United States District Court, N.D. Illinois
April 6, 2004.
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Darrel Branch ("Branch"), pro se, petitions the Court under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct his sentence. For the
following reasons, his petition is denied.
I. CASE HISTORY
A jury convicted Branch on one count of conspiracy to possess with
intent to distribute narcotics pursuant to 21 U.S.C. § 846 and on two
counts of money laundering pursuant to 18 U.S.C. § 1956. The Court
sentenced Branch to 324 months on the conspiracy count and a concurrent
sentence of 20 years for money laundering.
On May 14, 2001, the Seventh Circuit remanded the case for
re-sentencing to correct an error in the calculation of Branch's criminal
history. On February 11, 2002, the Court re-sentenced Branch to 292
months. Subsequently Branch filed a petition for certiorari with the
United States Supreme Court, which the Supreme Court denied.
On June 16, 2003, Branch filed his § 2255 petition. Branch's petition
asserts six discernable claims which Branch believes entitle him to
relief under § 2255:(1) Branch's appellate counsel proved
constitutionally ineffective in failing to argue the absence of Branch's
name from the trial court's Pinkerton jury instruction; (2) Branch's
trial counsel proved constitutionally ineffective in failing to request
an instruction as to a finding of quantity and type of drug so that it
could be established beyond reasonable doubt the degree or actuality of
guilt and the appropriate maximum sentence to which Branch could be
subjected; (3) Branch's appellate counsel proved constitutionally
inadequate for failing to argue adequately the absence of any jury
finding as to type or guantity of drug; (4) the Court committed plain
error in sentencing Branch for quantities that were not found by the jury
and which elevated the maximum penalties beyond the finding set forth by
the jury; (5) Branch's trial counsel proved constitutionally ineffective
in failing to object to the placement of listening devices on Branch's
person when the Court's order only authorized the government to "install,
remove and maintain listening devices in the visiting area"; and (6)
appellate counsel failed to argue sufficiently a conflict between circuit
courts, regarding the immediate sealing of surveillance tapes, on a writ
of certiorari to the United State Supreme Court.
II. STATEMENT OF FACTS
Larry Hoover, Tirenzy Wilson, Gregory Shell, Jerry Strawhorn, Adrian
Bradd, Darrell Branch, Andrew Howard, and William Edwards, were charged
and convicted in 1998 of numerous offenses relating to their
participation in activities of the Gangster Disciples, a large and vicious
street gang that sells large quantities of cocaine, heroin, and other
drugs in Chicago. Petitioner Branch, although not a high-ranking member
in the gang hierarchy, was nonetheless convicted by a jury of
conspiracy, as charged in count one of the indictment, and money
laundering, as charged in counts forty-one and forty-two of the
A. Timeliness of Petition
The government alleges that Branch is procedurally barred by the
one-year period of limitation governing motions for collateral relief
under 28 U.S.C. § 2255. Branch has, however, timely filed his claim for
relief under § 2255. For purposes of the one-year period of limitation
governing motions for collateral relief under 28 U.S.C. § 2255, "a
defendant's conviction becomes `final' when his petition for certiorari
is denied." Horton v. United States, 244 F.3d 546, 550 (7th Cir. 2001).
Here, the Supreme Court denied Branch's petition for certiorari on June
28, 2003. Since Branch filed his § 2255 motion June 12, 2003, he falls
within the allotted time.
Branch contends that appellate counsel proved constitutionally
ineffective because she failed on appeal to argue the absence of Branch's
name from the trial court's Pinkerton jury instruction. Under Pinkerton
v. United States, "every member of a conspiracy is substantively culpable
for other conspirators' acts within the scope of the conspiracy." United
States v. Hoover, 246 F.3d 1054, 1057-58 (2001) (citing Pinkerton v.
United States, 328 U.S. 650 (1946)). The trial court instructed the jury
A conspirator is responsible for the acts of any other member of the
conspiracy if he was a member of the conspiracy when the act was
committed and if the act was committed in furtherance of or as a natural
consequence of the conspiracy.
When persons enter into an agreement for an unlawful purpose, they
become agents for one another, and are responsible for each others'
actions and statements made during the existence of the conspiracy and in
furtherance of its unlawful purpose.
