acknowledging that it “could have been a malfunction or could have been a bit of creative
editing.” Id. But the Court of Appeals agreed with the trial judge that the possibility of
tampering was a less likely inference because “the duplicate contained more conversation than
the original.” Jd. (emphasis in original). It stated that “[a]lthough it is possible in principle that
the government ‘edited in’ additional conversation to the duplicate, there is no indication at all of
this more elaborate form of tampering.” Jd. The Seventh Circuit also credited the testimony of a
government agent who “spot checked” the tapes for consistency, noting that “while it would have
been preferable had the agent checked all the tapes, no reasons have been suggested for doubting
either the good faith or the adequacy of his sampling.” Jd.

Under the law of the case doctrine, “when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages of the same case.”” U.S.
v. Thomas, 11 F.3d 732, 736 (7" Cir. 1993) (quoting U.S. v. Feldman, 825 F.2d 124, 130 (7" Cir.
1987). Though Knox’s constitutional claim—that the government introduced false evidence
against him in violation of his right to a fair trial-was not specifically raised and decided on
appeal, his arguments concerning the integrity of the duplicate tape recordings, which form the
basis of his current claim, were considered fully and rejected. There is no basis to revisit the
matter in a § 2255 proceeding. For the same reason, Knox has failed to show a sufficient basis to
invoke the discovery processes available under the Rules of Civil Procedure, and the Court

therefore denies his request that the government produce the tapes for further analysis.

3. Claim 5 (Ineffective Assistance)

In claim five, Knox asserts that his counsel rendered constitutionally ineffective

13


narcotics conspiracy (or any other offense serving as a RICO predicate) is not a lesser included
offense of RICO, see United States v. Marino, 277 F.3d 11, 39 (1* Cir. 2002); United States v.
Thomas, 757 F.2d 1359, 1371 (2TM Cir. 1985), or that cumulative sentences may be imposed for
violations of 21 U.S.C. § 846 and 18 U.S.C. § 1962(d) because that is what Congress intended.
See United States v. White, 116 F.3d 903, 931 (D.C. Cir. 1997) (explaining that if one crime is a
lesser included offense of another, punishment still may be imposed for both if Congress
intended cumulative punishment, and holding that Congress authorized cumulative punishments
for drug conspiracy and RICO conspiracy); see generally, Garret v. United States, 471 U.S. 773,
779 (1985). Nevertheless, Knox argues that the Supreme Court’s decision in Rutledge v. United
States, 517 U.S. 292 (1996), in which it held that cumulative punishments could not be imposed
for narcotics conspiracy under 21 U.S.C. § 846 and continuing criminal enterprise under 21
USS.C. § 848, controls the issue. He insists that the “structure, history and scope” of RICO is
“indistinguishable” from the continuing criminal enterprise statute and that a § 846 drug
conspiracy charge is a lesser included offense of both. Knox Mem. at 6-7.

As Knox acknowledges, however, he failed to raise this argument on direct appeal. He
does not claim “cause” for that default resulting from ineffective assistance of counsel. See
Knox Mem. at 11. Rather, his only argument for excusing the default is that Rutledge
represented a change in substantive law, see Robinson v. United States, 196 F.3d 748, 752 (7°
Cir. 1999), and should operate retroactively to correct his sentence. But there is no issue of
retroactivity here; Rutledge was decided in 1996, before his October 1997 sentencing and the
1999 decision in his appeal. Knox makes no attempt to explain why he did not argue Rutledge at

that time. He has failed to excuse the procedural default, and thus this Court cannot consider the



Prada error in this case. See Govt. Response at 6.

