In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
P AUL S CHIRO, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 02 CR 1050-7, -4, -3, -2, -10—James B. Zagel, Judge.
A RGUED F EBRUARY 13, 2012—D ECIDED M AY 1, 2012
Before P OSNER, W OOD , and S YKES, Circuit Judges.
P OSNER, Circuit Judge. This long-running criminal case
is before us for the second time. In the first appeal, de-
cided in United States v. Calabrese, 490 F.3d 575 (7th Cir.
2007), two defendants, Frank J. Calabrese, Sr., and James
Marcello, charged with violating RICO by conspiring to
conduct an enterprise’s affairs through a pattern of racke-
teering activity, 18 U.S.C. § 1962(d), appealed from the
2 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
denial of their motions to dismiss the indictment. The
indictment charged them, along with other members of
the “Chicago Outfit”—the long-running lineal descendant
of Al Capone’s gang—with having conducted the Outfit’s
affairs through a pattern of racketeering activity that
extended from the 1960s to 2005 and included a number
of murders, along with extortion, obstruction of justice,
and other crimes. Calabrese and Marcello contended
that the trial, which was scheduled to begin on June 19,
2007, would place them in double jeopardy, and so
they moved the district court to dismiss the charges.
We affirmed the denial of their motions, holding that
they had failed to show a sufficient overlap between
the current indictment and previous indictments to
establish that the new prosecution was placing them
in double jeopardy, though we noted that, depending
on the approach taken by the government in the forth-
coming trial, the trial might vindicate their claim. United
States v. Calabrese, supra, 490 F.3d at 580-81.
So they were tried, together with three other members
of the Outfit—Joseph Lombardo, Paul Schiro, and Anthony
Doyle. The trial lasted almost three months, and resulted
in the conviction of all five defendants by the jury. The
judge sentenced Calabrese, Marcello, and Lombardo to
life in prison, Schiro to 20 years, and Doyle to 12 years,
and also imposed forfeiture and restitution on all the
defendants. All five defendants appeal. The most sub-
stantial claims are renewed claims of double jeopardy
by Calabrese and Marcello, and we begin there.
Nos. 09-1265, 09-1287, 09-1376, 3
09-1602, 09-2093, 09-2109
The Outfit conducts its operations in Chicago through
“street crews.” Calabrese was the boss of the Calabrese
Street Crew (also known as the South Side/26th Street
Crew). Marcello was a member of the Carlisi Street Crew
(also known as the Melrose Park Crew). Marcello had
been indicted in 1992 along with eight others for con-
spiring, in violation of RICO, to conduct the affairs of
the Carlisi Street Crew by means of a variety of criminal
acts committed between 1979 and 1990, including the
operation of an illegal gambling business, extortion,
intimidation, conspiracy to commit arson and murder,
and the collection of unlawful gambling debts. He had
been convicted in 1993 and sentenced to 150 months
in prison, and his conviction and sentence had been
affirmed in United States v. Zizzo, 120 F.3d 1338 (7th Cir.
1997). Calabrese had been charged in 1995 with participa-
tion in a similar conspiracy, though the offense period
was 1978 through 1992. He had pleaded guilty in 1997
and been sentenced to 118 months in prison. He had
not appealed.
Double jeopardy can take two forms. One is prosecu-
tion for a crime the elements of which overlap the
elements of a crime involving the same facts for which
the defendant had been prosecuted previously. And in
such a case, a case “where the same act or transaction
constitutes a violation of two distinct statutory provi-
sions, the test to be applied to determine whether there
are two offenses or only one, is whether each provi-
sion requires proof of a fact which the other does
not.” Blockburger v. United States, 284 U.S. 299, 304
(1932); see also United States v. Dixon, 509 U.S. 688,
4 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
696 (1993); United States v. Doyle, 121 F.3d 1078, 1089-90
(7th Cir. 1997). For example, there would be only one
offense for purposes of assessing double jeopardy if
the second prosecution was for a lesser included
offense of the crime for which the defendant had been
prosecuted the first time. The other form of double jeop-
ardy is prosecuting a person a second or subsequent
time for the same offense, and that can be a difficult
determination to make when the offense is conspiracy.
Id.; United States v. Calabrese, supra, 490 F.3d at 578.
Heraclitus famously said that one never steps into the
same river twice. What he meant was that one never
steps into the same water; the river is the same, even
though its substance is always changing. And so a con-
spiracy can be the same even if all the acts committed
pursuant to it are different, because it is the terms of
the agreement rather than the details of implementa-
tion that determine its boundaries.
Both the earlier and the current indictments of
Calabrese and Marcello charge a RICO conspiracy—an
“agreement . . . to knowingly facilitate the activities of the
operators or managers” of an enterprise that commits
crimes that are on a list (in the RICO statute) captioned
“racketeering activity.” Brouwer v. Raffensperger, Hughes
& Co., 199 F.3d 961, 967 (7th Cir. 2000); see 18 U.S.C.
