In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 11-‐‑3714
RANDALL RE,
Petitioner-‐‑Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-‐‑Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 07 C 1264 — Charles P. Kocoras, Judge.
____________________
ARGUED SEPTEMBER 12, 2013 — DECIDED DECEMBER 4, 2013
____________________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Randall Re and Gregory
Leach owned adjacent warehouses in Englewood, Florida.
After leasing space in Leach’s warehouse, Jimmy Daughtry
told his real estate agent that he did so because Leach repre-‐‑
sented that a sewer line essential to Re’s warehouse crossed
Leach’s property without permission and lacked permits.
The agent passed this information to Re, who might have
sent Leach a letter of inquiry or filed a lawsuit against him.
No. 11-‐‑3714 2
Instead Re hired some goons to beat Leach and threaten him
with worse unless he broke the lease. Re wanted Daughtry
as his own tenant. These events led to a conviction under the
Hobbs Act, 18 U.S.C. §1951, for using extortion to injure
Leach’s business, which was part of interstate commerce. We
affirmed the conviction, 401 F.3d 828 (7th Cir. 2005), and, af-‐‑
ter a remand, the sentence, 419 F.3d 582 (7th Cir. 2005).
In this collateral attack under 28 U.S.C. §2255, Re con-‐‑
tends that his trial and appellate lawyers rendered ineffec-‐‑
tive assistance—trial counsel because the lawyer stole from
Re and appellate counsel because he omitted what Re de-‐‑
picts as an argument certain to prevail. The district court de-‐‑
nied the petition with respect to these issues, 2011 U.S. Dist.
LEXIS 55334 (N.D. Ill. May 24, 2011), and denied a motion for
reconsideration, 2011 U.S. Dist. LEXIS 111437 (N.D. Ill. Sept.
29, 2011). Re raises the same arguments on appeal. We start
with the challenge to appellate counsel’s performance.
Re submits that Scheidler v. National Organization for Wom-‐‑
en, Inc., 537 U.S. 393 (2003), provided the basis for a can’t-‐‑
miss argument—an argument that his lawyer nonetheless
missed. The Hobbs Act defines extortion as “the obtaining of
property from another, with his consent, induced by wrong-‐‑
ful use of actual or threatened force, violence, or fear”. 18
U.S.C. §1951(b)(2). Scheidler holds that the word “obtaining”
must be taken seriously, and that threatening someone
without “obtaining” money, or money’s worth, in return,
does not meet the statutory definition. Getting someone else
to abandon a property right differs from “obtaining” proper-‐‑
ty, Scheidler concludes. Re observes that the indictment does
not allege, and the jury did not find, that Leach handed over
any money or other property after being beaten and threat-‐‑
3 No. 11-‐‑3714
ened. It follows, Re maintains, that he did not violate the
Hobbs Act and that counsel necessarily fell short of his obli-‐‑
gations by omitting this argument on appeal.
The attack on counsel’s performance is window dressing.
If Re is right about the meaning of the Hobbs Act, then he
has been convicted of an act that the law does not make
criminal and is entitled to relief under §2255 even if counsel
did everything possible to protect his interests. See Bousley v.
United States, 523 U.S. 614 (1998); Davis v. United States, 417
U.S. 333 (1974). But Re is not right about the meaning of the
Hobbs Act—at least, is not right to attribute to either
Scheidler or Sekhar v. United States, 133 S. Ct. 2720 (2013), a
holding that “obtaining” property requires getting it directly
from the person threatened. Section 1951(b)(2) speaks of ob-‐‑
taining property “from another”; it does not say that the
“another” must be the threat’s recipient.
Re had Leach beaten and threatened. A jury could find
that Re’s goal was to obtain Daughtry as a tenant. Tenancy
yields rental payments, a form of property. Re hoped that
greater rental income would enable him to sell the ware-‐‑
house for more, effectively capitalizing the value of the ten-‐‑
ancy. Scheidler did not address such a situation; it dealt with
a prosecution in which the proof showed that the victim
abandoned property but the perpetrator did not get any-‐‑
thing. Re set out to obtain something of financial value. In
Sekhar, 133 S. Ct. at 2725 n.2, the Supreme Court reserved the
question whether threats to a business competitor that pro-‐‑
duce a transfer of a customer’s revenue violate the Hobbs
Act. This shows that the Justices do not view Scheidler (or for
that matter Sekhar) as having settled the issue in Re’s favor.