The government’s argument is not entirely convincing. It is true that both Oroaco-Prada
and Apprendi have to do with the allocation of responsibility between judges and juries.
Apprendi, as we have noted, says that a fact that increases the maximum penalty must be
submitted to a jury and determined beyond a reasonable doubt. Orozco-Prada, which applies
only in multiple-object conspiracy cases, says, in effect, that a sentencing court must assume that
the jury found that the conspiracy involved the least-serious narcotic unless the jury made a
specific finding indicating otherwise. Both types of errors can be avoided by requiring the jury to
make findings about what, and what quantity, of drugs are involved in a particular conspiracy.
But the way in which reviewing courts consider Apprendi violations arguably differs from the
way they view Orozco-Prada violations. In the Seventh Circuit, Apprendi violations are subject
to harmless error analysis, as reflected by that court’s decision in this very case: the reviewing
court will examine the record and determine on its own whether a properly instructed jury would
have found the defendant guilty even if properly instructed. See, e.g., United States v. Trennell,
290 F.3d 881, 890 (7th Cir. 2002). By contrast, it does not appear that Orozco-Prada violations
are subject to harmless error analysis. See, e.g., Zillgitt, 286 F.3d at 139-40. This is so, it
appears, even in Circuits that apply harmless error analysis to Apprendi errors. See Allen, 302
F.3d at 1276 (“The recognized remedy for [an Orozco-Prada] violation excludes any
consideration of a harmless error review.”); id. at 1277 (subjecting an Apprendi error in the same
case to harmless error analysis). If this is correct, then the Seventh Circuit’s ruling that the
Apprendi error in this case was harmless does not necessarily foreclose consideration of the

Orozco-Prada issue.



conspiracy greater than the two-year maximum that could have been imposed for a conspiracy to
distribute what was, for sentencing purposes, the least serious drug involved in the charged
conspiracy: codeine syrup, a Schedule V controlled substance.

This rule was first adopted in multiple-drug conspiracy cases by the Second Circuit in
United States v. Orozco-Prada, 732 F.2d 1076 (2TM Cir. 1984), and by the time of Knox’s
sentencing it had been accepted by at least four other Circuits. United States v. Garcia, 37 F.3d
1359, 1369-71 (9" Cir. 1994); United States v. Bounds, 985 F.2d 188, 194-95 (5" Cir. 1993);
United States v. Owens, 904 F.2d 411, 414-15 (8" Cir. 1990); Newman vy. United States, 817 F.2d
635 (10" Cir. 1987). The decision in Orozco-Prada, in which the defendant was convicted on a
general verdict of conspiracy to distribute cocaine and marijuana, was based on the proposition
that “in the absence of a special verdict, there was no way for [the trial judge] to know whether
the jury intended to convict [the defendant] for a cocaine-related conspiracy, for a
marijuana-related conspiracy, or for a conspiracy involving both drugs.” Orozco-Prada, 732
F.2d at 1083. The general verdict thus caused a “problem of ascertaining juror intent,” making it
impossible to say that the jury had actually found that the defendant had participated in a
conspiracy to distribute the drug as to which a more-serious sentence applied. Id. at 1084. The
court therefore gave the government the option of consenting to a resentencing based upon the
least-severe maximum sentence; if the government did not do so, a new trial would be required.
Id. In Newman, the Tenth Circuit held that this issue was “plain error,” reviewable on appeal
even if not raised at trial. Newman, 817 F.2d at 637, n.3.

The same counsel represented Knox at trial and on appeal; counsel did not raise this issue



double jeopardy claim on its merits.
2. Claims 2-4 (general verdict claims, Title II] tapes/Brady claim)

With regard to claims 2, 3 and 4, Knox argues that his counsel was ineffective in failing
to raise these issues and that this constitutes cause for failing to raise these claims at trial and on
direct appeal. To excuse the procedural default, Knox must show that his attorney’s failure to
raise the claims amounted to constitutionally ineffective representation under the standard
established in Strickland v. Washington, 466 U.S. 668, 687-700 (1984), and that he suffered

actual prejudice as a result of his counsel’s deficient performance. See Murray v. Carrier, 477
USS. 478, 488 (1986); Prewitt, 83 F.3d at 816 (ineffective assistance of counsel constitutes “good
cause” to overcome procedural default if attorney’s representation was deficient and that
performance “so prejudiced his defense that the resulting proceedings against him were
fundamentally unfair and unreliable”). Knox has also asserted ineffective assistance as a separate
claim (claim 5) based in part on his attorney’s failure at trial to raise and preserve the claims
raised in claims 2, 3 and 4. The analysis required to determine the merits of those aspects of
claim 5 is the same analysis required to resolve the cause-and-prejudice question as to claims 2, 3
and 4. See Prewitt, 83 F.3d at 816-17.

