In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1962, 07-1969
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANK J. CALABRESE, SR., and JAMES MARCELLO,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 1050—James B. Zagel, Judge.
____________
ARGUED MAY 29, 2007—DECIDED JUNE 12, 2007
____________
Before POSNER, WOOD, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Two defendants in a pending
RICO prosecution for conspiracy to conduct an enter-
prise’s affairs through a pattern of racketeering activity,
18 U.S.C. § 1962(d), appeal from the denial of their mo-
tion to dismiss the indictment. They contend that the trial,
scheduled to begin on June 19, will place them in double
jeopardy.
Marcello’s claim is based on a 1992 indictment charging
him and eight others with conspiring to conduct the
affairs of the Carlisi Street Crew by means of numerous
2 Nos. 07-1962, 07-1969
illegal acts between 1979 and 1990—acts such as extortion,
intimidation, arson, conspiracy to commit murder, usury,
witness tampering, and efforts to collect unlawful gam-
bling debts. Such acts, if proved, are “predicate acts” two
or more of which establish the “pattern of racketeering
activity” required for a violation of RICO. Marcello was
convicted in 1993 and sentenced to 150 months in prison,
and his conviction was affirmed in United States v. Zizzo,
120 F.3d 1338 (7th Cir. 1997). Calabrese, the other appellant,
was charged in a 1995 indictment, together with six others,
with participation in a similar conspiracy, though the
offense period was 1978 through 1992 and the enterprise
was a different street crew—the Calabrese Street Crew.
Calabrese pleaded guilty in 1997 and was sentenced to
118 months in prison. He did not appeal.
The two street crews are components of the “Chicago
Outfit,” the lineal descendant of Al Capone’s gang, http://
en.wikipedia.org/wiki/Chicago_Outfit (visited June 1,
2007). The new indictment charges our two defendants,
along with seven others only one of whom was a defend-
ant in the previous prosecutions, with conspiring to
conduct the affairs of the Chicago Outfit itself through a
pattern of racketeering activity. The offense period runs
from the 1960s to 2005 and thus overlaps the periods of the
conspiracies with which Calabrese and Marcello had
previously been charged. The predicate acts alleged
include some of the criminal acts charged in the earlier
indictments but also a number of criminal acts that
were not charged, including many murders, usurious
loans, incidents of witness tampering and other obstruc-
tions of justice, and travel in interstate commerce for the
purpose of accomplishing the Outfit’s criminal objectives.
Some of the predicate acts occurred after the offense
Nos. 07-1962, 07-1969 3
periods charged in the earlier prosecutions, but others
occurred before or during those periods.
The purpose of the Fifth Amendment’s double jeopardy
clause is to prevent the government from harassing people
by prosecuting them for the same conduct that was the
subject of a prior prosecution. The purpose is most
strongly engaged when the prior prosecution resulted in
an acquittal; for then, were it not for the double jeopardy
defense, the government could keep retrying the defend-
ant until a jury convicted him—with enough throws of a
pair of dice the desired combination is bound to appear
eventually. Even when the initial prosecution is successful,
allowing the government to prosecute the defendant again
for the same crime, perhaps long after he has been re-
leased from prison, would result in punishment beyond
what the law allows. For even if the defendant received the
same sentence and it was made to run concurrently with
the sentence imposed in the first prosecution, he would
have been subjected to the burden of a second trial. That
is why our two defendants can appeal from the denial of
their motion to dismiss the indictment rather than having
to wait until conviction and sentence to appeal. Abney v.
United States, 431 U.S. 651, 659-62 (1977); Green v. United
States, 355 U.S. 184, 187-88 (1957). “The burden of a sec-
ond trial is one of the harms that the double-jeopardy
clause is intended to prevent, and [it is] a harm that (unlike
the harm of conviction) is irreparable once the second trial
has been conducted.” Reimnitz v. State’s Attorney of Cook
County, 761 F.2d 405, 410 (7th Cir. 1985).
