Haywood v. U.S.
| Decision Date | 20 August 2002 |
| Docket Number | No. 01 C 8156.,01 C 8156. |
| Citation | 216 F.Supp.2d 725 |
| Parties | Clarence HAYWOOD, Petitioner, v. UNITED STATES, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
Clarence Hayward, Bradford, PA, Pro se.
Asst. U.S. Atty., United States Attorney's Office, Chicago, IL, for U.S.
Clarence Haywood was indicted along with thirty-eight other members of the Gangster Disciples, a gang of some 6,000 members engaged, through the early 1990s, in the sale of crack cocaine, heroin, and other drugs in the Chicago, Illinois, metropolitan area under the leadership of Larry Hoover, an inmate in the Illinois state prison system. In July 1997, after a 12-week jury trial, Mr. Haywood was convicted of twenty-seven narcotics violations, including: participating in a continuing criminal enterprise ("CCE"), 21 U.S.C. § 848, conspiring to possess controlled substances with the intent to distribute, § 846, seventeen counts of using the telephone to facilitate the drug conspiracy, § 843(b), two counts of using minors to further the drug conspiracy, § 861, and six counts of distributions of cocaine, § 841. He was sentenced to life in prison. He appealed and the Seventh Circuit affirmed his conviction on all but the conspiracy count, which it vacated as a lesser included offense of the CCE. See United States v. Jackson, 207 F.3d 910, 922 (7th Cir.2000), vacated in part by 531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290 (2000) () (citing Rutledge v. United States, 517 U.S. 292, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996)), reinstated by 236 F.3d 886 (7th Cir.2001). His petition for certiorari to the Supreme Court was denied in 2000. 531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290.
Mr. Haywood filed a motion to vacate his sentence under 28 U.S.C. § 2255, citing six grounds of ineffective assistance of counsel for failing to object that: (1) the use of minors counts were inappropriate predicates for the CCE; (2) the jury instruction on the telephone counts constructively amended the indictment; (3) the jury improperly considered some individuals in determining the five or more whom Mr. Haywood supervised in the CCE; (4) the general verdict makes it impossible to tell what predicate offenses the jury considered, and the use of minors and telephone counts were invalid predicates; (5) the offense level for the CCE was incorrectly calculated at sentencing; and (6) the sentences for the distribution and telephone counts exceeded the statutory maximum. He filed a supplemental petition elaborating on these arguments and adding claims that: (7) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), rendered § 841 unconstitutional; (8) the jury instruction for the CCE violated the rule in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), that the jury must unanimously agree which specific predicate acts make up the "continuing series," and (9) during sentencing, the court specifically found that Mr. Haywood was not an organizer, supervisor or manager, so his conviction for the CCE was invalid. Mr. Haywood asks for an evidentiary hearing. I deny his petition.
The Gangster Disciples was a large and notorious criminal enterprise, achieving, at its zenith in the early 1990s, revenues of $100 million a year. See Jackson, 207 F.3d at 913. It operated both on the streets of Chicago and within the Illinois state prison system, where Larry Hoover was incarcerated. Fifty to seventy percent of the Gangster Disciples' membership was involved in the buying and selling of narcotics. All members involved in the distribution of drugs had to do "nation work," which meant that members had to "donate" their profits from drug sales one day each week to Hoover and the gang's leadership. See United States v. Hoover, 246 F.3d 1054, 1061 (7th Cir.2001). In addition to selling drugs, the Gangster Disciples ran several civic and political activities, including "Save the Children Promotions," a for-profit corporation that organized concerts and laundered drug money, and "Twenty First Century Vote," a political action committee that supported candidates and promoted voter registration.
The Gangster Disciples had an elaborate and sophisticated organizational structure with a clear hierarchy and strict rules that were enforced with beatings and worse. Hoover was the undisputed leader, and under him were two boards of directors: one in the prison system and one on the streets. Jackson, 207 F.3d at 919. Below the board were about ten governors, id., each with a territorial jurisdiction. Cedric Parks was the governor of "the hundreds," an area bounded by 99th Street and 127th Street to the north and south and by Cottage Grove Avenue and Western Avenue to the east and west. Tr. 2174, 2176. Mr. Haywood was an assistant governor for Parks, Tr. 813-14, and beneath him were regents, coordinators, chiefs of security, treasurers, and soldiers. Tr. 2173-80. At trial, the government introduced an organizational chart, prepared at Hoover's behest and found in the files of an organization run by Hoover's wife, which lists governors, regents, their territories and their "count," or number of members. Tr. 757. There were 1193 members on "count" in the hundreds, at least 70 percent of whom were involved in the distribution of narcotics. Tr. 2182. Those members reported directly to Mr. Haywood and Parks.