a. Claim 2

Knox was charged and convicted of a conspiracy to distribute multiple drugs: heroin,
cocaine, marijuana, amphetamines, codeine syrup, and Talwin and Triplenamine, commonly
referred to as “T’s and blues.” The jury retumed a general verdict; it was not asked to make
specific findings regarding the type and quantity of drugs involved in the conspiracy. Knox

contends that under the law, the trial judge was precluded from imposing a sentence for narcotics


the total amount of each — regardless of whether the judge believed that

petitioners’ crack-related conduct was part of the “offense of conviction,” or the

judge believed that it was “part of the same course of conduct or common scheme

or plan.” The Guidelines sentencing range — on either belief — is identical.

Id. at 514. Significantly, however, the Court went on to say that “(o]f course, petitioners’
statutory and constitutional claims would make a difference if it were possible to argue, say, that
the sentences imposed exceeded the maximum that the statutes permit for a cocaine-only
conspiracy.” Jd. at 515. This was not so in Edwards, as the sentences imposed were within the
statutory maximum for a cocaine-only conspiracy. See id.

The Supreme Court’s comments, and its citation of Orozco-Prada, see Edwards, 523
U.S. at 515, appear to denote approval of the Orozco-Prada rule in cases like Knox’s in which,
unlike in Edwards, the sentence imposed in fact exceeded the statutory maximum for the lowest-
level narcotic charged in the indictment. That is, in fact, the way that Edwards has been read in
the Circuits. See, e.g., United States v. Allen, 302 F.3d 1260, 1269 (11" Cir. 2002); United States
y. Zillgitt, 286 F.3d 128, 135-36 (2" Cir. 2002). As best as we can tell, the Seventh Circuit has
not been called upon to address the point since Edwards.

The government’s response to Knox’s § 2255 motion does not address Orozco-Prada
head on. Rather, the government views Orozco-Prada as an obsolete vestige of pre-Apprendi
sentencing law. It takes the position that Apprendi, in which the Supreme Court held that any
fact that increases the maximum statutory penalty for an offense must be submitted to a jury and
determined beyond a reasonable doubt, trumps the Orozco-Prada rule. Taking this one step

further, the government contends that the Seventh Circuit’s finding on remand in this case that

any Apprendi error was harmless “beyond any possible doubt” also applies to the alleged Orozco-



"Minute Order Form (06/97)

United States District Court, Northern District of Iinois

Sitting Judge if Oth
Name vsttnate juae Matthew F. Kennelly han Actlgued Indse
CASE NUMBER 02 C 7392 DATE 8/26/2003
CASE USA vs. Sammy Knox
TITLE
[ln 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) a Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due __.

3) oO Answer brief to motion due___. Reply to answer briefdue__.

(4) Oo Ruling/Hearing on___setfor__at

(5) oO Status hearing[held/continued to] [set for/re-set for]on__setfor___at

(() Oo Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor ss at__
(e) im) Trial{set for/re-set for] on at.

(8) oO [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) Local Rule 41.1 CIFRCP41(a\(1) OO FRCP41(a)(2).

ato) _| {Other docket entry] The Court orders a hearing on claims 2 and 3 of Knox’s section 2255 motion, as
well as issue 5 as set forth on the attached Memorandum Opinion and Order. The Court denies Knox’s section
2255 motion with respect to claims 1,4,6, and the remainder of claim 5 (1-1). Motiori to proceed with pending
arguments (13-1) and motion to correct typographical errors (18-1) are granted. Motion to stay (5-1) is denied.
The Court appoints Kimball Anderson of Winston & Strawn to represent Knox pursuant to the provisions of the
Criminal Justice Act, 18 USC § 3006A. Status hearing set to 9/10/03 at 9:30 to set a hearing date.

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

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.
Notified counsel by telephone,

a | Docketing to mail notices.
Mail AO 450 form.

1YNOI Lotyisia's’
4y3219 sn

Copy to judge/magistrate judge.
courtroom 89:8 Hd Bzonyeo

OR deputy's
initials ANH z
Depiaerone



vacate sentence).

