Petitioner must show that his attorney made errors so serious that
counsel failed to function as the “counsel” guaranteed by the Sixth
Amendment; (2) Petitioner must show these errors prejudiced his
defense, denying him a fair trial with a reliable result. Id. at
687.

B. Propriety of the Charge Against Kash

Kash first argues that his attorney negligently failed to inform
him that “the charge didn’t fit the facts.” Specifically, Kash
argues that although he was charged and pled guilty to an “attempt to
take, by intimidation, from the person and presence of another, money
belonging to . . . LaSalle Bank,” he functioned not as a principal,
but only as an aider and abetter. Kash acknowledges that the law
usually provides for prosecuting aiders and abetters as principals.
However, Kash claims that to “aid and abet” a crime, there must be a
crime in the first place. Kash contends that since the CW only
desired to effect his arrest, and never attempted to rob the bank,
the CW committed no genuine “attempt.” Since there was no “attempt,”
Kash insists he could not legally “aid and abet” an attempt.

At first glance, Kash’s argument finds significant support in
both the Seventh Circuit and other circuits as well. The Court
addresses Seventh Circuit law first. In recent cases, the Seventh
Circuit has used two slightly different tests to define “aiding and
abetting” without clearly supplanting one test with the other. The
tests are nearly identical and both based on Judge Learned Hand’s

formula that to aid and abet a crime, a defendant must “in some sort



fact that, despite Petitioner’s contentions, his attorney objected to
the enhancement and the Court denied those objections.

D. Propriety of Sentencing Enhancement for
Force, Violence, or Intimidation

Kash further claims that the Court improperly applied Guideline
§ 2B3.1 to his sentence. Here, Kash argues that since he was seized
by law enforcement agents before the weapon was used in the attempt,
he cannot. be convicted for the use of force, violence, or
intimidation.

Once again, Kash fails to understand the Guideline’s
requirements that sentencing occur according to the characteristics
a defendant “specifically intended.” Therefore, the guidelines
provide for enhancing the sentence of any criminal who plans a
robbery involving force, violence, or intimidation. It is immaterial
that authorities intervened before the criminal’s plans had an
opportunity to manifest. United States v. Bolden, 132 F.3d 1353,
1355 (10th Cir. 1997).

Here, Kash supplied a pellet gun and instructed the CW on how to
verbally intimidate the bank worker. He also taught the CW how to
immobilize the bank worker in order to facilitate escape. Therefore,
he was properly indicted and properly pled guilty to an offense under
18 U.S.C. § 2113(a) due to the planned use of force, violence, or
intimidation in Petitioner’s attempted crime. As such, Petitioner

has no claim for ineffective assistance of counsel on this issue.


make this argument. However, as Petitioner appears pro se and the
Court sees this argument as plausible, albeit incorrect, the Court
has elected to consider it in addition to Petitioner’s delineated
arguments.) In Beck, the Court defined its first prong of
association as requiring that “there must be evidence to establish
that the [aiding and abetting] defendant shared in the criminal
intent of the principal.” Beck, 615 F.2d at 44. One could read this
as suggesting that without the principal having a criminal intent to

“share,” the defendant cannot aid or abet.

However, Seventh Circuit jurisprudence does not support such an
interpretation. Beck, Zafiro and their progeny dealt with questions
about whether defendant-abetters’ intent was significant enough to
render them criminally liable. Beck's creation of the shared intent
doctrine thus arose as a need for a judicially created standard to
determine how severe an individual’s intent must be to render him
guilty of aiding and abetting. This is reflecting in Zafiro’s
refining the “association” test into a defendant having “a desire to
help the activity succeed,” as stating that a defendant “actually
wants [the principal] to succeed.” JZafiro, 945 F.2d at 887. Here,
defendant admits his clear intent to aid and assist in a bank robbery
and share in the proceeds. He therefore meets the “association” or,
more precisely, the “desire” prong of the test.

Petitioner also argues that to prove “aiding and abetting” the
State must first show that the principal committed an underlying

crime. Here, the CW never attempted to rob the bank, and therefore

-6-



associate himself with the venture, that he participate in it as in
something that he wishes to bring about, that he seek by his action
to make it succeed.” United States v. Peoni, 100 F.2d 401, 402 (2d
Cir. 1938).

The first of the Seventh Circuit’s tests was crystallized in
United States v. Beck, 615 F.2d 441 (7th Cir. 1980) and utilized last
in United States v. Stott, 245 F.3d 840, 904 (7th Cir. 2001). The
test states that “the aiding and abetting standard has two prongs --
association and participation.” Beck, 615 F.2d at 448. The second
test, articulated by United States v. Zafiro, 945 F.2d 881, 887 (7th
Cir. 1991), aff’d, 506 U.S. 534 (1993), and recently used in United
States v. Hunt, 272 F.3d 488 (7th Cir. 2001), contains three
criteria: (1) knowledge of the illegal activity that is being aided
and abetted; (2) a desire to help the activity succeed; (3) some act
of helping. JZafiro, 945 F.2d at 887.

