United States v. Spagnola

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-1433

U NITED S TATES OF AMERICA,
Plaintiff-Appellee,
v.

M ICHAEL S PAGNOLA,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07-CR-441-2—Harry D. Leinenweber, Judge.

A RGUED O CTOBER 19, 2010—D ECIDED JANUARY 21, 2011

Before C UDAHY and R OVNER, Circuit Judges, and
A DELMAN, District Judge.Œ
A DELMAN, District Judge. A jury convicted Michael
Spagnola of drug and firearm offenses arising out of
his participation in a scheme to rob a drug stash house
(which turned out to be a sting operation), and the
district court sentenced him to a total of 276 months in

Œ
Of the Eastern District of Wisconsin, sitting by designation.
2 No. 10-1433

prison. On appeal, Spagnola challenges his conviction
and his sentence. We affirm.

I. BACKGROUND
The government indicted Spagnola and his brother,
Robert George, on charges of conspiracy to possess with
intent to distribute 5 kilograms or more of cocaine
(count one), 21 U.S.C. § 846, and attempted possession
with intent to distribute 5 kilograms or more of cocaine
(count two), 21 U.S.C. § 841(a)(1). The government
charged Spagnola separately with possessing a firearm
during and in relation to a drug trafficking crime (count
three), 18 U.S.C. § 924(c), and possessing a firearm as a
felon (count four), 18 U.S.C. § 922(g)(1). The charges
arose out of a Bureau of Alcohol, Tobacco, Firearms &
Explosives (“ATF”) operation, in which a government
informant approached George about helping a drug
courier (actually an ATF agent) steal cocaine from the
courier’s employer. The informant secretly recorded his
conversations with George and Spagnola, and the re-
cordings constituted the principal evidence against them.
The informant first approached George about the
scheme in early June 2007. George initially told the in-
formant that he was too busy and to contact Spagnola.
The informant spoke with George again on June 14,
and this time George called Spagnola on the informant’s
behalf. George then told the informant that it would
probably “be me and him”—referring to Spagnola—who
would commit the courier robbery. George also men-
tioned an unrelated robbery Spagnola was planning, with
which Spagnola might need the informant’s help, and
No. 10-1433 3

stated that other members of their family dealt drugs.
At George’s suggestion, the informant then called
Spagnola and set up an in-person meeting. At the
meeting, Spagnola told the informant that he had agreed
to meet only because George vouched for the informant.
The informant then laid out the plan to steal drugs from
the garage where the courier picked up cocaine. Spagnola
agreed to participate and asked the informant to join
him in another robbery. The next day, Spagnola met
with the informant and the courier/agent, the courier
reviewed the plan, and Spagnola reiterated that he
wanted to participate. Because there would be armed
guards at the garage, Spagnola volunteered to bring
assault weapons to the job.
On June 25, George met with the informant. George
advised the informant that he had spoken to Spagnola
about the robbery and assured the informant that
Spagnola was dependable. George suggested that they
rob the courier rather than the stash house and said that
he knew where he could sell the drugs they would steal.
The following day, George met with the informant and
the courier, and the courier again explained the plan, as
he had in the previous meeting with Spagnola.
The informant and George met again on July 9.
Spagnola was supposed to attend this meeting, but he
apparently overslept and failed to show up. Neverthe-
less, George advised the informant that he had recently
been with Spagnola when Spagnola obtained a gun to
use in the robbery. George than called Spagnola, and they
discussed obtaining ammunition. George told Spagnola
4 No. 10-1433

that the robbery would occur that week. Later that day,
the informant met with Spagnola, they discussed the
weapons they would use in the robbery, and Spagnola
again asked the informant to help him with unrelated
robberies. They agreed to meet with George and the
courier on July 11, the day before the planned robbery.
On July 11, Spagnola, the informant, and George were
supposed to meet; this time George did not show up, but
he did speak to Spagnola by phone. Spagnola and the
informant then met with the courier and discussed the
robbery. After the courier left, Spagnola and the
informant discussed whether they should give George
any of the drugs and eventually agreed to give him 1 or
2 kilograms for his participation.
On July 12, the day the robbery was to occur, George
told the informant that he could not participate because
he had to watch his son. George said he would get some-
one named “Eddie” to take his place, and that Spagnola
knew Eddie. Spagnola instead suggested another one of
their brothers, John. George reiterated that he had a
buyer lined up for the cocaine. The informant then
picked up Spagnola, who was armed with two guns.
He encouraged Spagnola to find another participant,
but Spagnola declined. The informant then drove
Spagnola to a location where ATF agents arrested him.
In a post-arrest statement, Spagnola told the agents that
he expected to receive 15 of the 30 kilograms they
would steal, and that he could sell the drugs. Agents
arrested George the next day, and in his post-arrest
statement George expressed surprise at his arrest for
No. 10-1433 5

