United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
RUBEN CASTILLO, Chief District Judge.
Miguel Rodriguez ("Petitioner") is serving a life sentence for participating in racketeering and narcotics conspiracies. In November 2012, he moved to vacate his conviction under 28 U.S.C. § 2255 ("the Petition"). (R. 1, Pet.) This Court denied the Petition. (R. 4, Min. Entry.) Petitioner appealed. (R. 7, Notice of Appeal.) Thereafter, the U.S. Court of Appeals for the Seventh Circuit remanded so that this Court could fully articulate the reasons underlying its decision. (R. 18, Order.) Those reasons are set forth below.
The facts relating to Petitioner's conviction are set forth in three opinions by the Seventh Circuit, see United States v. Morales, 655 F.3d 608 (7th Cir. 2011); United States v. Benabe, 654 F.3d 753 (7th Cir. 2011); United States v. Benabe, 436 Fed.App'x 639 (7th Cir. Aug. 18, 2011) (per curiam), and several orders of this Court, see United States v. Delatorre, 572 F.Supp.2d 967 (N.D. Ill. 2008); United States v. Delatorre, 522 F.Supp.2d 1034 (N.D. Ill. 2007); United States v. Delatorre, 508 F.Supp.2d 648 (N.D. Ill. 2007); United States v. Delatorre, 438 F.Supp.2d 892 (N.D. Ill. 2006). The facts are repeated here only as they pertain to the Petition.
In 2002, state and federal authorities began an intensive investigation into the Insane Deuces street gang after one of its members, Orlando Rivera, agreed to serve as a confidential informant. Morales, 655 F.3d at 615. Petitioner was among sixteen men indicted on various racketeering-related charges in connection with the investigation. Id. The evidence adduced at trial showed that the Insane Deuce Nation (also referred to as the "Insane Deuces, " "Deuces, " or the "Nation") was an organized street gang affiliated with the Folks, a national network of local gangs. Id. The gang was predominantly made up of Latino/Hispanic males and operated primarily within northern Illinois, though other factions existed throughout Illinois and various state and federal prisons. Id. The government's investigation focused on the Aurora Deuces, a chapter with a significant presence in Aurora, Illinois. Id. As of 2002, the Aurora Deuces had become bitter rivals of the Latin Kings (also referred to as the "Kings"). Id. at 616. This rivalry resulted in "frequent and escalating violence, " and often resulted in attacks on innocent persons who were mistakenly believed to be rival gang members. Id.
The Insane Deuces had its own set of "leyas, " or laws, as well as a detailed hierarchy. Id. There were three tiers of membership within the gang: Seniors, Juniors, and Shorties. Id. Shorties were the gang's youngest members, and they held the responsibility of carrying out most of the gang's activities, including shootings and other acts of violence, as well as selling drugs to fund the gang. Id. The Shorties were often juveniles who were recruited to increase the gang's ranks. Id. By participating in gang activities, Shorties could work their way up to becoming Juniors, who were responsible for the gang's day-to-day operations. Id. Juniors directed Shorties in their activities, including determining who would participate in particular acts of violence, distributing firearms, and otherwise supervising the Shorties' activities. Id. The Seniors were "longstanding members of the gang whose age and accomplishments made them the leaders, broad-scope planners, and advisors for the gang." Id. Seniors directed the Juniors on larger issues, but they were more removed from the gang's day-to-day activities. Id.
The gang's daily activities included selling drugs to benefit the gang, carrying out "missions" (attacks on rival gang members), protecting and supporting fellow gang members and their families, punishing gang members who violated the gang's rules, and conducting meetings to further these goals. Id. The gang also maintained a "caja" system, which was "a loose form of community property and money acquired for the benefit of gang members." Id. For instance, if a gang member was arrested, other members of the gang could take money from the caja to bail him out of jail. Id. The caja also included a stash of drugs from which a gang member could borrow to make sales or trades for the benefit of the gang. Id., Gang members were also permitted to sell drugs from outside sources, but all sales needed to benefit the gang in some way, usually by paying part of the proceeds into the caja. Id. Profits from drug sales were also used to purchase firearms for the gang. Id. These guns were used to conduct missions and to protect fellow gang members, and were usually returned to the caja after the mission was completed, unless they were disposed of to avoid ballistics evidence after a murder was committed. Id.
