In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3832
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN T. A MBROSE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 18—John F. Grady, Judge.
A RGUED F EBRUARY 25, 2011—D ECIDED F EBRUARY 16, 2012
Before E ASTERBROOK, Chief Judge, and R OVNER and
W OOD , Circuit Judges.
R OVNER, Circuit Judge. The U.S. Marshals Service is
the nation’s oldest federal law enforcement agency,
having served our country since 1789 when President
George Washington appointed the first 13 U.S. Marshals
following the passage of the first Judiciary Act. U.S.
M A R S H A L S S E RV I C E , h t t p :/ / w w w . u s m a rs h a ls .g o v/
duties/factsheets/general-2011.html (last visited January 26,
2 No. 09-3832
2012). It is tasked with a wide variety of critical functions,
among them the capture of fugitives from justice, the
housing and transport of prisoners, witness security, and
judicial security—including the protection of all federal
judges. Id. Its performance has been consistently exem-
plary. For instance, in fiscal year 2010 alone, the Marshals
Service arrested more than 36,100 federal fugitives. Id.
Those successes have not been without the greatest
of sacrifices. Over its history, more than 200 persons in
the Marshals Service have given their lives in service.
http://www.usmarshals.gov/history/roll_call.htm. Nothing
better captures the ethos of the Marshals Service
than its motto: Justice, Integrity, Service. http://www.
usmarshals.gov/history/seal.htm.
One of the most sensitive functions of the Marshals
Service is the Witness Security Protection Program
(“WITSEC”), also known as the witness protection pro-
gram. Through that program, the Marshals Service pro-
vides for the security, health, and safety of govern-
ment witnesses and their immediate family members,
whose lives are endangered as a result of their testimony
in the criminal prosecution of those involved in organ-
ized crime, drug trafficking, terrorism, and other major
criminal enterprises. http://www.usmarshals.gov/duties/
factsheets/witsec-2011.html. Those prosecutions involve
the most dangerous people, and the threat to the witnesses
is real and substantial. Since the program’s inception
in 1971, the U.S. Marshals have relocated and protected
more than 8,300 witnesses and 9,800 of their family mem-
bers. Id. It is a testament to the dedication and profes-
No. 09-3832 3
sionalism of its members that in that time, no WITSEC
participant who followed security guidelines was
harmed while under the active protection of the U.S.
Marshals. Id.
Without the protection of such high-risk witnesses,
many of the most serious federal crimes would escape
prosecution. In fact, our system of justice depends at
its core on the integrity of its law enforcement officers
and the ability to protect witnesses who testify against
wrongdoers. John T. Ambrose, a Deputy U.S. Marshal,
was convicted in district court on charges that go to the
heart of those core principles. He is accused of betraying
the confidentiality of WITSEC and revealing information
to organized crime figures concerning the cooperation
of witness Nicholas (“Nick”) Calabrese, a “made” member
of the mob. Such a betrayal could present a threat to
the safety of Calabrese, his family, and even the
Marshals protecting him.
The grand jury returned a four-count indictment,
charging him in Counts 1 and 2 with stealing govern-
ment property and disclosing without authorization
information regarding Calabrese, a witness protected in
the WITSEC program, in violation of 18 U.S.C. § 641 and
18 U.S.C. § 3521. In Counts 3 and 4, the grand jury charged
him with making false statements to law enforcement
agents regarding his conduct in violation of 18 U.S.C.
§ 1001. The jury found Ambrose guilty on Counts 1 and 2,
and not guilty of Counts 3 and 4. The district court sen-
tenced Ambrose to four years on each count, to be served
concurrently, and 3 years’ supervised release.
4 No. 09-3832
In pretrial motions, Ambrose moved to suppress
inculpatory statements that he made to investigators.
After an expansive hearing spanning six days of testi-
mony, the district court denied that motion to suppress.
Ambrose now appeals that determination, and also
raises a number of challenges to the trial and sentence.
He alleges that the district court should have suppressed
his statements because he was subjected to custodial
interrogation without receiving the Miranda warnings.
Miranda v. Arizona, 384 U.S. 436, 445 (1966). In addition,
he asserts that the trial court improperly allowed the
admission of evidence in violation of the hearsay rule
and the Confrontation Clause of the Sixth Amendment,
and erred in providing a supplemental instruction of
law to the jury. Finally, Ambrose argues that the court
improperly sentenced him in that it engaged in specula-
tion and failed to consider the § 3553(a) factors.
I.
In 2002, Nick Calabrese began cooperating with the
government in the investigation of a number of unsolved
murders. He was a “made” member of the Chicago Outfit,
also known as the Chicago mob or mafia, who was be-
lieved to have participated in 16 murders and to have
knowledge of 22 murders. A made member is someone
who has gained a heightened role in the Outfit by
proving himself based upon his trustworthiness and
performance. A person would not even be considered
for that status until he had committed a homicide on
behalf of the Outfit. Because he was a made member,
No. 09-3832 5
Calabrese was privy to a great deal of information and
access. By all accounts, he was the most important organ-
ized crime witness who had ever testified in this dis-
trict, and would become a key witness in what was
known as the “Family Secrets” case which brought RICO
charges against the Outfit. In order to secure his coopera-
tion and his safety, Calabrese was accepted into the
WITSEC program on approximately August 27, 2002.
In the course of his cooperation, Calabrese traveled to
Chicago on two occasions, the first on October 31 to
November 1, 2002, and the subsequent trip between
May 20 and May 23, 2003. He stayed at a “safe house”
where he was guarded by Deputy U.S. Marshals on
both trips. The government soon received information
indicating that Calabrese’s cooperation had been dis-
covered by organized crime figures, and that one of the
persons guarding him may have been a source of that
information. In court-authorized audio and visual re-
cordings made between organized crime figures
Michael Marcello and his brother James at a federal
penitentiary, the Marcellos were heard discussing that
information had been provided by the “babysitter” of an
organized crime member. At the time, the authorities
had not ascertained the identity of the “babysitter.”
Additional information was revealed in subsequent
recordings. Because the Marcellos spoke in coded terms,
and utilized gestures in place of words at times, the
authorities had to piece together interpretations of the
conversation from the audio and visual tapes. For instance,
on January 30, 2003, Michael Marcello indicated to James
6 No. 09-3832
that “[t]he big thing with them is the Zhivago deal.”
From prior experience, the federal investigators had
ascertained that “Zhivago” was used as a reference to the
murders of Michael and Anthony Spilotro—unsolved
murders of which Calabrese had information.1 James
replied, “he said something about that, they said? I
thought it was in another direction?” to which Michael
responded, “we don’t know what he said about that. . . .
But I’m telling you, you’re in there. You know, how far,
whatever. I don’t know. The guy can only do what he
can do. You know what I’m saying?” James then asked,
“[w]ell, that’s all he saw was names?” to which Michael
replied, “[t]he guy had the notes [putting hands out as
if indicating a pad of paper.] Everything he was writing
down . . . . Went through the guy’s notes.”
The threat assessment that was part of Calabrese’s
WITSEC file had indicated that he participated in 16
murders and had knowledge of 22 other murders. The
investigators were therefore alarmed to hear similar
numbers and wording mentioned by the Marcellos during
a March 6, 2003, visit, stating “[h]e didn’t say that he did
nineteen of them things . . . . He said . . . [t]hose that par-
ticipated in and had knowledge of . . . nineteen of them
things . . . [n]ot that he was.” The government had not
released information to the public of the large number of
murders to which Calabrese admitted involvement or
knowledge.
1
The Spilotro brothers’ exploits as part of the mob and their
murder was the basis for the movie Casino.
No. 09-3832 7
In a conversation two weeks later, the recorded con-
versations again identified “the guy” who was giving
information as “the babysitter.” Michael asked James if
he knew Tony DeRango, a “copper,” and James stated
that he “grew up with him” in “our old neighborhood,
that district.” Michael then explained in typical cursory
fashion, “Marquette, the Marquette Ten,” and that
DeRango was friends with “this guy.” He further states
“another guy by the name of Guide. Guide was close to
this guy.” Michael continued, “they both were, really
both of them. They both knew him from Marion Camp
[an apparent reference to the Federal Prison Camp in
Marion, Illinois]. . . . This kid’s father was with them . . . .
