would have to be developed for a later collateral attack. So far Mr.
Yates has not overcome the procedural bar to attacking his trial
attorney's performance without raising it on appeal, nor in making
a case on the merits against his appellate attorney.

In addition, Mr. Yates argues that his trial counsel was
ineffective because of the conflict involved in a joint defense
agreement with other defendants. Pet. Bx. 2. Mr. Yates claims that
because of this agreement, the existence of which was noted in the
trial record, his trial counsel had to trade off his interests
against those of his co-defendants. The example he offers is that
his counsel agreed with the government not to cross-examine Finch
about a murder of a Gangster Disciple named Gregory Sharpe and other
murders, which evidence would have impeached Finch as a witness
against Mr. Yates. However, Finch was effectively impeached at trial
as a repeat kidnapper and torturer. There is no reason to think that
he would have been less credible if revealed as a murderer also.
Murder is not a crime of fraud or deceit. Here too, there is no
evidence from outside the trial record, nor any reason to think that
at the time such evidence would be forthcoming later. Moreover, Mr.
Yates says that the evidence of the murders was introduced by the
government into the trial, citing Trial Tr. at 7117-18, so if there
was attorney error here, it was harmless.

Finally, Mr. Yates accuses his trial counsel of ineffectiveness

in refusing to assert a withdrawal defense, that he withdrew from

-13-


withdrawing from the conspiracy, but Finch testified that in the
summer of 1995, he gave Mr. Yates a quarter kilogram of cocaine on
three or four occasions. In June 1995, 182.5 grams of crack cocaine
were recovered from Mr. Yates’ apartment. According to Mr. Yates,
who admitted having been “governor” of the suburbs in 1992 and
1993, he had no drug dealings with his regents, Haslett and Finch,
but he admitted that he allowed someone to store cocaine at his
apartment for money. He was indicted and tried with seven other top
Gangster Disciples. He was the only one who testified. All were
convicted.

Il.

A.

Mr. Yates argues that his conviction for participating in a
continuing criminal enterprise (“CCE”) rests on a _ legally
insufficient basis. The government replies that I may not review
this issue under § 2255 because Mr. Yates failed to raise it on
direct appeal. An issue not raised on direct appeal is barred from
collateral review absent a showing of both good cause for and actual
prejudice resulting from the failure to raise it. See Mankarious v.
United States, 282 F.3d 940, 943 (7th Cir. 2002). As I have
explained elsewhere, “cause” means that the failure to raise the
claims was not his fault, and “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). Mr. Yates suggests


United States, 527 U.S. 1 (1999) (district court’s failure to submit
a finding of materiality to the jury was harmless error)).
Iii.

Mr. Yates’ petition for relief under § 2255 is therefore Deniap.

Elaine E. Bucklo
United States District Judge

Dated: July j0, 2002

-17-


of the predicate offenses with which he was charged.” Jackson, 207
F.3d at 919. Mr. Yates claims that it is “indisputable” that he was
convicted of the whole series rather than each predicate charged
act, but he does not explain the basis for this contention. I see
no reason to set aside the Seventh Circuit’s determination to the
contrary in Jackson. See Olmstead v. United States, 55 F.3d 316, 319
(7th Cir. 1995) (“[[I]n the absence of changed circumstances of fact
or law, [I]Je will not reconsider an issue which was already decided
on direct appeal.”).

Finally, Mr. Yates argues that the instruction he requested and
received on his “withdrawal” defense--that he withdrew from the drug
conspiracy, quitting the Gangster Disciples after he was removed
from his “governorship”--was defective, first because it did not
name him, and second because it did not use Yates’ preferred
language. However he does not quote the purportedly defective
instruction,’ leaving me unable to evaluate his argument, and thus
waiving it. I note that in any event, while the district court’s
“instructions to the jury must be correct statements of the law and
supported by the evidence,” United States v. Perez, 43 F.3d 1131,
1137 (7th Cir. 1994), they are examined only “for overall fairness
and accuracy.” United States v. Dack, 987 F.2d 1282, 1284 (7th Cir.