Participation in the gang was mandatory for Juniors and Shorties; this included gang members who were "rolled back" from Senior to Junior status in 2002 as part of an effort to better train and lead the gang's growing number of Shorties. Id. Every Junior and Shorty member had to pay dues to the caja. Id. Missions were assigned to specific gang members, usually Shorties, and primarily consisted of attacks on rival gang members in retaliation for acts of violence or perceived encroachment on the gang's territory. Id. at 616-17. Guns were distributed for these missions, and members were directed to empty the entire magazine or suffer punishment for every bullet not fired. Id. at 617. In addition to these planned attacks, all members of the gang were required to comply with a "standing order" to attack Latin Kings whenever they had the opportunity to do so. Id. Members worked their way up through the gang by participating in missions and other acts of violence, and by donating money or firearms to the caja through drug sales or theft. Id. In exchange for their participation, gang members and their families received financial support and physical protection; these benefits applied to gang members on the street as well as gang members incarcerated in correctional facilities. Id.
Working with authorities, Rivera surreptitiously recorded several meetings and conversations between Insane Deuces, reported on the gang's activities and plans, and conducted controlled buys of narcotics and firearms from gang members. Id. The intelligence gathered through Rivera produced evidence regarding "four murders, eleven attempted murders, two solicitations to commit murder, other shootings, and narcotics distribution incidents - all of which the Deuces perpetrated in 2002 alone." Id. In exchange for his cooperation, Rivera was given full immunity and received monetary compensation. Id. From information obtained through Rivera, government authorities learned about each of the defendants' roles in the gang. Id. Petitioner worked his way up through the gang over the course of more than a decade to become a Senior member; in 2002 he was rolled back to Junior status along with several other Seniors. Id. The Seventh Circuit summarized Petitioner's involvement in the gang as follows:
Coming up in the Deuces, he attempted to kill rivals and distributed drugs for the gang's benefit. He had assisted in developing the leyas and assigned missions to Shorties. After being rolled back, he advocated murdering members of the rival Ambrose street gang en masse and murdering whoever had been cooperating with the police from within the Deuces.
Id. at 617-18.
In 2006, a federal grand jury indicted Petitioner and fifteen other Insane Deuces on charges of racketeering conspiracy; assault with a dangerous weapon, murder, attempted murder, and conspiracy to commit murder in aid of racketeering activities; illegal possession of firearms; distribution and possession of narcotics; and conspiracy to distribute narcotics. Id. at 618. One of the sixteen pled guilty, and another remained a fugitive. Id. Given the logistical challenges of trying the remaining fourteen defendants in a single courtroom, this Court severed the case into two trials. Id. Petitioner was grouped with the second group, the "less major players, " which was to be tried before U.S. District Judge Harry D. Leinenweber. Id.
In April 2008, Judge Leinenweber commenced the trial of the second group. United States v. Morales , No. 03 CR 90, 2009 WL 1456567, at *1 (N.D. Ill. May 22, 2009). A mistrial was declared shortly after opening statements were made, however, when several jurors asked to be removed from the jury. Id. In October 2008, a retrial was held. Morales, 655 F.3d at 619. On the government's motion, Judge Leinenweber empaneled an anonymous jury. Id. The trial spanned three months, during which time the government presented extensive witness testimony, recordings of gang meetings, and forensic evidence establishing the gang's activities, rules, and purpose. Id. The government's key witness, Rivera, described the inner workings of the gang, explained what was said in the various recorded meetings, and described the gang's organization and means of rule enforcement. Id. Two other former gang members, Lorenzo Becerra and Akeem Horton, also testified regarding the gang's activities and the scope of participation of each individual defendant. Id. The government also presented testimony from a variety of police officers and federal agents, as well as several victims of the violence perpetrated by the gang. Id.
After a week of deliberations, the jury returned its verdicts finding all but one of the defendants guilty of racketeering conspiracy. Id. It also found Petitioner and others guilty of distribution of narcotics. Id. A second phase of the trial was then conducted, wherein the jury returned special verdicts as to each defendant; "the special verdicts were highly individualized, differentiating between the defendants on shared counts." Id. For his role in the conspiracy, Petitioner was sentenced to life in prison. Id. at 620.