All of this indicates that Knox may have a meritorious claim that the procedural default
resulting from his failure to raise Orozco-Prada at sentencing should be excused due to the
ineffective assistance of counsel, and/or a meritorious stand-alone claim of ineffective assistance
arising from that same failure. At this point we know nothing of why Knox’s counsel (as we
have noted, the same attorney at sentencing and on appeal) did not raise the issue, or even
whether he considered raising it. A hearing is required on a section 2255 motion when the
movant asserts properly-supported facts that, if proven, would entitle him to relief. Bruce v.
United States, 256 F.3d 592, 597 (7th Cir. 2001); see also, Rodriguez v. United States, 286 F.3d
972, 986 (7th Cir. 2002) (hearing is required on section 2255 motion “when factual disputes
exist” that cannot be determined on the paper record before the Court). Such is the case here.

b. Claim 3

Claim 3 involves a challenge to Knox’s life sentence for RICO conspiracy. The statutory
maximum sentence for RICO conspiracy is ordinarily 20 years; a life sentence may be imposed
only if the penalty for one of the underlying racketeering acts is life. 18 U.S.C. § 1963. This
claim depends entirely on the merits of claim two, the Orozco-Prada issue that we have just
discussed. If Knox prevails on that claim, he will likewise prevail on claim 3. For this reason,
the hearing that the Court has ordered will also cover this claim and the corresponding ineffective

assistance claim.

c. Claim 4

Claim 4 concerns Knox’s contention that the government used falsified copies of taped

11



If harmless error analysis does not apply to Orozco-Prada violations, then Knox hada
solid Orozco-Prada issue in this case. He received a life sentence, whereas the maximum
sentence applicable to a conspiracy to distribute codeine syrup is two years. And Knox likewise
has a good argument for excusing his default of the issue, namely, that his lawyer was ineffective
in failing to raise the point at sentencing, or at least on appeal. At the time of sentencing, even
though the Seventh Circuit had decided the point adversely in Edwards, there was a split in the
Circuits, and thus a reasonably competent attorney arguably should have raised the issue despite
Edwards. Though we acknowledge the government’s point that ““[t]he Sixth Amendment does
not require counsel to forecast changes or advances in the law,” Valenzuela v. United States, 261
F.3d 694, 700 (7" Cir. 2001) (Apprendi issue) (quoting Lilly v. Gilmore, 988 F.2d 783, 786 (7"
Cir. 1993), that proposition would not appear to be dispositive in Knox’s case. A finding that
counsel should have raised the Orozco-Prada issue at the time of sentencing would not be the
same as requiring him to “forecast” a change in the law; rather it would require only that counsel
act to preserve a point that was the subject of a clearly-defined Circuit split. Indeed, the Seventh
Circuit has indicated that “a responsible lawyer” ought to have preserved the point later covered
in Apprendi by raising it in the trial court even before Apprendi was decided, and despite adverse
precedent in this Circuit. See United States v. Nance, 236 F.3d 820, 824 (7" Cir. 2000).
Arguably the same is true of Knox’s trial counsel. And even if counsel’s failure to raise the issue
at trial can be excused, by the time of Knox’s appeal, no change in the law was required to raise
the Orozco-Prada error (due to the intervening Edwards decision), and counsel likely could have
argued the issue as plain error even though he had not raised it at sentencing. See Zillgitt, 286

F.3d at 138-41 (addressing Orozco-Prada violation as plain error and announcing intention to

10



in either forum. At the time of Knox’s sentencing in October 1997,' the Seventh Circuit was the
one Circuit that had rejected Orozco-Prada. In United States v. Edwards, 105 F.3d 1179 (7th
Cir. 1997), a case involving a charged conspiracy to distribute cocaine and “crack,” the court
reasoned that the Sentencing Guidelines allocated to the trial judge the determination of what
drug and what quantity of that drug was distributed, and permitted the judge to consider as
“relevant conduct” the distribution of other drugs as part of the course of conduct even if they
were not identified in the indictment. Jd. at 1180. The court stated:

Because sentencing depends on proof by a preponderance of the evidence, while

conviction depends on proof beyond a reasonable doubt, the judge may even base

a sentence on events underlying charges for which the jury returned a verdict of

acquittal. What a jury believes about which drug the conspirators distributed

therefore is not conclusive — and a verdict that fails to answer a question

committed to the judge does not restrict the judge’s sentencing options.