The government may not bring a second prosecution
under a statute the elements of which are included in the
elements of the statute under which the defendant was
previously prosecuted. United States v. Dixon, 509 U.S. 688,
4 Nos. 07-1962, 07-1969
696 (1993); United States v. Olmeda, 461 F.3d 271, 278, 292
(2d Cir. 2006); see Rutledge v. United States, 517 U.S. 292,
297-98 (1996); Blockburger v. United States, 284 U.S. 299, 303-
04 (1932). And so it may not, for example, charge him in
the second prosecution with having attempted to murder
someone, when in the first case he had been charged
with murdering the person. Cf. United States v. Luskin, 926
F.2d 372, 377-78 (4th Cir. 1991). For the proof that the
government would have had to present to establish his
guilt of murder would, without more, establish at-
tempted murder as well.
This case is different because the statutory offense
charged is the same one as in the previous prosecutions,
and the question is simply how great a difference there is
between the conduct charged in the previous prosecutions
and in the present one. As regards the predicate acts
charged in the present indictment that occurred after the
offense periods in the earlier ones, there can be no ques-
tion of double jeopardy. For those acts show that the
defendants continued conspiring after the previous
prosecution. And there is no suggestion that the govern-
ment, knowing that the defendants were continuing to
engage in criminal acts up to the date of their arrests or
indictments, backdated the offense periods so that if the
prosecutions failed the defendants could be prosecuted on
the basis of acts they committed after those offense periods.
The double jeopardy clause deprives the prosecution “of an
opportunity . . . to supply evidence at a successive trial
that it failed to present the first time around.” United States
v. Estrada, 320 F.3d 173, 180 (2d Cir. 2003). Otherwise there
would be “concern that the government may be free to
pursue successive prosecutions under RICO by merely
alleging two predicate acts—sufficient to establish a
Nos. 07-1962, 07-1969 5
pattern of racketeering activity under 18 U.S.C. § 1961(5)—
and, by holding in reserve other predicate acts, bring
future RICO prosecutions against participants in the
same enterprise.” United States v. Russotti, 717 F.2d
27, 34 (2d Cir. 1983).
The concern of the defendants in this case is different. It
is that some of the predicate acts in the new indictment
were predicate acts in the old ones. And so the defendants
ask us, if we are unwilling to order the entire indictment
thrown out, at least to order it trimmed to eliminate the
overlap.
The argument misunderstands the actual charge in the
indictment. The defendants are not being charged with
murder, or arson, or intimidation, etc. They are being
charged with participating in a conspiracy to operate an
enterprise by means of criminal acts that include murder,
arson, intimidation, etc. The enterprise is the Chicago
Outfit, and insofar as is known at this time, it is a different
enterprise from the Carlisi and Calabrese street crews.
United States v. Langella, 804 F.2d 185, 189 (2d Cir. 1986).
Were it the same enterprise, we would have a different
case. United States v. DeCologero, 364 F.3d 12, 17-18 (1st Cir.
2004). But it is not, and that is critical.
To illustrate, suppose the defendants were officers of
a corporation and also members of the board of directors
of a wholly owned subsidiary of the corporation, and
they agreed to conduct the affairs of the wholly owned
subsidiary through a pattern of racketeering activity and
the affairs of the parent corporation through a pattern of
racketeering activity as well. These would be different
conspiracies and hence different crimes even if the acts
constituting the pattern of racketeering activity over-
lapped. See id. at 18; United States v. Ciancaglini, 858 F.2d
6 Nos. 07-1962, 07-1969
923, 928 (3d Cir. 1988); United States v. Langella, supra, 804
F.2d at 188-90; United States v. Ruggiero, 754 F.2d 927, 934 n.