§§ 1961(1), 1962(d); United States v. Pizzonia, 577 F.3d 455,
466 (2d Cir. 2009). The question is whether the second
conspiracy is the same conspiracy. That’s a harder
question than whether two criminal statutes have the
Nos. 09-1265, 09-1287, 09-1376, 5
09-1602, 09-2093, 09-2109
same elements, or whether an indictment for robbery
charges the same robbery as a previous indictment.
The earlier and later conspiracies that Calabrese and
Marcello were charged with overlapped. The crimes
they were accused of agreeing to commit included some
that had been alleged in the earlier indictments (the
same crimes but different criminal acts) but other crimes
as well, crimes with which they had not been charged
previously, including murders (particularly emphasized
in the current indictments) and travel in interstate com-
merce in pursuit of the Outfit’s criminal objectives.
Calabrese and Marcello argue that their agreement to
facilitate the criminal activities of their street crews
and their agreement to facilitate the criminal activities
of the Outfit itself are one and the same because the
street crews are components of the Outfit.
To evaluate the argument we need to distinguish be-
tween two situations. In one a defendant initially
is prosecuted for his involvement in a component or-
ganization and later for his involvement in the parent
organization—of which he is a member simply by virtue
of having joined one of the component organizations.
In the other a defendant is prosecuted successively
for joining a parent and one of its component organiza-
tions that he serves in different ways.
A worker at Ford Motor Company’s River Rouge Com-
plex is an employee of Ford Motor Company. His agree-
ment to work on the River Rouge assembly line con-
tributes both to the plant’s output and to the output of
6 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
the company as a whole, of which River Rouge’s output
is simply a part. If Ford produced sawed-off shotguns
rather than automobiles, the worker could be pros-
ecuted for conspiring with employees of Ford or em-
ployees at the River Rouge plant to produce an illegal
weapon, but he could not be prosecuted for two separate
conspiracies, because the members and the objectives
and the activities of the two conspiracies (conspiracy
with employees of Ford, conspiracy with employees
at River Rouge) would be identical.
But if after producing sawed-off shotguns in the River
Rouge plant an employee who had worked there is pro-
moted into the Ford executive suite in Detroit as a
regional manager and while there prepares financial
reports designed to conceal from the government Ford’s
income from the production of illegal weaponry at River
Rouge and other Ford plants, he has joined a separate
though overlapping conspiracy.
We see from this example that depending on what the
employee does, there can be two different enterprises
that he is assisting rather than one even though they are
affiliated, and provided that either they are indeed dif-
ferent (as in our example) or the patterns of racketeering
activity are different (in other than small ways, United
States v. Calabrese, supra, 490 F.3d at 580-81; see also
United States v. Pizzonia, supra, 577 F.3d at 464-65; United
States v. Ciancaglini, 858 F.2d 923, 930 (3d Cir. 1988), which
would suggest that the government was trying to take
two bites of what was really just one apple), there is no
Nos. 09-1265, 09-1287, 09-1376, 7
09-1602, 09-2093, 09-2109
double jeopardy. United States v. DeCologero, 364 F.3d 12,
18-19 (1st Cir. 2004). The Outfit and its subsidiary
street crews are different though overlapping enterprises
pursuing different though overlapping patterns of racke-
teering. And so they can be prosecuted separately
without encountering the bar of double jeopardy. United
States v. Pizzonia, supra, 577 F.3d at 463-64; United States
v. Wheeler, 535 F.3d 446, 453-54 (6th Cir. 2008); United
States v. DeCologero, supra, 364 F.3d at 18-19.
If as in our first Ford hypothetical you do street
crew business only, you are not working for two dif-
ferent enterprises even though the street crew is a
branch; the enterprises are no more different than two
nested Russian dolls are. But if you murder, which is
Outfit business because it is too sensitive to be left to
the street crews, you are working for the Outfit in a
respect that is different from your street crew work;
you are demonstrating that your agreement to assist
the Outfit is broader than and distinct from your agree-
ment to assist your street crew, just as conspiring to
assemble shotguns at a plant is different from conspiring
to conceal the assembly of shotguns at numerous plants.
The street crews (six in number in the relevant period)
are operating divisions of the Outfit in Chicago. But the
Outfit has powers and responsibilities distinct from
those of the street crews. Only the Outfit can approve
murders. Murders, or at least the kind of murders that
the Outfit commits, generate no revenue directly. The
benefits they confer, notably reducing the risk of appre-
8 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
hension and conviction by eliminating informants and im-
posing discipline on members, accrue to the entire or-
ganization. Only the Outfit can form ad hoc groups
whose members are drawn from two or more street
crews to perform special tasks, such as surveillance of
a person whom the Outfit’s leadership has decided
should be murdered. Only the Outfit can authoritatively
resolve disagreements between street crews. And only
the Outfit has a financial stake in Las Vegas. A member
of a street crew is a member of the Outfit, but as in our
second Ford example these are separate enterprises
despite their affiliation. United States v. Calabrese, supra,
490 F.3d at 578; cf. United States v. DeCologero, supra, 364
F.3d at 17-18; United States v. Langella, 804 F.2d 185, 188-
89 (2d Cir. 1986). One enterprise (the Outfit) coordinates
the Chicago mob, and commits crimes such as witness
tampering and obstruction of justice to minimize gov-
ernment intrusion into the affairs of the entire mob;
the other focuses on street-level vice.