On that beef and everything. He went down with them.
He died though . . . . The kid’s father died. So they like,
you know, the kid comes down. You know what I mean?”
Further evidence of a leak in the program was apparent
in a conversation on June 12, 2003. Michael revealed to
James, “you know that kid that, that kid that handles him
once in a while? . . . You know, he was there . . . . He was
there for a week. A little over a week . . . . Right in front of
the thing. They were driving him all over the city. Showed
‘em the [unintelligible] . . . . He took ‘em there, down east
by Pagliacci that way.” [pagliacci means clown in
Italian, and is understood as a reference to Chicago Outfit
member Joseph “the Clown” Lombardo]. Michael also
revealed that Calabrese had been taken to the Bridgeport
area, which is near U.S. Cellular Field, the stadium for
the White Sox. Michael continued, “Now this is, this is
from like yesterday . . . . Oh, the Moulieri [Italian slang
for “wife”] . . . [t]hree times [gesturing with hand to
8 No. 09-3832
head] . . . [h]e dialed the phone number himself, the kid.
He said the kid dialed the phone number.” Just a few
weeks before that conversation, Calabrese had traveled
to Chicago for three days, during which time agents took
him around the city including the area around U.S. Cellu-
lar Field to identify the locations of murders and sites
where bodies were buried. Calabrese called his wife
from the safe house at least twice during that time.
Although the investigators were thus aware that infor-
mation was getting to the Chicago Outfit concerning
Calabrese’s movements, they were not able to identify the
source of the leaks. That changed in 2006, when more
accurate equipment allowed them to hear the reference
to the “Marquette Ten,” which they previously had
understood to be “Marquette Temple.” The Marquette
Ten case in Chicago was a federal racketeering case in
which a number of Chicago Police Officers, including
Thomas Ambrose, father of the defendant, were con-
victed and sent to prison. Thomas Ambrose was incar-
cerated and died of a heart attack during that imprison-
ment. Two of his co-defendants in that case, William
Guide and Frank DeRango, were incarcerated during
some of their prison terms with members of the Chicago
Outfit—Guide with John “No Nose” DiFronzo and
DeRango with Joey “the Clown” Lombardo. Armed with
the new information, the agents connected the defendant
Ambrose to the “babysitter” whose father was a “copper”
who “went down” with DeRango and Guide in the
Marquette Ten case and died in prison. Ambrose had
been one of the Deputy U.S. Marshals assigned to protect
Calabrese during his visits to Chicago. In those overnight
No. 09-3832 9
visits, Ambrose would have had access to Calabrese’s
WITSEC file at the safe house. Parts of the WITSEC file
were copied and distributed at the safe house in stapled
packets, but other parts of the file were not handed out.
Fingerprint examination of Calabrese’s WITSEC file
revealed two prints matching Ambrose, one on a
facsimile cover sheet atop the application and one from
his right ring finger on the inner side of the last page.
Neither of those pages had staple holes that would
have been present for the papers that were copied and
distributed as briefing materials, thus indicating that
Ambrose had accessed additional material.
In light of that information, the government believed
it had enough evidence that Ambrose had conveyed
information to the Chicago Outfit that it could charge him
with the crimes of theft of government property and
unauthorized disclosure under 18 U.S.C. §§ 641 & 3521.
The government did not yet know, however, the extent of
the breach, and who else was involved in the matter. As a
result, it sought to gain Ambrose’s cooperation in the
hopes of identifying any persons involved in passing the
information from Ambrose to the Marcellos. In addition,
although the agents were aware that Ambrose had re-
vealed information, they had not ascertained whether the
revelation was purposeful or inadvertent. The agents
determined that Ambrose would respond in the most
positive manner if persons higher in law enforcement
whom he respected were the ones who approached
him. Ambrose himself held a high position in the U.S.
Marshals Service, serving as a deputy and as essentially
10 No. 09-3832
the second in command of the Great Lakes Regional
Fugitive Task Force. Accordingly, they decided that the
U.S. Attorney for the Northern District of Illinois, Patrick
Fitzgerald, and the FBI Special Agent in Charge (“SAC”)
Robert Grant would conduct the initial interview. The
plan was to confront Ambrose with the evidence, and
once he decided to cooperate they would then turn
him over to investigators who were more familiar with
the intricate details to conduct any interrogations.
The government officials were concerned, however, as
to how Ambrose would react. From both personal experi-
ence and from information provided to them in the
course of their duties, they were aware that there was
a very real danger of a violent response, and particularly
the potential for “suicide by cop.” Grant had personally
experienced such a situation in his time in the law en-
forcement community, and Michael Prout, the Chief
Deputy U.S. Marshal for the Northern District of Illinois,
had served as a team leader of the U.S. Marshals Service
Critical Incident Response Team and had been trained on
the risks of law enforcement suicide in circumstances
where a law enforcement officer faced loss of position or
family. U.S. Marshal Kim Widup had indicated that
Ambrose was known as a high-strung highly-trained
individual for whom the job meant everything, and that
as a result he was a potential suicide risk given the cir-
cumstances he would be facing. The concern was exacer-
bated by Ambrose’s personal history. Given his ex-
perience as a child with his father being convicted and
dying in prison, there was a heightened concern with
that possibility.
No. 09-3832 11
Accordingly, a decision was made that before con-
fronting Ambrose, his weapons would be secured to
ensure the safety of Ambrose and those around him.
Toward that end, a ruse was constructed whereby
Ambrose’s supervisor, Prout, informed Ambrose that
he needed to report to the FBI building for a meeting
concerning a fugitive. The FBI building was newly-
built and had extensive security including a guardhouse
that was physically separate from the building, through
which all visitors had to pass. All visitors were re-
quired to submit to a metal detector and to relinquish
any weapons, cell phones, and other personal effects. By
scheduling the meeting for that venue, the agents could
ensure that Ambrose would not have weapons in his
possession when he was informed of the investigation
and potential charges. In addition, the remoteness of the
location would help to keep the proceedings confidential,
which was particularly important if Ambrose agreed
to cooperate in the investigation. Because Ambrose was
a Deputy U.S. Marshal, any meetings in the U. S. Attor-
ney’s Office in the court building would have been
very difficult to keep secret.
On September 6, 2006, Ambrose proceeded to the
FBI building and met Prout there shortly before 10:00 a.m.
They relinquished their weapons and cell phones at
the guardhouse. As part of the building security, visitors
were escorted when traveling throughout the building
and in keeping with that, Ambrose and Prout were es-
corted to the conference room located just outside SAC
Grant’s office on the 10th floor. At that time, Grant walked
Prout out of the room, and Fitzgerald chatted with
12 No. 09-3832
Ambrose briefly about the extensive security at that new
building and how their cell phones had been taken.
Grant returned quickly, which left Ambrose alone with
Fitzgerald and himself. Fitzgerald had brought with
him both audio and video recordings of the Marcello
conversations, as well as an as-yet-unfiled unsigned
affidavit which had been prepared to be used in the
event of an arrest. In fact, the U.S. Attorney’s office had
made a number of preparations for the possibility of an
arrest that day, including drafting a press release and
contacting a local jail in case there was a need to incar-
cerate Ambrose while maintaining secrecy.
Fitzgerald anticipated that the meeting would be a
short one in which he and Grant would reveal to
Ambrose the information that they had regarding his
criminal involvement, and give a pitch for him to
cooperate in the investigation. If Ambrose agreed to
cooperate, he would be handed off to agents who
were more familiar with the details of the investigation
and they would conduct an interrogation.