The evidence at trial did not establish Mr. Haywood's personal involvement in the telephone or distribution counts charged in the indictment, but he was convicted of these counts on a Pinkerton theory of co-conspirator liability. See Pinkerton v. United States, 328 U.S. 640, 645, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The substantial evidence against him demonstrated that he was a regent, and later an assistant governor, in the hundreds, and that he had a "retail drug spot" on 108th Street. Tr. 1676-78; 2203. As an assistant governor, he distributed nation work and cooked cocaine into crack for Parks. Tr. 1652; 1677-78. He also collected money from gang members for the gang's non-drug-related activities. He arranged for the sale of drugs and sold some to an undercover agent himself, Tr. 1697-1702; 2012; 3770; 3827-34, and he bought drugs on several occasions from a former governor of the hundreds, Tr. 2207-09.
With one exception, Mr. Haywood did not raise any of the arguments that he presents here on direct review. Ordinarily, the failure to do so results in procedural default. His ineffective assistance of counsel claims are not defaulted, however, because Mr. Haywood was represented by the same attorney at trial and on appeal. Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993). Many of his ineffective assistance of counsel claims may be resolved by examining the merits of the underlying claims; it is not ineffective assistance of counsel to fail to raise a losing argument. See Whitehead v. Cowan, 263 F.3d 708, 731-32 (7th Cir.2001). The government does not argue that any of Mr. Haywood's other claims are procedurally defaulted, so I decide them on their merits as well.
The trial court did not explicitly instruct the jury that it could consider the use of minors counts (counts 3 and 4) as predicate acts for the continuing criminal enterprise, but it instructed the jury that it could consider the offenses alleged in the indictment, Tr. 7235, which included the use of minors. Indictment Count 2 ¶¶ 2(c), (d). The jury convicted Mr. Haywood of counts 3 and 4, and he claims that they are invalid predicate offenses for the CCE. To establish a CCE, the government must prove:
(1) a violation of the federal narcotics laws; (2) which crime is a part of a series of violations of the federal narcotics laws; (3) undertaken by the defendant and at least five other individuals; (4) with respect to whom the defendant holds a supervisory, managerial, or organizational role; and (5) from which the defendant receives substantial income or resources.
United States v. Gibbs, 61 F.3d 536, 537 (7th Cir.1995); 21 U.S.C. § 848(c). The Seventh Circuit has held, opposing seven other circuits, that a conspiracy or other inchoate offense cannot be used as one of the series of violations in a CCE. United States v. Baker, 905 F.2d 1100, 1104 (7th Cir.1990). Mr. Haywood argues that, because the use of minor counts alleged that minors were used to further the drug conspiracy, an inchoate offense, they cannot be used as predicate offenses.
So far as I can tell, the Seventh Circuit has not squarely addressed this question—i.e., whether the use of minors in furtherance of an inchoate offense can be a predicate offense for a CCE—but it has implicitly answered it affirmatively. In two other Gangster Disciples cases that involved charges of use of minors in furtherance of a drug conspiracy, the Seventh Circuit found convictions on those charges to be sufficient predicate offenses to sustain a conviction for a CCE. See United States v. Wilson, 237 F.3d 827, 833-34 (7th Cir.2001); United States v. Smith, 223 F.3d 554, 567-68 (7th Cir.2000). The use of minors was a completed offense, even though the purpose for which they were used was to further an inchoate offense. There was no error in the jury instruction. Moreover, Mr. Haywood's attorney did object to the explicit inclusion of counts 3 and 4 in the CCE instruction, Tr. 6053-54, and he prevailed, so he was not ineffective.
The trial court also instructed the jury, with respect to the use of telephone counts (counts 16-25 and 27-35), that it should find the defendants guilty if, among other things, it found that the "use of the telephone was to cause or facilitate the unlawful possession with intent to distribute or the unlawful distribution of cocaine, or to cause or facilitate a conspiracy to distribute, or to possess with intent to distribute cocaine." Tr. 7245-46. The indictment, however, only alleged the use of...
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