robbery. However, after agents advised that they had
recorded his conversations with the informant, George
said, “Oh, then you have me on conspiracy.”
Spagnola moved to sever his trial from George’s,
arguing that he would be prejudiced by George’s antici-
pated entrapment defense and by the introduction of
George’s hearsay statements to the informant, which
cast him in a bad light. The district court denied the
motions.
At trial, the government introduced the recorded con-
versations between the defendants, the informant, and
the courier/agent, as well as George’s post-arrest state-
ment, without objection by Spagnola. Spagnola testified
on his own behalf, claiming that George “was never
supposed to be there, ever,” and that the only plan he
had was with the informant. He admitted speaking with
George the day of the robbery but denied discussing the
robbery with George. The jury found him guilty on all
counts.
At sentencing, over Spagnola’s objection, the district
court imposed a 2-level enhancement under U.S.S.G.
§ 3C1.1 after determining that Spagnola committed
perjury at trial, adopting a guideline range of 324-405
months on counts one, two, and four. Spagnola argued
that he should not receive a 5-year consecutive sentence
on count three, the § 924(c) count, based on that statute’s
“except clause” because he was subject to a longer man-
datory minimum term on the drug counts, counts one
and two. The district court rejected the argument based
on Seventh Circuit precedent and sentenced Spagnola to
6 No. 10-1433

a below-guideline sentence of 216 months on counts
one and two, and 120 months on count four, running
concurrent, and 60 months on count three, running con-
secutive, for a total of 276 months.

II. DISCUSSION
On appeal, Spagnola challenges the sufficiency of the
evidence on the conspiracy count, the denial of his
motions to sever, and the district court’s imposition of
the U.S.S.G. § 3C1.1 enhancement and a consecutive
sentence on the § 924(c) count. We consider each issue
in turn.

A. Sufficiency of the Evidence on the Conspiracy Count
Spagnola first argues that the evidence was insufficient
to establish that he conspired with George. A defendant
challenging the sufficiency of the evidence on appeal
faces a nearly insurmountable hurdle. United States
v. Lupton, 620 F.3d 790, 801 (7th Cir. 2010); United States
v. Corson, 579 F.3d 804, 809 (7th Cir. 2009), cert. denied,
130 S. Ct. 1751 (2010). We will reverse only if, taking
the evidence in the light most favorable to the prosecu-
tion, we are convinced that no rational trier of fact could
have found the defendant guilty beyond a reasonable
doubt. Corson, 579 F.3d at 809. We do not re-weigh evi-
dence or second-guess the jury’s credibility determina-
tions; rather, we will overturn a conviction only if the
record is devoid of evidence from which a reason-
able jury could find guilt beyond a reasonable doubt. Id.
No. 10-1433 7

at 809-10 (citing United States v. Farris, 532 F.3d 615, 618
(7th Cir. 2009)).
In order to establish a conspiracy to possess with
intent to distribute cocaine under 21 U.S.C. § 846, the
government must show: (1) the existence of an agree-
ment between two or more persons to possess with
intent to distribute cocaine; (2) that the defendant knew
of the agreement; and (3) that the defendant intended
to join the agreement. United States v. Taylor, 600 F.3d
863, 868 (7th Cir. 2010). The government must prove
that the defendant conspired “with at least one true
co-conspirator.” United States v. Mahkimetas, 991 F.2d 379,
383 (7th Cir. 1993). In other words, a “conspiracy
cannot be established between one criminally-minded
individual and a government agent or informer.” United
States v. Dumeisi, 424 F.3d 566, 580 (7th Cir. 2005).
Spagnola argues that the government failed to prove
that he conspired with anyone other than the informant
and the undercover agent posing as the courier. He
argues that he and George did not agree on a definite
plan regarding the robbery or the sale of cocaine. He
points out that all of the participants never met at one
time, that George did not attend the July 11 meeting nor
accompany him on the day of the robbery, and that the
participants discussed obtaining assistance from others.
The government presented sufficient evidence to
enable a reasonable jury to conclude that Spagnola con-
spired with George. The evidence showed that George
recruited Spagnola to participate in the scheme and ar-
ranged for him to meet the informant. Spagnola acknowl-
edged meeting with the informant only because George
8 No. 10-1433