The present indictment, and the evidence presented
at trial to prove its allegations, concerns conspiracies
involving Calabrese and Marcello in their capacity as
Outfit members, not as street crew members. In par-
ticular, they conspired to commit murder, and did com-
mit murder, as members of the Outfit, not as members of
street crews. One of the murder conspiracies in which
they were involved was intended to protect the Outfit’s
interest in Las Vegas casinos. There was no Las Vegas
street crew, though of course members of the Outfit
Nos. 09-1265, 09-1287, 09-1376, 9
09-1602, 09-2093, 09-2109
oversaw the Outfit’s skim of Las Vegas casino profits. The
Outfit is more than the sum of the street crews.
All this would be obvious if the Chicago Outfit were
a corporation and the street crews were subsidiaries. But
it would be beyond paradoxical if by virtue of being
forbidden by law to form subsidiaries, employees of
criminal enterprises obtained broader rights under the
double jeopardy clause than the employees of legal ones.
There is overlap as we said between the successive
prosecutions, especially with regard to the types of street-
level vice charged in previous indictments. But after
we warned in our previous decision that if the govern-
ment’s evidence at the trial of the present case (which
remember was about to start when we rendered that
decision) duplicated its evidence in the previous trials
of Calabrese and Marcello, the defendants might be
able to plead double jeopardy successfully, United States
v. Calabrese, supra, 490 F.3d at 580-81; cf. United States v.
Laguna-Estela, 394 F.3d 54, 58-59 (1st Cir. 2005); United
States v. Solano, 605 F.2d 1141, 1145 (9th Cir. 1979), the
government took pains to present evidence in the
current trial of conduct that had not figured in the
previous ones and that distinguished the scope of the
Outfit conspiracy from that of the street crew conspir-
acies. We did not think that the defendants had proved
double jeopardy from a comparison of indictments, and
their claim is even weaker now that the second trial has
been conducted. We can’t say that the “government
contrived the differences to evade the prohibition against
10 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
placing a person in double jeopardy.” United States v.
Calabrese, supra, 490 F.3d at 580. The present trial sub-
stantiated the functional differences between the Outfit
and the street crews that show that these are different
criminal enterprises, with different functions that generate
different though overlapping patterns of racketeering
activity. United States v. Langella, supra, 804 F.2d at 188-89.
But the means by which the government has thwarted
the double jeopardy defense raises the question whether
the defendants may have a good defense of statute of
limitations. The murders that the Outfit orchestrated
are the best evidence that the Outfit conspiracy was
different from the street crew conspiracies for
which Calabrese and Marcello had already been placed
in jeopardy. But the last Outfit murder charged, that of
John Fecarotta, was committed in 1986, 19 years
before the present indictment and therefore well out-
side the 5-year statute of limitations for RICO offenses.
That is the default federal statute of limitations when
a criminal statute fails to specify a statute of limitations,
18 U.S.C. § 3282; Agency Holding Corp. v. Malley-Duff &
Associates, Inc., 483 U.S. 143, 155-56 (1987), and RICO
is such a statute.
Marcello’s operation of illegal gambling machines
and Calabrese’s participation in street-tax collection
(despite his being in prison) persisted into the statutory
period, but those are street-crew activities rather than
Outfit activities. But a statute of limitations for con-
spiracy does not begin to run until the conspiracy ends,
Nos. 09-1265, 09-1287, 09-1376, 11
09-1602, 09-2093, 09-2109
United States v. Yashar, 166 F.3d 873, 875-76 and n. 1 (7th
Cir. 1999); United States v. Maloney, 71 F.3d 645, 659-61
(7th Cir. 1995); United States v. Yannotti, 541 F.3d 112, 123
(2d Cir. 2008), and the separate conspiracy involving
the Outfit continued into the statutory period, even
if no predicate acts (crimes that constitute a pattern
of racketeering activity) were committed during that
period. But some were—namely, as the district judge
found, obstructions by Calabrese and Marcello of the
government’s investigation of the Outfit.
There is another statute of limitations issue. Joseph
Lombardo argues that he withdrew from the conspiracy
in 1992, which if true means that the five-year statute of
limitations had run by the time he was indicted in 2005.
The principal evidence of withdrawal was an announce-
ment that he placed in the Chicago Tribune and two
other Chicago newspapers in which he said he’d just
been released from federal prison on parole and that “if
anyone hears my name used in connection with any
criminal activity please notify the F.B.I., local police
and my parole officer, Ron Kumke.” The government
describes the announcement as a “stunt,” but whatever
it was, it was not effective withdrawal.