Fitzgerald and Grant both testified that they
informed Ambrose that he was not under arrest but
that prosecution was a possibility. Although Ambrose
disputes that he was told he was not under arrest, the
district court credited the testimony of Fitzgerald on the
matter, and Ambrose has presented no basis for us to
disturb that finding. Fitzgerald proceeded to reveal the
evidence that had been gathered implicating Ambrose,
and provided Ambrose with a transcript to read along
with as they played the tapes of the Marcello conversa-
No. 09-3832 13
tions. When Fitzgerald mentioned that Ambrose’s finger-
prints were found on the WITSEC file, Ambrose
initially denied accessing a file, but later asked whether
his fingerprints were on the outside of the file. Fitzgerald
then told him that a fingerprint was also found on an
inside page, and assured Ambrose that he was not lying
about the fingerprint evidence. Ambrose then conceded
involvement, stating that he “screwed up” but that it was
not what they thought it was. He elaborated, saying that
he “shot his mouth off” but that he “would never take
money.” Fitzgerald assured Ambrose that they were
quite confident he had not taken money.
Ambrose also disputed some of the information that the
two presented, indicating that he did not know some
of the people mentioned in the tapes, and had not
engaged in certain actions such as making the phone
calls to Calabrese’s wife.
Throughout the conversation with Fitzgerald and
Grant, Ambrose repeatedly expressed concern about
losing his job. He mentioned at one point that Fitzgerald
had a lot of clout and could help him keep his job. Fitz-
gerald responded to those inquiries by emphasizing
that Ambrose was possibly facing prosecution, and that
he was not the decisionmaker regarding Ambrose’s
employment but that it would seem to be a tough
road for him to retain it. While Ambrose was speaking
with Fitzgerald, a number of agents were positioned
outside the two doors of the conference room. All were
in business attire and were unarmed throughout the
time. A total of nine to twelve agents participated in
14 No. 09-3832
the security detail that day. According to the testi-
mony, their purpose was to provide security in the
event that Ambrose reacted violently. Approximately
two agents were stationed outside each of the open
exit doors. No agents were present in the room during
the meeting and the testimony indicates that the
agents were only occasionally visible from the confer-
ence table where Ambrose, Fitzgerald and Grant were
sitting.
After meeting with Fitzgerald and Grant for about
an hour, Ambrose indicated a desire to cooperate but
asked to speak first with Marshal Kim Widup, Jerry
Hansen—who is Ambrose’s uncle and a courtroom
security officer, and Chief Inspector Jeff Shank—who
was his immediate supervisor. Fitzgerald and Grant
acceded to that request and Grant contacted Widup,
who was still in the building, to arrange for the men
to come to the site. Fitzgerald and Grant left the room
to make those arrangements, and Ambrose stood up
and moved from the table. Concerned that Ambrose was
in the room alone and uncertain of his state of mind,
Agent Andrew Hickey entered the room and in a stern
voice said, “Sir, could you please sit down.” When
Ambrose indicated that he was just stretching his legs,
Agent Hickey took a few more steps into the room and
repeated the request, at which time Ambrose returned
to his seat.
During the subsequent break in the proceedings as
they awaited the arrival of the men Ambrose wanted to
see, Ambrose asked to use the restroom. Ambrose
No. 09-3832 15
testified that when he left the conference room to
proceed to the restroom, he noticed a large number of
FBI agents outside the conference room. Approximately
three to eight of those agents escorted him to the
restroom, with at least one in front, to his side and
behind him. The restroom has doors on both sides of it,
allowing access from—and egress to—two hallways in
the building. Agents accompanied Ambrose into the
restroom, with some standing near the two doors and
one standing within 8 feet of the stall Ambrose had en-
tered. Although testimony indicated that visitors were
escorted within the FBI building, the district court made
no finding on that matter, but by all accounts the
number of agents accompanying him was not the
norm. When he first left the conference room to use
the restroom and saw the agents stationed outside it,
Ambrose said “don’t worry, I won’t do anything stupid,”
which was construed by the government as a reference
to its concern that he would attempt suicide, but was
characterized by the defense as a statement that he
would not try to flee.
Eventually, Widup, Shank and Hansen arrived, and
Ambrose met privately with each of them individually
in the conference room. Fitzgerald briefly outlined the
situation to the men before they met with Ambrose, but
did not request that they ask Ambrose anything and
did not place time or other limits on their conversation
with Ambrose. No one monitored the conversations
between Ambrose and the individuals. Fitzgerald spoke
with Hansen following Hansen’s conversation with
Ambrose and asked him what he thought of the possibility
16 No. 09-3832
of holding Ambrose in a jail if Ambrose was cooperating
in order to make sure Ambrose was safe. Hansen in-
dicated that he thought it was a terrible idea and as a
result Fitzgerald became convinced that it was not an
option that should be pursued.
In their earlier discussions with Ambrose, Grant and
Fitzgerald had discussed that Ambrose should meet
with other agents to provide any details and to cooper-
ate in the investigation rather than to remain with
them. After meeting with Widup, Hansen and Shank
individually, however, Ambrose asked to speak once
again with Fitzgerald and Grant—with Hansen present
as well. They agreed to do so, and in that meeting
Ambrose spoke at length, providing information about
Guide and DeRango, their contact with Lombardo
and DiFronzo, and the information that he gave to
Guide concerning Calabrese. Grant interrupted the con-
versation at that point, directing Ambrose to the case
agents who were prepared to do a more comprehensive
interview with him. This second discussion with Grant
and Fitzgerald lasted only half an hour before he was
directed to the case agents.
Those agents provided Ambrose with Miranda
warnings at the start of their interview. Ambrose then
proceeded to again recount details of his actions that
related to the disclosure of WITSEC information.
Throughout their testimony, Fitzgerald and Grant
characterized their interactions with Ambrose as a
meeting designed to be a short pitch to alert Ambrose to
the potential charges and encourage his cooperation,
followed by a handoff to case agents who were familiar
No. 09-3832 17
with the details of the investigation for questioning.
They indicated that it went much longer than
anticipated because Ambrose asked numerous questions
and expressed a desire to talk with them rather than
their subordinates. The defense, on the other hand,
asserts that the dual interviews were set up as a two-
step process designed to circumvent Miranda, in which
Ambrose would be encouraged to implicate himself
prior to the giving of Miranda warnings. See Missouri v.
Seibert, 542 U.S. 600 (2004); United States v. Stewart, 536
F.3d 714, 722 (7th Cir. 2008). The first issue, then, is
whether the district court erred in allowing the admis-
sion of statements made by Ambrose to Fitzgerald
and Grant in the absence of any Miranda warnings, and
whether those actions rendered his other, post-Miranda,
statements inadmissible as well.
II.
The admonitions set forth in Miranda were designed
to safeguard the constitutional guarantee against self-
incrimination. J.D.B. v. North Carolina, ___ U.S. ___, 131
S. Ct. 2394, 2401 (2011). The Miranda Court recognized
that the inherently coercive nature of custodial inter-
rogation could blur the line between voluntary and invol-
untary statements, and that the prophylactic measures
were necessary to protect the constitutional right. Id. at
2401. Accordingly, Miranda held that the government
may not use statements stemming from the custodial
interrogation of a defendant unless the government
has utilized procedural safeguards effective to secure
18 No. 09-3832
the privilege against self-incrimination. Berkemer v.
McCarty, 468 U.S. 420, 428 (1984).
That does not mean that any statements obtained by
the government in a conversation with a defendant are
excluded unless preceded by Miranda warnings. Miranda
warnings are not required merely because the person
being questioned is a suspect or the focus of a criminal
investigation. United States v. Barker, 467 F.3d 625, 628
(7th Cir. 2006). The privilege against self-incrimina-
tion is not imperiled by every conversation with the gov-
ernment. Instead, the concern in Miranda was with the
inherently coercive nature of custodial interrogation.
Accordingly, a suspect must be both in custody and
subjected to interrogation before Miranda warnings are
required. Berkemer, 468 U.S. at 428; Miranda, 384 U.S. at
444; Barker, 467 F.3d at 628.