15 (11th Cir. 1985). Prosecutors often have a choice be-
tween charging a single conspiracy or multiple conspira-
cies when dealing with members of a loose-knit, reticulated
criminal enterprise. E.g., United States v. Reiter, 848 F.2d
336, 340-41 (2d Cir. 1988); United States v. Ingman, 541 F.2d
1329, 1330-31 (9th Cir. 1976) (per curiam). What the gov-
ernment may not do is “reprosecute a defendant for the
same offense whenever it obtains broader evidence of
criminal culpability.” United States v. Thornton, 972 F.2d
764, 765 (1992) (emphasis added). But the two con-
spiracies in this case are two separate offenses.
Even if the predicate acts in the previous and present
prosecutions were identical and the enterprises were under
common control, separate prosecutions might not be
barred. If a defendant drives two of his friends to an
intersection where there are two banks, and each friend
robs one of the banks, the driver could be prosecuted twice
for two different offenses of aiding and abetting bank
robbery, even though he drove only once. For he would
have committed two separate offenses, and in United States
v. Dixon, supra, 509 U.S. 704, the Supreme Court made
clear that that is the test. See also United States v.
Hatchett, 245 F.3d 625, 639-40 (7th Cir. 2001). Or suppose in
our hypothetical corporate example that the defendants,
having been prosecuted for conducting the affairs of the
subsidiary by a pattern of racketeering activity, were
prosecuted a second time on the theory that by that very
conduct they had enriched the parent and so had con-
ducted its affairs as well through a pattern—albeit the
same pattern—of racketeering activity. The offenses
would not be the same; the second would require proof
Nos. 07-1962, 07-1969 7
that the first had not required. United States v. Kimbrew, 406
F.3d 1149, 1152 (9th Cir. 2005); see United States v. Dixon,
supra, 509 U.S. at 700-02; United States v. Hatchett, supra,
245 F.3d at 639-40. It would be just like our hypothetical
robbery case. In this case the defendants are not only
charged with a different conspiracy from what was
charged in their previous prosecutions, but also charged
with having conspired to conduct the affairs of the parent
(the Outfit) by acts that are not identical to the acts charged
in the first set of prosecutions, though there is overlap.
United States v. Ciancaglini, supra, 858 F.2d at 925-26.
Corporate analogies are appropriate because the Chicago
Outfit is a substantial commercial firm, albeit an illegal
one (yet it has outlasted many a legal firm). Of course,
being an illegal enterprise, it cannot have formal sub-
sidiaries, but if the street crews are functional subsidiaries,
that should suffice for purposes of analyzing a double
jeopardy defense. It would be beyond paradoxical if by
virtue of their employers’ being forbidden by law to form
subsidiaries, the employees of criminal enterprises ob-
tained broader rights under the double jeopardy clause
than the employees of legal ones.
Civil analogies are also appropriate, given the resem-
blance between double jeopardy and res judicata. Imagine,
then, successive suits for copyright infringement. The
first is against the publisher of an abridged book that
copies passages from the plaintiff’s copyrighted work, and
the suit names the publisher’s employee who did the
actual copying as an additional defendant. The second
suit complains about an unabridged edition of the same
book, which copies those passages plus others and which
was published at the same time as the abridged edition
but by the parent of the publisher of that edition, and
8 Nos. 07-1962, 07-1969
names the same employee as an additional defendant
because he either is employed by both the parent and the
subsidiary or moved between them, copying the plaintiff’s
work for the editions published by his successive employ-
ers. The second claim against the employee would not be
barred by res judicata despite the overlap, cf. Realex
Chemical Corp. v. S.C. Johnson & Son, Inc., 849 F.2d 299,
303 (8th Cir. 1988), and the same thing is true in this case
with respect to double jeopardy.
