support for his claim that a conflict existed, and this is a matter
on which he..bears the burden of proof. See United States v.
Pergler, 233_F.3da 1005, 1009 (7th Cir. 2000) (defendant failed to
provide proof.of conflict of interest to overcome presumption of
competent and conflict-free counsel). Thus his claim of ineffective
assistance of appellate counsel fails both on its merits and as a
means of overcoming the procedural bar to raising his remaining

claims that..were. not raised on direct appeal. His petition is

DENIED.
ENTER ORDER:
LCT [ote
Elaine E. Bucklo
United States District Judge
Dated: May Ao 2002

13


prejudiced by the deficient performance.” Hough v. Anderson, 272
F.3d 878, 890 (7th Cir. 2001) (citing Strickland v. Washington, 466
U.S. 668 (1984)). Reasonableness is measured according to
prevailing professional norms and under the totality of the
circumstances, and “to prevail, the [petitioner] must overcome the
presumption that the challenged act or omission might have been
considered sound trial strategy.” Id. at 890-91. To demonstrate
prejudice, the petitioner must “show that there is a reasonable
probability that, but for counsel’s errors, the result of the
proceedings would have been different.” Id. at 891. If the
petitioner makes an insufficient showing on either prong of the
test, I need not consider the other prong. Id. at 890.

Mr. Macchione claims that his counsel was ineffective at trial
because he failed to examine discovery made available by the
prosecution.’ The discovery to which he points in his petition
supposedly consists of six offers of discovery by the government
that his lawyer allegedly declined. The evidence to which he cites,
however, is. a list six occasions when the government sought
discovery from.Mr. Macchione’s attorney. See Ex. A. He also
identifies a.chart that he says represents checks documenting

legitimate transactions by his business, JS Industrial, see Ex. B,

+ He also raises a number of other alleged deficiencies of his
trial (and appellate) counsel, but he does so in reply, so these
claims are waived. Wright v. United States, 139 F.3d 551, 553 (7th
Cir. 1998).


petition. Mr,.Macchione signed a form acknowledging and consenting
to his attorney’s motion to dismiss his appeal, in which he stated
that “I concur. in my attorney’s decision and hereby waive all
rights to object or raise any points on appeal,” to which he added
“except as per attorney,” whatever that means. The Seventh Circuit,
faced with an identical acknowledgment, has treated issues that
could have .been. raised not as defaulted, but as affirmatively
waived. See Johnson v. United States, 838 F.2d 201, 203-04 (7th
Cir. 1988) -(“Our case involves a considered waiver, not a default.
It should. be harder to rescind a conscious choice than to recoup
from an unconsidered omission.”). The court applied an
“involuntariness” standard that it said was more exacting than the
traditional “cause and prejudice” standard applied to procedural
default. Id. at 204. Where there has been no _ government
interference. with the petitioner’s decision to abandon an appeal,
“a decision may be voluntary even if poorly considered, [if] it is
‘the product. of a free and deliberate choice rather than
intimidation, coercion, or deception.’” Id. The court noted that
the defendant's “choice was impelled by the attractiveness of an
opportunity and,not the terror of the alternative. That is all the
difference in the world.” 838 F.2d at 204-05. Mr. Macchione might
have argued that the government cross-appeal was a “tactic[] that
would deprive his decision of its voluntary quality,” id., but he

did not. Instead, he argues that his appellate lawyer duped him


this testimony had been offered, however, the evidence that most of
the transactions with Uno-Ven were fraudulent was overwhelming, so
there is no.reasonable possibility that their testimony would have
changed the outcome. The decision not to call Mr. Macchione’s wife
was sound trial. strategy “because family members can be easily

”

impeached for. bias.” Bergmann v. McCaughtry, 65 F.3d 1372, 1380
(7th Cir. 1995). Nor was the failure to call Mr. Rice, Mr.
Macchione’s co-defendant, deficient performance. Mr. Rice exercised
his Fifth Amendment right not to testify at the trial, and
regardless of his willingness to exculpate Mr. Macchione now, Mr.
Macchione could not have forced Mr. Rice to testify in their joint
trial. United States v. Echeles, 352 F.3d 892, 898 (7th Cir. 1965).