A person is “in custody” for Miranda purposes if
there was a formal arrest or a restraint on his or her
freedom of movement of the degree associated with a
formal arrest. J.D.B., 131 S. Ct. at 2402; United States v.
Podhorn, 549 F.3d 552, 556 (7th Cir. 2008). Some of our
cases have characterized the test as whether the person
is deprived of his or her freedom of action in any sig-
nificant way. United States v. Snodgrass, 635 F.3d 324, 327
(7th Cir. 2011) citing United States v. Thompson, 496 F.3d
807, 810 (7th Cir. 2007). This inquiry is an objective one.
Neither the subjective views of the suspect being ques-
tioned nor that of the officer engaging in the questioning
is considered. Rather than focus on the idiosyncrasies
of individuals that can impact how questioning is per-
No. 09-3832 19
ceived, the Court has opted for an objective test that
asks how a reasonable person in the suspect’s position
would have understood the situation. Yarborough v.
Alvarado, 541 U.S. 652, 663 (2004); Podhorn, 549 F.3d at 556;
J.D.B., 131 S. Ct. at 2402. The Court has identified
two discrete inquiries critical to that determination:
“(1) what were the circumstances surrounding the inter-
rogation; and (2) would a reasonable person have felt he
or she was at liberty to terminate the interrogation
and leave.” J.D.B., 131 S. Ct. at 2402; Podhorn, 549 F.3d
at 556. Once that is determined, courts apply the ob-
jective test to resolve the ultimate inquiry—whether
there was a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.
Yarborough, 541 U.S. at 663.
Once a person is determined to be in custody, the
second inquiry considers whether he was subjected to
interrogation. As we noted in United States v. Swanson,
635 F.3d 995, 1001-02 (7th Cir. 2011), “not all statements
obtained after a person is in custody are considered
the product of interrogation.” Law enforcement officers
are not prohibited from merely listening to a person’s
voluntary statement. United States v. Richardson, 657 F.3d
521, 525 (7th Cir. 2011). Interrogation that would trigger
the Miranda requirements includes questioning by the
officers or any words or actions that the officers know
or should know are reasonably likely to elicit an incrimi-
nating response. Swanson, 635 F.3d at 1002; Richardson,
657 F.3d at 525; United States v. Knope, 655 F.3d 647, 652
(7th Cir. 2011).
20 No. 09-3832
Finally, even if a Miranda violation is found, that
does not render all later statements automatically inad-
missible. Richardson, 657 F.3d at 524. Subsequent state-
ments by the suspect not made in response to unwarned
custodial interrogation can be admissible in certain cir-
cumstances. Briefly, where the previous un-Mirandized
statements were nevertheless voluntary, subsequent
statements made after Miranda warnings are provided
are admissible. Richardson, 657 F.3d at 525; Swanson,
635 F.3d at 1004. Where the earlier unwarned statements
are involuntary, then later statements provided after
Miranda warnings are admissible only if there is a suf-
ficient break in the stream of events to insulate the
second confession from the earlier taint. Id. “A state-
ment is voluntary if, ‘in light of the totality of the cir-
cumstances, [it] is the product of a rational intellect
and free will and not the result of physical abuse, psycho-
logical intimidation, or deceptive interrogation tactics
that overcome the defendant’s free will.’ ” Richardson, 657
F.3d at 525, quoting United States v. Dillon, 150 F.3d 754, 757
(7th Cir. 1998); Stewart, 536 F.3d at 723. Coercive police
activity is a necessary predicate to determining that a
confession is involuntary. Richardson, 657 F.3d at 525;
United States v. Jacobs, 431 F.3d 99, 108 (3d Cir. 2005).
The government has the burden of demonstrating that
a confession is admissible, and must prove by a prepon-
derance of the evidence a defendant’s waiver of his
Miranda rights and the voluntariness of the confession.
Stewart, 536 F.3d at 719.
No. 09-3832 21
III.
The district court in this case conducted an extensive
suppression hearing to determine the admissibility of the
pre-Miranda statements by Ambrose, and concluded that
the statements were admissible because they were not
the product of a custodial interrogation. We review that
determination de novo, but consider factual findings
only for clear error. United States v. Pillado, 656 F.3d 754,
770 (7th Cir. 2011).
We turn, then, to a consideration of whether Ambrose
was subjected to a custodial interrogation without
Miranda warnings, rendering his statements to Fitzgerald
and Grant inadmissible. We can easily dispense with the
second part of that inquiry, because the interview with
Fitzgerald and Grant was an interrogation for Miranda
purposes. The testimony at the suppression hearing
revealed that, in the meeting, Fitzgerald presented
Ambrose with the evidence indicating that Ambrose
had provided information from the WITSEC files to
members of the Chicago Outfit. Ambrose described the
tone of the encounter with Fitzgerald and Grant as busi-
nesslike, and there is no evidence that it was either
hostile or threatening. The focus of the meeting was
on conveying information to Ambrose rather than any
systematic questioning of him. It nevertheless was an
“interrogation” for Miranda purposes because Fitzgerald
and Grant should have known that confronting
Ambrose with evidence of his guilt was likely to elicit
an incriminating response, and the government does
not argue otherwise. See Swanson, 635 F.3d at 1002; Richard-
son, 657 F.3d at 525; Knope, 655 F.3d at 652.
22 No. 09-3832
A closer question is whether Ambrose was “in custody”
for Miranda purposes when he spoke to Fitzgerald
and Grant in the conference room. We have identified
a number of factors that are indicative of whether a
person should be considered in custody, including
whether:
(1) the encounter occurred in a public place;
(2) the suspect consented to speak to the officers;
(3) the officers informed the individual that he was not
under arrest;
(4) the individuals were moved to another area;
(5) there was a threatening presence of several officers
and a display of weapons or physical force;
(6) the officers deprived the suspect of documents
needed to depart; and
(7) the officers’ tone of voice was such that their re-
quests would likely be obeyed.
Barker, 467 F.3d at 629. That list is indicative of the areas
that a court should consider, but is not exhaustive.
Ambrose engaged in three distinct meetings on that
day, each of which yielded incriminating statements.
Therefore, we examine the circumstances surrounding
each stage to determine whether a reasonable person
in those circumstances would have felt free to terminate
the interrogation and leave. J.D.B., 131 S. Ct. at 2402;
Podhorn, 549 F.3d at 556.
No. 09-3832 23
The first encounter occurred when Ambrose was sum-
moned to a meeting at the FBI building with Prout. Where
a person voluntarily agrees to meet with law enforce-
ment agents, that weighs against a finding that the
person could reasonably believe he is in custody.
Yarborough, 541 U.S. at 661. Ambrose, however, was
an unwitting participant in this whole endeavor. He
was drawn there through a ruse, under which he essen-
tially was ordered to report to the meeting as part of
his job. Therefore we cannot say that he was there of
his own accord, and this factor weighs toward a finding
of custodial interrogation—although it is hardly disposi-
tive of the matter.
Once Ambrose arrived at that locale, he was required
to relinquish any weapons, cell phones, keys, and similar
items before entering the FBI building. He and Prout
were then escorted through the building to the con-
ference room. Those measures, though having the effect
of impeding Ambrose’s ability to communicate with
the outside world, are not indicative of custody to a
reasonable person because the security restrictions were
uniformly applied. Nothing in that treatment of Ambrose
would cause a reasonable person in his situation to
believe that they were not free to leave. In fact, we ad-
dressed a similar situation in United States v. Budd, 549
F.3d 1140, 1145 (7th Cir. 2008). Budd agreed to go to the
police station to be interviewed regarding possession
of child pornography. Although his interview took place
in a “soft” interview room that had carpet and com-
fortable furniture, the building security was such that
he was not allowed to move throughout the building
24 No. 09-3832
without one of the officers escorting him. Id. at 1145-46.
