Johnson v. United States of America

Filing 10

OPINION entered by Judge Sue E. Myerscough on 03/27/2017. SEE WRITTEN OPINION. The Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1 ) is GRANTED IN PART and DENIED IN PART. Pet itioner is not entitled to relief on Grounds One, Two, Three, Four, Five, Six, Seven, Nine, Ten, Eleven, and Twelve of his Motion. Because Petitioner has not made a substantial showing of the denial of a constitutional right, the Court denies a c ertificate of appealability on those grounds under Rule 11(a) of the Rules Governing Section 2255 Proceedings. See 28 U.S.C. § 2253(c)(2). (2) The Court GRANTS Petitioner's Motion on the issue raised in Ground Eight, that defense counsel rendered ineffective assistance of counsel for failing to object to the constructive amendment of Counts 2, 3, and 4. Counts 2, 3, and 4 of the Second Superseding Indictment in Case No. 04-30046 shall be VACATED. Petitioner is entitled to resentencing in Case No. 04-30046. A separate order shall be entered in Case No. 04-30046. (3) This case is CLOSED. (DM, ilcd)

E-FILED

Monday, 27 March, 2017 01:04:48 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
HENRY D. JOHNSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

No. 16-3022

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Petitioner Henry D.
Johnson’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (d/e 1). The
Motion is GRANTED IN PART and DENIED IN PART. For the
reasons that follow, the Court finds that Petitioner is not entitled to
relief on Grounds One, Two, Three, Four, Five, Six, Seven, Nine,
Ten, Eleven, and Twelve. The Government concedes that Petitioner
is entitled to relief on Ground Eight, and the Court accepts that
concession.

Page 1 of 79

I. BACKGROUND1
On January 20, 2005, a grand jury charged Petitioner by way
of a Second Superseding Indictment with engaging in a continuing
criminal enterprise in violation of 21 U.S.C. § 848 (Count 1); three
counts of using a telephone to facilitate a drug offense in violation
of 21 U.S.C. § 843(b) (Counts 2, 3, 4); conspiracy to distribute
cocaine in violation of 21 U.S.C. § 846 (Count 5); conspiracy to
distribute crack cocaine in violation of 21 U.S.C. § 846 (Count 6);
conspiracy to maintain a drug-involved building in violation of 21
U.S.C. § 846 (Count 7); maintaining a drug involved building in
violation of 21 U.S.C. § 856(a)(2) (Count 8); distribution of
marijuana in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(D)
(Count 9); and aiding and abetting the distribution of crack
cocaine in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(B), and 18
U.S.C. § 2 (Count 10). See Crim., Second Superseding Indictment
(d/e 41).

The Court will refer to docket entries in the criminal case, Case No. 0430046, as follows: Crim., document name, (d/e number). The Court will refer
to the Seventh Circuit docket entries as “Seventh Circuit Case No., document
name (d/e number).
1

Page 2 of 79

At trial, the Government presented evidence that Petitioner
was a high-ranking member of the Black P-Stone Nation gang and
was “responsible for a large-scale crack, cocaine, and marijuana
distribution” operation in Quincy, Illinois. United States v.
Johnson, 580 F. App’x 480 (7th Cir. 2014). Several of the
participants in the operation testified against Petitioner at trial.
On July 7, 2005, a jury found Petitioner guilty on all ten
counts. In February 2006, U.S. District Judge Jeanne Scott
denied Petitioner’s post-trial motions, entered judgment on the
verdict on Counts 1, 2, 3, 4, 8, 9, and 10, and found that the three
conspiracy counts, Counts 5, 6, and 7, merged into the judgment
of conviction on Count 1. Crim., Opinion at 13 (d/e 137).
In July 2006, Judge Scott sentenced Petitioner to life
imprisonment on Count 1; 48 months’ imprisonment on Counts 2,
3, and 4; 240 months’ imprisonment on Count 8; 60 months’
imprisonment on Count 9; and 480 months’ imprisonment on
Count 10, all to run concurrently. Judge Scott also sentenced
Petitioner to five years of supervised release on Counts 1 and 10;
one year on Counts 2, 3, and 4; and 3 years on Counts 8 and 9, all

Page 3 of 79

to run concurrently. See Crim., Judgment (d/e 144). The Court
also imposed a $700 special assessment. Id. Petitioner appealed.
The Seventh Circuit appointed attorney Kenneth J. Hogan to
represent Petitioner on appeal. See Crim., Order (d/e 149). In
March 2007, Hogan was allowed to withdraw and Kellie ParisAsaka was substituted as retained counsel for Petitioner. See
Seventh Circuit Case No. 06-3048, Order (d/e 15).
On October 15, 2007, Paris-Asaka filed the appellant’s brief
raising numerous arguments. Id., Brief (d/e 23). Oral argument
was held on February 21, 2008. Id. docket notation (d/e 35, 36).
On March 11, 2008, the Seventh Circuit issued an order noting
that Paris-Asaka filed a brief and presented oral argument that
“[t]he panel assigned to the case” found to be “not sufficiently
informative.” Id., Order (d/e 39). The court appointed Barry
Levenstam of Jenner & Block LLP as amicus curiae to re-brief the
side of Petitioner. The Seventh Circuit directed the amicus to
address whatever issues he deemed appropriate and re-brief any
issues previously raised in the brief by Petitioner. Id.
On June 27, 2008, Levenstam filed the amicus brief
preserving the issues raised in the prior brief but raising and
Page 4 of 79

focusing on three issues: (1) whether the district court committed
reversible error by failing to instruct the jury that, to find Petitioner
guilty of engaging in a criminal enterprise, the jurors must
unanimously agree that Petitioner acted in concert with five or
more other persons and occupied a position of organizer,
supervisor, or manager with respect to them; (2) whether the
district court committed reversible error when it admitted evidence
of Petitioner’s uncharged drug activities and other bad acts
occurring up to seven years before the crimes charged in the
indictment; and (3) whether Petitioner’s sentence should be
vacated and his case remanded for resentencing under Kimbrough
v. United States, 128 S. Ct. 558 (2007). Seventh Circuit Case No.
06-3048, Amicus Brief at 1-2, 4 (d/e 47). Oral argument was held
on January 7, 2009. Id., docket notation (d/e 60, 61). On October
14, 2009, the Seventh Circuit considered the three arguments
raised by the amicus, affirmed Petitioner’s conviction, but vacated
his sentence and remanded for resentencing in light of Kimbrough,
552 U.S. 85. See United States v. Johnson, 584 F.3d 731 (7th Cir.
2009).

Page 5 of 79

On remand, Judge Scott sentenced Petitioner to the same
sentence originally given. Crim., Judgment (d/e 187). Petitioner
appealed. On March 24, 2011, the Seventh Circuit again vacated
Petitioner’s sentence but this time remanded for a redetermination
of the sentence in light of the parsimony principle of 18 U.S.C.
§ 3553(a). United States v. Johnson, 635 F.3d 983, 988, 990 (7th
Cir. 2011) (noting that the defendant was not entitled to a
redetermination of the drug quantities on the first remand and
specifically noting that the second remand was limited to a
redetermination of the sentence in light of the parsimony principle
and that other aspects of the sentence were not to be revisited).
By this time, Judge Scott had retired from the bench, and the
case was reassigned. On October 2, 2012, following a hearing, this
Court entered judgment resentencing Petitioner to 360 months’
imprisonment on Counts 1 and 10; 48 months on Counts 2, 3, and
4; 240 months on Count 8; and 60 months on Count 9, to all run
currently. This Court sentenced Petitioner to 5 years of supervised
release on Counts 1 and 10; 1 year on Counts 2, 3, and 4; and 3
years on Counts 8 and 9, all to run concurrently. This Court also
imposed a $700 special assessment. Crim., Judgment (d/e 212).
Page 6 of 79

Petitioner appealed. On February 19, 2013, the United States
and appellate counsel for Petitioner filed a joint motion asking the
Seventh Circuit to vacate the sentence and remand to give the
district court the opportunity to consider and expressly address
Petitioner’s argument for a reduced crack-to-powder ratio. The
Seventh Circuit granted that motion, vacated Petitioner’s sentence,
and remanded the case for resentencing. See Seventh Circuit Case
No. 12-3254, Order (d/e 16).
In August 2013, this Court sentenced Petitioner to 293
months’ imprisonment on Count 1; 48 months’ imprisonment on
Counts 2, 3, and 4; 240 months’ imprisonment on Counts 8 and
10; and 60 months’ imprisonment on Count 9, all to run
concurrently. The Court also sentenced Petitioner to 5 years of
supervised release on Counts 1 and 10; 1 year on Counts 2, 3, and
4; and 3 years on Counts 8 and 9, all to run concurrently; and a
$700 special assessment. Crim., Judgment (d/e 234). Petitioner
appealed.
On appeal, appellate counsel filed an Anders brief in support
of his motion to withdraw as appointed counsel. On October 21,
2014, the Seventh Circuit granted counsel’s motion to withdraw
Page 7 of 79

and dismissed the appeal. Johnson, 580 F. App’x at 480.
Petitioner did not file a petition for certiorari.
On January 19, 2016, Petitioner timely filed his § 2255
Motion by placing the Motion in the prison mailing system.2 See
Rule 3(d), Rules Governing Section 2255 Motions (providing a
paper filed by an inmate confined to an institution is timely if
deposited in the institution’s internal mailing system on or before
the last day for filing); Mot. at 12 (d/e 1) (certifying that Petitioner
placed the § 2255 Motion in the prison mailing system on January
19, 2016).
II. ANALYSIS
In his § 2255 Motion, Petitioner raises 12 grounds for relief,
all alleging ineffective assistance of counsel.
A person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief
2

The Motion is timely because Petitioner filed his § 2255 Motion within one
year of the date on which the judgment of conviction became final. See Clay
v. United States, 537 U.S. 522, 532 (2003) (holding that “for federal criminal
defendants who do not file a petition for certiorari with [the Supreme Court]
on direct review, § 2255’s one-year period of limitation starts to run when the
time for seeking such review expires”); Sup. Ct. R. 13.1 (requiring a petition
for certiorari be filed within 90 days after entry of judgment). The time for
seeking review of the Seventh Circuit decision expired on January 19, 2015.
Petitioner filed his Motion within one-year of that date, January 19, 2016.