Mr. Macchione also says that his lawyer should have prepared
Mr. Macchione to testify and called him to the stand at trial.
However, it is, not ineffective assistance to recommend that a
defendant not testify when it would subject him to damaging
impeachment. Milone v. Camp, 22 F.3d 693, 705 (7th Cir. 1994).
Likewise, the, decision not to provide Mr. Macchione’s version of
the offense for sentencing purposes was not deficient; denial of a
downward departure for acceptance of responsibility was a foregone
conclusion 6ncé” Mr. Macchione had gone to trial and put the
government to.its. burden, but Mr. Macchione’s testimony, denying

his role in the scheme, might have opened him up to an enhancement

for obstruction of justice. Mr. Macchione also says that his


and says that his lawyer ought to have introduced it at trial. The
decision to introduce specific pieces of evidence at trial is a
strategic or tactical decision that should not be second-guessed.
See Lowery'v. Anderson, 225 F.3d 833, 843 (7th Cir. 2000). The
government does not offer any explanation for why this evidence was
not introduced, but even if it was deficient, there was
overwhelming evidence that JS Industrial had little or no business
other than its transactions with Uno-Ven. Mr. Macchione’s evidence
of allegedly legitimate transactions would not have eroded the
strength of the government’s case, which included evidence of more
than 130 fraudulent orders, so he was not prejudiced.

He also. claims that Mark Graf, Tim Keane, Jim Alayon, Ed
Orlan, Joanné Macchione, and Richard Rice, if interviewed and
called by his. attorney, would have testified that JS Industrial was
a legitimate business. “A lawyer’s decision to call or not to call
a witness is a strategic decision generally not subject to review.”
United States.v,..Williams, 106 F.3d 1362, 1367 (7th Cir.1997). Mr.
Macchione submits an affidavit from Graf describing delivery of a
load of supplies, but one supposedly legitimate transaction would
not have had any effect on the verdict against the weight of the
evidence of fraudulent orders. He does not identify the specific
testimony that Keane, Orlan, or Alayon would have offered, but
presumably they would have testified that JS Industrial was a

legitimate business that produced and sold actual products. Even if


12, 14, 16. His counsel did not insist on questioning the rest of
the jury and did not seek mandamus after my denial of the recusal
motion, but Mr. Macchione has not rebutted the strong presumption
that these decisions were the result of a sound trial strategy.
Accordingly, he cannot demonstrate that his trial counsel was
constitutionally ineffective.
III. Ineffective Assistance of Appellate Counsel

Mr. Macchione’s claim for ineffective assistance of appellate
counsel obviously could not have been raised on direct appeal, so
it is not procedurally defaulted. However, there is no reason why
his remaining claims—failure to recuse under 28 U.S.C. 455, and
jury tampering-could not have been raised on direct appeal, so they
are procedurally defaulted. See McCleese v. United States, 75 F.3d
1174, 1177 (7th.Cir. 1996). The only basis offered by Mr. Macchione
for excusing the procedural bar is the ineffectiveness of his
appellate counsel, which thus serves double duty as a substantive
ground for relief and a gateway through procedural bar of his
remaining claims. See Barnhill v. Flannigan, 42 F.3d 1074, 1078
(7th Cir. 1994).

Appellate counsel advised Mr. Macchione that, if he pursued
his appeal, he risked losing and being sentenced to a minimum of 9
more months on remand (nearly twenty-five percent of his original
sentence). He also advised Mr. Macchione that abandonment of his

appeal could lead to default of some of his claims in a § 2255


Ta)

(pine Cider Form 06/97}

United States District Court, Northern District of Illinois
“ame Asie ode Blaine E. Bucklo sing Jue the
CASE NUMBER 02 C 774 DATE 5/20/2002
CASE Macchione vs. USA
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

of the motion being presented.]

ab

MOTION:

DOCKET ENTRY:

(e) a Filed motion of [ use listing in “Motion” box above.]

(2) QO Brief in support of motion due

(3) o Answer brief to motion due___. Reply to answer briefdue____.

(4) Oo Ruling/Hearingon___—ssetfor_— at

(5) im] Status hearing{held/continued to] [set for/re-set for]on_ set fort

(6) o Pretrial conference[held/continued to] [set for/re-set for]on___——sset for at,

1) im} Trial[set for/re-set for]on__—_at

(8) im [Bench/Jury trial] [Hearing] held/continued tot

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOERCP4(m) (CGeneral Rule21 CFRCP4i(a)(1) CI FRCP41(a)(2).

qo) «i {Other docket entry] The petitioner’s petition to vacate, set aside, or correct his sentence under 28

U.S.C. Section 2255 is denied and the case is terminated. Petitioner’s motion for stay is denied. Enter

Memorandum Opinion and Order.

a [For further detail see order attached to the original minute order.]

No notices required, advised in open court,
2

No notices required,
number of notices

Notices mailed by judge’s staff. 9 "
y 2 1 20H

Notified counsel by telephone. date docketed

Docketing to mail notices.