One cannot avoid liability for conspiracy simply by
ceasing to participate, United States v. Bafia, 949 F.2d
1465, 1477 (7th Cir. 1991); United States v. Borelli, 336
F.2d 376, 388 (2d Cir. 1964) (Friendly, J.), hoping the
conspiracy will continue undetected long enough to
enable the statute of limitations to be pleaded suc-
12 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
cessfully when one is finally prosecuted, the conspiracy
having at last been detected. It is true that although
the best evidence of withdrawal is reporting the conspir-
acy to the authorities with sufficient particularity to
facilitate their efforts to thwart and prosecute it, United
States v. Wilson, 134 F.3d 855, 863 (7th Cir. 1998); United
States v. Patel, 879 F.2d 292, 294 (7th Cir. 1989); United
States v. Randall, 661 F.3d 1291, 1294-95 (10th Cir. 2011),
a number of cases hold that an unequivocal statement
of resignation communicated to one’s conspirators can
also constitute withdrawal. E.g., United States v. Arias, 431
F.3d 1327, 1341 (11th Cir. 2005); United States v. Greenfield,
44 F.3d 1141, 1149-50 (2d Cir. 1995). The rationale is
that “by communicating his withdrawal to the other
members of the conspiracy, a conspirator might so weaken
the conspiracy, or so frighten his conspirators with the
prospect that he might go to the authorities in an effort
to reduce his own liability, as to undermine the conspir-
acy.” United States v. Paladino, 401 F.3d 471, 479-80 (7th
Cir. 2005). This implies that a public announcement that
is certain to be seen by one’s coconspirators could do the
trick, though we can’t find any examples. No matter;
Lombardo asked for a jury instruction on withdrawal
and his request was granted. Doubtless the jury agreed
with the prosecution that the Tribune ad was a stunt;
and its rejection of the claim of withdrawal was rea-
sonable and therefore binds us.
Marcello raises an evidentiary issue. A victim’s daughter
identified Marcello’s voice as that of the man who called
her father on the day of the father’s disappearance. Mar-
Nos. 09-1265, 09-1287, 09-1376, 13
09-1602, 09-2093, 09-2109
cello wanted to present an expert witness who would
testify that voice identifications are often mistaken. The
judge excluded the evidence. He was skeptical about its
empirical basis and also thought that the jury already had
a good understanding of the fallibility of “earwitness”
identification. We do not suggest that such expert
evidence is worthless or that jurors always grasp the
risk of misidentification inherent in eyewitness and
earwitness testimony. But a trial judge has a respon-
sibility to screen expert evidence for reliability and to
determine the total effects of proposed evidence,
weighing its probative value against its potential to
(among other things) confuse the jury. See Fed. R. Evid.
403. Both reliability and potential for confusion were
factors in this case and we cannot say the judge abused
his discretion in refusing to admit the expert evidence,
which the jury might have taken as a signal that it
should disregard the witness’s identification testimony.
See United States v. Bartlett, 567 F.3d 901, 906 (7th Cir.
2009). If jurors are told merely that voice identifications
frequently are mistaken, what are they to do with this
information? The defendant’s lawyer will argue mistaken
identification and jurors told that such mistakes are com-
mon may be afraid to make their own judgment.
We turn now to issues involving the district judge’s
dealings with the jury. Most of the defendants’ complaints
about those dealings have no merit. They complain
about his occasional discussions with jurors in the jury
room but those discussions appear to have been limited
to matters of scheduling, which being unrelated to the
merits of the prosecution do not provide a ground for
14 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
a new trial. Rushen v. Spain, 464 U.S. 114, 117-19 (1983) (per
curiam). “[T]he mere occurrence of an ex parte conversa-
tion between a trial judge and a juror does not constitute
a deprivation of any constitutional right. The defense
has no constitutional right to be present at every inter-
action between a judge and a juror, nor is there a con-
stitutional right to have a court reporter transcribe
every such communication.” Id. at 125-26 (concurring
opinion).
The judge also was justified in granting anonymity to the
jurors in such a high-profile trial involving a gang that
though much diminished from its glory days (see Gerry
Smith, “25 Years After Notorious Hit, Mob Has Quieter
Presence; Chicago’s Outfit Weaker Today, Experts Say,”
Chicago Tribune, June 21, 2011, p. C6; John J. Binder, The
Chicago Outfit 111-12 (2003); Chicago Crime Commission,
Organized Crime in Chicago 4 (1990)), continues to inspire
fear. United States v. Benabe, 654 F.3d 753, 761 (7th Cir.