Page 8 of 79

under § 2555 is an extraordinary remedy because a § 2255
petitioner has already had “an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Post-conviction relief under § 2255 is therefore “appropriate only
for an error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in a
complete miscarriage of justice.” Harris v. United States, 366 F.3d
593, 594 (7th Cir. 2004) (internal quotation marks omitted).
To succeed on a claim of ineffective assistance, Petitioner
must prove that: “(1) his attorney’s performance fell below an
objective standard of reasonableness; and (2) he suffered prejudice
as a result.” Wyatt v. United States, 574 F.3d 455, 457-58 (7th
Cir. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687-88
(1984)). The first prong is known as the “performance prong,” and
the second is known as the “prejudice prong.” See, e.g., Wyatt,
574 F.3d at 458.
Under the performance prong, the Court’s scrutiny of
counsel’s performance is highly deferential. Rodriguez v. United
States, 286 F.3d 972, 983 (7th Cir. 2002). Petitioner must
overcome the “strong presumption that counsel’s conduct falls
Page 9 of 79

within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689 (also noting that the defendant must
overcome the presumption that the challenged action might
constitute sound trial strategy). Petitioner must establish the
“specific acts or omissions of counsel that [Petitioner] believes
constituted ineffective assistance.” Wyatt, 574 F.3d at 458. The
Court then determines if “such acts or omissions fall outside the
wide range of professionally competent assistance.” Id.
To satisfy the prejudice prong, Petitioner must show “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694; see also Gentry v.
Sevier, 597 F.3d 838, 851 (7th Cir. 2010). A reasonable
probability is a “probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694. Failure to prove either
prong is fatal to a claim of ineffective assistance. Chichakly v.
United States, 926 F.2d 624, 630 (7th Cir. 1991); see also
Strickland, 466 U.S. at 697 (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice
… that course should be followed.”).
Page 10 of 79

The Court finds that an evidentiary hearing is not necessary
because the allegations are conclusory or the factual matters
raised may be resolved on the record before the Court. See
Rodriguez v. United States, 286 F.3d 972, 986 (7th Cir. 2002), as
amended on denial of reh'g and reh'g en banc (May 21, 2002).
A.

Petitioner is Not Entitled to Relief on Ground One
Petitioner asserts that he was deprived his Sixth Amendment

right to effective assistance of counsel when his first direct appeal
attorney, Paris-Asaka, failed to argue meritorious issues after
being instructed by Petitioner to do so, failed to be sufficiently
informative in her arguments in her appellate brief, and
abandoned Petitioner on appeal.
As noted above, appellate counsel filed a brief and presented
an oral argument that the Seventh Circuit found to be “not
sufficiently informative,” resulting in the Seventh Circuit
appointing an amicus to raise any issues on appeal deemed
appropriate. The Seventh Circuit found one of the three grounds
raised by the amicus meritorious, vacated Petitioner’s sentence,
and remanded for resentencing.

Page 11 of 79

While Petitioner has demonstrated that appellate counsel’s
performance was objectively unreasonable, Petitioner has not
shown prejudice. To show prejudice, Petitioner must show a
reasonable probability that the issue his appellate counsel failed to
raise or fully brief would have altered the outcome of the appeal
had it been raised or fully briefed. See, e.g., Lee v. Davis, 328 F.3d
896, 901 (7th Cir. 2003). Petitioner does not identify the issues
that appellate counsel should have raised on appeal or show that
those issues would have been meritorious.
Instead, Petitioner argues that his appellate counsel’s lack of
representation was equal to him having no counsel on direct
appeal at all. When a defendant has been deprived any assistance
of counsel on appeal, prejudice is presumed. See Smith v.
Robbins, 528 U.S. 259, 286 (2000) (noting that the “denial of
counsel altogether on appeal . . . warrants a presumption of
prejudice”); Castellanos v. United States, 26 F.3d 717, 718 (7th
Cir. 1994) (“Abandonment is a per se violation of the sixth
amendment.”).
Petitioner was not completely denied the assistance of
counsel on appeal. Appellate counsel filed a brief and attended
Page 12 of 79

oral argument. While appellate counsel’s performance was
deficient, Petitioner was not completely denied counsel on appeal.
See Penson v. Ohio, 488 U.S. 75, 88 (1988) (distinguishing
between a denial of counsel that leaves a petitioner without
representation during the appellate court’s decisional process, in
which case prejudice is presumed, and a claim that appellate
counsel’s performance was ineffective—such as by failing to raise a
particular issue on appeal or failing to argue an issue as effectively
as she should—which requires the petitioner show prejudice).
Moreover, the Seventh Circuit appointed an amicus to raise and
address any issues the amicus deemed appropriate. The Seventh
Circuit considered those issues and partially ruled in Petitioner’s
favor. Because Petitioner was not completely deprived of the
assistance of counsel on appeal, the Court will not presume
prejudice. Petitioner has not shown prejudice, and he is not
entitled to relief on Ground One.
B.

Petitioner is Not Entitled to Relief on Ground Two
In Ground Two, Petitioner raises several ineffective-

assistance-of-counsel claims related to the admission at trial of
out-of-court statements of Petitioner’s alleged co-conspirators.
Page 13 of 79

Under Federal Rule of Evidence 801(d)(1)(E), co-conspirator
statements are not hearsay and are admissible against a defendant
at trial if the district court finds, by a preponderance of the
evidence, that (1) a conspiracy existed, (2) the defendant and the
declarant were involved in the conspiracy, and (3) the statements
were made during and in furtherance of the conspiracy. United
States v. Davis, 845 F.3d 282, 286 (7th Cir. 2016); Fed. R. Evid.
801(d)(1)(E). The district court must make a preliminary
determination whether the statements are admissible. United
States v. Cardena, 842 F.3d 959, 993 (7th Cir. 2016).
In the Seventh Circuit, the preliminary determination can be
made through the use of a Santiago proffer. United States v.
Santiago, 582 F.2d 1128, 1131 (7th Cir. 1978), overruled in part
on other grounds by Bourjaily v. United States, 483 U.S. 171
(1987). If the Government rests but has not met its burden of
showing that the statements are admissible, the defendant can
move for a mistrial or request that the court strike the statements.
United States v. Haynie, 179 F.3d 1048, 1050 (7th Cir. 1999).
On February 3, 2005, trial counsel filed a Motion for
Government to Produce Santiago Proffer Prior to Trial. Crim.,
Page 14 of 79

Motion (d/e 49). The Government filed a Santiago Proffer. Crim.,
Proffer (d/e 62). The Santiago Proffer identified the evidence the
Government believed would show a co-conspiratorial relationship
between Petitioner and “Kevin Turner, Craig Abbey, Joseph Abbey,
Nolan Nelson, Tomerker [sic] Robertson, Joseph Ball, Antonio
Woodson, Anthony Buckner, and others.” Id. at 2. The
Government identified the anticipated evidence for each of the
three alleged conspiracies: the conspiracy to distribute cocaine, the
conspiracy to distribute crack, and the conspiracy to maintain a
drug-related premises.
On June 1, 2005, the Court denied defense counsel’s request
for a hearing and conditionally admitted the out-of-court
statements of Petitioner’s alleged co-conspirators made in
furtherance of one of the conspiracies alleged in the Second
Superseding Indictment. Crim., Order (d/e 87). The Court also
noted that Petitioner could make a motion at the end of the
Government’s case or at the close of all of the evidence if Petitioner
believed the Government failed to submit the evidence set forth in
the proffer. Id.

Page 15 of 79

After the evidence portion of the trial was completed, the
Court noted that the Court had provisionally admitted some coconspirator statements based on the Government’s Santiago
proffer. Crim., Tr. at 1599 (d/e 159). The Court found “adequate
proof of the existence of a conspiracy that make those statements
proper.” Id. at 1600. The Court fully admitted the statements as
falling within the hearsay exception. Id.
After completion of the trial, Petitioner’s counsel filed an
addendum to his post-trial motions objecting, among other
grounds, to the improper use of the statements of “unindicted
individuals who were not allegedly conspirators.” Crim.,
Addendum to Post-Trial Motions ¶ 15 (d/e 122) (also asserting that
the Government’s evidence far exceeded that of the Santiago
proffer); Crim., Brief in Support (d/e 124). The Court found no
error, noting that the “procedure used by the Court was proper
and in accord with precedent.” Crim., Opinion (d/e 137).
Petitioner now argues that his counsel provided ineffective
assistance by failing to object to all of the alleged co-conspirator’s
testimony as being in violation of Federal Rule of Evidence
801(d)(2)(E) and Santiago, 582 F.2d 1126. Petitioner first asserts
Page 16 of 79

that counsel should have asked the Court to clarify the ruling at
trial because the Court’s ruling only spoke about one of the three
conspiracies. However, Petitioner has not shown that counsel’s
performance fell below an objective standard of reasonableness for
failing to seek clarification of the Court’s ruling. The Government’s
Santiago proffer clearly set out the three alleged conspiracies (d/e
62) and the Court specifically noted that the Court was
conditionally admitting “the out–of-court statements of the
Defendant’s alleged co-conspirators made in furtherance of one of
the conspiracies alleged in the Second Superseding Indictment”
(d/e 87). Moreover, no reasonable probability exists that the
outcome would have been different had counsel asked for a
clarification of the Court’s ruling at trial.
Petitioner also argues that counsel should have objected to
the testimony of Nolan Nelson, Anthony Buckner, Kevin Turner,
Prince Turner, Jr., Joseph Ball, Craig Abbey, and Tomeker
Robertson on the basis that they were not co-conspirators.
However, even assuming that those individuals were not coconspirators, they were still competent to testify against Petitioner.
Rule 801(d)(2)(E) does not require that the witness be a coPage 17 of 79

conspirator of the defendant before he can testify to the out-ofcourt statements of another co-conspirator. Only the out-of-court
declarant need be a co-conspirator of the defendant. See United
States v. Mojica, 185 F.3d 780, 788 (7th Cir. 1999) (noting that, for
purposes of Rule 801(d)(2)(E), it was enough that the declarant and
the two defendants against whom the statement was admitted were
members of the same conspiracy); United States v. Westmoreland,
312 F.3d 302, 309-310 (7th Cir. 2002) (finding that the wife’s
testimony that her husband told her he had helped the defendant
bury a body was properly admitted under Rule 801(d)(2)(E) where
the evidence showed that the husband and the defendant were
members of the drug conspiracy and the statement, which was a
threat to the wife, was made in furtherance of the conspiracy).
Petitioner next argues that counsel was ineffective for failing
to object to (1) Nelson’s testimony about the out-of-court
statements of Justice Lee, Rodney McLee, and Jeff Fort, who were
not mentioned in the Santiago proffer, or the out-of-court
statements of Joseph Abbey, Brandon Clay, Damien Coleman,
Antonio Woodson, Marvin Carr, and Derrick Phillips, who were
mentioned in the proffer but whose roles were not specifically
Page 18 of 79

identified; and (2) Prince Turner, Jr.’s references to the out-ofcourt statements of Rodney McLee, where Prince Turner was not
identified in the Santiago proffer.
A petitioner must identify the specific acts of counsel that
form the basis of his ineffective assistance of counsel claim.
Strickland, 466 U.S. at 690. Here, Petitioner fails to identify the
specific acts of counsel that form the basis of his claim.
Petitioner does not identify the statements that should not
have been admitted and to which counsel should have objected.
Petitioner simply makes the blanket assertion that certain
witnesses testified to out-of-court statements of other specified
individuals without identifying the challenged statements. That is
insufficient. See United States v. McCain, No. 03 C 4362, 2003 WL
22706913, at *1 (N.D. Ill. Nov. 14, 2003) (a § 2255 petitioner must
identify the conduct he is challenging and only addressing the four
portions of the trial transcript to which the petitioner cited); see
also, e.g., United States v. Bey, 725 F.3d 643, 648 (7th Cir. 2013)
(noting in a direct appeal that the defendant did not direct the
court to the specific statements that he contended were improperly

Page 19 of 79

admitted, which was “an omission that we might treat as waiver of
the issue”).
The Court has reviewed the transcript of the trial to try to
locate the statements Petitioner challenges. Petitioner may be
objecting, at least in part, to testimony of the witness’s personal
observations of other individuals. For example, Petitioner argues
that Prince Turner Jr. improperly testified regarding certain out-ofcourt statements by Rodney McLee. Reply at 11 (d/e 9) (but not
identifying the statements). At trial, Prince Turner Jr. testified
about two drug transactions he observed between Kevin Turner
and Petitioner. Prince Turner, Jr. testified that Kevin Turner came
out of a room and got drugs from McLee. See Crim., Tr. at 917,
921 (d/e 157). Such testimony is not hearsay. Haynie, 179 F.3d
at 1051 (finding that statements about events the witness
personally observed were not hearsay).
In sum, Petitioner has not met his burden of showing that
counsel’s performance fell below an objective standard of
reasonableness or that that outcome of the trial would likely have
been different had counsel objected. Therefore, Petitioner’s motion
on this ground is denied.
Page 20 of 79

C.