Therefore, if you find Larry Hoover, Gregory Shell, Andrew Howard,
Jerry Strawhorn or Tirenzy Wilson, considered separately, guilty of the
conspiracy charged in Count One and if you find beyond a reasonable doubt
that while he was a member of the conspiracy, his fellow conspirators
committed the offenses in any of Counts Three through Forty of the
indictment, then you should find him guilty of any such count.
Although Count One also indicted Branch for conspiracy, the trial court
mistakenly left his name out of the instruction. However, despite this
innocuous absence of Branch's name, the jury nevertheless found Branch
guilty of conspiracy-along with the properly named defendants.
Therefore, the inclusion of Branch's name in the Pinkerton instruction
would not have changed this result. Accordingly, to the extent that
appellate counsel erred by not arguing the absence of Branch's name from
the Pinkerton instruction, his error was harmless.
Branch also complains that while the jury found Branch guilty of the
overarching conspiracy charged in Count One, the jury did not find Branch
guilty on any of the specific drug charges contained in Counts Three
through Forty of the indictment. Branch contends that because of the
absence of a specific jury finding as to the kind and quantity of drugs
attributable to Branch, he should have received a sentence no greater
than the five-year term for a marijuana conviction, the statutory maximum
without a finding of guilt beyond reasonable doubt as to any other drug.
In failing to argue this, Branch claims that his trial and appellate
counsel proved constitutionally ineffective.
Branch's argument lacks merit, as it fails to account for the doctrine
of vicarious liability enshrined in conspiracy law. Under Pinkerton,
Branch is "answerable for the crimes committed by the whole of [the
Gangster Disciples]." Pinkerton, 328 U.S. at 1058. As recognized by the
Seventh Circuit, the "[e]vidence in the record establishes beyond any
doubt that the Gangster Disciples distributed (much) more than 50 grams
of crack daily." Hoover, 246 F.3d at 1058. Consequently, "there is no
likelihood that any reasonable jury would have failed to find that each
is culpable for more than 50 grams of crack." Id. Since a mere five grams
of crack would justify a sentence greater than the one Branch received,
Branch cannot sustain his argument that the Court sentenced him
excessively based on a finding of drug quantities not proved beyond a
reasonable doubt, as required by Apprendi v. New Jersey, 530 U.S. 466,
490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This is particularly so
because Apprendi "does not require defendant-specific findings of drug
type and quantity in drug-conspiracy cases." United States v. Knight,
342 F.3d 697, 710 (7th Cir. 2003). Therefore, to the extent that Branch's
trial of appellate counsel's erred by not disputing the absence of a
specific jury finding regarding the kind and quantity of drugs
attributable to Branch, they committed only harmless error. Similarly,
for this reason, the trial court did not commit plain error in sentencing
Branch for the quantities found in relation to the conspiracy as a
D. Placement of Listening Devices on Branch's Person
Branch next alleges constitutionally ineffective assistance of counsel
for counsel's failure to object to the placement of listening devices on
Branch's person. The government's warrant provided that "to intercept the
oral communications occurring at the Visitor Areas located at the Vienna
Correction Facility . . .[the government] may make all necessary
surreptitious entries to effectuate the purposes of this order, including
but not limited to entries to install, maintain and remove electronic
listening devices within the Visitation Area located at the Vienna
Correctional Facility." (emphasis added). Based on this language, the
scope of the warrant does not preclude the use of wiretaps inside
visitors' name-tags for the purpose of intercepting the oral
communications occurring in the Visitor Areas of the Vienna Correction
Facility. Indeed, Branch concedes that the government had authority under
the warrant to monitor his conversations with Hoover in the visiting
room. Branch does not argue that the government used conversations that
occurred outside the visitor area, nor does the factual record support
such a conclusion. As a result, this issue is moot.