Td, at 1181.

On October 20, 1997, just after Knox’s sentencing but six months before the judgment
was entered, the Supreme Court granted certiorari in Edwards based on the split in the Circuits.
The case was argued on February 23, 1998, and it was decided on April 28, 1998, five days after
the judgment in Knox’s case was entered and one day after he had filed a notice of appeal.
Edwards v. United States, 523 U.S. 511 (1998). The Court held that even if one accepted the
proposition that the sentence was limited that applicable to the least-serious narcotic for
sentencing purposes, that made no difference in Edwards. The reason for this was the same

relevant conduct rule cited by the Seventh Circuit:

the sentencing judge here would have had to determine the total amount of drugs,
determine whether the drugs consisted of cocaine, crack, or both, and determine

' Knox was sentenced in early October 1997, but the judgment was not entered until April 23, 1998.

7



instant motion (the general verdict and tape tampering claims) and by failing to provide adequate
tepresentation before the Seventh Circuit on remand from the Supreme Court. Finally, in Claim
6, Knox asserts that his counsel rendered ineffective assistance during his trial by failing to call
available witnesses who, he says, would have testified that he withdrew from the narcotics and
racketeering conspiracies prior to legislative reforms that increased the maximum penalty for
those offenses from 20 years to life.

DISCUSSION

To succeed on a § 2255 motion, a convicted defendant must show that he was sentenced
in violation of the Constitution or laws of the United States or that the sentence exceeded the
maximum sentence authorized by law or is otherwise subject to collateral attack. Prewitt v.
United States, 83 F.3d 812, 816 (7" Cir. 1996). A § 2255 motion is not a substitute for direct
appeal. /d. Claims raised in Knox’s motion that were not raised on direct appeal are considered
procedurally defaulted and cannot be reviewed unless he can show cause for the default and
actual prejudice resulting from the failure to raise those claims. Id.; United States v. Frady, 456
U.S. 152, 170 (1982).

1 Claim 1 (double jeopardy)

In his first claim, Knox argues that imposition of a sentence for narcotics conspiracy in
addition to a sentence for RICO conspiracy constitutes cumulative punishment that violates the
double jeopardy clause of the Fifth Amendment. He contends that narcotics conspiracy under 21
U.S.C. § 846 is a lesser included offense of a RICO conspiracy charge predicated on narcotics
conspiracy and that he therefore cannot be punished for both offenses. Though the Seventh

Circuit has not addressed this issue, other Courts of Appeals have determined either that



assistance. The claim is based in part on allegations that his counsel failed at trial or on appeal to
taise the substantive claims we have addressed in issues 2, 3 and 4. For the reasons we have
discussed, a hearing is required on issues 2 and 3 as well as on the ineffective assistance claim
insofar as it involves the failure to raise those issues at trial and on appeal. The ineffective
assistance claim regarding issue 4 (concerning the tape recordings) is without merit, as the issue
was sufficiently aired at trial and on appeal, and, as we have found, is not properly addressed in
this proceeding.

Claim 5 is based on one additional ground which we now address. Knox alleges that he
was deprived of effective assistance before the Seventh Circuit on remand from the Supreme
Court in that his counsel failed to argue that application of the Apprendi rule to the facts of his
case should result in lower sentences for his narcotics conspiracy and RICO convictions. He
argues that the statement his counsel submitted following remand pursuant to Seventh Circuit
Rule 54 was essentially a “motion for extension of time,” that the court disregarded that filing,
and that it adopted the government’s unopposed position that his sentence should be affirmed,
Apprendi error notwithstanding. Knox argues that his counsel should have filed a substantive
Rule 54 statement giving Knox’s views on the Apprendi issue.