As the overlap between two prosecutions of the same
person grows, however, the characterization of the two
proceedings as charging separate criminal acts becomes
less convincing. Finally a point is reached at which the
differences are minor and it seems that the government
contrived the differences to evade the prohibition against
placing a person in double jeopardy. For while the gov-
ernment is not required to charge in its first prosecution of
a person all the possible offenses that the facts in the
government’s possession would enable it to charge (as in
our robbery case), United States v. Dixon, supra, 509 U.S. at
704-05, it can still be precluded from bringing “a later
prosecution for a separate offense where the Government
has lost an earlier prosecution involving the same facts.” Id.
at 705; see United States v. DeCologero, supra, 364 F.3d at 18;
United States v. Lopez, 356 F.3d 463, 467 (2d Cir. 2004) (per
curiam); United States v. Ciancaglini, supra, 858 F.2d at 930.
But we are not at that point in this case, and this apart from
the fact that the government did not lose the previous
cases.
At least we are not at that point yet. For suppose that
at the trial of the defendants under the new indictment
the only predicate acts the government is able to prove
are the acts that it proved against Marcello in its first
Nos. 07-1962, 07-1969 9
prosecution of him and that Calabrese acknowledged as
part of his guilty plea in his first prosecution, and the
government’s defense to the claim of double jeopardy is
merely that when the two defendants were committing
illegal acts on behalf of their respective street crews, they
were simultaneously committing those acts on behalf of
the Outfit, the crews’ parent. That would be a merely
formal difference (like saying they were committing the
acts on behalf of their families, whom they hoped to enrich)
between the successive prosecutions, unless the govern-
ment went on to prove that the later conspiracy had as an
objective not involved in the earlier conspiracies to enrich
or otherwise advance objectives of the Outfit that were
distinct from the objectives of the street crews. But the
appeals are from the denial of the motion to dismiss the
indictment, not from judgment after trial. We have no basis
at this preliminary stage for thinking that the government
will fail to prove separate conspiracies. United States v.
Flick, 716 F.2d 735, 738-39 (9th Cir. 1983).
It will be a more difficult case if the evidence presented
by the government at the new trial differs only trivially
from the evidence upon which Calabrese’s and Marcello’s
previous convictions were based. (This is conceivable
because the five-year statute of limitations applicable to
RICO prosecutions, 18 U.S.C. § 3282; Agency Holding Corp.
v. Malley-Duff & Associates, Inc., 483 U.S. 143, 155-56 (1987),
does not bar conviction for a RICO conspiracy involving
predicate acts committed more than five years before the
prosecution was commenced, provided the conspiracy
continued into the limitations period. E.g., United States v.
Yashar, 166 F.3d 873, 875-76 (7th Cir. 1999); United States v.
Gonzalez, 921 F.2d 1530, 1547-48 (11th Cir. 1991); United
States v. Bortnovsky, 879 F.2d 30, 36 n. 11 (2d Cir. 1989).)
10 Nos. 07-1962, 07-1969
With the tail thus wagging the dog, a conviction would be
in jeopardy of placing the defendants in double jeopardy,
a conclusion that many cases would reach by application of
a five-factor or “totality of the circumstances” test that
amounts to asking how much the two prosecutions over-
lap. E.g., United States v. Sertich, 95 F.3d 520, 524 and n. 1
(7th Cir. 1996); United States v. Ciancaglini, supra, 858 F.2d
at 927; United States v. Russotti, supra, 717 F.2d at 32-34 (2d
Cir. 1983). At this stage, we cannot know how great the
overlap will be, and so we have no basis for forbidding
the trial to go forward. But “if it becomes clear from the
trial that [the defendant] is being prosecuted twice for the
same conspiracy, he is free to raise such arguments after
trial if he is convicted on the RICO conspiracy count.”
United States v. Solano, 605 F.2d 1141, 1145 (9th Cir. 1979);
see also United States v. Flick, supra, 716 F.2d at 738; United
States v. Stricklin, 591 F.2d 1112, 1119 (5th Cir. 1979); United
States v. Young, 503 F.2d 1072, 1077 n. 17 (3d Cir. 1974). All
three of the judges on this panel agree that the defendants
must stand trial again; the incremental burden of their
having to litigate with reference to some acts that may have
been involved in the earlier prosecutions is therefore
likely to be modest.