1993). An error in jury instructions is not harmless “only if the

* The government, citing to the trial transcript, says that

the trial judge used the Seventh Circuit pattern instruction No.
5.12, Trial Tr. 6372-73.

-9-


raise the sufficiency challenge to the CCE conviction. This,
combined with Mr. Yates’ statement in his petition that he asked
Levy to raise the sufficiency challenge to the CCE conviction on
direct appeal, and Levy refused to do so, indicates that the
decision not to appeal the CCE conviction on sufficiency grounds was
considered strategy.

Moreover, Levy was correct in his judgment on this matter.
Viewing “the evidence in the light most favorable to the government,
[and] drawing all reasonable inferences in its favor,” United States
v. Frazier, 213 F.3d 409, 416 (7th Cir. 2000), as I must with a
challenge to the sufficiency of the evidence, there can be no
serious doubt that the evidence was constitutionally sufficient for
a CCE conviction. The government must prove the following five
elements to sustain a CCE conviction:

(1) a violation of the federal narcotics laws; (2) which crime

is a part of a series of violations of the federal narcotics

laws; (3) undertaken by the defendant and at least five other

individuals; (4) with respect to whom the defendant holds a

supervisory, managerial, or organizational role; and (5) from

which the defendant receives substantial income or resources.
United States v. Gibbs, 61 F.3d 536, 537 (7th Cir. 1995); 21 U.S.C.
§ 848(d). Mr. Yates challenges the evidence under (4) supervisory
role, and (2) the series of violations, and he contends that the
“withdrawal” instruction that the trial court gave was inadequate.

As to supervisory role, there was testimony offered at trial
from Haslett that Mr. Yates, acting as “governor” of the suburbs in

1992-93, made Haslett “regent,” supervising 50 to 75 people, three

-6-


that the failure to raise the issue was due to ineffective
assistance of counsel, which constitutes “cause” in an appeal of
right in which a party has a constitutional right to appointed
counsel. Anderson v. Cowan, 227 F.3d 893, 901 (7th Cir. 2000). He
states that his appellate attorney, Howard Levy, refused to raise
the issue to the Seventh Circuit, and that court declined to accept
Mr. Yates’ own attempt to brief the issue.

To make out an argument for a claim of ineffective assistance
of counsel, Mr. Yates must demonstrate that: (1) his counsel's
performance was so deficient as to fall below an objective standard
of reasonableness under “prevailing professional norms” and (2) the
deficient performance so prejudiced the defense as to deny the
defendant a fair trial. Strickland v. Washington, 466 U.S. 668
687-88 (1984). Counsel’s performance is presumed to be adequate,
although the presumption may be rebutted. Id. at 688-89. Mr. Yates
also must overcome the strong presumption that “the challenged
action might be considered sound trial strategy.” Id. at 689.
Finally, even if not professionally reasonable, a decision by
counsel “does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691.

Here, however, Levy did raise a sufficiency challenge on direct
appeal to Mr. Yates’ convictions for use of minors, which the
Seventh Circuit rejected. Jackson, 207 F.3d at 913 (“The evidence

of each defendant's guilt was clearly sufficient.”). He did not

-5-


predicate offenses on which the CCE convictions depend.” United
States v. Hoover, 246 F.3d 1054, 1057 (7th Cir. 2001).

As to the “series” requirement that the violations be part of
a “continuing series,” Mr. Yates reargues a point rejected as a
basis for reversal by the Seventh Circuit in Jackson, that the jury
had to have agreed unanimously on which specific predicate acts
constitute the “continuing series of violations” for a CCE
conviction. 207 F.3d at 919 (discussing Richardson v. United States
526 U.S. 813 (1999)). In Richardson, decided after Mr. Yates’
conviction, the Supreme Court held that each predicate violation
within the series is itself an element of the CCE offense and that
the jury must agree unanimously not only that the defendant
committed a “continuing series of violations” but agree unanimously
also about which violations the series comprised. See id. Thus, a
defendant is entitled to an instruction that the jury must agree
unanimously which specific acts support the CCE conviction. Such an
instruction was not given in Yates’ trial because, prior to
Richardson, it was not required in the Seventh Circuit. Richardson
applies retroactively on collateral review. Fischer v. United
States, 285 F.3d 596, 599 (7th Cir. 2002). But, as the Seventh
Circuit pointed out in Jackson, the error was harmless because the
jury “found all three defendants guilty of many more than three
predicate offenses relating to the drug conspiracy,” and thus