We do not agree with Knox that his counsel’s performance was deficient. Seventh
Circuit Rule 54 provides that “when the Supreme Court remands a case to this court for further
proceedings, counsel for the parties shall ... file statements of their positions as to the action
which ought to be taken by this court on remand.” As Knox concedes, his counsel complied with
the rule, requesting that the court remand the case to the district court or set a briefing schedule

allowing time for full briefing on the impact of Apprendi. The Seventh Circuit denied these

14



that “whenever the leaders wanted him back in, he was there at their beck and call.” Jd. at 8-9.
Given the basis for the sentencing court’s decision, the testimony of two additional El Rukns
members who would have testified that Knox was “out of the [El Rukns] nation” would not have
made an impact on the result of the proceeding.
Conclusion

For the foregoing reasons, the Court orders a hearing on claims 2 and 3 of Knox’s section
2255 motion, as well as issue 5 to the extent it involves his prior counsel’s failure to raise the
points covered in claims 2 and 3. The Court denies Knox’s section 2255 motion with respect to
claims 1, 4, 6, and the remainder of claim 5 [docket # 1-1]. Knox’s “motion to proceed with
pending arguments” [docket #13-1] and his motion to correct typographical errors [docket # 18-
1] are granted. His motion to stay [docket # 5-1] is denied. The Court appoints Kimball
Anderson of Winston & Strawn to represent Knox pursuant to the provisions of the Criminal
Justice Act, 18 U.S.C. § 3006A. The case is set for a status hearing on September 10, 2003 at

9:30 a.m. for the purpose of setting a hearing date.

Date: August 26, 2003 United States District Jupige

16



been properly instructed, the jury would have found him guilty beyond a reasonable doubt for the
offenses for which he was sentenced. See United States v. Green, 6 Fed. Appx. 377 (7" Cir.
2001) (unpublished).

Knox has now filed a motion under 28 U.S.C. § 2255 seeking to vacate his conviction
and sentence. In the motion, he raises six claims. Claim 1 is a double jeopardy claim. Knox
argues that a charge of narcotics conspiracy under 21 U.S.C § 846 is a lesser included offense in
a charge of racketeering conspiracy under 18 U.S.C. § 1962(d). Consequently, he argues, his life
sentence for narcotics conspiracy constitutes cumulative punishment in violation of the double
jeopardy clause of the Fifth Amendment. Claim 2 concerns a sentencing-related error. Though
he was charged with a multi-drug conspiracy, the jury returned a general verdict of guilty on that
charge without making any finding as to the type and quantity of drugs involved in the
conspiracy (a special verdict form was not used). Knox argues that the trial judge erred by
imposing a sentence on the narcotics conspiracy conviction that exceeded the maximum penalty
for the least serious drug offense for which the jury might have found Knox guilty. Claim 3
carries this same issue to the RICO conviction; a life sentence was available on the RICO charge
only if it was based on a predicate criminal act that carried a possible life term. Because a life
sentence was inappropriate for the narcotics conspiracy charge, Knox argues, it was a fortiori
inappropriate for the RICO charge. Claim 4 involves the government’s use of duplicate tape
recordings as evidence at Knox’s trial. Knox alleges that the tapes were tampered with and has
requested to have them produced for expert examination. Claim 5 is based on ineffective
assistance of counsel. Specifically, Knox contends that his counsel rendered ineffective

assistance by failing to raise and preserve three of the first four substantive issues raised in the



we

IN THE UNITED STATES DISTRICT COURT ae
FOR THE NORTHERN DISTRICT OF ILLINOIS Bas “ i ra]

EASTERN DIVISION une
AuG 2 9 2003
UNITED STATES OF AMERICA, )
)
vs. ) Case No. 02 C 7392
)
SAMMY KNOX )