AFFIRMED.
WOOD, Circuit Judge, concurring in part and dissenting in
part. Fifteen years and twelve years ago respectively,
James Marcello and Frank Calabrese, Sr., were indicted
under the Racketeer Influenced and Corrupt Organiza-
Nos. 07-1962, 07-1969 11
tions Act, 18 U.S.C. § 1962(d), for conspiring to engage in
a pattern of racketeering activity through an enterprise.
The enterprise in question for Marcello was the “Carlisi
Street Crew,” which was specifically alleged to be “part
of a larger criminal organization known as ‘the mob’ or
‘the Outfit.’ ” Paragraph 4 of the indictment charged that
“the ‘boss’ of the Crew was ultimately responsible to the
head of the Outfit and was required to ensure that the
leadership of the Outfit received a share of the proceeds
from the Crew’s activities.” Paragraph 5(b) went on to
allege that Marcello served as a go-between for Samuel
Carlisi, the head of the Crew, and representatives of other
Chicago “Outfit” street crews. In short, the 1992 indictment
made it clear that the criminal organization with which
Marcello was associated was part and parcel of the
Chicago Outfit. The same picture emerges from the 1995
indictment against Calabrese. It, too, asserts in paragraph
1 that “[t]he Calabrese Street Crew was part of a larger
criminal organization known to the public as ‘the Mob,’
and to its members and associates as ‘The Outfit.’ ” Frank
Calabrese, Sr., according to paragraph 3(a) of the indict-
ment, “resolved disputes both within the Calabrese
Street Crew and between that crew and other organized
crime street crews,” and he “represented the Calabrese
Street Crew in meetings with members of other organized
crime crews.”
In the indictment now before us, both Marcello and
Calabrese have been charged once again with participat-
ing in a RICO conspiracy in violation of 18 U.S.C. § 1962(d).
This time, the alleged “enterprise” is the Outfit itself, rather
than any of its constituent parts. There is also a temporal
difference between the Second Superseding Indictment
before us, which was returned by the Special August 2003-
12 Nos. 07-1962, 07-1969
2 Grand Jury on June 2, 2005, and the earlier two indict-
ments. It covers more than forty years, “[f]rom approxi-
mately the middle of the 1960s through the date of the
return of this indictment.” Marcello’s earlier indictment
spanned the time period from approximately 1979 through
“at least” May 1990, and Calabrese’s specified the period
from 1978 through April of 1992. Finally, although (as
the government concedes) some of the predicate acts
supporting the RICO charge are the same as the ones
alleged in the two men’s earlier indictments, the 2005
indictment asserts many more.
In the interest of a prompt decision in this case, I do not
wish to belabor the points I am making here. In brief,
however, I do agree with the majority in one significant
respect. As they note, ante at 4, there can be no question of
double jeopardy for acts that took place as part of the
continuation of the conspiracy after the time periods
covered by the earlier indictments. No matter what,
therefore, these defendants are not entitled to avoid
altogether the trial that is scheduled to begin soon. The
more difficult question is whether the government is
entitled to rely on predicate acts that were committed
during the time periods for which Marcello and Calabrese
have already stood trial and been convicted, whether or
not those acts were identified earlier as support for the
earlier RICO conspiracies. The defendants are correct to
emphasize, in this connection, that they were found guilty
(by jury and by plea) of conducting a RICO conspiracy,
not of committing a series of discrete criminal acts. They
freely concede that there would be no double jeopardy
problem if the government wanted to indict them for the
substantive crimes reflected in many of the predicate
acts, such as murder, money laundering, or fraud.