“unanimously agreed that each of the defendants had committed three

-8-


Minusé Order Forma (06/97)

Wp

United States District Court, Northern District of Illinois

Name ot Assignea Judge Elaine E. Bucklo Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 8331 DATE 7/10/2002
CASE U.S.A. vs. Yates
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:
(i) gO Filed motion of [ use listing in “Motion” box above.]
(2) Qo Brief in support of motion due
(3) oO Answer brief to motion duc. . Reply to answer brief due_
(4) a Ruling/Hearing on set for at :
(5) ia Status hearing[held/continued to] {set for/re-set for] on set for at
(6) go Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) 0 ‘Trial{set for/re-set for] on at
(8) im) {Bench/Jury trial] [Hearing] held/continued to _ at
(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OC General Rule2! OFRCP4E(a)(L) O FRCPA4I(a)(2).
(10) | (Other docket entry] The petitioner’s petition for relief under 28 U.S.C. Section 2255 is denied.
Enter Memorandum Opinion and Order. Any pending motion in this case is terminated as moot.
(il) @ {For further detail see order attached to the original minute order.]
No notices required. advised in open court
No notices required. number of notices
| Notices mailed by judge’s staff. JUL 11 2002
Notified counsel by telephone. date docketea
Docketing to mail notices.
VY | Mail AO 450 form. Lungg 19 AWD ty iiits oz
Copy to judge/magistrate judge. t :
PET miei2002
courtroom 62:2 {'d OL Wr 20 date mailed notice
MPS deputy’s mes
initials =
Sperene sere
central Clerk's Office smaling deputy inital



counsel are properly raised for the first time in a § 2255 motion
rather than on direct appeal,” because, “in order to be successful,
such claims generally require that the record be supplemented with
‘extrinsic evidence that illuminates the attorney's errors.’”
McCleese v. United States, 75 F.3d 1174, 1178 (7th Cir. 1996). (In
fact, appellate counsel Howard Levy advised Mr. Yates to bring his
ineffective assistance claim in a § 2255 action.) So the claim is
not defaulted if it could “not be developed without new facts,” or
“at the time of taking the appeal it had reasonably appeared that
new evidence might be necessary, though it has since become apparent
that the trial record itself was the only evidence that could be
presented in support of the claim.” Guinan v. United States, 6 F.3d
468, 472 (7th Cir. 1993). But “where a defendant offers no extrinsic
evidence to support his claim of ineffective assistance of counsel
[nor reason at the time of appeal to think that such evidence might
be necessary] and he was represented by different counsel on appeal,
that defendant must bring that claim on direct appeal or face
procedural default for failing to do so.” McCleese, 75 F.3d at 1178.
Mr. Yates says repeatedly that the evidence on which he wishes to
base his ineffective assistance claims was all available from the
trial record, and examination of his arguments supports this
proposition. As I shall explain in more detail in the following, Mr.
Yates’ Sixth Amendment claims are therefore procedurally barred

because they were not raised on appeal.

-11-


jury's comprehension of the issues is so misguided that it
prejudiced the party raising error, and the complaining party bears
the burden of showing prejudice.” United States v. Smith, 131 F.3d
685, 688 (7th Cir. 1997). Mr. Yates has not carried that burden.