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

Sammy Knox, a member of the El Rukn street gang in Chicago, was indicted on federal
drug conspiracy and racketeering charges in 1989. In 1991, he was tried before a jury and
convicted. Because of prosecutorial misconduct, however, the trial judge ordered a new trial.
Knox was tried and convicted a second time in 1996. Following the second jury’s verdict, he
was sentenced to life for narcotics conspiracy under 21 U.S.C. § 846 and racketeering conspiracy
under 18.U.S.C. § 1962(d). His conviction and sentence were affirmed on appeal, but the United
States Supreme Court granted Knox’s petition for writ of certiorari and remanded the case to the
Seventh Circuit for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). On
remand, Knox argued that his life sentences were unconstitutional under Apprendi, in that they
were imposed based on facts (the types and quantities of drugs involved in the narcotics and
racketeering conspiracies) that had not been found by a jury beyond a reasonable doubt. See id.
at 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt”). But the Seventh Circuit decided that the evidence at trial showed “beyond

any possible doubt” that Knox was responsible for a large enough quantity of drugs that, had it



conversations as evidence against him at trial. Seeking to invoke the rules of discovery for §
2255 cases, he has requested that the government produce for expert analysis the original sealed
copies of the tape recorded conversations and the duplicate recordings that were used against him
at trial. Knox treats this claim as a new issue; in fact he “concedes” it has been procedurally
defaulted and offers his counsel’s ineffective assistance as cause for default. But default is not an
issue, as Knox raised this claim both at trial and on appeal, and the possibility of government
tampering with the tapes was explored and rejected by both the district court and the Seventh
Circuit. Because the issue was raised, there is no need to excuse a “default,” and no basis for a
claim of ineffective assistance of counsel arising from the purported failure to raise the issue.”
The facts relating to the history of the tapes recordings used against Knox during trial are
recounted in Seventh Circuit’s appeal in this case. See United States v. Boyd, 208 F.3d 638, 642-
644 (7 Cir. 2000). We will summarize them briefly. During Knox’s second trial, the
government introduced into evidence copies of recorded conversations.’ Knox and his co-
defendants contested the tapes’ authenticity. Though an expert examination revealed a
discrepancy between one of the original recordings and its duplicate original, the trial judge
admitted the tapes into evidence and allowed them to be played to the jury. Jd. at 644. On
appeal, the Seventh Circuit affirmed the trial judge’s decision to admit the tapes. It emphasized

that the expert who examined the tapes at trial could not determine the cause of the discrepancy,

2 In his brief, Knox states that his counsel was ineffective for failing to conduct a proper and timely
investigation related to the authenticity of the tape evidence at the pre-trial and trial stages. As we have discussed,
however, his counsel raised the issue of the tapes’ authenticity, and Knox fails to identify any further steps his
counsel should have taken to pursue a claim that the recordings were falsified.

3 The recordings used as evidence were copies of duplicate originals made at the same time as the original
recordings and intended to be identical to them. See Boyd, 208 F.3d at 642.

12


requests, but that does not render his counsel’s strategy objectively unreasonable. Moreover,
Knox cannot make the required showing of prejudice. It is true that the court adopted the
government’s position and affirmed his sentence. But the Court sees no basis to believe that any
amount of argument to the contrary would have changed the court’s decision that the Apprendi
error in Knox’s case was “harmless ... beyond any possible doubt.” Green, 6 Fed. Appx. at 377.
4. Claim 6

Claim 6 is an ineffective assistance claim based on counsel’s failure to call at sentencing
witnesses who would have testified that Knox withdrew from the racketeering and narcotics
conspiracies prior to November 1987, when statutory changes took effect which increased the
maximum penalties for those offenses from 20 years to life. Knox has submitted affidavits from
Alan Knox and Jerry Robinson, two former E] Rukns who state that they would have testified
that Knox withdrew from the gang in the later part of 1986 or early part of 1987. Regardless of
his counsel’s reasons for declining to present these witnesses, Knox cannot make the required
showing of prejudice. During his sentencing hearing, Knox raised the issue of withdrawal and
presented the affidavits of two other El Rukn gang members, Earl Hawkins and Edgar Cooksey,
along with a statement by Jeff Fort, the leader of the gang, all indicating that Knox had fallen out
of favor with the gang’s leadership prior to the time of the relevant change in the law. But the
judge determined that although Knox had done things to upset the gang’s leadership, his
alienation from the El Rukns “{did] not fall within the classic definition of withdrawal,” because
he was still subject to the gang’s authority. Sentencing Hearing Transcript at 8. Considering
“the overall role that Knox played in the organization and his relationship with Fort and its other

leaders,” the court concluded that Knox was still part of the El Rukns “family” after 1987 and

15