Thereafter, the defendants appealed. Id. They raised various joint and individual arguments in what the Seventh Circuit described as a "virtual cannonade of briefing exceeding 280 pages in total." Id. Jointly, the defendants argued that the Court erred in empanelling an anonymous jury, erred in denying their motions for severance, and erred in handling an allegation of juror misconduct that arose during the trial. Id. at 620-26. Petitioner separately argued that there was insufficient evidence to support his conviction on the narcotics conspiracy count. Id. at 634. He also raised two arguments related to his sentence: that the Court erred in holding him accountable for violent acts committed by other members of the gang; and that the Court erred in "double-counting" his conviction for possession of a firearm in calculating his criminal history category. Id. at 637. In a lengthy published opinion, the Seventh Circuit rejected each of these arguments and affirmed Petitioner's conviction and sentence. Id. at 620-47.
In November 2012, Petitioner filed his Petition with this Court. (R. 1, Pet.) He argues that he received ineffective assistance from his trial counsel, Mark Kusatzky, on nine different grounds. (R. 3, Pet'r's Mem. at 2-38.) Specifically, he asserts that counsel: (1) failed to object to the statements of his co-defendants, which he claims were admitted in violation of Bruton v. United States, 391 U.S. 123 (1968); (2) failed to present written objections to the Pre-Sentence Report ("PSR"); (3) failed to challenge the sufficiency of the indictment; (4) failed to negotiate a plea offer on his behalf; (5) failed to adopt a "withdrawal" defense; (6) failed to raise a speedy trial argument; (7) failed to challenge his life sentence; (8) failed to object to "perjured" testimony in which witnesses and the government's attorney mistakenly referred to him as "Miguel Martinez"; and (9) failed to object to Rivera's testimony given that he was financially compensated for his cooperation with the government. (Id. at 2-5.)
Under 28 U.S.C. § 2255, a prisoner can seek to vacate his sentence on "the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. "[R]elief under 28 U.S.C. § 2255 is limited to an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994) (internal quotation marks and citation omitted).
I. The Petition
All nine claims in the Petition center on ineffective assistance of trial counsel. (R. 1, Pet. at 4-5; R. 3, Pet'r's Mem. at 2-38.) Under the Sixth Amendment, a criminal defendant is entitled to "effective assistance of counsel-that is, representation that does not fall below an objective standard of reasonableness' in light of prevailing professional norms.'" Bobby v. Van Hook, 558 U.S. 4, 16 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). To prevail on such a claim, the petitioner must show: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. Strickland, 466 U.S. at 684-85. On the deficiency prong, the central question is "whether an attorney's representation amounted to incompetence under prevailing professional norms, ' not whether it deviated from best practices[.]" Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (quoting Strickland, 466 U.S. at 690). In other words, "counsel need not be perfect, indeed not even very good, to be constitutionally adequate." McAfee v. Thurmer, 589 F.3d 353, 355-56 (7th Cir. 2009) (citation omitted); see also Harrington, 131 S.Ct. at 791 ("[T]here is no expectation that competent counsel will be a flawless strategist or tactician."). On collateral review, the Court's review of counsel's performance is highly deferential: "[T]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 131 S.Ct. at 788. In considering that question, the Court must avoid employing the benefit of hindsight, and must respect its "limited role in determining whether there was manifest deficiency in light of information then available to counsel." Premo v. Moore, 131 S.Ct. 733, 741 (2011).
On the prejudice prong, the petitioner must establish 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 reasonable probability is one that is "sufficient to undermine confidence in the outcome." Id. In assessing prejudice under Strickland, "the question is not whether the Court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Harrington, 131 S.Ct. at 791. "The likelihood of a different result must be substantial, not just conceivable." Id. at 792. Where the petitioner wanted counsel to raise an argument that had no merit, an ineffective assistance claim cannot succeed: "Failure to raise a losing argument, whether at trial or on appeal, does not constitute ineffective assistance of counsel." Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996).
Additionally, in assessing counsel's performance, the Court must "evaluate [counsel's] performance as a whole rather than focus on a single failing or oversight." Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir. 2010). As the Seventh Circuit has instructed, "[I]t is essential to evaluate the entire course of the defense, because the question is not whether the lawyer's work was errorfree, or the best possible approach, or even an average one, but whether the defendant had the ...