E. Writ of Certiorari
Finally, Branch contends that his appellate counsel proved
constitutionally ineffective in failing to argue properly what Branch
identifies as a conflict in the circuits over the government's alleged
violation of 18 U.S.C. § 2518(a) when seeking Supreme Court review. As
recognized in United States v. Howell, a defendant "in a direct criminal
appeal has the right to have the continued representation of appointed
counsel throughout the course of the appeal, including the filing of
post-opinion pleadings in the court of appeals and the filing of a
petition for certiorari in the Supreme Court of the United States."
37 F.3d 1207, 1209 (1994). Howell deduces that this right exists from:
18 U.S.C. § 3006A (c), which provides: Duration and substitution of
appointments. A person for whom counsel is appointed shall be represented
at every stage of the proceedings from his initial appearance before the
United States magistrate or the court through appeal, including ancillary
matters appropriate to the proceedings.
18 U.S.C. § 3006A (d)(6), which provides: Proceedings before appellate
courts. If a person for whom counsel is appointed under this section
appeals to an appellate court or petitions for a writ of certiorari, he
may do so without prepayment of fees and costs or security therefore and
without filing the affidavit required by Section 1915(a) of Title 28.
Rule 44(a), FED. R.CRIM. P., which provides: Right to Assigned
Counsel. Every defendant who is unable to obtain counsel shall be
entitled to have counsel assigned to represent that defendant at every
stage of the proceedings from initial appearance before the federal
magistrate judge or the court through appeal, unless the defendant waives
Circuit Rule 4, which states: Trial counsel in a criminal case, whether
retained or appointed by the district court, is responsible for the
continued representation of the client desiring to appeal unless
specifically relieved by the court of appeals upon a motion to withdraw
for good cause.
Id. As shown above, this right to counsel is a statutory right, not a
constitutional right. Therefore, the Court questions whether Branch even
has standing to raise an ineffective assistance of counsel claim. See
Kitchen v. United States, 227 F.3d 1014, 1018 (7th Cir. 2000) ("[W]here
there is no constitutional right to counsel there can be no deprivation
of effective assistance."). However, the Court does not reach this issue
because it finds that, even if Branch was entitled to effective
assistance of counsel on his writ of certiorari to the United States
Supreme Court, this claim would lack merit.
Branch bases his claim for ineffective assistance on the Seventh
Circuit's decision not to suppress his taped conversations with Hoover
under 18 U.S.C. § 2518(8)(a). § 2518(8)(a) requires that courts seal
taped conversations "immediately upon the expiration of the period of the
order," to "protect the recording from editing or other alterations."
Id. Here, the Seventh Circuit agreed with Branch that since the
government waited 32 days after the expiration of the surveillance
warrant to seal the tapes, it waited "much too long to qualify as an
immediate sealing." United States v. Jackson, 207 F.3d 910, 915 (7th
Cir. 2000). However, the Seventh Circuit went on to find that, as
permitted by § 2518(8)(a), the government provided a satisfactory
explanation for its delay-the government's legitimate belief that its
technicians would complete work on a new bugging device shortly. Id. at
918. Therefore, to identify a circuit split Branch must show that another
circuit would have found the government's explanation for the delay
inadequate. Branch fails to do so. Indeed, Branch fails to cite any case
law whatsoever to substantiate his claim of a circuit split on this
issue. Instead, he merely points to Jackson's internal citation to other
circuits. In doing so, Branch fails to understand that Jackson cited
these cases not as evidence of a circuit split, but rather to support its
contention that the government waited too long for an "immediate seal."
Branch's case law, far from demonstrating a circuit split, shows only
circuit concurrence on the question of whether the government could
"immediately seal" the tapes. These cases do not even discuss, much less
inform or dispute, whether the type of explanation proffered by the
government in Branch's case would qualify as "satisfactory."
Therefore, given the lack of any apparent circuit split, and the
Supreme Court's discretionary review, it is wild speculation to presume
the Supreme Court would have granted certiorari to Branch on this issue.
Accordingly, Branch once again fails to demonstrate that he suffered the
prejudice necessary to sustain a claim of ineffective assistance of
For the reasons stated herein, Petitioner's Petition under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is denied.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the
Court. The issues have been tried or heard and a decision has been
IT IS HEREBY ORDERED AND ADJUDGED that Petitioner's Petition to Vacate,
Set Aside, or Correct Sentence is denied.
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