2011); United States v. DiDomenico, 78 F.3d 294, 301-02 (7th
Cir. 1996) (another prosecution of the Chicago Outfit);
United States v. Moore, 651 F.3d 30, 48-49 (D.C. Cir. 2011)
(per curiam); United States v. Deitz, 7 F.3d 672, 684-85 (6th
Cir. 2009); United States v. Gotti, 459 F.3d 296, 345-46
(2d Cir. 2006). And he was likewise justified in refusing
to voir dire the jurors every time the media pub-
lished news about the trial. The notoriety of the Outfit
guaranteed extensive press coverage, resulting in
such tidbits as an interview with the government’s mob
expert, name-calling by a victim’s brother, a story that
Marcello had been “humiliated” by his mistress’s testi-
Nos. 09-1265, 09-1287, 09-1376, 15
09-1602, 09-2093, 09-2109
mony, and an opinion piece saying that the jurors would
be “basically stupid” if they didn’t convict the defen-
dants. The judge had told the jurors not to pay attention
to the media and not to do research on their own. To voir
dire them on the subject without reason to believe they
were disobeying his order (and no reason to believe
that was presented) would have insulted them by
implying distrust of their willingness or ability to obey
his orders.
But supposing some of them did surreptitiously read
the items in question, this would have been very
unlikely to influence the verdict. And that is crucial.
For there is no duty to voir dire jurors about media cov-
erage that falls short of “prejudicial publicity,” United
States v. Trapnell, 638 F.2d 1016, 1022 (7th Cir. 1980), in
the sense of publicity that is likely to affect the verdict.
The district judge did not abuse his discretion in deter-
mining that the media coverage of this case wasn’t prej-
udicial; it neither was inflammatory nor added anything
of substance to the evidence presented at the trial.
United States v. Warner, 498 F.3d 666, 679 (7th Cir. 2007);
United States v. Sanders, 962 F.2d 660, 671 (7th Cir. 1992);
United States v. Williams-Davis, 90 F.3d 490, 499-502 (D.C.
Cir. 1996). “It is for the trial judge to decide at the thresh-
old whether news accounts are actually prejudicial;
whether the jurors were probably exposed to the
publicity; and whether the jurors would be sufficiently
influenced by bench instructions alone to disregard the
publicity.” United States v. Rasco, 123 F.3d 222, 230-31 (5th
16 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
Cir. 1997), quoting Gordon v. United States, 438 F.2d 858,
873 (5th Cir. 1971). And the judge did that.
Nor did he abuse his discretion by allowing the jurors
to take a break from jury duty for a week between the
rendition of the general verdict and the deliberations on
the special verdict, and by declining to sequester them
during either set of deliberations. An experienced
trial judge who presides over a long jury trial obtains
a feel for the jurors’ needs, capacities, feelings, and idio-
syncrasies that the appellate court can’t duplicate,
and this means that we’re in a poor position to
second guess his decisions concerning such matters
as scheduling and whether to sequester jurors during
deliberations.
Of greater concern are the judge’s communications
with an alternate juror who, the judge learned from the
jury administrator, had said she was uncomfortable
serving on the jury. The judge observed her in the jury
box and also in a visit to the jury room. He thought she
indeed seemed uncomfortable, and maybe anxious and
even panicky, so he met with her in private and asked
her whether everything was okay. She said it was but
also asked whether the trial was nearly over. The judge
said it was. She also asked him whether any threats
had been made against her, and he assured her that
none had been. She said she had not discussed her
feelings with any of the other jurors. Nevertheless the
judge removed her from the jury. Although she was an
alternate, she would have been a deliberating juror had
Nos. 09-1265, 09-1287, 09-1376, 17
09-1602, 09-2093, 09-2109
she not been removed, because other jurors were
removed later.
The defendants argue that the judge should have told
the lawyers about the situation before removing the
juror, and perhaps given them a chance to voir dire her,
or at least suggest questions for the judge to ask her.
Given her anxieties it would not have been a good idea
to confront her with the defendants’ lawyers—that
is, agents of the defendants; she would have been intimi-
dated by their presence. A defendant’s interest in being
present at all stages of his trial is limited, United States
v. Bishawi, 272 F.3d 458, 461-62 (7th Cir. 2001), by the
need for orderly administration of criminal trials. The
defendants tacitly acknowledge this by not arguing
that they should have been present when the judge
was discussing the juror’s anxieties with her.
But before dismissing her the judge should have told
the lawyers about his discussions with her, United States
v. Evans, 352 F.3d 65, 70 (2d Cir. 2003); United States v.
Edwards, 188 F.3d 230, 235-37 and n. 2 (4th Cir. 1999); cf.
United States v. Pressley, 100 F.3d 57, 59-60 (7th Cir. 1996);
United States v. Vega, 285 F.3d 256, 266-67 (3d Cir. 2002),
for they might have suggested that he question her
further, albeit outside their presence. She had already
answered the essential questions, however, by saying
she hadn’t been threatened (for remember that she
asked the judge whether she had been threatened) and
hadn’t discussed her anxieties with the other jurors.
What more was there to ask her?