Petitioner is Not Entitled to Relief on Ground Three
Petitioner next argues that counsel was ineffective for failing

to object to the Government’s knowingly false statement of the law
of conspiracy and continuing criminal enterprise and for not
objecting to the Government’s attempt to prove Petitioner guilty by
association.
During his closing argument, counsel for Petitioner argued
that the Government was improperly trying to show Petitioner was
guilty by association. Crim., Tr. at 1767-68 (d/e 160). In rebuttal,
the prosecutor stated:
Guilt by association. Mr. Noll asked, is that what
they’re trying to do? Is that what they are doing, guilty
by association? You know what the answer to that is?
Yes, yes, that’s what we’re doing.
But let me tell you why we are doing it, which is
the part he didn’t tell you. The reason we are doing it is
because the charges are association type charges. The
conspiracy is an association between two or more people
to form an agreement to do something illegal. That’s
what a conspiracy is. You have to associate yourself
with one or more people to commit a conspiracy. That’s
why the association is important.
The continuing criminal enterprise, the same thing.
You have to show that he was associated and was the
manager—great—of five or more people. The second
element of the offense. Of course, the evidence is
evidence of association. How else to prove it? How else
Page 21 of 79

can we show you that there were five or more people if
we said, well, there’s no association, there’s just people.
We have to show you who these people are, what role
they played with each other, so that we can show that
Henry Johnson was the leader of the pack, the prince of
this group.
We have to show it to you by what they did, how
they associated themselves, what relationship existed
between them. It cannot be shown to you in a vacuum.
There has to be some thread tying them together. So
yes, yes, it is guilt by association, because that’s what
the charge is. That’s what the charges are. We have to
prove an association between these people. . . .
Because the charges here are conspiracy and
C.C.E., continuing criminal enterprise, and that—those
charges by law the Government has to prove
association.
Crim., Tr. at 1809-1811 (d/e 160).
Petitioner recognizes that the Court instructed the jury that
an attorney’s arguments are not evidence. Petitioner claims,
however, that the Court created confusion by, after reading the
jury instructions, advising the jury that counsel for the
Government would give the argument for the Government “in
accordance with the instructions already given you.” Crim., Tr.
1732-33. According to Petitioner, this led the jury to believe that
the Government’s misstatements of the law were correct. If

Page 22 of 79

counsel had objected, the Court could have corrected the
misimpression.
The prosecutor did not misstate the law and, taken in
context, the prosecutor’s rebuttal did not ask the jury to find
Petitioner guilty by association. In response to defense counsel’s
arguments that the prosecution was “saying since these people are
associated through this gang membership, you should find
[Petitioner] guilty by association.” (Tr. at 1767 (d/e 160)), the
prosecutor explained why the evidence of the association between
the individuals was necessary to prove the continuing criminal
enterprise and conspiracy charges. Petitioner has not shown that
counsel’s failure to object fell below an objective standard of
reasonableness.
Moreover, Petitioner cannot demonstrate prejudice. The
Court properly instructed the jury on the elements of the
continuing criminal enterprise and conspiracy offenses. Crim.,
Given Jury Instructions (d/e 110) at 1 (instruction on Count 1); Id.
at 3-6 (instructions on conspiracy and Counts 5 through 7); Tr.
(d/e 160) at 1718 (instruction on Count 1); Id. at 1720-23
(conspiracy instructions). The Court also instructed the jury that
Page 23 of 79

counsel’s arguments were not evidence and that the Court would
give the jury the law that applies to the case. See Crim., Tr. at
1697 (“In just a moment I’m going to read to you the instructions
of law that apply to this case.”); Id. at 1699 (the arguments of the
attorneys are not evidence); Id. at 1700 (advising the jury that it is
the jury’s duty to “apply the law that I give you to the facts”); Given
Jury Instructions (d/e 110) at 5 (“Your second duty is to apply the
law that I give you to the facts.”); Id. at 21 (“lawyers’ statements to
you are not evidence”). The Court assumes the jury follows the
Court’s instructions, absent substantial evidence to the contrary.
United States v. Williams, 216 F.3d 611, 615 (7th Cir. 2000). No
contrary evidence has been presented.
The Court finds that the statement to the jury that the
prosecution would present closing arguments “in accordance with
the instructions already given you” did not suggest to the jury that
the prosecutor’s statements were to be construed as evidence or
could overrule the Court’s statement of the law. In addition,
substantial evidence supports the jury’s verdict and demonstrates
the jury did not find him guilty by association. The Government
presented evidence that Petitioner rose through the ranks of the
Page 24 of 79

Black P-Stone Nation gang. Witnesses testified about Petitioner’s
gang and drug activities during the relevant time periods.
According to the witnesses, Petitioner obtained distribution
quantities of powder cocaine from Kevin Turner, a Chicago Black
P-Stone Nation member holding the rank of Prince. Petitioner and
others then cooked the powder cocaine into crack, which was sold.
Witnesses testified that Petitioner established and enforced rules
governing the Black P-Stone Nation members’ sale of crack in
Quincy, Illinois. The lower-ranking members of the Black P-Stone
Nation sold the crack, either taking turns selling the available
drugs or putting the available drugs in a pot and splitting the
proceeds. Witnesses also testified about Petitioner’s distribution of
marijuana. Consequently, Petitioner cannot show that he was
prejudiced by his counsel’s failure to object to the prosecutor’s
comments about guilt by association, and he is not entitled to
relief on Count Three.
D.

Petitioner is Not Entitled to Relief on Ground Four
Petitioner next argues that his trial counsel rendered

ineffective assistance of counsel by not objecting to the
Government’s solicitation of false testimony from the Government
Page 25 of 79

witness, forensic scientist Michael Cravens. Petitioner argues that
counsel should have objected to Cravens’ knowingly false
testimony about the initial testing and alleged retesting of Exhibit
16. Exhibit 16 contained the substance that Joseph Ball sold to
Carl Douglas on June 25, 2001 and that field tested positive for
cocaine. Crim., Tr. at 1307 (d/e 158) (Special Agent Patrick
Frazier testimony).
Defense counsel did not object to the Court recognizing
Cravens as an expert in the field of chemistry and the identification
of controlled substances. Crim., Tr. at 1389 (d/e 158). Cravens
testified that cocaine and crack cocaine are different salt forms.
Id. at 1388. He stated that the “cocaine that’s extracted from the
cacao leaf in the extraction process is usually made into cocaine
hydrochloride or the hydrochloride salt of cocaine.” Id. He further
testified that crack is cocaine hydrochloride that is “hit with a
basic substance” like baking soda and the “hydrochloride ion is
stripped from the cocaine hydrochloride molecule and you have
cocaine base.” Id.
Cravens received Exhibit 16 on July 10, 2001, and it was put
in the evidence locker. Tr. at 1394. Cravens removed the exhibit
Page 26 of 79

from the evidence locker on July 11, 2001. Id. Cravens weighed
the material and performed a number of preliminary screening
tests. Id. He then performed the gas chromatograph mass
spectrometer testing, which involved dissolving a scraping of the
material in a solvent, injecting the material onto the instrument,
and receiving “mass spectrum or disintegration pattern of the
chemical.” Id. at 1395. He compared the result with a known
standard and determined the substance contained cocaine. Id.;
see also Crim., Report dated July 18, 2011 (listing the “Findings”
as “Cocaine”) (Ex. 16-A).
Cravens testified that he was subsequently asked to reexamine the substance to determine “what salt form the material
actually was.” Tr. at 1395. He did this by re-weighing the
material, performing the preliminary tests, and then performing an
infra-red spectrometry on some of the scrapings of the substance.
Id. at 1395-96. That instrument gave him the information that the
substance was cocaine base, which is known on the street as
crack. Id. at 1396; see also Supplemental Report dated January
21, 2005 (listing the “Findings” as “Cocaine base”) (Ex. 16-A).

Page 27 of 79

Cravens testified that there was a change in the laboratory
protocol from when he first tested the substance (in 2001) and the
second time he tested the substance (in 2005). Tr. at 1396-97.
Cravens agreed it was now routine for him to “take such exhibits
and actually go and determine whether it’s in the form of either the
salt or the base.” Tr. at 1397.
Petitioner argues that Cravens’ testimony concerning
laboratory protocol was false because forensic lab reports from
1994, 1998, 1999, and 2001 report finding “cocaine (present as a
base).” See Motion, Ex. 4 (d/e 1-5, 17-23) (laboratory reports).
According to Petitioner, this shows that Cravens was lying when he
essentially testified that it was not routine to determine whether
the cocaine was in the form of the salt or the base when he first
tested the substance. Petitioner also argues that some laboratory
negligence or evidence tampering must have taken place to cause
Craven to falsely cover up why his initial report found cocaine—
which Petitioner interprets as a finding of powder cocaine—while
his second report found cocaine base (crack).
Petitioner has not met his burden of showing that counsel’s
performance fell below an objective standard of reasonableness.
Page 28 of 79

Petitioner does not indicate how his counsel knew or should have
known that the testimony about the laboratory protocol was false.
See, e.g., United States v. Sheneman, No. 3:10-CR-126 JD, 3:12CV-720 JD, 2014 WL 2453011, at *22 (N.D. Ind. June 2, 2014)
(refusing to consider further the petitioner’s claim that counsel
failed to object to false testimony where the petitioner did not
indicate how his counsel knew or should have known that the
testimony was false or what counsel should have done to address
it). Moreover, the reports Petitioner submitted do not indicate
whether the testing to determine whether the substance was
powder cocaine or crack cocaine was performed as part of the
laboratory protocol or upon a specific request that such a
determination be made. Without such evidence, Petitioner has not
shown that Cravens’ testimony was likely false and that counsel
should have objected. Moreover, even if Cravens’ testimony about
the policy was false, Petitioner has not presented any evidence
demonstrating that the second testing was incorrect or that the
substance was not, in fact, cocaine base (crack).
Petitioner raises an additional claim of ineffective assistance
in his reply brief—that Cravens’ testimony about the salt form and
Page 29 of 79

the base form was false. Petitioner argues that Cravens’ testimony
on cross-examination contradicted what he said on direct exam
and that counsel did not “expose him.” Reply at 30 (d/e 9).
According to Petitioner, counsel knew Cravens was giving false
testimony “by trial counsel[’s] own questioning on crossexamination of Mr. Cravens.” Id.
Petitioner raised this particular argument for the first time in
his reply brief. Therefore, the issue is forfeited. Gonzales v. Mize,
565 F.3d 373, 382 (7th Cir. 2009) (argument raised for the first
time in the § 2254 petitioner’s reply brief was waived); United
States v. Cooper, 243 F.3d 411, 415-16 (7th Cir. 2001)
(distinguishing waiver and forfeiture).
Even if the issue were not forfeited, however, Petitioner has
not shown deficient performance or prejudice. Petitioner takes
issue with Cravens’ reference to cocaine and cocaine base being
“different salt forms” because cocaine in its natural state is a base,
cocaine powder is a salt, and crack cocaine is a base. Petitioner
argues that counsel had several opportunities to “expose” Cravens
but did not do so.