Nos. 07-1962, 07-1969 13
The majority, by drawing analogies to corporate gov-
ernance models and the law of copyright, is satisfied that
the conspiracy in the present case is not quite the same as
the conspiracy charged in the earlier cases. It is willing to
give the defendants half a loaf with respect to their double
jeopardy defense, by inviting them to renew this motion
after trial if it turns out that they have been convicted
on the basis of evidence that has been recycled from the
earlier trials. But, as the majority rightly notes, the Fifth
Amendment protects people from twice having to stand
trial for a given offense. See Abney v. United States, 431
U.S. 651 (1977). It is not limited to an ex post vindication at
the end of a trial.
Perhaps the majority’s analogies would be apt, if it were
clear that the focus earlier had been exclusively on actions
taken respectively by the Carlisi Street Crew and the
Calabrese Street Crew. But the earlier indictments show
that the charges encompassed the role that the two crews
were playing in the larger Chicago Outfit—precisely the
enterprise that is alleged in this new case. In United States
v. DeCologero, 364 F.3d 12, 17-18 (1st Cir. 2004), the
court explicitly refused to conclude that enterprises
resembling those charged in this case were distinct:
The present indictment charges the defendants with
participating in a nominally different enterprise—the
“DeCologero Crew”—said by the government to be “a
separate entity from the Patriarca La Cosa Nostra
(’LCN’) Family, yet . . . structured in a similar manner
to a crew or regime of La Cosa Nostra” and “aligned
with” the Carrozza faction of the Patriarca Family.
According to the charge, the DeCologero Crew’s aim
was “controlling, supervising, and financing illegal
activities,” including generating money through
14 Nos. 07-1962, 07-1969
robbery and drug sales “for the personal use of mem-
bers . . . and to build up a war chest of firearms, weap-
ons, and ammunition which was to be used, in part,
to support the” Carrozza faction.
If the double jeopardy problem turned solely on
whether the two cases involved the same enterprise,
we would be faced with a hard question. The RICO
statute loosely defines an “enterprise” to include not
only any legal entity (e.g., a corporation) but also “any
union or group of individuals associated in fact.” 18
U.S.C. § 1961(4). Although the DeCologero indict-
ment alleges that the Carrozza faction and DeCologero
crew were separate enterprises, the proffered evidence
could support the view that both were part of a verti-
cally organized endeavor, with DeCologero some-
where in the middle of the organizational pyramid.
Past cases have stressed that conspiracies cannot be
artificially broken up for the purpose of bringing
separate cases, see Braverman v. United States, 317 U.S.
49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942), and there is no
reason why the rule should be any different for RICO
enterprises. But whether there was one enterprise or
two need not be resolved. Every circuit to have exam-
ined the issue has agreed that double jeopardy only
bars successive RICO charges involving both the same
enterprise and the same pattern of racketeering activity.
In our view the current RICO charges do involve a
different pattern than the old.
Id. See also United States v. Ciancaglini, 858 F.2d 923, 929 (3d
Cir. 1988) (“Because of the overlap, however, we are unable
to conclude that this was not the same ‘enterprise.’ Both
indictments involved Philadelphia-based crime families,
and both alleged enterprises with the same goal.”). The
Nos. 07-1962, 07-1969 15
DeCologero court thus ultimately found no double jeop-
ardy problem, but only because “all of the [racketeering
acts] in the present indictment are different from those
charged in the [previous] case.” Id. at 19 (emphasis in
original).
The majority and the government also cite United States
v. Langella, 804 F.2d 185, 189 (2d Cir. 1986), but that case is
easily distinguished. Although the court held that “the
Colombo Organized Crime Family of La Cosa Nostra” and
“the Commission of La Cosa Nostra” were two different
enterprises, it carefully explained that “the Commission”
is an independent entity with a separate purpose from an
individual family of La Cosa Nostra, such as the Colombo
family. Id. As Langella recognized, “The indictment alleged
that the Commission was a council of leaders of various
organized crime families, ‘an enterprise distinct from the
individual Families,’ established with the special pur-
poses of, inter alia, resolving disputes among families
and carrying out ‘joint ventures’ involving more than one
family.” Id. at 187. Indeed, the court signaled that it
might feel differently about a case like ours:
Although the Commission and the Colombo Family, in
a sense, are vertically organized segments of an intri-
cate, organized crime structure, the allegations of the
two indictments sufficiently demonstrate that they are
two separate and independent criminal enterprises.