18 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
Given her state of mind, the judge was justified in
removing her from the jury. United States v. Anderson,
303 F.3d 847, 853 (7th Cir. 2002); United States v. Edwards,
342 F.3d 168, 182-83 (2d Cir. 2003); United States v. Thomas,
116 F.3d 606, 613-14 (2d Cir. 1997). Had she become a
deliberating juror (as she would have), she might have
felt pressured to cause the jury to hang in order to
avoid mob retribution for returning a guilty verdict. The
judge’s failure to consult the lawyers was thus a
harmless error, as in such cases as Olszewski v. Spencer,
466 F.3d 47, 64 (1st Cir. 2006), and United States v. Evans,
supra, 352 F.3d at 70; see also Remmer v. United States,
347 U.S. 227, 229 (1954); United States v. Bishawi, supra,
272 F.3d at 462; United States v. Edwards, supra, 188 F.3d
at 236 n. 2.
Another juror claimed to have discovered, through a
combination of overhearing and lip reading, defendant
Calabrese mutter when the prosecutor was giving his
closing argument “you are a fucking dead man,” the “you”
apparently being the prosecutor. Nobody else in the
courtroom seems to have heard Calabrese’s remark. The
juror’s observation did not come to light until the trial
ended, whereupon the defendants moved for a new
trial, which the judge denied. The defendants (other
than Calabrese, who argues that the juror in question
fabricated the story and used the fabrication to poison
the other jurors against him) argue that the death threat
was made and that it turned the jurors against all the
defendants since they were being tried together as
coconspirators.
Nos. 09-1265, 09-1287, 09-1376, 19
09-1602, 09-2093, 09-2109
In an evidentiary hearing conducted after the trial, the
district judge determined that Calabrese had indeed
uttered the remark—the juror hadn’t made it up. United
States v. Calabrese, No. 02 CR 1050, 2008 WL 1722137, at *1
(N.D. Ill. Apr. 10, 2008). But he refused to voir dire the
other jurors to determine whether they had heard it and if
so whether it had influenced their deliberations. United
States v. Calabrese, No. 02 CR 1050-2, -3, -4, -10, 2008 WL
4274453, at *5-*8 (N.D. Ill. Sept. 10, 2008). He based his
finding that Calabrese had uttered the remark in part
on his observations of Calabrese’s courtroom demeanor
throughout the trial, and that was proper—a judge has
the same right as jurors to base credibility findings
on demeanor. United States v. Calabrese, supra, No. 02 CR
1050, 2008 WL 1722137, at *4-*5; United States v. Mendoza,
522 F.3d 482, 491 (5th Cir. 2008); 2 John Henry Wigmore,
Evidence in Trials at Common Law § 274, pp. 119-20 (James H.
Chadbourn ed. 1979). But he should have inquired
whether any of the other jurors had heard or otherwise
been made aware of Calabrese’s alleged remark, and, if so,
whether in conjunction with his other disruptive acts
at trial—screaming “them are lies” during the prosecu-
tion’s argument and making faces and noises—the
remark could have seriously reduced the other defen-
dants’ chances of being acquitted. See Remmer v. United
States, supra, 347 U.S. at 229; United States v. Davis, 15 F.3d
1393, 1412 (7th Cir. 1994); United States v. Bristol-Mártir, 570
F.3d 29, 42 (1st Cir. 2009). The judge may have been too
confident that no one had heard the remark except that one
juror and too quick to conclude as he did that since the
20 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
defendants were a varied lot, the jurors wouldn’t hold
Calabrese’s remark against his codefendants.
But the remark itself in context was not so poisonous
that even if all the jurors heard or were told of it their
verdict might have been different. By the time of
the closing argument the prosecution had provided
compelling evidence that all the defendants had
knowingly aided the Outfit and at least three had com-
mitted serious crimes on its behalf, including participa-
tion in a conspiracy to commit murders that had
resulted in at least 18 deaths. The incremental shock effect
on the jury of Calabrese’s threat and his other disruptive
conduct could not have made the difference between
conviction and acquittal of any of the crimes for which
the jury convicted them. United States v. Mannie, 509
F.3d 851, 856-57 (7th Cir. 2007); see also Zafiro v. United
States, 506 U.S. 534, 537-39 (1993); United States v.
Morales, 655 F.3d 608, 624-25 (7th Cir. 2011).
Anthony Doyle’s appellate counsel makes a number
of convoluted objections to the jury instructions. Doyle’s
trial counsel sensibly had not made such objections,
which would have confused the jury without increasing
the likelihood of acquittal. We discuss just the strongest
objection.