Page 30 of 79

Counsel cross-examined Cravens about the cocaine in its
natural form, the salt form, and the base form. See Crim., Tr. at
1400 (d/e 158) (Cravens agreeing that cacao material taken out of
the plant is in a base form); Tr. at 1401 (Cravens agreeing and
testifying that cocaine coming out of the plant can be made into
cocaine hydrochloride, the salt base); Tr. at 1406 (Cravens
agreeing that he can either test for hydrochloride cocaine or base
cocaine); Tr. at 1409 (Cravens testifying that Exhibit 16 is not a
salt in itself). The jury heard Cravens’ testimony, and the Court
instructed the jury to give the testimony whatever weight the jury
thought the opinion deserved. Crim., Given Jury Instructions at
29 (d/e 110). Petitioner has not shown that counsel’s performance
was deficient or that Petitioner was prejudiced. Therefore,
Petitioner is not entitled to relief on Ground Four.
E.

Petitioner is Not Entitled to Relief on Ground Five
Petitioner argues that trial counsel rendered ineffective

assistance of counsel by not tendering any jury instructions. He
also asserts that counsel should have tendered certain jury
instructions, including a buyer-seller instruction, an instruction
that a defendant is not a member of a conspiracy just because he
Page 31 of 79

associated with people involved in a conspiracy, and that
membership in a gang is not a violation of law. Petitioner argues
he suffered prejudice because the outcome of the trial would have
been different had counsel submitted these instructions.
Counsel is not ineffective solely for failing to submit jury
instructions. United States v. Brown, 739 F.2d 1136, 1147 (7th
Cir. 1984) (“The failure to submit instructions does not in itself
make out a claim for ineffective assistance.”). In this case,
although counsel did not submit his own set of jury instructions,
counsel vigorously engaged in the jury instruction conference by
objecting to instructions and proposing changes to the language.
As for the specific instructions Petitioner claims counsel
should have submitted, Petitioner has not shown he was
prejudiced by the failure to request an instruction that a defendant
is not a member of a conspiracy just because he associated with
people involved in a conspiracy and that membership in a gang is
not a violation of law. Counsel argued several times during closing
arguments that it was insufficient to find Petitioner guilty solely
because he associated with people involved in the conspiracy or
because he was a member of a gang. See Crim., Tr. at 1768
Page 32 of 79

(arguing that the Government was trying to prove Petitioner guilty
because he associated with confessed drug-dealers and because of
“gang affiliation,” noting that “[g]uilt by association is not
acceptable to fair minded individuals”); Tr. at 1789 (stating that
the Government was trying to say that since Petitioner was
associated with others, he must have conspired with them but
arguing that the Government has no corroboration). In addition,
the Court properly instructed the jury, including on the conspiracy
counts, which accurately indicated that more than association or
gang affiliation was required. See, e.g., Crim., Given Jury
Instructions at 3 (d/e 110) (defining conspiracy as an agreement
between two or more people to accomplish an unlawful purpose,
that the jury must base its decision of whether the defendant
joined the charged conspiracy based on what the defendant did or
said, and that the Government must prove beyond a reasonable
doubt that the defendant was aware of the common unlawful
purpose and was a willing participant); Navar v. United States, No.
10 C 4874, 2011 WL 3584779, at *4 (N.D. Ill. Aug. 10, 2011)
(finding that, even if counsel should have requested a “mere
presence” instruction, any deficiencies were cured because defense
Page 33 of 79

counsel stated during closing arguments that, “There is no guilt by
association in this country” and other instructions “conveyed the
issues fairly and accurately, indicating that presence alone is
insufficient”). Moreover, the evidence of Petitioner’s involvement in
the conspiracy was overwhelming and, as stated with regard to
Ground Three, there is no reasonable probability that the jury
found Petitioner guilty by association. See Leach v. Kolb, 911 F.2d
1249, 1261 (7th Cir. 1990) (finding no prejudice where, even if
counsel had tendered the instruction, the jury would have
nonetheless convicted the defendant because the evidence was
overwhelming).
The failure to submit a buyer-seller instruction is a closer
question. Count 5 of the Second Superseding Indictment alleged
that Defendant conspired with Kevin Turner, and other persons
known and unknown, to distribute cocaine. The evidence at trial
demonstrated that Petitioner purchased large quantities of cocaine
from Turner over a period of time and paid for the drugs at the
time of the purchase.
A buyer-seller instruction is warranted if the jury could
rationally find that the defendant merely bought or sold drugs but
Page 34 of 79

did not engage in a conspiracy. United States v. Cruse, 805 F. 3d
795, 814 (7th Cir. 2015); see also Seventh Circuit Pattern Jury
Instruction § 6.12, Committee Comment (1999 ed.) (providing that
the buyer-seller instruction should be given where requested if
there is evidence to support it); Seventh Circuit Pattern Jury
Instruction § 5.10(A), Committee Comment (2012 ed.) (providing
the buyer-seller instruction should be given if a jury could
reasonably find that there was only a buyer-seller relationship
rather than a conspiracy). The Government did not present
evidence at trial that Petitioner bought drugs from Turner on
credit, received commission payments, or sold the cocaine at
Turner’s direction. See United States v. Lomax, 816 F.3d 468, 477
(7th Cir. 2016) (identifying the characteristics that distinguish a
conspiracy from a buyer-seller relationship); but see Hamilton v.
United States, No. 10-cv-4028, 2010 WL 5125893, at *3 (C.D. Ill.
Dec. 9, 2010) (denying ineffective assistance of counsel claim
finding that the evidence showed the petitioner, who was charged
with conspiracy to distribute crack and possession with intent to
distribute crack, was actively engaged in the production of the
crack cocaine for resale; therefore, counsel’s decision not to
Page 35 of 79

request the buyer-seller instruction did not fall outside the
reasonable range of trial counsel’s discretion).
Nonetheless, Petitioner cannot show prejudice. Although the
jury found Petitioner guilty on Count 5, that Count merged into the
judgment of conviction on Count 1. Therefore, Petitioner was not
sentenced on Count 5 and was not prejudiced. See 28 U.S.C. §
2255(a) (providing means of relief where the petitioner claims his
sentence was imposed in violation of the Constitution or laws of
the United State, the court was without jurisdiction to impose such
sentence, or the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack); see
also, e.g., Razo v. Thomas, 700 F. Supp. 2d 1252, 1272 (D. Hawai’i
2010) (noting in case brought under 28 U.S.C. § 2254, that
because Count 1 was merged with Count 4 and the petitioner was
sentenced only on Count 4 and not Count 1, there was not Count
1 to challenge under § 2254 and no prejudice attributable to the
alleged erroneous instruction).
Moreover, even assuming that a buyer-seller instruction
would have caused the jury to find Petitioner not guilty on Count
5, there is no reasonable probability that an acquittal on Count 5
Page 36 of 79

would have affected Petitioner’s convictions on the other Counts.
For example, to prove Count 1, continuing criminal enterprise, the
Government had to prove (1) a violation of the federal narcotics law
(2) which crime was part of a series of violations of the federal
narcotics laws, (3) undertaken by Petitioner and at least five other
individuals, (4) with respect to whom Petitioner held a supervisory,
managerial, or organizational role, and (5) from which Petitioner
received substantial income or resources. United States v. Gibbs,
61 F. 3d 536, 537 (7th Cir. 1996). The “series of violations of the
federal narcotics law” requires at least two or more predicate
offenses. United States v. Wilson, 237 F.3d 827, 833 (7th Cir.
2001) (noting that the Seventh Circuit “has held that a CCE charge
may be established by two or more predicate offenses, even when
the jury instructions require three”) (emphasis in original); but see
Richardson v. United States, 526 U.S. 813, 817 (1999) (assuming,
but not deciding, that “the necessary number is three”).
In this case, the underlying narcotics offenses alleged in
Count 1 of the Second Superseding Indictment were those alleged
in Counts 2, 3, 4, 8, 9, and 10 of the Second Superseding
Indictment. Of the predicate offenses alleged, only Counts 2, 3,
Page 37 of 79

and 4 referenced the conspiracy to distribute cocaine and, as
discussed below with regard to Ground Eight, those counts must
be vacated on other grounds. And, even without Counts 2,3, and
4, Petitioner’s conviction on Count 1 stands because the jury
found that Petitioner committed three other predicate offenses –
those alleged in Counts 8, 9, and 10. Therefore, because Petitioner
cannot show he was prejudiced by counsel’s failure to propose a
buyer-seller instruction with regard to Count 5, Petitioner is not
entitled to relief on Ground Five.
F.

Petitioner is Not Entitled to Relief on Ground Six
Petitioner argues that trial counsel rendered ineffective

assistance of counsel at sentencing by not objecting to the
inconsistencies and contradictions in the testimony of Government
witnesses Tomeker Robertson and Joseph Ball that the Probation
Officer used in the Third Revised Presentence Report (PSR). The
Probation Officer used the testimony of Robertson and Ball in
certain paragraphs of the PSR when calculating relevant conduct.
Specifically, Petitioner objects to paragraphs 32 through 34 of

Page 38 of 79

the Third Revised PSR (d/e 217), which correspond to paragraphs
28 through 30 of the Revised PSR (d/e 146): 3
28. In June 2000, Tomeker Robertson [made] five or six
trips for [Petitioner] to Chicago to transport crack
cocaine back to Quincy. [Petitioner] paid him for the
trips. Each time, between 2 ¼ ounces and 4 ½ ounces of
crack cocaine were brought by Robertson to [Petitioner]
and delivered to [Petitioner] at one of [Petitioner’s]
apartments in Quincy. Based on this information,
[Petitioner] is conservatively being held accountable for
11.25 ounces (318.93 grams) of crack cocaine. (Count
1)
29. From approximately July 2000 to early 2001,
Robertson traveled to Chicago two to three times a week
to obtain 2 ¼ ounces of crack for [Petitioner]. Based on
this information and using conservative estimates,
Robertson would have obtained crack cocaine
approximately 48 times during a six-month period,
resulting in approximately 108 ounces (3,061.8 grams)
of crack cocaine. (Count 1)
30. Beginning in October 2000, Joseph Ball started
making trips with [Petitioner] to obtain cocaine from
[Petitioner’s] supplier, Kevin Turner, in Chicago.
Between October 2000 and July 2001, Ball traveled to
Chicago two or three times weekly and purchased
nine ounces of cocaine for [Petitioner], which was then
converted into crack cocaine. Based on this information
and using conservative estimates, Ball obtained 9
ounces of cocaine base twice per month for 10 months,
for a total of 180 ounces of cocaine base for [Petitioner].
On one occasion Ball accompanied [Petitioner] when he
Because the remands were limited remands, the Court reviews Petitioner’s
objections in Ground Six by referring to the Revised PSR (d/e 146) and the
objections at the original sentencing hearing.
3