Significantly, the Colombo Family is not merely a lower level
of authority within the hierarchy of organized crime: Within
its own sphere of operation, the Colombo Family is a
self-sufficient enterprise that functions without oversight by
the Commission.
Id. at 189 (emphasis added). The patterns of racketeering
charged also distinguish Langella from our case. The
16 Nos. 07-1962, 07-1969
Langella court began its comparison of the nature and
scope of the racketeering charged in the two indictments
by stating, “Here, there is absolutely no overlap of any kind
between the patterns of racketeering activity alleged in the
two indictments.” Id. (emphasis added). No one asserts
that the same is true here. As the government candidly
conceded at oral argument, “There will be some overlap-
ping proofs with respect to what was covered in the
first case . . . .”
This court has already held, in United States v. Thornton,
972 F.2d 764 (7th Cir. 1992), that the government may
not bring one narrow charge first and then later bring a
broader charge that entirely encompasses the first one:
The government has taken great pains to emphasize
that the conspiracy alleged in the Pennsylvania indict-
ment lasted only a few months, involved many fewer
people, and was therefore much smaller in scope than
the conspiracy alleged in the Illinois indictment, which
involved some forty plus coconspirators, trafficking
to numerous states, and encompassed a seven-
to-nine-year time frame. Moreover, the government
emphasized in the hearing before the district judge that
the agent involved in the [narrower] Pennsylvania
indictment knew nothing about the activities alleged in
the [broader] Illinois indictment. It appears that in
making such arguments the government is implying
that even assuming that the Pennsylvania indict-
ment charged the same conspiracy as the Illinois
indictment, there is no double jeopardy problem
because the first-charged conspiracy was only a
small subset of the later-charged conspiracy and
because the government did not know that this was
one conspiracy. We must remember, however, the
Nos. 07-1962, 07-1969 17
double jeopardy clause imposes limits on a defend-
ant’s criminal exposure. In order to stay true to these
finality requirements, the government cannot repros-
ecute a defendant for the same offense whenever it
obtains broader evidence of criminal culpability.
Id. at 765. In my opinion, that is what the government is
trying to do here, insofar as the charges cover the same
time periods as those in the earlier indictments. That is
why the majority’s bank robbery analogy is inapposite. In
that example, the government can certainly bring two
separate charges against the driver. But that is because the
driver’s single act aided the commission of two separate
crimes: the robbery of Bank 1 and the robbery of Bank 2.
That analogy assumes the answer to the question before
us: whether the government is now charging these defen-
dants with new crimes for which they never stood trial, in
which some of the evidence that supported their earlier
conviction also underlies the new charges. My response
is that we do not have two distinct crimes analogous to the
two bank robberies. Instead, the indictments from the
previous cases are entirely subsumed within the new
indictment. The fact that the new indictment also lists
additional predicate acts does not change the fact that the
defendants are currently exposed to criminal liability for
crimes for which they have already served their punish-
ments. We have already noted that “[d]eciphering what
constitutes prosecution for the same offense for purposes
of double jeopardy is . . . even more difficult when we
move from single layered crimes such as bank robberies to
prosecution for multilayered crimes such as conspiracies
which expand over time and place. The reason for the
added complexity is that it is difficult to apply double
jeopardy’s notions of finality to crimes which have no
18 Nos. 07-1962, 07-1969
easily discernable boundaries with regard to time, place,
persons, and objectives.” Thornton, 972 F.2d at 765 (cita-
tions omitted). Not a single case that has considered the
double jeopardy issue in the RICO conspiracy context
involving organized crime families has permitted an
indictment that encompasses such a substantial portion
of a prior one.
