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.

Although Barragan-Rangel has only a sixth grade education and
speaks little English, he. was assisted by an interpreter,
represented by counsel, and he admitted to the essential elements
of the conspiracy charge. This, together with the government’s
proffer and the relative simplicity of the charge against him, is
sufficient to satisfy Rule 11l(c)(1) and to demonstrate that his
plea was knowing and voluntary. See Musa, 946 F.2d at 1304-05
(holding that Rule 1li(c) (1) was satisfied, although judge did not
specifically state the elements of the crime, because defendant
admitted to participation in drug transactions with other members
of conspiracy and stated that he understood the charge). Barragan-
Rangel assured me that he understood the nature of the charges, and
he cannot now claim that he did not, in fact, understand what
conspiracy meant because the essential facts of the crime were
described and he admitted to them. See id. at 1305. “It is not
deficient performance to fail to raise an argument with no real
chance of success or where the objection would have been properly
overruled if it had been made,” Hough v. Anderson, 272 F.3d 878,

898 (7th Cir. 2001), so Barragan-Rangel’s appellate counsel was not

4 \


that is at issue here. Because he cannot show that he was
prejudiced by either his trial or appellate counsel’s failure to
raise the Massiah and entrapment defenses, he cannot overcome his
procedural default or prevail on the merits.
Il.
Barragan-Rangel’s motion under 28 U.S.C. § 2255 to vacate his
sentence is DENIED.

ENTER ORDER: ,

Bw 0 bushleo

Elaine E. Bucklo
United States District Judge

Dated: April 24, 2002


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.

The holding in Merritts was limited in United States v.
Moschiano, 695 F.2d 236 (7th Cir. 1982), to exclude bad faith
efforts by the government to obtain evidence on the original
indicted offense. Id. at 242-43. Barragan-Rangel intimates that
there was bad faith here and requests a hearing to get to the
bottom of Tostado’s relationship with the government, but “a
hearing is not necessary if the petitioner makes conclusory or
speculative allegations rather than specific factual allegations.”
Daniels v. United States, 54 F.3d 290, 293 (7th Cir. 1995).
Moreover, Barragan-Rangel has not demonstrated how, even if there
was a Sixth Amendment violation that his counsel failed to pursue,

he would have been prejudiced. He has not explained what evidence


ineffective for failing to raise the Rule 11 or due process
argument on direct appeal. Accordingly, he has failed to
demonstrate “cause” for his procedural default, and he may not
pursue that claim on a § 2255 motion here.

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


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 fhe] would not have succumbed to [Tostado’s] scheme to
entrap [him] into attempting a bribe.” Decl. at 3. “‘Pestering’
does not rise to the level of entrapment.” United States v.
Espinoza~Gomez, 9 F.3d 1549, 1993 WL 470471, at *1 (7th Cir. Nov.
16, 1993) (unpublished order); see also United States v. Blackman,
950 F.2d 420, 424 (holding on direct appeal that evidence that
government agent solicited drug sale and “hounded” defendant was
insufficient to establish entrapment).

Moreover, even if the entrapment defense would have been
successful, Barragan-Rangel cannot show that his attorney’s failure
to pursue it was prejudicial. He did not plead guilty to witness
tampering, only to conspiracy. He claims that the government’s case
against him on the conspiracy charge was weak without the evidence
of witness-tampering, but the evidence of his knowing participation
in numerous drug transactions with a group of people, who imported
drugs from Mexico was sufficient to support a conviction. See Musa,
946 F.2d at 1303. Thus he has failed to demonstrate that a defense
of entrapment on the witness-tampering charge would have changed

his decision to plead guilty to the conspiracy charge, which is all
1
8


Ries

Minute Order Form (06/97)
*

(Sh

United States District Court, Northern District of Illinois

T Name of Assigned Judge i . Sitting Judge if Other
or Magistrate Judge Elaine E. Bucklo than Assigned Judge
CASE NUMBER 01 C 6088 DATE 4/29/2002
CASE U.S.A. vs. Barragan-Rangel
TITLE
[In the following box (a) indicate the party filing the motion, c.g. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

(1) ima} Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

G3) oO Answer brief to motion due. . Reply to answer brief due

(4) o Ruling/Hearing on set for at

(5) o 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) Oo Trial[set for/re-set for] on at

(8) Oo (Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(n) O General Rule21 CI FRCP41(a)(1) OC FRCP41(a)(2).

(jo) [Other docket entry] | Enter Memorandum Opinion and Order denying Barragan-Rangel’s motion
under 28 U.S.C. Section 2255 to vacate sentence. This case is therefore terminated. Any pending motion
in this case is terminated as moot.

(1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document
2
No notices required, umber otysec Number
UY | Notices mailed by judge's staff. A PR 3 0 2002
Notified counse! by telephone, dae docketed
Docketing to mail notices.
Y | Mail AO 450 form. ee AQ
Copy to judge/magistrate judge.
anno
courtroom date mailed notice
MPI deputy’s wey
initials —
Daté/time received in. ;
central Clerk's Ottice (i -f mxang deputy nits



would. have been lacking, and how that would have affected his
decision to plead in light of the rest of the evidence in the
record. In reply, Barragan-Rangel argues that any incriminating
statements about past conduct relating to the marijuana conspiracy
charge could not be used against him at trial, and this may be so,
see Merritts, 527 F.2d at 714 n.2, but he does not identify any
such statements, although they are within his personal knowledge,
so I cannot assess what, if any, prejudice he might have suffered
by his attorney’s failure to attempt suppression.

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 (N.D. Ill. Aug. 27, 1998) (Williams, J.). To overcome
the presumption that his attorney’s decision not to pursue the

u

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


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 (ist 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

3


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 1180.
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

891 (7th Cir. 1998). To the extent that Barragan~Rangel claims that
the alleged Rule 11 violation rendered his plea unknowing and
involuntary, he raises a constitutional question, so I consider
whether he has demonstrated cause and prejudice for his default.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

APR 3 0 2002

UNITED STATES OF AMERICA,

v. No. 01 C 6088

JOSE TOBIAS BARRAGAN-RANGEL,

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.’ Menzer

*Non-constitutional errors that could have been raised on
appeal but were not are barred from § 2255 review notwithstanding
cause and prejudice. Arango-Alvarez v. United States, 134 F.3d 888,

Cy