Page 39 of 79

purchased 27 ounces of cocaine from Kevin Turner at
Justice Lee's residence in Chicago. On another
occasion, in June 2001, Ball went to Chicago with
[Petitioner] and he purchased 13 ½ ounces of cocaine.
All of the cocaine was taken to Quincy, where it was
converted to crack at Tomeker Robertson's residence
and stored. Based on this information, [Petitioner] is
accountable for 220 ½ ounces (6,251.17 grams) of
cocaine base. (Count 1)
Crim., Revised PSR (d/e 146); Crim., Third Revised PSR at 9 (d/e
217) (containing the same language at paragraphs 32, 33, and 34).
Prior to the original sentencing hearing, trial counsel filed a
Commentary on Sentencing Factors that contained objections to
the PSR raised by counsel and objections raised by Petitioner pro
se. Crim., Tr. at 4-5 (d/e 161); Crim., Def. Commentary on
Sentencing Factors (d/e 140). Petitioner raised pro se objections to
paragraphs 28 and 29. See Def. Commentary at 6. Petitioner also
raised additional objections at the sentencing hearing, including
an objection to paragraph 30 on the ground that “No cocaine was
purchased or bought for me [sic] was not part of any cocaine or
crack conspiracy.” Crim., Sentencing Hearing, Def. Ex. 1.
Petitioner also testified at the sentencing hearing. Crim., Tr. 30-50
(d/e 161).

Page 40 of 79

At the original sentencing hearing, the Court specifically
addressed the objections to the paragraphs dealing with drug
quantity and overruled those objections. The Court found that the
quantity for which Petitioner was being held accountable was
accurate as set forth in the testimony from trial. Crim., Tr. at 56
(d/e 161). The Court also entered a written order overruling
Petitioner’s objections to several paragraphs, including Paragraphs
28 through 30, finding the evidence supported the findings in each
of the relevant paragraphs. Crim., Opinion (d/e 142).
This Court has also reviewed the trial testimony of Robertson
and Ball and finds that their trial testimony supports the findings
in Paragraphs 28, 29, and 30. The Court notes, however, that
Paragraph 30 contains a typographical error. Paragraph 30 states
that “[b]etween October 2000 and July 2001, Ball traveled to
Chicago two or three times weekly and purchased nine ounces of
cocaine for [Petitioner,] which was then converted into crack
cocaine.” At trial, Ball testified that he traveled two to three times
per month and that the total number of trips he made for
Petitioner was more than 12. Crim., Tr. 1208, 1271 (d/e 158).
Paragraph 30, however, used a calculation of two trips per month
Page 41 of 79

when calculating the cocaine base for which Petitioner was held
accountable. See Paragraphs 30 (“Based on this information and
using conservative estimates, Ball obtained 9 ounces of cocaine
base twice per month for 10 months”). Therefore, the amount
actually attributed to Petitioner was consistent with Ball’s
testimony.
Because trial counsel presented Petitioner’s pro se objections
to the Court and because the paragraphs are supported by the
trial testimony, Petitioner has not demonstrated either deficient
performance or prejudice. Petitioner is not entitled to relief on
Ground Six.
G.

Petitioner is Not Entitled to Relief on Ground Seven
In Ground Seven, Petitioner argues that trial counsel

rendered ineffective assistance for not objecting to the constructive
amendment of Count 1 of the Second Superseding Indictment.
Petitioner asserts that the Government constructively amended
Count 1 by way of argument and the evidence presented
throughout the trial in violation of Petitioner’s Fifth and Sixth
Amendment rights.

Page 42 of 79

Pursuant to the Fifth Amendment of the United States
Constitution, “[n]o person shall be held to answer for a capital, or
otherwise infamous crime, unless on presentment of indictment of
a Grand Jury.” U.S. Const. amend. V. A constructive amendment
of the indictment violates the Fifth Amendment because a
defendant can only be convicted of the offenses contained in the
indictment. United States v. Willoughby, 27 F.3d 263, 266 (7th
Cir. 1994). A constructive amendment “occurs when either the
government (usually during its presentation of evidence and/or its
argument), the court (usually through it instructions to the jury),
or both, broadens the possible bases for conviction beyond those
presented to the grand jury.” United State v. Cusimano, 148 F.3d
824, 829 (7th Cir. 1998) (internal quotation marks omitted); see
also United States v. Pigee, 197 F.3d 879, 887 (7th Cir. 1999)
(noting that when the proof at trial or the jury instructions
establish offenses different from or in addition to the offenses
charged in the indictment, the indictment is constructively
amended in violation of the Fifth Amendment). A constructive
amendment is reversible per se if the defendant raised the proper

Page 43 of 79

objection before the trial court. United States v. Remsza, 77 F. 3d
1039, 1043 (7th Cir. 1996).
Count 1 of the Second Superseding Indictment alleged that,
during 2000 and continuing until late 2002, Petitioner knowingly
and intentionally engaged in a continuing criminal enterprise by
repeatedly distributing and possessing with intent to distribute
controlled substances, including cocaine, crack, and marijuana in
concert with at least five other persons. Count 1 further alleged
that Petitioner occupied positions of organizer, supervisor, and
other positions of management. Petitioner allegedly obtained
substantial income and resources from the continuing series of
violations. As part of the continuing criminal enterprise, Petitioner
committed and caused to be committed numerous acts, including
but not limited to the acts set forth in Counts 2, 3, 4, 8, 9, and 10
of the Second Superseding Indictment. The Court instructed the
jury as follows on Count 1:
To sustain the charge in Count 1 that the
defendant engaged in a continuing criminal enterprise,
the government must prove each of the following
propositions beyond a reasonable doubt:

Page 44 of 79

First, that the defendant committed a continuing
series of at least two or more of the narcotics offenses
alleged in Counts 2, 3, 4, 8, 9, 10;
Second, the defendant committed the offenses
acting in concert with five or more other persons;
Third, the defendant acted as an organizer,
supervisor or manager of those five or more other
persons; and
Fourth, the defendant obtained substantial income
or resources from the offenses.
If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, then you should find
the defendant guilty on Count 1.
If, on the other hand, you find from your
consideration of all of the evidence that any of these
propositions has not been proved beyond a reasonable
doubt, then you should find the defendant not guilty on
Count 1.
Crim., Given Jury Instructions at 1 (d/e 110); Tr. at 1718-19 (d/e
160).
Petitioner essentially argues that the Government
constructively amended Count 1 by presenting the gang affiliation
evidence. Petitioner argues that the Government substituted and
used interchangeably the Black P-Stone Nation as the enterprise,
organization, or conspiracy but Count 1 did not mention anything
Page 45 of 79

about the Black P-Stones being charged as the enterprise.
Petitioner asserts that trial counsel was ineffective for failing to
object to the Government’s constructive amendment of Count 1.
No constructive amendment occurred here. The
Government’s evidence did not go beyond the parameters of the
indictment and establish an offense different from or in addition to
that charged by the grand jury in Count 1.
The Government was required to prove that Petitioner
committed a continuing series of narcotics offenses; acted in
concert with five or more other persons; acted as an
organizer, supervisor, or manager of those five or more other
persons; and obtained substantial income or resources from the
offenses. See, e.g., Gibbs, 61 F. 3d at 537. The persons involved
in the offenses were drug dealers, some of whom were convicted
felons and some of whom were members of the same gang as
Petitioner. Evidence of gang affiliation is relevant and admissible
“to demonstrate the existence of a joint venture or conspiracy and
a relationship among its members.” United States v. Westbrook,
125 F.3d 996, 1007 (7th Cir. 1997); see also United States v.
Suggs, 374 F.3d 508, 516 (7th Cir. 2004) (trial court properly
Page 46 of 79

admitted evidence of the defendants’ gang affiliation for the limited
purpose of demonstrating the existence of a conspiracy and the
connections between the members of the gang and the conspiracy).
Here, over the objections of Petitioner’s trial counsel both pre-trial
and post-trial, the Court admitted the gang affiliation evidence for
such purposes. See Crim., Opinion at 7 (d/e 137) (“The evidence
of gang affiliation was relevant and admissible and intricately tied
to the Defendant’s criminal activity.”); Crim., Order at 3 (d/e 39)
(pre-trial finding that the gang affiliation evidence could be
admissible assuming the Government laid a proper foundation).
Because the gang affiliation evidence was properly admitted
and did not establish an offense different from or in addition to
that charged by the grand jury, Petitioner cannot show prejudice
from Petitioner’s failure to object to the alleged constructive
amendment.
Petitioner also argues that the Government admitted that the
gang evidence was interchangeable with the conspiracy and
enterprise. Petitioner cites to the portion of the trial transcript
where defense counsel objected to the Government’s Jury
Instruction No. 32. Jury Instruction No. 32 provided that the
Page 47 of 79

Government had to prove that the defendant was aware of the
“common purpose” of the conspiracy. Crim., Tr. 1615-16 (d/e
159); Refused Jury Instruction at 62 (d/e 111). Defense counsel
noted a distinction between Petitioner joining a street gang versus
joining a drug conspiracy. Tr. at 1616. The prosecutor responded,
“Well, the evidence is—does not separate it out. It is one and the
same, absolutely one and the same.” Tr. at 1617. The Court
appeared to reject this statement, noting defense counsel’s
argument that it is not a crime to join a gang, Id., and changed the
instruction to read that the Government had to prove that the
defendant was aware of the “common unlawful purpose” of the
conspiracy. Crim., Tr. at 1621 (d/e 159) (emphasis added); Given
Jury Instructions at 3 (d/e 110) (emphasis added). The jury was
properly instructed, and no constructive amendment occurred. As
such, Petitioner is not entitled to relief on Ground Seven.
H.