That included an escort when he used the restroom. Id.
at 1146. He was taken to a secure bathroom that did not
allow occupants to open the door or flush the toilet
from the inside, and required an officer on the outside
to let him out. Id. The security requirements of the
police station were not enough to transform a non-custo-
dial voluntary interview into a custodial one. Id. The
security provisions applied to all non-staff persons, and
the court held that a reasonable person in Budd’s posi-
tion would have believed that he or she was free to
leave. Id. Similarly, the FBI building requirements
that mandated escorts for visitors is not in itself a basis
for a reasonable person to believe that he is not free
to leave.
In addition, the physical setting of the meeting itself
did not signal a restriction on the freedom to leave.
Where an encounter with law enforcement occurs in a
public place, the Court has recognized that the public
nature of the interaction and the ease of leaving limit
the coercive impact. Berkemer, 468 U.S. at 438. The con-
ference room here was in a secure building that could be
traversed only with an escort, so it certainly lacks
the advantages of the public place. The tenth floor, how-
ever, was an active floor with many people and thus
there was no aspect of isolation. Moreover, rather than
employ the locked, secured interview rooms on the
first floor in which prisoner processing occurs, the gov-
ernment in this case used a spacious conference room
used by SAC Grant outside of his office for the meeting
with Ambrose. Therefore, the room itself did not
No. 09-3832 25
physically prevent Ambrose’s exit, nor did it suggest
that he was under arrest. In United States v. Slaight, 620
F.3d 816, 819 (7th Cir. 2010), we were presented with a
situation in which the dimensions and layout of the
interview room itself created a barrier to departure, and
created an environment in which the suspect would
not feel free to leave. In that case, the windowless
room was described as either 8 by 8 feet or 5 by 7 feet—
so small that the court strongly suggested that it never
again be used to conduct a witness interview. Id. In
that lilliputian space, the arrangement meant that one
detective was essentially blocking the door, such that
the suspect would have had to ask him to move or brush
by him in order to exit. Id. That context contributed to
the determination that a reasonable person would not
feel free to leave. We have no such setting here. The
conference room contained a table capable of seating
more than 20 people. Fitzgerald, Grant and Ambrose
gathered around one end of the table. The room con-
tained two doors, which remained fully or partly open
throughout the interview. It was not a room tradi-
tionally used for interviewing a suspect.
In addition, only Grant and Fitzgerald were in the room
with Ambrose. They both were in business attire and
unarmed. No other agents were in the room throughout
any of the meetings with Fitzgerald and Grant. A number
of agents were stationed outside the door, but Ambrose
testified only that he was generally aware that some
agents were in the area outside the conference room.
Secretaries were also stationed in that area. Ambrose
testified that he was seated at the conference room table
26 No. 09-3832
with his back to the doors, and thus there is no evidence
that he could see the agents as they occasionally looked
into the room to check on the status of the occupants.
Those agents were also in business clothes rather than
uniforms, and were unarmed. Ambrose also acknowl-
edged that the tenor of the conversation with Fitzgerald
and Grant was businesslike. There is no indication that
the conversation became hostile or combative, and it
consisted primarily of Fitzgerald presenting the evi-
dence of Ambrose’s involvement rather than questioning
Ambrose. See Budd, 549 F.3d at 1145, United States v.
Littledale, 652 F.3d 698, 701 (7th Cir. 2011) (indicating
the relevance of the tone of voice).
The court also found that Grant and Fitzgerald had
explained to Ambrose that they were concerned for his
safety, and particularly his mental state and the potential
that he would try to hurt himself or attempt suicide.
Ambrose was therefore aware that the agents were con-
cerned about him committing suicide or otherwise
injuring himself and in that light the presence of any
agents would have been much less ominous.
The circumstances surrounding the interview were
therefore not indicative of custody, but if any doubt
remained it would have been dispelled when, as the
district court found, Fitzgerald informed Ambrose that
he was not under arrest. Ambrose acknowledged that
he never asked if he was free to leave, and also stated
that Fitzgerald told him he could face future charges. In
light of Fitzgerald’s statement that he was not under
arrest and his reference only to the possibility of future
No. 09-3832 27
charges, a reasonable person in that situation would
have believed that he could terminate the discussion
and leave. Accordingly, at the time of his initial inter-
view, Ambrose was not in custody.
About an hour into his meeting with Fitzgerald and
Grant, Ambrose indicated a willingness to cooperate
but first a desire to meet with Marshal Kim Widup, Jerry
Hansen—Ambrose’s uncle and a courtroom security
officer, and Chief Inspector Jeff Shank—his immediate
supervisor. The trio then took a break while Grant con-
tacted those persons, which effectively ended the first
stage of the interview. After Fitzgerald and Grant exited
the conference room, Ambrose stood up and walked a
few feet around the conference room. An agent entered
the room and twice requested that Ambrose “please
sit down,” leaving only after Ambrose complied. That
restriction on his ability to even move about the confer-
ence room certainly could cause a reasonable person
to question whether he was free to leave.
That impression was furthered to some extent when
Ambrose then asked to use the restroom. According to
his testimony, when Ambrose left the conference room
he noticed that there were FBI agents posted outside
the door. By most accounts, 4-5 agents accompanied
Ambrose to the restroom, but the recollections varied
from 3 to as many as 8 agents. At least some of the
agents followed him into the restroom, with two
standing near the exit doors and one stationed within
8 feet of the bathroom stall. That is the type of law en-
forcement presence that could cause a reasonable person
28 No. 09-3832
to believe that he is not free to leave. The secure nature
of the building lessened that impact slightly, in that the
interview was on a working floor and therefore a rea-
sonable person could readily expect that visitors would
not be allowed to wander unsupervised. Moreover,
the bathroom contained two doors on opposite sides
opening to different hallways, so that if any escort
was required it would encompass at least the coverage
of those doors. In addition, Ambrose was aware of con-
cerns for his safety, and that concern provided an ex-
planation for the escorts unrelated to the desire to
detain him. As the day progressed, Ambrose noted
that smaller numbers of agents accompanied him on
restroom trips, which is in keeping with the notion that
the agents were there for his safety, and their concerns
with his reaction lessened as the day progressed. Never-
theless, the large number of agents and their proximity
to Ambrose could cause a reasonable person to ques-
tion whether he was free to leave.
Without more, it would be a close question as to
whether a reasonable person would believe himself to be
in custody at that stage. See Budd, 549 F.3d at 1146
(escorts, even of an intrusive level to a restroom, held
not enough to cause a reasonable person to believe he
was not free to leave where it was based on building
security requirements and he had voluntarily agreed to
the interview there). Any impression that his actions
and movements were restricted, however, was negated
by what followed. Widup, Hansen and Shank indeed
met with Ambrose, and the circumstances surrounding
those conversations were inconsistent with a person
No. 09-3832 29
who was under arrest. Ambrose was able to meet with
each of those persons alone in the conference room, on
an individual basis. No law enforcement official was
present or eavesdropped on the conversation, and no
restrictions were placed on the content of the conversa-
tion or its length. Ambrose then asked to have Hansen
present when he met again with Fitzgerald and Grant.
Fitzgerald agreed to that conversation, and at that time
Ambrose confessed in more detail. Any impression of
custody created by the escorts is negated by the free
access to several individuals, and the lack of any law
enforcement presence during those conversations. More-
over, Ambrose asserted control over who he would
speak with in this second stage, enabling him to speak
with Fitzgerald and Grant again with Hansen present.
Particularly in light of Fitzgerald’s earlier statements
to him that he was not under arrest, those factors
indicate that a reasonable person would not believe that
he was in custody for the second stage of the interviews
as well.
After that meeting, Ambrose was taken to meet with
other agents, who administered the Miranda warnings.
Because none of the pre-Miranda statements were made
while Ambrose was in custody, the district court
properly admitted the post-Miranda statements as well.
We note that the most probative factor for the district
court in determining that there was not a custodial inter-
rogation were statements by Ambrose throughout the
day indicating that he was concerned about getting to
his son’s parent-teacher conference on time that night.