Mail AO 450 form, |

Lansinse,

Copy to judge/magistrate judge.
5/20/2002

date mailed notice

courtroom 3 ‘
MP) deputy’s Mr
initials

Date/timeseceived in
central Clerk's Office naling deputy nals



erste ine

Seventh Circuit. has not addressed the grouping of tax evasion and
fraud offenses.under § 3D1.2(c), although it has indicated that,
because the crimes have different victims, they should not be
grouped under § 3D1.2(a), see United States v. Johnson, 117 F.3d
1010, 1014 (7th, Cir. 1997) (“[T]he primary victims were different
in the two cases... . Mail fraud and tax evasion would seem in
most cases to involve different harms ... .”), or § 3D1.2(d), see
United States v. Dantuma, 165 F.3d 33, 1998 WL 567939, at *5 (7th
Cir. Aug. 18, 1998) (unpublished order) (“While it is true that
{defendant’s] bankruptcy [fraud] and tax [evasion] counts are of
the same general. type because the offense level for each ‘is
determined largely on the basis of the total amount of the loss,’
[defendant’s] offenses do not ‘otherwise meet the criteria for
grouping’” because they “involve different victims.”). Furthermore,
two other circuits have specifically rejected grouping of mail

fraud and tax.eyasion counts under § 3D1.2(c) on the grounds that

it effectively eliminates any punishment for tax evasion. See
United States..v. Vitale, 159 F.3d 810, 814 (3d Cir. 1998);
Weinberger v...United States, 269 F.3d 346, 354-55 (6th Cir. 2001).
See also United States v. Morris, 229 F.3d 1145, 2000 WL 1260162,
at *1 (4th Cir. Sept. 6, 2000) (unpublished order) (citing Vitale).
One court in this district has rejected the Third Circuit approach
and followed the Sentencing Commission’s recommendation that tax

evasion always be grouped with the underlying offense. See United

11


into surrendering his appeal on incompetent and constitutionally
deficient advice because, he believes, there is no way that the
government could have won its cross appeal and sought a higher
sentence.

The standard for ineffective assistance of counsel on appeal
is the same as at trial—deficient performance and prejudice-so the
question is whether it was reasonable to abandon an appeal in light
of the government’s cross-appeal on the sentencing issue. Mr.
Macchione argues that the government’s appeal was an “empty trick
bag” that. had no chance of success because I had not granted any
downward departures and I had not grouped his offenses, so there
would be no basis for an increased sentence on remand. He is wrong;
although I did not grant any downward departures, I did group his
tax evasion and. mail fraud claims. I. concurred with the
recommendations. of the presentence investigation report (“PSI”)
see Judgment. at 6, in which the probation officer recommended
grouping the. tax evasion counts, under U.S.S.G. § 2T1.1, and the
mail fraud count, under U.S.S.G. § 2Fl.1, pursuant to U.S.S.G. §
3D1.2(c).

Guideline § 3D1.2 provides for grouping of “[aJll counts
involving substantially the same harm.” The PSI recommended
grouping the tax and fraud offenses under § 3D1.2(c) because the
fraud count served as a specific offense characteristic in the

guideline applicable to the tax evasion counts. PSI at 13. The

10


attorney should have introduced evidence at sentencing that he had
incurred costs of $751,000 in supplying goods to Uno-Ven and that
his restitution..should have been reduced by this amount, but this
was contrary to..the evidence at trial that the loss to Uno-Ven
actually exceeded $1 million. Any evidence he might have introduced
would not have had.an effect on the amount of restitution for which
he was responsible.

Finally, he argues that his attorney rendered ineffective
assistance at post-trial hearings relating to alleged comments made
to jurors by the court security officer. Before the hearings, I
asked the parties to submit questions to me, which I then asked the
witnesses. Mr. Macchione says that his counsel should have objected
to this format, but that is a matter within my discretion under
Federal Rule of Evidence 611(a), and any objection would thus have
been fruitless.’ “Pailure 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). For
the same réason, Mr. Macchione’s counsel was not ineffective for
failing to file.a memorandum of law in support of an oral motion
for recusal that has already been denied. Mr. Macchione also faults
his attorney for failing to propound questions about a juror’s
understanding of the alleged statement and about comments or
statements by any other jurors, but I had already asked the witness

about these.matters. Transcript of June 22, 2000, Hearing at 11,


F.3d 468, 471 (7th Cir. 1993). Nonetheless, “if a defendant
postpones raising the issue of ineffective assistance of counsel
until the collateral stage he must have a valid reason for the
postponement.” Id. at 472. The Seventh Circuit has noted three
valid reasons: (1) that the defendant was represented by the same
counsel at trial and on appeal; (2) that the claim could not be
developed with facts outside the trial record; or (3) “that 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.” Id. So long as at least one of
the petitioner's claims meets one of these requirements, he is
entitled to wait and bring all of his ineffective assistance of
trial counsel. claims together in one collateral proceeding. Id. at
473. Mr. Macchione’' claims that his trial counsel was ineffective at
three stages of his defense: trial, post-trial hearings, and
sentencing. He submits extrinsic evidence in support of his claim
that his counsel was ineffective at trial, so he may raise all of
his claims for ineffective assistance of trial counsel in his §
2255 motion, see id., and I consider them on their merits.
Il. Ineffective Assistance of Trial Counsel