Petitioner is Entitled to Relief on Ground Eight
In Ground Eight, Petitioner argues that trial counsel rendered

ineffective assistance of counsel for not objecting to the
constructive amendment of Counts 2, 3, and 4 of the Second
Superseding Indictment. Petitioner argues that the jury
Page 48 of 79

instructions constructively amended Counts 2, 3, and 4 by (1)
adding another offense, namely possession with intent to distribute
(2) by changing the specific drugs alleged in the indictment—
cocaine and crack—to “controlled substances”; and (3) by merging
the conspiracy to distribute cocaine and the conspiracy to
distribute crack.
Counts 2, 3, and 4 of the Second Superseding Indictment
charged Petitioner with use of a telephone to facilitate a drug
offense. Each Count alleged that Petitioner knowingly used a
cellular telephone in committing the offenses of distribution of
cocaine, conspiracy to distribute cocaine, and conspiracy to
distribute crack, in that he had a conversation wherein he
discussed the arrangements for the purchase of cocaine. Crim.,
Second Superseding Indictment at 2-3 (d/e 41). However, the
Court instructed the jurors as follows on Counts 2, 3, and 4 by
adding the language, “possession with intent to distribute”:
To sustain the charges in Counts 2, 3 and 4 that
the defendant used or caused to be used, a telephone to
facilitate a violation of the narcotics laws, the
Government must prove each of the following
propositions beyond a reasonable doubt:
First, the defendant used a telephone;
Page 49 of 79

Second, that use of the telephone was for the
purpose of committing or causing or facilitating the
commission of the distribution or possession with intent
to distribute controlled substances, or conspiring to
distribute controlled substances;
Third, that such use of a telephone was knowing or
intentional.
If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt for a specific count,
then you should find the defendant guilty of the charge
in that count.
If, on the other hand you find from your
consideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt for a specific count, then you should find the
defendant not guilty of the charge in that count.
Crim., Given Jury Instructions at 2 (d/e 110) (emphasis added);
see also Tr. at 1719-20 (d/e 160).
The Government concedes that the Court expanded the
charges alleged by the grand jury in Counts 2, 3, and 4 of the
Second Superseding Indictment by including “possession with the
intent to distribute” in the jury instructions because the offense of
possession with intent to distribute was not contained in the
Second Superseding Indictment. The Government agrees that
defense counsel should have objected to the jury instruction on the
Page 50 of 79

basis that the charges contained in the jury instruction were in
effect a constructive amendment of the charges contained in the
Second Superseding Indictment, and his failure to do so deprived
Petitioner of the effective assistance of counsel. The Government
requests that the convictions in Counts 2, 3, and 4 be vacated
leaving the convictions and sentences on the remaining counts
intact.
In his reply brief, Petitioner disagrees that vacating Counts 2,
3, and 4 leaves the remaining convictions intact and disagrees with
the Government’s assertion that a new sentencing hearing is not
required. Petitioner also asserts that Count 1 must be dismissed
because Counts 2, 3, and 4 served as three of the six predicate
acts in Count 1 and because Count 1 of the Superseding
Indictment included the language “possession with intent to
distribute.” Petitioner further asserts that the Government failed
to respond to Petitioner’s other grounds for vacating Counts 2, 3,
and 4.
The Court accepts the Government’s concession. Counts 2,
3, and 4 of the Second Superseding Indictment charged Petitioner
with using a telephone to facilitate the distribution of cocaine,
Page 51 of 79

conspiracy to distribute cocaine, and conspiracy to distribute
crack, not to facilitate the possession of a controlled substance
with the intent to distribute. The Court nonetheless instructed the
jury that it could find Petitioner guilty of Counts 2, 3, and 4 if the
evidenced proved that Petitioner possessed controlled substances
with the intent to distribute. The Government presented evidence
regarding Petitioner’s possession of controlled substances with the
intent to distribute. Therefore, this jury instruction expanded the
charges returned by the grand jury in violation of Petitioner’s Fifth
Amendment right. See Pigee, 197 F.3d at 887 (finding that Count
7 was constructively amended and remanding for resentencing as
the district court saw fit where the indictment charged the
defendant with making the building available for the purpose of
storing drugs but the jury instructions permitted conviction based
on evidence that the defendant made the building available for the
purpose of manufacturing, distributing, storing, and using drugs
and the government introduced evidence of distribution at the
building but had also presented evidence that the building was
used to store drugs). Defense counsel should have objected to the
instruction, and his failure to do so prejudiced Petitioner. Having
Page 52 of 79

so found, the Court need not address Petitioner’s additional
arguments for vacating Counts 2, 3, and 4.
The Court agrees with Petitioner that resentencing is
necessary. When part of a sentence is vacated, the district court is
entitled to resentence the defendant on all counts. United States
v. Smith, 103 F.3d 531, 533 (7th Cir. 1996) (involving § 2255
Motion); see also United States v. Pennington, 667 F.3d 953, 958
n.3 (7th Cir. 2012) (“A district judge’s sentencing decision
ordinarily concerns the entire ‘sentencing package.’”). The lack of
a conviction on three of the Counts (and three of the six alleged
predicate offenses alleged in Count 1) may very well affect this
Court’s determination of the appropriate “sentencing package.”
The Court disagrees, however, that vacating Counts 2, 3, and
4 requires that Count 1 also be vacated. In the Seventh Circuit, to
prove a continuing criminal enterprise, the Government was
required to prove, beyond a reasonable doubt that Petitioner
committed a continuing series of at least two or more of the
narcotics offenses alleged in Counts 2, 3, 4, 8, 9, and 10. See
United States v. Wilson, 237 F.3d 827, 833 (7th Cir. 2001) (noting
that the Seventh Circuit “has held that a CCE charge may be
Page 53 of 79

established by two or more predicate offenses, even when the jury
instructions require three”) (emphasis in original); but see
Richardson v. United States, 526 U.S. 813, 817 (1999) (assuming,
but not deciding, that “the necessary number is three”). Here, the
Government actually proved a continuing series of three narcotic
offenses.
The verdict form for Count 1 required the jury to mark with
an “X” those narcotic offenses the Government proved, beyond a
reasonable doubt, Petitioner committed as part of the continuing
criminal enterprise charged in Count 1. Crim., Verdict at 2 (d/e
109). The jury marked all of the offenses listed—Counts 2, 3, 4, 8,
9, and 10. Therefore, even after Counts 2, 3, and 4 are vacated,
the jury found Petitioner committed a continuing series of two or
more narcotics offenses, namely Counts 8, 9, and 10. Therefore
the vacation of Counts 2, 3, and 4 does not affect the validity of the
conviction on Count 1.
I.

Petitioner is Not Entitled to Relief on Ground Nine
Petitioner next argues that his trial counsel rendered

ineffective assistance of counsel for not objecting to the erroneous

Page 54 of 79

jury instruction for Count 8 and the constructive amendment of
Count 8 of the Second Superseding Indictment.
Count 8 charged Petitioner with maintaining drug-involved
premises. Specifically, Count 8 charged that Petitioner
while managing and controlling a building owned by
defendant’s mother, namely a residence at 908
Chestnut, Quincy, Illinois, as an agent knowing and
intentionally leased and made available for use said
building for the purpose of unlawfully storing and
distributing controlled substances, namely, marijuana,
a Schedule I controlled substance, and “crack” cocaine,
a Schedule II controlled substance.
Crim., Second Superseding Indictment (d/e 41). The Court
instructed the jury as follows on Count 8:
To sustain the charge of maintaining a druginvolved premises, as charged in Count 8 of the Second
Superseding Indictment, the Government must prove:
First, that the Defendant controlled or maintained
as an agent a premises located at 908 Chestnut, Quincy,
Illinois; and
Second, that the Defendant knowingly and
intentionally leased and made available said premises
for the purpose of storing and distributing controlled
substances, including cocaine base (“crack”) and
marijuana.
Crim., Given Jury Instructions at 7 (d/e 110); see also Tr. 1723-24
(d/e 160).
Page 55 of 79

Petitioner argues that trial counsel should have objected to
the jury instruction for Count 8 on the ground that the instruction
failed to mention reasonable doubt. The Court finds that Petitioner
was not prejudiced because another jury instruction given by the
Court adequately stated the burden proof. The Court instructed
the jury on the appropriate burden of proof:
The defendant is presumed to be innocent of the
charges. This presumption continues during every stage
of the trial and your deliberations on the verdict. It is
not overcome unless from all the evidence in the case
you are convinced beyond a reasonable doubt that the
defendant is guilty is charged. The Government has the
burden of proving the guilt of the Defendant beyond a
reasonable doubt.
The burden of proof stays with the government
throughout the case. The defendant is never required to
prove his innocence or to produce any evidence at all.
Crim., Given Jury Instructions at 26 (d/e 110); see also Crim., Tr.
at 1713 (d/e 160). Jury instructions are considered as a whole.
Conner v. McBride, 375 F.3d 643, 667 (7th Cir. 2004) (“Jury
instructions are properly considered in their entirety whether
alleged as the basis for overcoming procedural default, or as the
basis for an ineffective assistance of counsel claim”). The
instructions here, taken as a whole, informed the jury of its
Page 56 of 79

responsibility to find Petitioner guilty beyond a reasonable doubt.
Therefore, Petitioner cannot show prejudice from counsel’s failure
to object to the lack of “reasonable doubt” language in the jury
instruction for Count 8.
Petitioner also argues that the Government constructively
amended Count 8 by “mentioning and showing over and over
again” other alleged drug houses, including 829 N. 6th St., 834 N.
6th St., and 912 N. 6th St. Mot. at 45 (d/e 1-1). Petitioner asserts
that trial counsel should have objected to the Government’s trial
exhibits 7A1-2, 7B1-2, and 7C1-2 (photographs of the other
alleged drug houses) as being prejudicial in violation of Petitioner’s
Fifth Amendment rights because the Indictment only named the
908 Chestnut address.
As noted above, a constructive amendment occurs where the
“offense proven at trial was not included within the parameters of
the indictment.” Remsza, 77 F.3d at 1043. For instance, “[a]n
amendment can result where a complex set of facts is presented to
the jury that is distinctly different from the facts set forth in the
indictment” or where the evidence at trial proves a violation of a
substantive law that is materially different from the offense
Page 57 of 79

charged in the indictment. Id. at 1043 (internal quotation marks
omitted).
Here, the jury instruction regarding Count 8 instructed the
jury to find Petitioner guilty only if the evidence established that
Petitioner maintained drug involved premises at 908 Chestnut in
Quincy, Illinois—not any other location. The Government
presented evidence that Petitioner made the premises available for
the purpose of storing and distributing controlled substances
including crack and marijuana. Tomeker Robertson testified that
he stored crack cocaine for Petitioner at 908 Chestnut. Crim., Tr.
at 992 (d/e 157). Carl Douglas testified regarding purchases of
marijuana from 908 Chestnut. Crim., Tr. at 1146-47, 1161-62,
1181 (d/e 157).4 Joseph Ball testified that the marijuana he sold
to Douglas was stored in the ceiling of 908 Chestnut. Tr. at 1224
(d/e 158). The offense proven at trial was the same as the offense
alleged in the Second Superseding Indictment. Therefore, no
constructive amendment of Count 8 occurred. Cf. Willoughby, 27

At one point, the transcript references “608 Chestnut” (Tr. at 1146) but this
appears to be a typographical error. Douglas earlier testified that the house in
question was next door to his mother’s house at 910 Chestnut. Tr. at 114446, 1161. In addition, at other points, Douglas testifies about 908 Chestnut.
4

Page 58 of 79

F.3d at 266-67 (finding constructive amendment where the
indictment charged the defendant with use of a firearm in relation
to the distribution of cocaine but no evidence linked the gun to the
defendant’s actual distribution of cocaine and no evidence
indicated that any distribution occurred at the location where the
gun was found). Consequently, Petitioner has failed to show that
counsel’s performance was deficient for failing to object.
Petitioner also argues that the Government constructively
amended Count 8 by soliciting testimony about manufacturing
cocaine at 908 Chestnut St. Petitioner argues that trial counsel
should have objected to the constructive amendment.
However, the jury was not instructed that it could find
Petitioner guilty of Count 8, maintaining a drug-involved premises,
if the jury found that Petitioner manufactured a controlled
substance at that location. In fact, the Government originally
proposed a jury instruction for Count 8 that provided that the jury
had to find that “defendant knowingly and intentionally used or
allowed others to use said premises for the purpose of the
manufacture, distribution and possession with intent to distribute
controlled substances, including cocaine, cocaine base (“crack”)
Page 59 of 79

and marijuana. See Crim., Refused Instruction at 68 (d/e 111)
(emphasis added). The Court removed the “manufacturing”
language, noting that “manufacturing” was not contained in the
indictment. Tr. at 1667 (d/e 159). In any event, the
manufacturing evidence was relevant to Count 7, which charged
Petitioner with conspiracy to maintain drug-involved premises.
See Crim., Second Superseding Indictment at 6 (d/e 41) (alleging
the conspiracy included making the building available for
manufacturing controlled substances and listing one of the overt
acts as cooking cocaine into crack).
In sum, Petitioner has shown neither deficient performance
nor prejudice with regard to trial counsel’s handling of Count 8.
Therefore, Petitioner is not entitled to relief on Ground Nine.
J.