30 No. 09-3832
In contemplating the time that he would depart, those
statements reflect Ambrose’s state of mind and indicate
that he did not believe he was under arrest. A person’s
subjective state of mind however, is not relevant in deter-
mining whether he or she is in custody for Miranda pur-
poses. If used at all, those statements would have to be
used to indicate the atmosphere and how that would
impact a reasonable person’s perception.
The statements were made in the third stage of inter-
views, when Ambrose was with the case agents. Ambrose
asked how long the interview would take because he
needed to attend a parent-teacher conference that night.
The agents responded that they were not sure how long
it would take to go through the questioning. Ambrose’s
statement is evidence that the atmosphere was not intimi-
dating, and the agent’s response is relevant to deter-
mining whether a reasonable person would feel free to
leave. The agent did not dismiss his concern by stating
that he was not going home, but rather considered the
length of time that the questioning might take. That
would further lead a reasonable person to think that
he was free to leave. Ambrose called his wife twice in
regard to that conference, and also called Hansen
during an interview to ask him a question. That
further indicates a level of freedom inconsistent with a
custodial situation. Those factors, although occurring
later in the day, are relevant in assessing the overall
atmosphere at the time of the three interviews.
Finally, Ambrose briefly contends that the statements
he made were not voluntary. Citing Garrity v. New Jersey,
No. 09-3832 31
385 U.S. 493, 497-98 (1967), he maintains that police
officers should not be faced with the choice to either
forfeit their jobs or to incriminate themselves. Ambrose
argues that he was presented with such a choice because
of the comments by Fitzgerald and Grant that he
might face criminal charges and Marshal Widup’s
advice to him to cooperate and tell the truth. Those cir-
cumstances do not render his statements involuntary.
Regarding his conversation with Fitzgerald and Grant,
Ambrose has failed to identify any pressure or coercion
other than that faced by any person presented with evi-
dence that he has committed a crime. There was
absolutely no indication that Fitzgerald or Grant threat-
ened him with the loss of his job if he failed to cooper-
ate. In fact, Ambrose acknowledges that Fitzgerald re-
peatedly informed him that the decision as to
Ambrose’s job was not in Fitzgerald’s control. Any fear
of job loss that Ambrose experienced stemmed from
the nature of Ambrose’s conduct, which involved the
use of his position for criminal acts. Nor is it relevant
that Marshal Widup encouraged him to cooperate.
Ambrose sought the counsel of Widup, and the govern-
ment arranged for him to speak with Widup. The gov-
ernment neither told Widup what to say nor did it
even monitor the conversation with Ambrose. Ambrose
cannot complain that he followed the advice of the
person that he sought out. There is no evidence of gov-
ernment coercion here that would render the state-
ments involuntary. Richardson, 657 F.3d at 525; Jacobs,
431 F.3d at 108. Accordingly, the court did not err in
32 No. 09-3832
denying the motion to suppress and allowing the use
of those statements at trial.
IV.
Ambrose also raises an evidentiary challenge, arguing
that the court erred in allowing the government to in-
troduce hearsay statements, and in refusing to allow
Ambrose to use similar statements under the rule of
completeness. This challenge centers on the statements
made by the Marcellos in their conversations at the
prison that were taped by the government.
As we set forth earlier, in those conversations, the
Marcello brothers discussed information that they had
obtained indicating that Nick Calabrese was cooperating
with the government in investigating unsolved murders
including the Spilotro murders. In that discussion, the
Marcellos described the source of that information as a
person who was a “babysitter” for Calabrese who had
access to notes on him and whose father had been
friends with Guide and DeRango, convicted in the
Marquette Ten trial, and died in prison.
Before trial, the government sought to use all of those
conversations as admissions by coconspirators, and
submitted a proffer under United States v. Santiago, 582
F.2d 1128 (7th Cir. 1978). The district court denied that
motion, holding that the Marcellos were not part of a
conspiracy with Ambrose and that the statements could
not be used for that purpose. The court held that the
statements therefore constituted inadmissible hearsay if
No. 09-3832 33
introduced for the truth of the matter. Although the
statements could not be used for their truth, the court
allowed limited use of some of the statements as
evidence that the leaked information was in fact received
by someone. In addition, the statements could be used
as circumstantial evidence of the identity of the source
of the information in that the type of information
received could only have been known—and thus re-
vealed—by a limited number of persons. For instance,
the Marcellos discussed that Calabrese was providing
information regarding 19 murders, that he had been to
Chicago over multiple days and was driven around to
various locations including near U.S. Cellular Field, and
that he had contacted his wife by phone three times
during that visit. That evidence could be introduced
not to prove that those things in fact happened, but to
demonstrate that the information received by the
Marcellos was information that would only have been
available to persons involved in the WITSEC protection
of Calabrese.
Throughout trial, Ambrose renewed his standing objec-
tion to the court’s decision that the government could
use the statements from the Marcello tapes. That deci-
sion by the court, however, was a correct one. The court
properly prohibited the use of those statements for
the truth of the matter. The statements on the tape over-
whelmingly constituted Michael Marcello’s recounting
of information provided to him by John Matassa (who
was associated with the Outfit), which in itself would
be hearsay. The layers went deeper, however, because
Matassa was recounting information that he had
34 No. 09-3832
received from yet another person—Guide, under the
government’s theory—as to what the source had learned.
With so many layers of retelling, the reliability of the
information is certainly suspect, and was properly ex-
cluded as hearsay by the court. The court allowed only
the use for non-hearsay purposes and Ambrose has
failed to demonstrate how that was erroneous.
Ambrose argues that the government nevertheless
introduced the evidence at trial for the truth of the
matter, and refused his efforts to introduce other testi-
mony to refute it. First, Ambrose asserts that the state-
ments were “pure hearsay” that did not fall within
any exception to the hearsay rule. As support for that,
Ambrose points to the court’s rejection of the govern-
ment’s Santiago proffer, which would have allowed the
introduction of the statements as non-hearsay. Ambrose
argues that because that argument was rejected, it “natu-
rally and logically followed that the statements in
fact constituted hearsay,” and that no hearsay exception
applied. Ambrose further asserts that any use of the
statements violates the Confrontation Clause because
he did not have the opportunity to cross-examine
Matassa and Guide, who were the source of the informa-
tion.
There is no basis for concluding that because one ex-
ception to the hearsay rule does not apply, that a state-
ment constitutes hearsay for all purposes and cannot
meet any other exception. The court’s determination
that the Marcellos were not coconspirators with
Ambrose does not foreclose any possible use of the state-
No. 09-3832 35
ments. The court in this case allowed only non-hearsay
use of the statements—use for something other than
the truth of the matter. That ruling was a significant
blow to the government, which desired to use the
Marcello conversations as a roadmap pointing to
Ambrose as the source of the information regarding
Calabrese’s cooperation. Used for the truth, those state-
ments would have identified the “source” as someone
who was a “babysitter” for Calabrese, who had access
to notes on him, and whose father had served time in
prison with Guide and DeRango after a conviction in
the Marquette Ten case and had died. That would
have pointed directly to Ambrose. The court limited
the government’s use to matters unrelated to the truth
of the matter. The only uses allowed, then, were for non-
hearsay purposes, which does not in any way conflict
with the ruling on the Santiago proffer.
One problem, however, is that the government veered
from that proper use on a number of occasions during the
trial. In opening arguments, the government declared:
And the identity of the person who leaked the infor-
mation to the mob . . . that made its way to the mob
became pretty clear.
The Marcello brothers identify the source of the
information as being close to a man named Guide,
William Guide. They talk about the fact that Guide
spent prison time with Mr. Ambrose’s father. Both
Mr. Guide and Mr. Ambrose’s father were police
officers. They were both convicted together in a
federal case prosecuted by the U.S. Attorney’s office,
36 No. 09-3832
by the FBI. And Mr. Ambrose’s father passed away
while in prison. Mr. Guide came home, as they say,
came out of prison, and took Mr. Ambrose under
his wing. And that case in which Mr. Ambrose’s
father and Mr. Guide was convicted was the Marquette
10 prosecution.
