issues, there is a reasonable probability that his appeal would have been successful. McCleese, 75 F.3d at 1130.

A.

Rule 11(c)(1) requires that, before accepting a guilty plea, I must determine that the defendant understands the nature of the charges to which he is pleading. Compliance with Rule 11(c)(1) is judged by the totality of the circumstances, including the inquiry conducted by me, the defendant's level of intelligence, whether he was represented by counsel, the complexity of the charge, his own statements, and the evidence recited by the government to which the defendant admits. United States v. Musa, 946 F.2d 1297, 1304 (7th Cir. 1991); see also United States v. Medina-Silverio, 30 F.3d 1, 3 (1st Cir. 1994) (holding that there are no "magic words" or "talismanic test"). Barragan-Rangel argues that his plea was not knowing and voluntary because he did not understand what "conspiracy" meant, and that I failed to comply with Fed. R. Crim. P. 11(c)(1) when I took his guilty plea because I "failed to describe the charge and did not even mention that the charge concerned conspiracy to import marijuana." Mem. at 4. However, at the plea, I said to Barragan-Rangel:

[I]n Count 1 you are charged with various other codefendants with conspiring to import into the United States from Mexico more than 100 kilograms of mixtures containing marijuana, in violation of federal law.

Tr. at 7. I asked him if he had read the indictment, discussed it with his attorney, and whether he understood the charges against him, and he answered affirmatively. Id. at 7-8. Moreover, the government's proffer described the conspiracy and Barragan-Rangel's participation in detail, including dates, places, persons and amounts involved in the transactions. Id. at 14-18. After the government's proffer, I asked Barragan-Rangel about his role in the conspiracy, and he admitted that he was part of a group of people that imported marijuana from Mexico, id. at 19, that he knew that at Least some of the marijuana was from Mexico, id. at 20, and that he personally received marijuana from couriers, id. He also admitted to paying a potential government witness to leave the country so that she would be unavailable to testify at trial. Id. at 21-22.

B.

Barragan-Rangel also claims that his trial counsel was ineffective for failing to recognize or pursue a Sixth Amendment violation and an entrapment defense relating to the witness tampering charge. He did not plead guilty to witness tampering, but the government offered evidence of it in its proffer on the conspiracy charge. Tr. at 20-21. After he was indicted on the conspiracy charge and had retained counsel, he talked to Tostado, a co-defendant who was secretly cooperating with the government, about paying a government witness to disappear. Unbeknownst to Barragan-Rangel, Tostado was wearing a wire and the conversations were recorded. The government brought a superseding indictment, adding the witness tampering allegations to the conspiracy charge and bringing a separate charge of witness tampering. Barragan-Rangel says that he did not initiate the conversations with Tostada, and that he was prejudiced by his attorney's failure to pursue his potential Massiah and entrapment defenses.

United States v. Massiah, 377 U.S. 201 (1964), stands for the proposition that, once a defendant has been indicted and retained counsel, the government may not deliberately elicit incriminating evidence from him without his attorney present. But Massiah dealt only with interrogation about past misconduct, and specifically contemplated that investigation of continuing criminal activity after indictment may be entirely proper. Id. at 206. Massiah's prohibition does not apply to statements, such as solicitation of a bribe (or in this case, witness tampering), that are not statements of past conduct but are themselves criminal acts. See United States v. Merritts, 527 F.2d 713, 716 (7th Cir. 1975). This is so even when, as here, the criminal conduct constitutes a new crime as well as additional conduct relevant to the crime charged in the original indictment. Id. Thus there was no Sixth Amendment violation relating to any statements about witness tampering.

All that remains, then, is his attorney's failure to pursue an entrapment defense. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Winters v. Miller, 274 F.3d 1161, 1166 (7th Cir. 2001). Where, as here, the attorney argues at sentencing for a downward departure based on acceptance of responsibility, the decision not to pursue an entrapment defense is a reasonable strategy. See United States v. Cedano-Rojas, No. 97 C 1822, 1998 WL 547281, at *2 (M.D. Ill. Aug. 27, 1998) (Williams, J.). To overcome the presumption that his attorney's decision not to pursue the entrapment defense was a "sound trial strategy," Barragan-Rangel must "demonstrat[e] a reasonable probability that, `but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Winters, 274 F.3d at 1166. It is not ineffective assistance of counsel not to pursue a weak entrapment defense. See Hough v. Anderson, 272 F.3d at 898; see also United States v. Tardieff, 83 F.3d 424, 1996 WL 190820, at *3 (7th Cir. Apr. 17, 1996) (unpublished order). Barragan-Rangel claims that Tostado initiated the discussions about paying off the witness, and that "had Tostado no called [him] so often and so pestered [him, he is] certain [he] would not have succumbed to [Tostado's] scheme to entrap [him] into attempting a bribe." Decl. at 3. "`Pestering' ...


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