Petitioner is Not Entitled to Relief on Ground Ten
Petitioner next argues that the Government constructively

amended Count 10 by aiding and soliciting testimony about
manufacturing cocaine into crack cocaine. Petitioner contends the
Government presented no evidence that Petitioner aided and
abetted the distribution of crack cocaine and that Count 10 was
constructively amended to charge him with the manufacture of
Page 60 of 79

crack cocaine. According to Petitioner, trial counsel was ineffective
for not objecting to the constructive amendment.
Count 10 alleged that “[b]etween about June 23-25, 2001,”
Petitioner knowingly and intentionally aided, abetted, induced,
procured, and willfully caused the distribution of over five grams of
crack cocaine. Crim., Second Superseding Indictment at 8 (d/e
41). The Court instructed the jury as follows:
To sustain the charge of aiding and abetting the
distribution of a controlled substance as charged in
Count 10 of the Second Superseding Indictment, the
government must prove each of the following
propositions beyond a reasonable doubt:
First, that the crime of distribution of over five (5)
grams of cocaine base (“crack” cocaine) was committed;
Second, that the defendant aided, assisted,
counseled, commanded, induced or procured another to
commit said crime; and
Third, that the defendant intended to help commit
said crime.
If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, then you should find
the defendant guilty of that charge.
If, on the other hand, you find from your
consideration of all of the evidence that any of these
propositions has not been proved beyond a reasonable
Page 61 of 79

doubt, then you should find the defendant not guilty of
that charge.
Crim., Given Jury Instructions at 12 (d/e 110); Tr. at 1725-26 (d/e
160).
Petitioner argues that he had nothing to do with the
distribution of crack cocaine by Joseph Ball to Carl Douglas that
occurred on the night of June 25, 2001. According to Petitioner,
Ball only testified that Petitioner helped him manufacture cocaine
into crack. Petitioner argues that distribution and manufacture
are two different drug offenses, and Count 10 of the Second
Superseding Indictment did not charge Petitioner with
manufacturing.
Petitioner cannot demonstrate that counsel provided
ineffective assistance because Count 10 was not constructively
amended. Proof of another crime is not an element of aiding and
abetting. United States v. Hatchett, 245 F.3d 625, 638 (7th Cir.
2001). “One can aid and abet the commission of an offense
without engaging in activity that amounts to a crime in and of
itself.” Id. Nonetheless, the Government presented evidence that
Petitioner aided and abetted Ball in the distribution of crack
Page 62 of 79

cocaine by helping Ball obtain the cocaine from Petitioner’s source
(Kevin Turner) that was then cooked into crack, all of which was
for the purpose of assisting Ball in distributing crack cocaine. See
Crim., Tr. at 1221 (d/e 158) (Ball testimony that the crack cocaine
he sold to Douglas came from the trip he and Petitioner made a few
days earlier to purchase cocaine from Kevin Turner); Id. at 1222
(Ball testimony that the crack cocaine sold to Douglas had been
converted from powder to crack at Robertson’s house a few days
before the June 25, 2001 sale); Id. at 1218-19 (Ball testimony that
the cocaine brought back from Chicago was cooked into crack and
sold by the P-Stone members either by the pot method or the
rotation method); Id. at 1220 (Ball testimony that Petitioner set up
the rules the P-Stones went by in selling the crack cocaine); Tr.
993-94 (d/e 157) (Robertson testimony that twice in May/June
2001, Petitioner, Ramon Nelson, and Ball cooked powder cocaine
into crack cocaine). The evidence that Petitioner participated in
cooking the cocaine into crack cocaine did not constructively
amend Count 10 but simply provided additional evidence to
support the charge that Petitioner aided and abetted Ball’s
distribution of crack cocaine. Because no constructive amendment
Page 63 of 79

occurred, Petitioner’s counsel did not provide ineffective assistance
of counsel and Petitioner is not entitled to relief on Ground Ten.
K.

Petitioner is Not Entitled to Relief on Ground Eleven
Petitioner raises several grounds for relief in Ground Eleven,

all relating to Count 9 of the Second Superseding Indictment.
Count 9 of the Second Superseding Indictment alleged that,
“[o]n or about June 25, 2001,” Petitioner knowingly and
intentionally distributed and caused the distribution of marijuana.
d/e 41. The Court instructed the jury that:
To sustain the charge of distribution of marijuana, the
government must prove the following propositions:
First, the defendant distributed marijuana;
Second, the defendant did so knowingly or
intentionally; and
Third, the defendant knew the substance was a
controlled substance.
If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, then you should find
the defendant guilty.
If, on the other hand, you find from your
consideration of all the evidence that any one of these
propositions has not been proved beyond a reasonable
doubt, then you should find the defendant not guilty.
Page 64 of 79

Crim., Given Jury Instructions at 10 (d/e 110).
Petitioner first argues that trial counsel rendered ineffective
assistance of counsel because counsel did not object to the
constructive amendment of Count 9 of the Superseding
Indictment. Petitioner claims that the Government constructively
amended Count 9 by presenting evidence of two separate
controlled buys—one that occurred on June 25, 2001 between
Petitioner and Douglas and one that occurred on June 27, 2001
between Joseph Ball and Douglas—when Count 9 of the Second
Superseding Indictment only identified the controlled buy that
occurred on June 25, 2001. Petitioner also contends that the
Government told the jury in closing arguments that it could use
both controlled buys to find Petitioner guilty of Count 9 and that
this, too, constructively amended Count 9.
However, no constructive amendment occurred. Although the
jury instruction did not contain the June 25, 2001 date, the Court
also instructed the jury with the Second Superseding Indictment.
Crim., Given Jury Instructions at 39-48. The instruction
containing the language from the Second Superseding Indictment
contained Count 9, which alleged a distribution of marijuana by
Page 65 of 79

Petitioner and listed a date of “on or about June 25, 2001.”
Therefore, there is no reasonable likelihood that the jury convicted
Petitioner of the distribution of marijuana that occurred on June
27, 2001 between Ball and Douglas. See, e.g., United States v.
Hatfield, 591 F.3d 945, 951 (7th Cir. 2010) (finding no constructive
amendment where the special verdict form omitted the date of the
overdose but the jury instruction referred to the count of the
indictment that did contain the date of the overdose; therefore,
there was no reasonable likelihood that the jury convicted the
defendants based on an overdose not charged in the indictment).
Petitioner also points to the Government’s statements in
closing argument as evidence of the constructive amendment of
Count 9. In her closing argument, the prosecutor discussed the
June 25, 2001 sale and the June 27, 2001 sale of marijuana
(which she described as Ball selling the marijuana to Douglas for
Petitioner and noted that Petitioner’s fingerprint was found on one
of the baggies). Crim., Tr. at 1747 (d/e 160). She then stated:
So you take the two of that, you take those two
instances, and beyond a reasonable doubt conclude that
[Petitioner] distributed marijuana to Carl Douglas on
June 25, 2001. That’s Count 9.
Page 66 of 79

Id. at 1747-48.
This argument by the Government did not constructively
amend Count 9. The Government pointed to the June 27, 2001 as
further evidence that Petitioner distributed the marijuana to
Douglas on June 25, 2001 and specifically asked the jury to find
Petitioner guilty of the June 25, 2001 distribution. Because the
focus remained on the June 25, 2001 distribution, there is no
reasonably likelihood that Petitioner was convicted on Count 9
based on the offense that occurred on June 27, 2001.
Petitioner next argues that the Government’s Jury Instruction
No. 38A did not specifically state that it was for the offense alleged
in Count 9 of the Second Superseding Indictment. Petitioner
asserts that this likely confused the jury because marijuana was
mentioned in other counts of the Second Superseding Indictment.
Marijuana was mentioned in several of the Counts in the
Second Superseding Indictment: Count 1 (alleging that defendant
knowingly engaged in a continuing criminal enterprise, namely a
series of violations including distributing and possession with the
intent to distribute marijuana); Count 7 (alleging conspiracy to
maintain drug-involved premises and use of the building for the
Page 67 of 79

purposes of storing, manufacturing, and distributing controlled
substances, including marijuana); Count 8 (alleging defendant
intentionally leased and made available a building for the purpose
of unlawfully storing and distributing controlled substances,
including marijuana). Crim., Second Superseding Indictment at 1,
6, 7 (d/e 41). However, each of Counts 1, 7, and 8 had jury
instructions that specifically referred to the Count number. See
Crim., Given Jury Instructions at 1, 6, 7 (d/e 110). Moreover, the
jury instruction given, Jury Instruction No. 38A, specifically
advised the jury that “[t]o sustain the charge of distribution of
marijuana, the government must prove the following
propositions[.]” Crim., Given Jury Instructions at 10 (d/e 110).
Count 9 was the only offense specifically charging the distribution
of marijuana. The Court also instructed the jury by providing a
copy of the Second Superseding Indictment, which listed each of
the Counts, including Count 9, distribution of marijuana. Id. at
39-48; Hatfield, 591 F.3d at 951. Therefore, Petitioner has failed
to show he was prejudiced by the failure of Jury Instruction No.
38A to specifically refer to Count 9 because there is no reasonable

Page 68 of 79

probability that the omission of the words “Count 9” in the
instruction misled the jury.
Petitioner last argues, with regard to Count 9, that his trial
counsel admitted Petitioner’s guilt to Count 9 without Petitioner’s
permission. Petitioner contends that if counsel would have
listened to Petitioner, read the federal discovery and trial
transcripts from both of Petitioner’s prior state trials, read carefully
the two other audio transcripts that Petitioner gave to counsel, and
listened to the actual audio tape of the June 25, 2001 controlled
buy, counsel would never have conceded Petitioner’s guilt on
Count 9.
The Government asserts that, while it would have been
prudent for defense counsel to have made a record with the Court
that he discussed the matter with his client, Petitioner was not
prejudiced because of the overwhelming nature of the evidence
proving Petitioner’s guilt, the fact that the Government did not
exploit the concession, and the jury instructions given by the
Court.
At the end of the trial, during closing arguments, trial counsel
conceded Petitioner’s guilt on Count 9. Counsel stated:
Page 69 of 79