vouched for him. While George and Spagnola did not
simultaneously meet with the agent and the courier, the
evidence showed that they spoke to each other about the
robbery several times, George accompanied Spagnola
when Spagnola acquired a gun to use in the robbery,
and both Spagnola and George met with the informant
and the courier several times.
While some of the details may have been unclear, a
conspiracy does not require the precise coordination
Spagnola suggests. See, e.g., United States v. Haynes, 582
F.3d 686, 698 (7th Cir. 2009) (“Two or more persons con-
spired together if they embraced a common criminal
objective, even if they did not know each other or partici-
pate in every aspect of the crime.”) (internal quotation
marks omitted), amended, 353 Fed. Appx. 58 (7th Cir.
2009), cert. denied, 2010 WL 604311 (U.S. Nov. 29, 2010);
United States v. Katalinich, 113 F.3d 1475, 1483 (7th Cir.
1997) (explaining that to be a member of a conspiracy, the
defendant need not know all the other members or the
means by which the purpose was to be accomplished; he
need only be aware of the common purpose and a
willing participant). The evidence was sufficient to
show that George and Spagnola conspired to obtain
the cocaine for re-distribution; any uncertainty as to
precisely how they would sell the drugs does not upset
the verdict.

B. Severance
Next, Spagnola argues that the district court erred in
denying his motions for severance. He faces an uphill
No. 10-1433 9

battle on this issue as well. “In all but the ‘most unusual
circumstances,’ the risk of prejudice arising from a joint
trial is ‘outweighed by the economies of a single trial
in which all facets of the crime can be explored once
and for all.’ ” United States v. Alviar, 573 F.3d 526, 539
(7th Cir. 2009) (quoting United States v. Velasquez, 772
F.2d 1348, 1352 (7th Cir. 1985)), cert. denied, 130 S. Ct. 1312
(2010). There is a strong preference that co-conspirators
be jointly tried, particularly where, as here, they were
indicted together. Id. We will reverse the denial of a
request for severance only if the district court abused
its discretion, and the defendant can demonstrate actual
prejudice based on the joint trial. Id. (citing United
States v. Souffront, 338 F.3d 809, 831 (7th Cir. 2003));
United States v. Calabrese, 572 F.3d 362, 367-68 (7th Cir.
2009), cert. denied, 130 S. Ct. 1879 (2010). Because Fed.
R. Crim. P. 14 “assigns to the district court the task of
balancing the cost of multiple trials against the possible
prejudice inherent in a single trial, a defendant bears ‘an
extremely difficult burden’ of showing that the district
court abused its discretion.” United States v. Rollins, 301
F.3d 511, 518 (7th Cir. 2002) (quoting United States v.
Moore, 115 F.3d 1348, 1362 (7th Cir. 1997)).
Spagnola first argues that the admission of George’s “oh,
then, you have me on conspiracy” statement violated his
Sixth Amendment rights. See Bruton v. United States, 391
U.S. 123, 135-37 (1968) (holding that a defendant’s Sixth
Amendment right to confront witnesses against him is
violated when the confession of a non-testifying co-defen-
dant, in which the defendant is expressly implicated
as a participant in the crime, is admitted in the joint trial
10 No. 10-1433

of the two defendants). However, Spagnola did not raise
a Bruton issue in his pre-trial motions, nor did he object
to the admission of this statement at trial. Thus, he
likely forfeited the argument, permitting review only for
plain error.1 In his reply brief, Spagnola denies forfeiting
the issue but fails to point out where he raised it. It is
hard to see how the district court should have teased a
Bruton issue from Spagnola’s pre-trial motions, which
focused on George’s alleged co-conspirator statements
and trial strategy. Regardless, Spagnola fails to establish
a Bruton violation.
A Bruton violation occurs only if the confession of a non-
testifying co-defendant facially incriminates the non-
confessing co-defendant. See, e.g., United States v. Brooks,
125 F.3d 484, 501 (7th Cir. 1997). George’s statement
neither facially incriminates Spagnola nor implies that
he was a co-conspirator. George made the statement
after being advised that the government had recorded
his communications with the informant; thus, the most
reasonable inference to be drawn from the statement
is that George was confessing to conspiring, not with
Spagnola, but with the informant. Because there was no
obvious link between the statement and Spagnola, the
district court’s limiting instruction—that pre-trial state-
ments were to be considered only against the defendant

1
In his motions below, Spagnola argued that a joint trial
would compromise his Fifth and Sixth Amendment rights to
a fair trial and to confront witnesses, but he did not men-
tion George’s post-arrest statement or Bruton.
No. 10-1433 11

who made them—was sufficient. See Richardson v.
Marsh, 481 U.S. 200, 208 (1987).
Spagnola’s argument that the district court should
have severed the trial based on George’s statements
about other robberies and their family’s drug dealing
fares no better. Because the statements fall within Fed.
R. Evid. 801(d)(2)(E),2 which Spagnola does not dispute,
they would have been admissible even in a severed trial.
Spagnola argues that the district court should have
found the statements prejudicial under Fed. R. Evid. 403.
However, Spagnola cannot show prejudice based on
the admission of these statements because he too spoke
of other robberies with the informant. Even without
George’s statements, the jury would have heard much
of the same evidence from Spagnola’s mouth. And these
statements, too, would have been admissible even in a
severed trial.
To the extent that the jury heard that Spagnola’s family
dealt drugs, any error was harmless given the strength
of the government’s case. “The test for harmless error
is whether, in the mind of the average juror, the prosecu-
tion’s case would have been significantly less persua-
sive had the improper evidence been excluded.” United
States v. Emerson, 501 F.3d 804, 813 (7th Cir. 2007) (internal
quotation marks omitted). Given the recorded evidence