In sum, the evidence was sufficient, and Levy did not provide
Mr. Yates with ineffective assistance of counsel. It is not
ineffective assistance to refuse to raise an argument that has no
hope of success. United States v. Davenport, 986 F.2d 1047, 1049
(7th Cir. 1992). Mr. Yates has therefore failed to show cause,
because he did not receive ineffective assistance of counsel in this
respect, and he cannot show prejudice, because the evidence was
sufficient for a CCE conviction. For this reason, Mr. Yates’
sufficiency of the evidence of the evidence challenge to his CCE
conviction is barred because it was not raised to the trial court.

B.

Mr. Yates’ second ground for review is that he received
constitutionally ineffective assistance of counsel at trial and on
appeal. The claim with regard to trial counsel is raised for the
first time here and was not raised either at trial or on appeal. Mr.
Yates seeks to evade the procedural bar, see. e.g., Kelly v. United
States, 29 F.3d 1107, 1112 (7th Cir. 1994), by saying that his
appellate counsel was ineffective for not raising the
ineffectiveness of his trial counsel on appeal. The Seventh Circuit

has said that “most claims of ineffective assistance of trial

~10-


quarters of whom sold drugs. Haslett testified that Mr. Yates
distributed crack cocaine to him every three to ten days, and took
the money Haslett made selling the dope. Mr. Yates disputes that the
percentage was that high, but even if I accept his lowest figure,
50%, that does not get the number of his drug dealing subordinates
down below five. Another witness, Finch, “governor” for a part of
the city of Chicago, testified that Mr. Yates, during his
“governorship,” gave (“fronted”) him between one eighth to one half
kilo of cocaine on four or five occasions, and in the summer of
1995, when Finch was “governor” of the suburbs, he provided Mr.
Yates with a quarter kilogram of cocaine on three or four occasions.

This is evidence of a series of violations of the narcotics
laws undertaken in a supervisory capacity and involving more than
five subordinates--indeed, in Mr. Yates’ case, several hundred
subordinates. Mr. Yates argues that the counts listed in the
indictment are said to have “occurred in late 1994 and 1995,” after
he was removed from his “governorship,” but he does not document
this, and so the point is waived. Restating the argument, Mr. Yates
argues that the CCE case against him was entirely vicarious--that
as an ex-“governor” he was wrongly made responsible for the drug
erimes of other gangsters. The Seventh Circuit has rejected this
argument, holding in Hoover’s appeal that “CCE convictions are valid

whether or not Hoover and the other leaders personally committed the


207 F.3d at 919. Mr. Yates “belonged to a relatively quite tiny
layer of top-level supervisors and the evidence is that he had six
regents and 411 rank and file Disciples under his command,” id., and
so was one of “several” administrators of the enterprise. While
“governor,” he had several hundred subordinates working for him
selling cocaine. He promoted payment of dues and “nation work,” or
the requirement that gang members work one day a week selling drugs
for the profit of the top leadership in order to be permitted by the
gang to sell drugs at all in gang territory, on pain of beatings,
torture, and murder. Mr. Yates distributed “nation work” to Germaine
Haslett, whom he appointed chief of security for Chicago Heights,
assigning him responsibility for administering “violations,” and
giving Haslett a half ounce or ounce of crack cocaine every three
to ten days, which Haslett would sell, and afterwards give the money
to Mr. Yates. Mr. Yates also appointed Haslett “regent” for Chicago
Heights; he had up to 75 people working for him, at least half of
them selling drugs, and others raising political contributions and
selling concert tickets. He would give the money to Mr. Yates. As
“governor” of the suburbs, Mr. Yates also received large quantities
of cocaine on four or five occasions from Delano Finch, “governor”
of part of southwestern Chicago.

In late 1993, Mr. Yates was himself “violated” for “violating”
a Gangster Disciple in front of his family. Shortly thereafter he

lost his position as “governor.” He says he quit the gang entirely,


the conspiracy after losing his position as a “governor.” However,
he presented this defense pro se at trial, after firing his trial
counsel, and obtained an instruction on withdrawal, the adequacy of
which which I have discussed above. The jury did not believe it, and
rationally so, in light of Finch’s evidence that he provided Mr.
Yates with a large quantity of cocaine in 1995, after Mr. Yates had
supposedly quit. And again, the argument does not refer to any
evidence extrinsic to the trial record or which Mr. Yates might have
reasonably expected to turn up after the case went up on appeal. His
own belief that the ineffective assistance of trial counsel argument
had to be presented on appeal or not at all was correct. But it was
not deficient performance of appellate counsel for Levy not to bring
the argument, because it was without merit in any event.