Count 9 is the charge with the marijuana. I believe its
June 25th. And that was a controlled drug buy with Mr.
Carl Douglas. That’s where you had evidence. I think
they had the physical evidence, they had like a half
pound of marijuana. They had tape recordings, they
had the incident witness, Mr. Carl Douglas, and they
had fingerprints. Four items of evidence. That is the
type of evidence that you have to require the
Government to prove on each of these cases. That’s all
the more I’m going to argue about as to Count 9. But
that gives you a good standard, a good yardstick as to
what kind of burden we feel they should carry in order
to meet proof beyond a reasonable doubt.
Crim., Tr. at 1762 (d/e 160). The prosecutor commented on this
concession in rebuttal:
But until a few moments ago, [defense counsel] said
Count 9, he is guilty of distributing the drugs alleged in
Count 9.
So now we know what he is. He’s a drug dealer. A
marijuana dealer. And when you return this, that’s one
easy one for you, because they’re admitting that.
***
And quite frankly, the law and the facts are sufficient in
this case to convict [Petitioner] not only of Count 9, but
of all of the counts that have been presented.
***
Let’s talk about the other corroboration. The
fingerprints in [sic] the bags. Isn’t that sufficient
corroboration? Not only on one bag on one sale, but
also in the bag on the other sale of marijuana. And now
we know that he’s a marijuana dealer, we got that now;
which confirms and corroborates a number of people.
Page 70 of 79

So now not only do we have fingerprints, but now we
have his own admission by counsel. They’re not
disputing Count 9. In fact, his parting remark was find
him not guilty of everything except Count 9. So now we
know he is a marijuana dealer. Now we know his
fingerprints were in [sic] those two bags, which
corroborates what Ramon Nelson said, what Kevin
Turner said, what Anthony Buckner said, what Joe Ball
said. What more corroboration can there be?
Id. at 1800, 1801, 1806-07. At the close of the evidence, the
Court instructed the jury to consider each Count separately:
Each count of the indictment charges the defendant
with having committed a separate offense. Each count
and the evidence relating to it should be considered
separately, and a separate verdict should be returned as
to each count. Your verdict of guilty or not guilty of an
offense charged in one count should not control your
decision as to any other count.
Crim., Given Jury Instructions at 35 (d/e 110); Tr. at 1717
(d/e 160).
The Seventh Circuit has recognized that “conceding guilt to
one count of a multi-count indictment to bolster the case for
innocence on the remaining counts is a valid trial strategy which,
by itself, does not rise to the level of deficient performance.”
United States v. Holman, 314 F.3d 837, 840 (7th Cir. 2002).
Nonetheless, the decision to plead guilty is one over which the
defendant has the ultimately authority, and the attorney must
Page 71 of 79

consult with the defendant and obtain his consent. Florida v.
Nixon, 543 U.S. 175, 187 (2004) (noting that “counsel lacks
authority to consent to a guilty plea on a client’s behalf”). There is
no evidence in the record that Petitioner’s trial counsel spoke to
Petitioner about conceding guilt on Count 9. Therefore, counsel’s
performance may have been deficient.
Petitioner cannot, however, show prejudice. Petitioner has to
show a reasonable probability that, but for counsel’s error, the
result of the proceeding would have been different. Strickland, 466
U.S. at 694. Here, overwhelming evidence supported Petitioner’s
conviction on Count 9. That evidence includes the testimony of
Douglas, a participant in the distribution of marijuana; a recording
of the controlled buy; and evidence that Petitioner’s fingerprint was
found on one of the baggies containing the marijuana. See Tr.
1138, 1146-47, (d/e 157) (Douglas’s testimony regarding the June
25, 2001 purchase of marijuana from Petitioner); Gov. Ex. 13T1
(audio recording of the June 25, 2001 controlled buy); Tr. at 1303
(d/e 158) (Special Agent Frazier’s testimony that Exhibit 14 was
the bag he took from Douglas’s car on June 25, 2001); Tr. at 1361,
1365-66 (forensic scientist Gary Havey’s testimony that a
Page 72 of 79

fingerprint found on a plastic bag in Exhibit 14 matched
Petitioner). And while Petitioner might argue that the concession
of guilt on Count 9 predisposed the jury to think that he was a
drug dealer when the jury considered the other counts, the Court
specifically instructed the jury to consider each count separately.
See Williams, 216 F.3d at 615 (the court assumes “that jurors
follow the court’s instructions, unless there is substantial evidence
to the contrary”). Therefore, Petitioner has failed to show
prejudice, and he is not entitled to relief on Ground Eleven.
L.

Petitioner is Not Entitled to Relief on Ground Twelve
In Ground Twelve, Petitioner argues that trial counsel should

have objected to Exhibits 13T1 and 13T, the recording and
transcript of the recording of the June 25, 2001 controlled buy
between Douglas and Petitioner. Petitioner claims the audio
recording was edited and tampered with because the transcript
(Ex. 13T) is different from two transcripts of the same recording
used in Petitioner’s state court trials and because the recording
and transcript in this case omit the introduction and closing
statements of Special Agent Frazier as reflected in the state court
transcripts. (Petitioner attaches the state court transcripts at d/e
Page 73 of 79

9-1 at 25-36). Petitioner also argues that counsel should have
objected to the admission because no chain of custody was
established.
Petitioner recognizes that Douglas testified at trial that the
recording was accurate but asserts that Douglas’s testimony at
trial was different than what was reflected in the recording
(although he does not specifically identify those differences other
than Petitioner’s claim that Douglas actually went inside his
mother’s house). Petitioner also claims that Douglas went into his
mother’s house after allegedly obtaining the marijuana from
Petitioner and could have actually gotten the marijuana from
inside his mother’s house rather than from Petitioner. Petitioner
argues that counsel should have cross-examined Douglas about
his testimony in state court and about Douglas’s written
statement, which did not mention that Douglas went inside his
mother’s house.
At trial, Douglas testified that he heard the recording of the
conversations that occurred between Douglas, Ball, and Petitioner
on June 25, 2001, and that the recording was an accurate
recording the conversation he had with Ball and Petitioner. Crim.,
Page 74 of 79

Tr. at 1151 (d/e 157). He also testified that the transcripts he read
were accurate transcriptions of the words said on the tape. Id.
The Court played the recording for the jury and also provided them
with a transcript of the recording. Counsel did not object to the
recording or the transcript. Id. at 1152.
The first time a recording was played for the jury during the
trial, the Court admonished the jury that the recording and not the
transcript was the evidence:
And I want to explain to you that the recorded
conversations are proper evidence and you may consider
them just as any other evidence. When the recordings
are being played, you are going to be allowed to look at a
transcript of the specific conversations being played.
That transcript was prepared by Government agents.
What you need to keep in mind is that the
recordings are the evidence, and the transcripts are
provided to you only as a guide to help you follow [and]
listen to the recordings. The transcripts are not
evidence of what was actually said or who said it.
It’s up to you to decide whether the transcripts
correctly reflect what was said and who said it. If you
notice any difference between what you hear on the
recordings and what you read in the transcripts, you
must rely on what you hear, not what you read. And if
after careful listening you cannot hear or understand
certain parts of the recordings, you must ignore the
transcripts as far as those parts are concerned.

Page 75 of 79

Crim., Tr. at 796 (d/e 156). At the end of the case, the Court again
instructed the jurors:
You have heard recorded conversations. Those
recorded conversations are proper evidence and you may
consider them, just as any other evidence.
When the recordings were played during the trial,
you were furnished transcripts of the recorded
conversations prepared by government agents.
The recordings are the evidence, and the
transcripts were provided to you only as a guide to help
you follow as you listen to the recordings. The
transcripts are not evidence of what was actually said or
who said it. It is up to you to decide whether the
transcripts correctly reflect what was said and who said
it. If you noticed any difference between what you heard
on the recordings and what you read in the transcripts,
you must rely on what you hear, not what you read.
And if after careful listening, you could not hear or
understand certain parts of the recordings, you must
ignore the transcript as far as those parts are
concerned.
Crim., Given Jury Instructions at 33 (d/e 110); Tr. 1715-16 (d/e
160). Neither the tapes nor the transcripts went back to the jury
room. Crim., Tr. at 1655 (d/e 159).
Petitioner has not shown that counsel’s performance fell
below an objective standard of reasonableness or that he suffered
prejudice. Petitioner has presented no evidence that the tapes
were tampered with or edited. The alleged differences between the
Page 76 of 79

transcript in this case and the transcripts of the recording in the
state court case were immaterial and not a basis for objecting to
the admission of the recording, particularly in light of the Court’s
instruction to the jury that the recording, not the transcript, was
the evidence. See, e.g., Williams, 216 F.3d at 615 (the court
assumes “that jurors follow the court’s instructions, unless there is
substantial evidence to the contrary”); McMillian v. United States,
No. 08 C 5828, 2010 WL 3526500 , at *5 (N.D. Ill. Sept. 1, 2010)
(finding that petitioner suffered no prejudice from counsel’s failure
to object to the tapes based on their inaudibility or the allegedly
inaccurate transcripts where the court gave the limiting
instruction that the tape was the evidence and the petitioner failed
to point to anything in the record showing that a significant
portion of the tape was inaudible such that the entire recording
should have been considered untrustworthy). Therefore, counsel’s
performance did not fall below an objective standard of
reasonableness and Petitioner has not shown prejudice.
Petitioner also argues that counsel should have objected to
the recordings because the Government did not establish a chain
of custody for the recording. Counsel is presumed to have
Page 77 of 79

provided adequate assistance and exercised reasonable
professional judgment, and it is Petitioner’s burden to show that
counsel’s performance was deficient. Strickland, 466 U.S. at 690;
Burt v. Titlow, 134 S. Ct. 10, 17 (2013). Petitioner’s trial counsel
did not object to the tape recordings, and the Court presumes that
this was a reasonable exercise of professional judgment absent
evidence to the contrary. Petitioner points to no evidence to
suggest that counsel’s decision was not a reasonable exercise of
professional judgment. In addition, a break in the chain of
custody goes to the weight of the evidence, not its admissibility.
United States v. Cannon, 539 F.3d 601, 604 (7th Cir. 2008).
Petitioner therefore cannot show prejudice, particularly in light of
the extensive evidence on Count 9, the distribution of marijuana
on June 25, 2001. For all of these reasons, Petitioner is not
entitled to relief on Ground Twelve.
III. CONCLUSION
For the reasons stated, Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (d/e 1) is GRANTED IN PART and DENIED IN PART.
(1) Petitioner is not entitled to relief on Grounds One, Two,
Page 78 of 79

Three, Four, Five, Six, Seven, Nine, Ten, Eleven, and Twelve of his
Motion. Because Petitioner has not made a substantial showing of
the denial of a constitutional right, the Court denies a certificate of
appealability on those grounds under Rule 11(a) of the Rules
Governing Section 2255 Proceedings. See 28 U.S.C. § 2253(c)(2).
(2) The Court GRANTS Petitioner’s Motion on the issue raised
in Ground Eight, that defense counsel rendered ineffective
assistance of counsel for failing to object to the constructive
amendment of Counts 2, 3, and 4. Counts 2, 3, and 4 of the
Second Superseding Indictment in Case No. 04-30046 shall be
VACATED. Petitioner is entitled to resentencing in Case No. 0430046. A separate order shall be entered in Case No. 04-30046.
(3) This case is CLOSED.
ENTER: March 27, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

Page 79 of 79