2
Under this Rule, “A statement is not hearsay if . . . offered
against a party and is . . . a statement by a coconspirator of a
party during the course and in furtherance of the conspiracy.”
12 No. 10-1433

against Spagnola, it is extremely unlikely that George’s
stray comments on this subject swayed any juror.

C. Spagnola’s Sentence
1. Enhancement for Perjury
Regarding his sentence, Spagnola argues that the
district court erred in imposing a 2-level enhancement
under U.S.S.G. § 3C1.1 based on perjury at trial. We
review the district court’s determination that a
defendant provided false testimony for clear error, a
standard under which we reverse only if we are firmly
convinced that a mistake has been made. United States
v. DeLeon, 603 F.3d 397, 403 (7th Cir. 2010). We find no
such error here.
Spagnola notes that he did not contest much of the
government’s evidence, and that the enhancement
should not be based simply on the fact that he testified
and was convicted. See United States v. Dunnigan, 507
U.S. 87, 95 (1993) (“[N]ot every accused who testifies at
trial and is convicted will incur an enhanced sentence
under § 3C1.1 for committing perjury.”). The district
court did not impose the enhancement based on
Spagnola’s conviction by the jury. Nor, as defendant
contends, did the court impose it based on Spagnola’s
alleged denial that he spoke to George on the day of the
robbery. (He admitted that he did, just not about the
robbery.) Rather, the court found that Spagnola lied
about the central issue in the case, whether he conspired
with George to obtain the cocaine. See United States v.
No. 10-1433 13

Brimley, 148 F.3d 819, 823 (7th Cir. 1998) (stating that the
district court should in imposing a § 3C1.1 enhance-
ment based on perjury find falsity, willfulness and materi-
ality). As the district judge noted, Spagnola understood
that he could not be convicted if he conspired only with
a government agent, and he tailored his testimony ac-
cordingly.

2. Consecutive Sentence for § 924(c) Violation
Finally, Spagnola challenges his 5-year consecutive
sentence under § 924 based on the statute’s “except
clause,” which states:
Except to the extent that a greater minimum sen-
tence is otherwise provided by this subsection or by
any other provision of law, any person who, during
and in relation to any crime of violence or drug traf-
ficking crime (including a crime of violence or
drug trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person
may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall, in addi-
tion to the punishment provided for such crime of
violence or drug trafficking crime—(i) be sentenced to
a term of imprisonment of not less than 5 years; (ii)
if the firearm is brandished, be sentenced to a term
of imprisonment of not less than 7 years; and (iii)
if the firearm is discharged, be sentenced to a term
of imprisonment of not less than 10 years.
14 No. 10-1433

18 U.S.C. § 924(c)(1)(A). Spagnola argues that because
he was subject to a 10-year mandatory minimum on
the drug counts, the district court should not have
imposed the 5-year consecutive sentence under § 924(c).
See United States v. Whitley, 529 F.3d 150 (2d Cir. 2008).
We have previously rejected this construction of the
statute, United States v. Easter, 553 F.3d 519, 525 (7th Cir.
2009), and the Supreme Court recently confirmed our
understanding, Abbott v. United States, 131 S. Ct. 18 (2010).
The Justices explained that:
a defendant is subject to a mandatory, consecutive
sentence for a § 924(c) conviction, and is not spared
from that sentence by virtue of receiving a higher
mandatory minimum on a different count of convic-
tion. Under the “except” clause as we comprehend
it, a § 924(c) offender is not subject to stacked sen-
tences for violating § 924(c). If he possessed, bran-
dished, and discharged a gun, the mandatory penalty
would be 10 years, not 22. He is, however, subject to
the highest mandatory minimum specified for his
conduct in § 924(c), unless another provision of law
directed to conduct proscribed by § 924(c) imposes
an even greater mandatory minimum.
Id. at 23; see also United States v. Hudson, 627 F.3d 309 (7th
Cir. 2010). Because Spagnola faced no greater minimum
for his possession of the firearms in furtherance of the
drug trafficking offense, the district judge properly sen-
tenced him to 5 years consecutive on the § 924(c)
count, notwithstanding the 10-year minimum applicable
to the drug counts.
No. 10-1433 15

III. CONCLUSION
For the foregoing reasons, we A FFIRM Spagnola’s con-
victions and sentence.

1-21-11