The tests differ only in superficial distinctions in language.
Indeed, the Seventh Circuit has at times used the tests
interchangeably. United States v. Woods, 148 F.3d 843, 849-850 (7th
Cir. 1998). Indeed, though the Seventh Circuit has never said so
explicitly, this Court reads Zafiro and its progeny as explaining
Beck, not putting forth an entirely new test.

Such a reading defeats one possible argument in Petitioner’s
favor: that Beck defines “aiding and abetting” as requiring a

principal with criminal intent. {Petitioner did not specifically



finds that, contrary to petitioner’s assertion, the charge did indeed
fit the facts.

As a result, the Court holds that Petitioner’s lawyer did not
err by recommending a plea agreement. This agreement ensured
Petitioner received three fewer points on the Federal Sentencing
Guidelines for accepting responsibility. Had petitioner’s lawyer
instead suggested this non-meritorious defense, petitioner would
likely have a longer sentence than that imposed by the Court:
Therefore, with respect to this decision by petitioner’s lawyer, the
Court fails to find ineffective assistance of counsel.

C. Propriety of Sentencing Enhancement for Weapons

Kash argues that the three level enhancement for possession of
a weapon should not apply to his sentence because, he “did not
possess the weapon upon which the enhancement was based.” However,
the Guidelines demand that a Court calculate sentencing according to
all characteristics a defendant “specifically intended” when
attempting the crime. Guideline § 2X1.1, Application Note 2. Here,
Petitioner supplied the CW with the pellet gun and instructed him how
to use it. The Court thus concludes that Petitioner “specifically
intended” that the CW would use the pellet gun to further the
robbery. Based on this, the Court finds Petitioner’s sentencing
enhancement for weapons possession appropriate under Guideline §
2B3.1(b) (2) (E). Consequently, the Court rejects Petitioner’s
argument that his attorney acted ineffectively in failing to raise

this issue at sentencing. This is particularly true in light of the


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge ‘i: Sitting Judge if Other
or Magistrate Judge Harry D. Leinenweber than Assigned Judge
CASE NUMBER 02 C 1462 DATE 10/20/2003
CASE United States of America vs. Randy Kash
TITLE
{in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) 1) Answer brief to motion due. . Reply to answer brief due
(4) a Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) o Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing} held/continued to at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4(m) CLocal Rule 41.1 OOFRCP41(a)(1) [ FRCP41(a)(2).
(do) x [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Defendant’s Petition
for Habeas Corpus is DENIED.
dl) @ [For further detail see order attached to the original minute order.]
No notices required. advised in open court. Document
‘ Number.
No notices required.
Notices mailed by judge’s staff.
Notified counsel by telephone,
wv | Docketing to mail notices.
Mail AO 450 form.
4 or ing deputy inca
Copy to judge/magistrate judge. tunoa LoldLs la’s‘n
Wua4
courtroom OG: i
wap cout Sek HY 1219060
initials - —
SH 4 4+ SDatedimercoeived th
ceatfaliClerk’s Office smiling deputy initials



The legal arguments that Kash presents to the Court are without
merit. Accordingly, his privately-retained counsel cannot be faulted
for failing to present them to the court. Kash fails to overcome the
presumption that his counsel’s conduct “falls within the wide range
of reasonable professional assistance.” Stickland, 466 U.S. at 689.
Indeed, Kash fails to present any evidence that his counsel was
constitutionally deficient or that his counsel’s strategies, taken in
proper contemplation of the law, prejudiced Kash in any way.
Accordingly, his Petition for Habeas Corpus on the basis of
ineffective assistance of counsel is denied.

, CONCLUSION

For the reasons stated above, Defend. nt’s Petition for Habeas

Corpus is DENIED.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

cave: Lebebded 003

-10-



petitioner arguably could not “aid and abet” an attempt.
Petitioner’s argument might succeed in other Circuits. U.S. v.
Barnett, 667 F.2d 835 (9th Cir. 1982); U.S. v. Standefer, 610 F.2d
1076 (3rd Cir. 1979); White v. U.S., 366 F.2d 474 (10th Cir. 1966).

However, the petitioner does not succeed under the law of the
Seventh Circuit -- as the “participation” or “act of helping” prong
makes clear. For an individual to meet the portion of test, they
must merely “commission an overt act designed to aid the commission
of that offense.” Beck, 615 F.2d at 448. There is no requirement
for the crime to actually have occurred. Here, petitioner instructed
the CW on how to conduct the robbery, supplied the CW with a pellet
gun, and gave the CW the final green-light by agreed upon signal.
These certainly qualify as “overt acts” under the “participation”
element of the Beck test. Thus, the Court finds Petitioner committed
“aiding and abetting” as defined by the Seventh Circuit.