Finally, Mr. Yates brings two miscellaneous arguments for
ineffective assistance of trial counsel. First, he argues that
certain witnesses to his withdrawal were not called although counsel
was fully aware of them. However, he also says the trial court ruled
against the admissibility of the testimony of those witnesses. Trial
Tr. at 6145. He therefore admits that there was nothing extrinsic
here. Second, Mr. Yates argues that counsel failed to attempt to
have a certain exculpatory tape, Vienna Tape 332-1 introduced into
evidence. But it was played. Trial Tr. 5533. Since it was played,
it was available at the time appeal was taken. There being no

extrinsic evidence indicating constitutionally deficient performance

-14-


district court in the Northern District that has so far considered
the question concurs.?

As a new rule of criminal procedure, the Apprendi rule is not
retroactively applicable to cases that are final when the new rule
is announced unless one of two exceptions applies, Teague v. Lane,
489 U.S. 288, 310 (1989): either (1) the new rule places “certain
kinds of primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe,” id. at 311, or (2) it
is a “new procedure[] without which the likelihood of an accurate
conviction is seriously diminished,” id. at 313. Neither exception
applies here. Apprendi addresses drug dealing, which is certainly
within the power of law-making authority to proscribe, and it does
not go to guilt or innocence. A rule which “merely shifts the fact-
finding duties from an impartial judge to a jury clearly does not
fall within the scope of the second Teague exception.” United States

v. Sanders, 247 F.3d 139, 148-49 (4th Cir. 2001) (citing Neder v.

3 See United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir.
2001); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001);
McCoy v. United States, 266 F.3d 1245, 1258 (llth Cir. 2001); Jones
v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000). See also Mills v.
United States, No. 98 C 8252, 2002 WL 424635, at *1 (N.D. Ill. Mar.
19, 2002) (Aspen, C.J.), Hampton v. Leibach, No. 99 C 5473, 2001 WL
1518533, at *24-25 (N.D. Ill., Nov. 29, 2001) (Kennelly, J.);
United States ex rel. Walton v. Barnett, No. 2001 C 6023, 2001 WL
1519421, at *6 (N.D. Ill. Nov. 29, 2001) (Lindberg, J.); United
States v. McNeal, No. 01 C 3651, 2001 WL 1338988, at *1 (N.D. Ill.
Oct. 30, 2001) (Grady, J.).

-16-


to vacate, set aside, or correct his sentence under 28 U.S.C. §
2255. He argues that: (1) his CCE conviction rests upon legally
impermissible grounds; (2) he received ineffective assistance of
counsel at trial and on appeal, and (3) his indictment for use of
minors must be dismissed for failure to allege the drug amounts
involved in violation (apparently) of Apprendi v. New Jersey, 530
U.S. 466 (2000). He asks for an evidentiary hearing. I deny his
petition.
I.

The Gangster Disciples was a large and notorious criminal
enterprise, achieving, at its zenith in the early 1990s, revenues
of $100 million a year, Jackson, 207 F.3d at 913. It operated both
on the streets of the Chicago metropolitan area and within the state
prison system, where Hoover was incarcerated. The Gangster Disciples
ran several civic and political activities, including “Save the
Children Promotions,” a corporation which organized concerts and
laundered drug money, and “Twenty First Century Vote,” a political
action committee that supported candidates and promoted voter
registration. The organization was structured like a corporate or
military hierarchy with strict rules that were enforced by
“violating” people who violated the rules with beatings and worse.