And Re does not contend that any circuit has resolved the
No. 11-‐‑3714 4
question in his favor. Sekhar noted that United States v. Ze-‐‑
mek, 634 F.2d 1159, 1173 (9th Cir. 1980), held that the Hobbs
Act covers using threats or violence to divert a customer’s
business from one competitor to another; Re does not cite
contrary appellate authority. This knocks out a claim of ac-‐‑
tual innocence, whether presented through the lens of inef-‐‑
fective assistance or directly under Bousley and Davis.
Re’s reply brief maintains that the sort of theory now ad-‐‑
vanced by the prosecutor, applied in Zemek, and reserved in
note 2 of Sekhar, was not adequately laid out in the jury in-‐‑
structions, and that he is therefore entitled to a new trial.
That’s a contention different from the one made in the dis-‐‑
trict court and the opening brief, however. If, as Re argued
earlier, he is innocent of any crime, then he is entitled to be
acquitted. A request for a new trial comes too late—and this
recasting of the theory may explain why counsel omitted it
on direct appeal. It had not been presented to the district
court at trial, which preceded Scheidler, making it hard to
frame an appellate issue; and a theory that not only can’t
succeed without establishing plain error, but also leads at
best to a remand for another trial at which conviction is like-‐‑
ly, is not one that every competent appellate lawyer will
pursue. Raising (relatively) weak issues leaves less space in
the brief for stronger ones.
Now for the attack on trial counsel. Re hired Richard
Beuke to represent him at trial and suggested that Beuke use
Terry O’Donnell (his lawyer in pending divorce proceed-‐‑
ings) as an assistant. Three weeks after the jury returned its
verdict, Re sold a warehouse located in Woodridge, Illinois.
The proceeds were put in escrow, from which O’Donnell
embezzled them. O’Donnell claimed that Re owed him some
5 No. 11-‐‑3714
of this money, but we assume for current purposes that
O’Donnell committed theft. After the invasion of the escrow
was detected, O’Donnell promised to reimburse Re or his ex-‐‑
wife but committed suicide before doing so. Re contends
that O’Donnell’s crime shows a conflict of interest, which
requires a new trial without the need to show prejudice. He
relies on Cuyler v. Sullivan, 446 U.S. 335 (1980), and United
States v. Cronic, 466 U.S. 648 (1984).
Re does not contend that Beuke acted under a conflict.
He maintains that O’Donnell wanted him convicted so that
he could steal from the matrimonial estate, though he does
not identify any concrete step O’Donnell took to hamper the
defense of the Hobbs Act charge. The district judge held that
a post-‐‑trial crime by a lawyer against his client does not spoil
the trial as a matter of law; prejudice must be shown. Re
could not establish prejudice, the judge thought, because
O’Donnell played only a peripheral role in the trial. Beuke
did most of the work and supervised O’Donnell’s few con-‐‑
tributions. O’Donnell was not a member of the Trial Bar of
the Northern District of Illinois and thus could litigate in a
criminal trial only under the direct supervision of a more
experienced lawyer, such as Beuke.
According to Re, the judge should not have reached these
conclusions without an evidentiary hearing. Yet the judge
presiding in the §2255 proceeding had conducted the crimi-‐‑
nal trial. He saw exactly what roles Beuke and O’Donnell
had played. Re relies on the principle of Cronic that it is un-‐‑
necessary to show prejudice when a lawyer effectively
abandons his client, but he does not contend that Beuke
abandoned him. He had un-‐‑conflicted legal assistance
throughout. Anyway, the Supreme Court has never held
No. 11-‐‑3714 6
that there can be a conflict of interest, or any other kind of
ineffective assistance, by retrospect. The Justices have been
unwilling to extend Cronic beyond abandonment or a situa-‐‑
tion in which the defendant effectively was unrepresented,
see, e.g., Wright v. Van Patten, 552 U.S. 120 (2008); Bell v.
Cone, 535 U.S. 685 (2002), and Re had not demonstrated that
his defense team was missing in action. No other circuit has
held that a post-‐‑trial crime by a lawyer against his client au-‐‑
tomatically and retroactively spoils the trial. Establishing
prejudice remains essential—and the district judge did not
err in concluding that Re has not established prejudice.
AFFIRMED