Although the judge correctly instructed the jurors that
their “verdict, whether it be guilty or not guilty, must be
unanimous,” Doyle argues that the instructions as a
whole allowed the jury to render a non-unanimous guilty
verdict, for example because the judge further instructed
Nos. 09-1265, 09-1287, 09-1376, 21
09-1602, 09-2093, 09-2109
the jury that “to prove a defendant guilty of the [RICO]
conspiracy . . . the government must prove . . . that the
defendant . . . knowingly conspired to conduct or partici-
pate in the conduct of the affairs of an enterprise
through . . . a pattern of racketeering activity . . . or . . . the
collection of unlawful debt.” This allowed the jury,
Doyle argues, to convict him even if half the jurors
thought he had conspired to conduct the affairs of the
Outfit only through a pattern of racketeering activity
and half only through the collection of unlawful debts,
with the jurors failing to agree unanimously on either
object of the RICO conspiracy. The jury should, he
argues, have been instructed that to return a guilty
verdict it had to either find unanimously that the
Outfit conspiracy had agreed to engage in a pattern of
racketeering activity, or find unanimously that it had
agreed to engage in the collection of an unlawful debt, or
find unanimously that it had agreed to engage in both a
pattern of racketeering activity and the collection of
an unlawful debt, and then find unanimously that Doyle
had joined the first conspiracy or the second, or both.
This may be correct, cf. United States v. Griggs, 569 F.3d
341, 344 (7th Cir. 2009); United States v. Sababu, 891
F.2d 1308, 1325-26 (7th Cir. 1989), though we cannot find
any cases that address whether pattern of racketeering
activity and collection of unlawful debts are separate
elements of a RICO violation, which would require una-
nimity of the jurors on either (or both) to convict (as the
jury did), Richardson v. United States, 526 U.S. 813, 817-23
(1999), or instead are different ways of committing the
22 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
same crime, which would not require unanimity as to
each way. Id. But suppose the former, that “pattern of
racketeering” and “collection of unlawful debt” are
indeed separate elements of a RICO offense. Still, not
only would the instruction that Doyle’s appellate counsel
proposes have been difficult for jurors to understand;
it would not have changed the verdict, and either or
both may have been why Doyle’s trial lawyer did not
request such an instruction.
The evidence that the Outfit conspiracy contemplated
both racketeering activity (such as murder) and the
collection of unlawful debts (namely “juice loans,” offered
at usurious interest rates) was overwhelming. Specific
unanimity instructions, as distinct from a general in-
struction that the jury must unanimously find the de-
fendants guilty beyond a reasonable doubt in order to
convict (and that instruction was given), are necessary
only when there is a significant risk that the jury
would return a guilty verdict even if there were less
than unanimity with regard to one or more elements of
the crime. There was not a significant risk here, given
the weight of the evidence of both elements (if they
are indeed elements and not means). United States v.
Zizzo, supra, 120 F.3d at 1358; United States v. Nicolau,
180 F.3d 565, 572 n. 3 (4th Cir. 1999).
Many of Doyle’s other objections are to the absence
of instructions that would have required the jurors
to agree unanimously on the means by which his
conduct satisfied the elements of the RICO offense. But
Nos. 09-1265, 09-1287, 09-1376, 23
09-1602, 09-2093, 09-2109
as we have already intimated, jurors don’t have to agree
on means. Suppose a defendant on trial for murder
had first choked his victim and then shot him, and some
jurors think the choking killed him and others that he
was alive until he was shot. It is enough that they are
unanimous that the defendant killed him. Richardson v.
United States, supra, 526 U.S. at 817; Schad v. Arizona, 501
U.S. 624, 631-32 (1991) (plurality opinion); id. at 649-50
(concurring opinion); United States v. Griggs, supra, 569
F.3d at 343-44; United States v. Talbert, 501 F.3d 449, 451-
52 (5th Cir. 2007).
A number of cases say that in a RICO conspiracy case
the jury should be instructed that it must agree unani-
mously on the “types of racketeering activity” that the
conspirators agreed to commit. E.g., United States v.
Randall, supra, 661 F.3d at 1298-99; United States v.
Applins, 637 F.3d 59, 80-81 (2d Cir. 2011). But we have
our doubts (and in any event any error in failing to
include such an instruction was harmless). If you joined
the Outfit, you agreed to commit or assist in committing
an open-ended range of crimes, and it ought to be
enough that the jury was unanimous that you indeed
agreed that you would commit whatever crimes within
that range you were assigned. Another way to put this—
a way that preserves continuity with the cases that
require that the jury be instructed that it must agree on
the “type” of racketeering activity that the conspirators
agreed to undertake—is that scope determines type.
Suppose conspirators agree to commit any criminal act
that will yield a profit of at least $5,000. Cf. Salinas v.
24 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
United States, 522 U.S. 52, 63-64 (1997). Any such act,
whether burglary or bank fraud, would then be within
the scope of the conspiracy rather than belonging to a
separate “type” of racketeering activity, such as burglary
or bank fraud.