In 1992 and 1993, Mr. Yates was one of the ten or so
“governors,” which put him about two levels down in the Gangster

Disciple hierarchy, below Hoover and a board of directors. Jackson,


IN THE UNITED STATES DISTRICT COURT DOCGKETED
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION JUL 1 1 2002

UNITED STATES,
Petitioner,
v. No. 01 C 8331

JAMES YATES,

Respondent.

MEMORANDUM OPINION AND ORDER

Larry Yates was a “governor” or high official of the Gangster
Disciples, a gang of some 6,000 hoodlums and thugs engaged, through
the early 1990s, in the sale of crack cocaine, heroin, and other
drugs in the southwestern sections and suburbs of Chicago, Illinois,
under the leadership of Larry Hoover, an inmate in the Illinois
state prison system. In July 1997, after a 12-week jury trial in
this district, Mr. Yates was convicted of twenty three substantive
narcotics counts, including: participating in a continuing criminal
enterprise (“CCE”), 21 U.S.C. § 848, conspiracy to possess
controlled substances with the intent to distribute, § 846, and use
of minors to further this conspiracy, § 861. He was sentenced to
life in prison. He appealed to the Seventh Circuit, which affirmed
his conviction, see United States v. Jackson, 207 F.3d 910 (7th Cir.
2000), vacated in part by 531 U.S. 953 (2000) (but not as to Yates),
and his petition for certiorari to the Supreme Court was denied in

2000. See 531 U.S. 953. Acting pro se, he submits an able petition

va


Mr. Yates had different counsel at trial and on appeal. Once
again Mr. Yates attempted to file his ineffective assistance claim
pro se with the Seventh Circuit, but that court returned his pro se
argument unfiled. Because the claim was not accepted, it was not
made, so, in order to prevail on this claim, Mr. Yates would require
extrinsic evidence or reason to think he would have needed it. He
thought he did not need it, which is why he tried to supplement his
appellate attorney’s briefs with his own arguments pro se.

Mr. Yates here claims that both his trial lawyer, Jack Cutrone,
and appellate counsel Howard Levy, “stubbornly rejected [his] help,
guidance, and accurate information.” By way of extrinsic
information, Mr. Yates offers a letter to Levy discussing some of
his own advice about the conduct of the appeal, Pet. Ex. 1, but the
extrinsic evidence he offers is not relevant to the issue of
ineffective assistance of trial counsel. He does not explain in the
letter why he has a winning argument about Cutrone’s deficiencies
that Levy ignored. The argument is no good on the merits, and it
does not show that Levy’s performance was defective either. Mr.
Yates does not raise in this petition the issues he discusses with
Levy in the letter (“knowledge,” “intent,” “subject matter
jurisdiction”?). Moreover, there is nothing about the letter that

might raise a reasonable belief that additional extrinsic evidence

? He does attempt to raise the latter point, discussed below,
but on different grounds than those mentioned in the letter.

-12-


of trial counsel, nor any that might have been reasonably likely at

the time of appeal to emerge later, the ineffective assistance of

trial counsel claim is procedurally barred. The ineffective

assistance of appellate counsel claim is inadequate on the merits.
Cc.

Mr. Yates’ final ground for review is that the use of minors
counts were defective for failing to include evidence of drug type
or quantity, and accordingly, the indictment should have been
dismissed with respect to those charges. He mistakenly characterizes
this as a matter of subject matter jurisdiction. It seems to be an
attempt to invoke Apprendi v. New Jersey, 530 U.S. 466 (2000),
holding that factors, other than prior convictions, which increase
a sentence beyond the statutory maximum must be submitted to the
jury and proven beyond a reasonable doubt. Neither the Supreme Court
nor the Seventh Circuit has held that Apprendi applies retroactively
on collateral review. The Seventh Circuit has stated, with respect
to this question, that I may “determine whether a novel decision of
the Supreme Court applies retroactively, and thus whether a
collateral attack is timely.” Ashley v. United States, 266 F.3d 671,
674 (7th Cir. 2001). I find that Apprendi is not available
retroactively on collateral review. This has been the conclusion of

every court of appeals that has decided the issue, and every

-15-