And the men, the Marcello brothers refer to, their
source, as the kid and the baby-sitter. So. Make no
mistake. The Marcello brothers do not know the
name of the defendant, but they know all these
other details that only point to one person.
Tr. at 928. Defense counsel did not object at the time, but
later referenced the statements as improper. The govern-
ment subsequently elicited the same information in the
testimony of Agent Michael Maseth, who is an FBI agent
who worked on the Family Secrets case and with Nick
Calabrese. Maseth testified as to the Marcellos’ conversa-
tion, including the statements that would point to
Ambrose as the source if taken for the truth. When the
government revisited those statements during Michael
Marcello’s testimony, the court decided that the taped
statements should be excluded because their relevance
was for the truth of the matter rather than as evidence of
a leak. The court instructed the jury to disregard those
statements. Finally, the government again made an
offhand reference in closing argument, referring to
Ambrose as Calabrese’s babysitter, a reference that could
only be understood as a reference back to the Marcello
statements, and which again dances over the line into
using those statements for the truth of the matter. At
No. 09-3832 37
best, the government’s frequent efforts to step over the
line drawn by the court evinces a lack of care or the
difficulty of discerning the contours of that line, and
at worst a willful effort to avoid the impact of the
court’s decision against it.
Ambrose, however, failed to object to those efforts by
the government to use the information for the truth of
the matter. Although Ambrose at times referenced his
“standing objection” to the use of the testimony, that
standing objection was to the court’s determination
that the statements could be used for non-hearsay pur-
poses. But Ambrose had won the argument that the
statements could not be used for the truth of the matter.
When the government nevertheless attempted to offer
the statements for that purpose, Ambrose should have
objected that the use violated the court’s prohibition on
introducing it for the truth. Ambrose failed to do so, and
his standing objection seeking to prohibit any use at all
did nothing to alert the court that the evidence was
objectionable for the distinct ground of violating the
court’s prohibition on use for the truth of the matter.
When a defendant fails to object to an evidentiary
error, we review the matter only for plain error. United
States v. Wright, 651 F.3d 764, 773 (7th Cir. 2011). Although
Ambrose failed to object to the improper use of the state-
ments, the court on its own repeatedly prevented
the government from such improper use, and instructed
the jury in detail on the limitations of its use of the evi-
dence. The court frequently utilized examples to
38 No. 09-3832
ensure that the jury understood its limited use of the
statements, as illustrated in the following exchange:
Before we leave this clip, this would be a good example
of a tape that is admitted as circumstantial evidence
as opposed to proving facts asserted in the state-
ments. Many of the statements made here are state-
ments which the government will argue contain
information that could only come from a source
that has knowledge of the Calabrese revelations in
protective custody.
The defendant would argue otherwise, and I’m not
taking sides. I’m just telling you the purpose of this
evidence. For instance, here, at line 9 on page 1 Michael
says “He was there for a week, a little over a week.”
Well, that isn’t being offered to prove that he was
there for a week or a little over a week, but the fact
that Michael had that information, which he alleges
he got from Matassa, is an indication that somebody
knew that Calabrese was there for a little over a
week. It doesn’t make any difference whether he was
or wasn’t as far as this particular tape is concerned.
You will find out otherwise whether he was there
for a week.
Then “they were driving him all over the city” at
lines 12 and 13. That isn’t offered to prove that they
were driving him all over the city. . . .
Tr. At 682-83. In addition to so instructing the jury,
the court acted on its own when the government over-
stepped the limits during Michael Marcello’s testimony,
and ordered the jury to disregard the statements. The
No. 09-3832 39
court also ordered that the transcript of those state-
ments should be removed from the jury books. Again,
Ambrose raised no objections to the court’s handling of
the matter. The court’s response in the absence of any
defense objection significantly ameliorated any adverse
impact that the testimony could have had. Because the
court in fact excluded the hearsay testimony that the
government attempted to offer for the truth of the matter,
Ambrose has failed to demonstrate a violation of the
Confrontation Clause. United States v. Gaytan, 649 F.3d
573, 579 (7th Cir. 2011).
Even assuming that the statements improperly were
admitted for the truth of the matter, however, Ambrose
cannot demonstrate plain error. “Under that standard,
we determine whether there was (1) an error, (2) that
was plain, (3) that affected the defendant’s substantial
rights, and (4) that seriously affected the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Baker, 655 F.3d 677, 681 (7th Cir. 2011).
In fact, this claim could not survive even the lesser harm-
less error standard. We focus only on the offenses of
conviction. On Count 1, the jury found that Ambrose
had stolen, converted, or conveyed without authoriza-
tion the following information: Ambrose worked on
and was assigned to Nick Calabrese’s WITSEC security
details. On Count 2, the jury found Ambrose guilty of
unauthorized disclosure of the following information:
Nick Calabrese was brought to Chicago as part of
the WITSEC program; Ambrose worked on and was
assigned to Nick Calabrese’s WITSEC security detail. The
statements, if used by the jury for the truth of the
40 No. 09-3832
matter, would have identified Ambrose as the person
who had worked on the WITSEC security detail and
revealed information regarding Nick Calabrese’s
presence in Chicago. As the court noted, however, the
evidence at trial was overwhelming that Ambrose had
revealed the information, and he had admitted as
much on three separate occasions. In each of the three
separate interviews, he acknowledged that he had told
Guide that he was working the security detail protecting
an organized crime figure, and in at least some of those
statements he acknowledged providing information
that Nick Calabrese was that person and was in Chicago.
Those were the only facts upon which the jury rendered
a guilty verdict. The jury did not find Ambrose guilty of
a list of other facts that he was accused of revealing.
Therefore, any error was not plain, and in fact even
under the lesser harmless-error standard it was harmless.
Ambrose’s remaining evidentiary challenge is to the
district court’s exclusion of statements by the Marcellos
that referenced a U.S. Attorney in discussing the source
of the leak. In the taped conversation, the Marcellos, in
discussing the source of their information, recited a last
name and referred to that person as a U.S. attorney and
then referenced “Notre Dame.” The defense attorney
sought to admit the statements as evidence that some-
one who knew that U.S. attorney could have been the
source, though specifically disavowed any inference
that the named U.S. attorney was involved in wrong-
doing. That use raises the same problems as the use of
the Marcello statements by the government. The con-
versation in which Michael Marcello refers to the U.S.
No. 09-3832 41
Attorney once again appears to be a discussion by Marcello
of information given to him by another person. The court
conducted a voir dire to determine whether to admit the
statements, and in that questioning Marcello—who had
been granted immunity and compelled to testify—denied
any knowledge regarding the U.S. Attorney. Defense
counsel even elicited from Marcello that he had no per-
sonal knowledge as to the identity of the source
and that all of his information was provided to him
by Matassa. The absence of personal knowledge by
Marcello, and the admission that all of the information
in the conversation was relayed to him by Matassa,
renders the statements hearsay. Because Ambrose has
not identified any exception to the hearsay rules that
would allow admission, the court properly excluded the
statements.
Ambrose argues only generally that the “rule of com-
pleteness” requires that we allow the admission of those
statements. Pursuant to Federal Rules of Evidence 106,
“when a writing or recorded statement or part thereof
is introduced by a party, an adverse party may require
the introduction at that time of any other part or any
other writing or recorded statement which ought in
fairness to be considered contemporaneously with it”
and that principle extends to unrecorded statements
under the “rule of completeness.” United States v.
Muoghalu, 662 F.3d 908, 913 (7th Cir. 2011). The rule of
completeness holds that a complete statement must be
read or heard when “it is necessary to (1) explain the
admitted portions, (2) place the admitted portion in
context, (3) avoid misleading the trier of fact, or (4) insure
42 No. 09-3832
a fair and impartial understanding.” United States v.
Yarrington, 640 F.3d 772, 780 (7th Cir. 2011). Ambrose
has failed to explain how introduction of the hearsay
regarding this potential source of the leak is necessary.