Further, since “every indictment implicitly includes an aiding
and abetting charge” there was no need for the indictment to
specifically mention the words “aiding and abetting.” United States
v. Renner, 238 F.3d 810, 814 (7th Cir. 2001). The indictment’s
accusation that petitioner “did attempt to take” legally doubles as
a charge of “aiding and abetting an attempt to take.” Additionally,
the petitioner’s act of giving the go-ahead signal certainly
qualifies as the “substantial step” required to commit attempt.
United States v. Romero, 189 F.3d 576, 589-590 (7th Cir. 1999). As
the Court finds “aiding and abetting” and “attempt” it consequently

-7-


intention of actually committing the substantive
crime.

(2) Failure to object to the three level enhancement
for possession of a weapon under Federal
Sentencing Guideline § 2B3.1

(3) Failure to object to indictment under 18 U.S.C.

§ 2113{a), for offense involving “force,
violence, or . . . intimidation.”

II. DISCUSSION
A. Standards for Habeas Corpus

28 U.S.C. § 2255 provides that “a prisoner in custody under
sentence of a court established by Act of Congress claiming the right
to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States ... may
move the court which imposed the sentence to vacate, set aside or
correct the sentence.” To receive relief under 28 U.S.C. §2255, Kash
must show a “fundamental defect which inherently results in a
complete miscarriage of justice,” United States v. Addonizio, 442
U.S. 178, 185 (1979), or “an omission inconsistent with the
rudimentary demands of fair procedure.” Hill v. United States, 368
U.S. 424, 428 (1962).

Here, Kash alleges ineffective assistance of counsel. As an
initial matter, the Court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Stickland v. Washington, 466 U.S. 687, 689
(1984). Indeed, the Court finds ineffectiveness of counsel only when

a petitioner establishes both prongs of a strict two part test: (1)



worked out a gesture system as a “go” sign. Under this system, if
Kash exited the bank that morning and ran his hand through his hair,
the CW should rob the ATM. This constituted Kash’s final act in the
robbery plan; once Kash signaled, the CW was actually to commit the
actual gunpoint robbery.

On the morning of the attempted robbery, Kash walked out of the
bank and ran his hand through his hair. In his plea agreement, he
admitted that he did so to signal the CW to rob the ATM. However,
rather than go through with the robbery, the CW then alerted federal
agents who proceeded to arrest Kash.

On December 16, 1999, a grand jury returned a one-count
indictment against Kash, charging him with bank robbery in violation
of 18 U.S.C. § 2113(a) and 18 U.S.C. § 2. On June 30, 2000, Kash
pled guilty to the count in a written plea agreement. On February
14, 2001, the Court sentenced Kash to 51 months imprisonment. Kash
appealed his sentence on February 22, 2001, but voluntarily dismissed
his appeal on May 2, 2001.

In February 2002, Kash filed this petition for post-conviction
relief pursuant to 28 U.S.C. § 2255. He argues that his attorney was
constitutionally ineffective because he was “ignorant of important
law and cases that impacted the plea, the sentence, and the appeal.”
Specifically, Kash argues that his attorney failed to counsel him
about three possible defenses available to him:

(1) Failure to argue that Kash functioned only as an

aider and abetter, and that one cannot aid and
abet a principal government agent with no



IN THE UNITED STATES DISTRICT courF= ] L E D
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION OCT 2 0 2003
UNITED STATES OF AMERICA INENWEBER
’ JUDGE HARRY D. LEI
US. DISTRICT COURT JUDGE
Plaintiff,
Case No. 02 Cv 1462
v.
Hon. Harry D. Leinenweber
RANDY KASH,
A)
Defendant. DQ &

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Randy Kash’s (hereinafter, “Kash”
or “Petitioner”) Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255. For the reasons stated below, the
Petition is denied.

I. INTRODUCTION

In November 1999, Kash recruited an individual to rob the bank
where Kash worked in Skokie, Illinois. Rather than proceed with
Kash’s plan, the individual chose to assist the authorities as a
Cooperating Witness (“CW”). During several recorded conversations,
Kash instructed the CW on how he should rob the bank’s automatic
teller machine (“ATM”). For example, he told the CW that he could
intimidate the bank worker servicing the jnachine by stating “Give me
the fucking money. Don’t make a move or I’1l shoot you. Give me the
money.” Kash further taught the CW to facilitate his escape by
pushing a cart on top of the bank worker, immobilizing him. Kash
also supplied the CW with a pellet gun, and instructed him in its

use. Finally, to ensure the robbery’s success, Kash and the CW

Y