As the Supreme Court put it in United States v. Turkette,
452 U.S. 576 (1981), a RICO “enterprise” is an entity made
up of “a group of persons associated together for a com-
mon purpose of engaging in a course of conduct.” Id. at
583. A “pattern of racketeering activity” is “a series of
criminal acts as defined by the statute.” Id. Comparing the
2005 indictment with its 1992 and 1995 forebears, I con-
clude that the government is pursuing the same enter-
prise now as it did before. It has merely found broader
evidence of criminal culpability and has added to the list
of criminal predicate acts. The language of the 2005 in-
dictment says as much, where it charges that “[t]he crimi-
nal activities of the Chicago Outfit were carried out in part
by sub-groups, or ‘crews,’ which were generally given
territories in different locations in the Chicago area.” See
also United States v. DiDomenico, 78 F.3d 294, 297-298 (7th
Cir. 1996) (“The Chicago Outfit (the ‘Outfit,’ the ‘Mob,’ the
‘Mafia’)—the criminal enterprise whose most notorious
boss was Al Capone—operates through ‘street crews.’ ”); id.
at 302 (noting, in a case charging twenty members of
the “Ferriola Street Crew,” and in which the indictment
defined the enterprise as “The Joseph Ferriola Street
Crew,” that the district court was entitled to empanel an
anonymous jury because “[t]his is not a case . . . in which
the defendants are rumored to have ‘Mob’ connections. The
defendants are the ‘Mob.’ ” (emphasis in original)). The
Nos. 07-1962, 07-1969 19
indictment before us goes so far as to name both the Carlisi
and the Calabrese Street Crews as subgroups of the Outfit.
Borrowing from the majority’s analysis, the structures of
the enterprises charged in the earlier indictments are
more closely analogous to a branch office or division of
one company than they are to a distinct subsidiary.
While the new indictment alleges more predicate acts
than the earlier ones, the overlaps are considerable. (Thus,
we cannot say, as the DeCologero and Langella courts did,
that “all of the [racketeering acts] in the present indict-
ment are different from those charged in the [previous]
case,” 364 F.3d at 19 (emphasis in original), or “there is
absolutely no overlap of any kind between the patterns of
racketeering activity alleged in the two indictments,” 804
F.2d at 189.) As I noted earlier, many of the predicate
acts charged in the 2005 indictment are identical to those
in the earlier indictments. Moreover, if one were to look at
the various “factors” identified in United States v. Marren,
890 F.2d 924 (7th Cir. 1989), on which the government is
content to rely, it is hard to resist the conclusion that
these cases are about the same pattern of conduct. Those
factors are “(1) the time of the various activities charged as
separate patterns of racketeering; (2) the identity of the
persons involved in the activities under each charge; (3) the
statutory offenses charged as racketeering activities in
each charge; (4) the nature and scope of the activity the
government seeks to punish under each charge; and (5) the
places where the corrupt activity took place under each
charge.” Id. at 935. In the end, we must decide whether
the area of overlap is so substantial that the two cases
must be regarded as functionally the same. United States v.
Sertich, 95 F.3d 520, 524 (7th Cir. 1996). With respect to the
period of time covered by the earlier indictments, the
20 Nos. 07-1962, 07-1969
identity of the predicate acts is, in my view, easily great
enough that we must find for the defendants on this part
of the case too.
Although I would deny the defendants’ request for
outright dismissal of this indictment, I would grant their
alternative petition for an order striking all of the aver-
ments in Count One that relate to the prior RICO conspir-
acy charges—that is, for Marcello the conspiracy that
lasted from 1979 to 1990, and for Calabrese the con-
spiracy that went from 1978 to 1992. To that extent,
I therefore dissent from the majority’s judgment.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-19-07