In fact, Ambrose fails to even identify the factors
that apply in analyzing a rule of completeness claim.
Ambrose merely points to the statements as necessary to
counter the statements by the Marcellos that would
identify Ambrose as the source, but the court refused
to allow those statements into evidence for that purpose.
His entire argument seems to be premised on the
notion that the court allowed the Marcello statements
for the truth of the matter against him, but that is with-
out any basis. Even in the absence of objections by
defense counsel, the court on its own repeatedly acted
to ensure that the statements were not used by the
jury for that purpose. Accordingly, Ambrose has failed
to demonstrate that the hearsay statements must be
allowed under the rule of completeness.
V.
Ambrose raises a few other issues that merit only brief
discussion. First, he complains that the court erred in its
handling of a note from a juror and in responding with a
four-page supplemental instruction. The juror note in-
cluded six typed questions followed by one hand-
written one, and the district court responded to each of
them. Ambrose first asserts that the court should not
have responded at all because the typed portion was
prepared by a single juror at home and therefore did
No. 09-3832 43
not come from the jury. The note, however, was not
submitted until after jury deliberation had begun, con-
tained a handwritten question after the typed ones, and
was signed by the jury foreman. All of those factors
indicate it came from the jury and the court acted within
its discretion in choosing to respond.
Ambrose further complains that the court’s response
was too closely tied to contested facts, such that it
amounted to a comment by the court on the evidence.
Ambrose argues that the court, in discussing the terms
“stolen” or “stealing,” should have instructed the jury in
a manner consistent with the Supreme Court’s handling
of those terms in United States v. Turley, 352 U.S. 407
(1957). Moreover, Ambrose contends that the court in
its response conflated criminal liability of both Counts 1
and 2, allowing the fact of disclosure alone to cause
the jury to find criminal liability. He also asserts sum-
marily that the court’s response allowed the jury to
convict on grounds of negligence, and failed to address
the burden of proof and unanimity requirements. These
arguments are conclusory and undeveloped. Ambrose
fails to identify any specific language in that four-page
response that is inconsistent with the law as set forth
in Turley or elsewhere, or which invades the province
of the jury, nor is any apparent. The instructions as a
whole adequately set forth the burden of proof and
unanimity requirements, and therefore this argument
fails as well.
Finally, Ambrose challenges the court’s imposition of
a sentence above the Sentencing Guidelines range. The
44 No. 09-3832
Guidelines advisory range for the offenses of conviction
was 12-18 months. The district court deviated from
that range based on its application of the factors set forth
in 18 U.S.C. § 3553(a), imposing a sentence of four years’
imprisonment and three years’ supervised release on each
count to be served concurrently. Ambrose claims that
the court erred in applying those § 3553(a) factors by
finding facts that were not based on reliable evidence
and by giving insufficient weight to factors favoring a
lighter sentence. Section 3553(a) requires the sentencing
court to consider myriad factors in imposing a sentence,
including: the nature and circumstances of the offense
and the history and characteristics of the defendant; the
need for the sentence imposed to reflect the seriousness
of the offense, promote respect for the law, provide just
punishment, afford adequate deterrence, protect the
public, and provide the defendant with needed training
or care; the kinds of sentences available; the Guidelines
range and policy statements by the Sentencing Com-
mission; the need to avoid unwarranted sentence dis-
parities among similar defendants; and the need to pro-
vide restitution to any victims of the offense. 18 U.S.C.
§ 3553(a). “[A]lthough the ‘Guidelines should be the
starting point and the initial benchmark,’ district
courts may impose sentences within statutory limits
based on appropriate consideration of all of the factors
listed in § 3553(a), subject to appellate review for ‘rea-
sonableness.’ ” Pepper v. United States, ___ U.S. ___, 131
S. Ct. 1229, 1241 (2011), quoting Gall v. United States,
552 U.S. 38, 49-51 (2007).
No. 09-3832 45
Ambrose takes issue primarily with the district court’s
analysis of the first § 3553(a) factor which examines the
nature and circumstances of the offense and the history
and characteristics of the defendant. The district court
disagreed with the defendant’s characterization of his
criminal conduct as merely foolish bragging to Guide.
The court noted that Ambrose had provided a different
explanation for his conduct to Fitzgerald and Grant at
one point in the interview, indicating that he had
revealed the information in order to curry favor with
the mob so that he could enlist the help of mob figures
in the future to locate and arrest wanted fugitives such
as Joey Lombardo. The court also noted that Ambrose’s
depiction of his conduct was inconsistent with the facts;
a foolish moment of indiscretion would not account
for the considerable amount of information that was
revealed, nor that it was disclosed on more than one
occasion. In convicting Ambrose on Counts 1 and 2, the
jury found him guilty only of two disclosures: that
Nick Calabrese was brought to Chicago as part of the
WITSEC program, and that Ambrose worked on and was
assigned to Nick Calabrese’s WITSEC security detail.
The court, however, found by clear and convincing evi-
dence that Ambrose obtained and disclosed the other
information in the counts, which included information
that Calabrese was talking to the federal authorities
about murders of which Calabrese had knowledge
such as the Spilotro murders.
Ambrose argues that the district court con-
cluded—without any support in the record—that
Ambrose’s conduct was not foolish bragging but
46 No. 09-3832
rather was an effort by Ambrose to assist Guide in
building Guide’s relationship with the mob. According
to Ambrose, the “sole piece of evidence” that Guide
had any kind of relationship with the mob was that he
served prison time with John DiFronzo. That ignores
other evidence linking Guide to the Outfit—particularly
the evidence that the WITSEC information told to Guide
found its way to the Marcellos, and Ambrose’s own
statements early on that he disclosed the information in
an effort to curry favor with the mob. Those facts
alone provide ample support for the district court’s
finding on this § 3553(a) factor.
The principal factor in the court’s decision to impose
a higher sentence, however, was not the nature and
circumstances of the offense but the need to promote
respect for the law and deter similar conduct. The
court expressed its concern that this type of offense is
very difficult to detect, and would have gone unnoticed
but for the fortuitous taping of the Marcello brothers’
conversations. Moreover, the crime itself is an extraordi-
narily serious one, which was supported by evidence
that witnesses against the Outfit had been murdered in
the past. There was also evidence presented that once
the leak was revealed, federal witnesses refused to
accept protection from U.S. Marshals in the Chicago area
because of security concerns. Given the difficulty of
detecting such leaks and the high stakes involved, the
court did not err in concluding that the need to deter
similar conduct required a more severe sentence than
the Guidelines range.
No. 09-3832 47
Ambrose sets forth at length his positive character
references and his strong family ties, but the court recog-
nized that evidence and considered it. The court
simply determined that given the nature of the offense
and the need for deterrence, a higher sentence was war-
ranted. We review all sentences under a deferential
abuse of discretion standard, and hold that the sentence
imposed by the district court was reasonable. See Gall,
552 U.S. at 41.
On a final note, we are sympathetic to Ambrose’s
request to the court that he should be allowed to serve
his sentence at a facility close to his family, although
that is not a decision for this court to make. Although
his family is in the Chicago area and there are closer
facilities such as the one in Oxford, Wisconsin, the
Bureau of Prisons assigned him to the correctional in-
stitution at Seagoville, Texas. The distant location would
be puzzling in any case, but is outright disturbing
because that is the institution to which his father was
assigned and it was on the track at that facility where
his father died. The Bureau of Prisons has the discretion
to place inmates as is necessary for its security needs,
but we would certainly expect that such placement is
not used to inflict punishment that was not ordered by
the district court. We encourage the Bureau to reexamine
the placement decision.
The men and women who serve our citizenry in the
U.S. Marshals Service are deeply dedicated, intelligent
and extraordinarily courageous public servants. It is no
exaggeration to say that they are a bulwark of our democ-
48 No. 09-3832
racy. It is an honor and a privilege to serve as a
U.S. Marshal. Thus, the actions of John T. Ambrose are
beyond comprehension. His conviction and sentence
are A FFIRMED.
2-16-12