A petitioner claiming that his counsel was constitutionally

ineffective must “demonstrate that his counsel’s performance fell

below an objective standard of reasonableness,” and “that he was


mete I. Procedural Default

A § 2255 petition is not a substitute for a direct appeal.
Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000). Thus
claims not raised on direct review are barred from collateral view
unless the petitioner can demonstrate cause and prejudice for the
failure to raise the claims on direct appeal. Bond v. United
States, 1 F.3d ,631, 634 (7th Cir. 1993). As with every rule, of
course, there )are exceptions. For example, Mr. Macchione’s
challenge to the indictment is not subject to procedural default
because it rases a jurisdictional question, see United States v.
Smith, 669 F. Supp. 177, 178 (N.D. Ill. 1987) (Plunkett, J.), and
“a jurisdictional defect cannot be procedurally defaulted.” Kelly
v. United States, 29 F.3d 1107, 1113 (7th Cir. 1994). Nonetheless,
this claim is frivolous. He claims that the special grand jury that
indicted him, convened under 18 U.S.C. § 3331, lacked the authority
to do more than investigate, but it is well-settled that special
grand juries under § 3331, like grand juries convened under Rule 6
of the Federal Rules of Criminal Procedure, have the authority to
indict as well as investigate. See United States v. Koliboski, 732
F.2d 1328, 1330 (7th Cir. 1984).

Another exception to the general rule of procedural default is
ineffective assistance of trial counsel. Such a claim has little
chance of success on direct appeal because it usually depends on

evidence outside the trial record. See Guinan v. United States, 6


a aay 27200!
_.IN THE UNITED STATES DISTRICT COURT pay 2 12082
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN P. MACCHIONE,
Petitioner,
v. No. 02 C 774

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM OPINION AND ORDER

John Macchione was convicted by a jury of one count of mail
fraud and three counts of tax evasion related to a scheme to
defraud Uno-Ven, a company that employed his co-defendant Richard
Rice, out of more than a million dollars. I sentenced him to 37
months imprisonment, reflecting an offense level of 21, which was

the result of ‘grouping of the mail fraud and tax evasion counts

under U.S.S.G. § 3D1.2. Unhappy with the performance of his trial
counsel, Mr..Macchione retained new counsel and filed a notice of
appeal. The government filed a cross-appeal on the § 3D1.2 grouping
issue. Mr. Macchione’s appellate counsel considered the relative
merits of the two appeals and advised his client to dismiss his
appeal in. exchange for government dismissal of the cross-appeal.
Mr. Macchione dismissed his appeal, and instead filed this petition

under 28 U.S.C. § 2255 to vacate, set aside, or correct his

sentence, raising eight grounds for relief. I deny the petition.

\A


States v. McCandléss, NO. 90 CR 87-15, 1992 WL 332304, at *3 (N.D.
Tll. Nov. 6, 1992) (Williams, J).

There is.at.least room for reasonable minds to differ on the
propriety of grouping the tax evasion and mail fraud counts, so
advising that. the government had a good chance of winning its
cross-appeal, even if erroneous (and I do not decide here that it
was), was not unreasonable in light of case law in this or other
circuits. Mr. Macchione’s appellate counsel evaluated his client’s
claims and found them weak overall. The Seventh Circuit has
indicated that it is not deficient performance to decide not to
appeal where there is a “threat of a sentence-enhancing remand that
might make the risks of an appeal outweigh its potential benefits.”
Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000). These
considerations dare communicated to Mr. Macchione by his appellate
counsel, and.Mr...Macchione concurred that the risk of another nine
months in prison was not worth pursuing his appeal. Even if this
was an unreasonable error, Mr. Macchione cannot establish prejudice
because, as I have already determined, his claims for ineffective
assistance of trial counsel had no reasonable possibility of
success. His counsel was not ineffective for recommending that he
drop his appeal. Mr. Macchione also claims that his appellate
counsel “was conflicted when:he learned that the primary basis of
Petitioner’ s“appeal was ineffective assistance of [trial] counsel

Lopez.” Petition at 4. However, he has provided insufficient

12