We need to say something finally about the evidence
against Paul Schiro and the restitution order against
Doyle. The indictment accused Schiro not only of being
a member of the Outfit but also of murdering another
member, Emil “Mal” Vaci, because the Outfit was con-
cerned that Vaci might be planning to betray the Outfit
to the government. Vaci was murdered, but the jury
refused in its special verdict to find that Schiro had
been involved in the murder. This was a semantic
rather than a substantive finding, because although
Schiro wasn’t the trigger man, as apparently had been
intended, he participated substantially in the planning
and surveillance that preceded the murder. Moreover,
while his involvement was the most colorful charge
against him, the jury was entitled to find, as it did, that
he was a member of the Outfit and had conspired
with other members to participate in its affairs, knowing
that it would commit a variety of crimes, such as Vaci’s
murder; the jury must have distinguished between con-
spiracy to do something and involvement in the act.
Schiro’s lawyer also complains about the judge’s
refusal to sever his trial from that of the other
defendants, in particular Calabrese, Lombardo, and
Doyle, all of whom testified, and whose arrogant and
Nos. 09-1265, 09-1287, 09-1376, 25
09-1602, 09-2093, 09-2109
incredible testimony undoubtedly helped to convict
them. Lombardo mentioned his acquaintance with Schiro
in his testimony. These defendants would have been
well advised not to testify, and their decision to testify
hurt Schiro. But no reasonable jury would have
acquitted Schiro even if he had been tried by himself (or
with Marcello, who also didn’t testify), so ample was
the evidence of his membership in the Outfit conspiracy.
The defendants were ordered to pay restitution in
conformity with the Mandatory Victims Restitution Act
of 1996, 18 U.S.C. § 3663A. The total amount, all of
which was for the lost future earnings of 14 of the 18
murder victims whom the defendants were found to
have conspired to kill, exceeded $4 million. All but
1 percent of this amount, $44,225.73, was allocated
jointly and severally to the four defendants, see United
States v. Dokich, 614 F.3d 314, 318 (7th Cir. 2010), other
than Doyle, who was assessed only the 1 percent
because he had joined the conspiracy late, in 1999. As all
the murders occurred before then, it was improper to
assess him any share of the restitution ordered.
United States v. Squirrel, 588 F.3d 207, 215-16 (4th Cir.
2009). That is the only reversible error we find, and
so other than reversing that part of his sentence we
affirm the judgments.
A FFIRMED IN P ART AND
R EVERSED IN P ART.
26 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
W OOD , Circuit Judge, dissenting in part. If anyone
doubted that the Chicago Outfit during its heyday
ranked as one of the most dangerous and reprehensible
criminal organizations in our nation’s history, the rec-
ord compiled in this case would put those uncertainties
to rest. And the five defendants now before us—Frank J.
Calabrese, Sr., James Marcello, Joseph Lombardo, Paul
Schiro, and Anthony Doyle—sat at the very top of the
enterprise. The indictment on which this quintet stood
trial is breathtaking in its temporal and substantive
scope: through the convenient device of the conspiracy
offense, the government has been seeking to hold the
defendants responsible for virtually everything that
the Outfit did or sponsored for a 42-year period (1960-
2002). Although I have a few reservations that I explain
below about the convictions of Lombardo, Schiro, and
Doyle, in the end I join my colleagues in affirming
their convictions and sentences. Regrettably, however,
I must part company with their assessment of the
double jeopardy argument that Calabrese and Marcello
have advanced. In their view, ante at 9, that argument
is “even weaker” in light of the evidence presented at
the second trial than it was when this panel rejected
this argument before the 2005 trial began. See United
States v. Calabrese, 490 F.3d 575 (7th Cir. 2007). I draw the
opposite conclusion: the double jeopardy violation that
I feared would occur from this retrial has unequivocally
occurred. Calabrese and Marcello had each already been
convicted and imprisoned for their part in the street
crews that lie at the heart of the Outfit’s Chicago opera-
Nos. 09-1265, 09-1287, 09-1376, 27
09-1602, 09-2093, 09-2109
tion. See United States v. Zizzo, 120 F.3d 1338 (7th Cir. 1997)
(Marcello), and ante at 3. Those prosecutions covered
the period from 1978 to 1992 for Calabrese and from
1979 to 1990 for Marcello. The current prosecution
entirely subsumes the span of those conspiracies. I there-
fore dissent, on that basis only, from the decision to
affirm those two convictions.
I
At first glance, the Fifth Amendment’s prohibition
that no person can be “twice put in jeopardy of life or
limb” for “the same offense,” U.S. C ONST. A MEND . V, is
clear enough. As we have explained, “the double
jeopardy clause imposes limits on a defendant’s criminal
exposure. . . . [T]he government cannot reprosecute a
defendant for the same offense whenever it obtains
broader evidence of criminal culpability.” United States v.
Thornton, 972 F.2d 764, 765 (7th Cir. 1992). But this simple
rule becomes difficult when the “same offense” in
question is a conspiracy; the problems compound when
it is a RICO conspiracy. A conspiracy has “no easily
discernable boundaries with regard to time, place,
persons, and objectives.” Id. How, then, can we tell
when one conspiracy ends and another picks up? The
question becomes even more vexing when we deal
with members of a complex enterprise who have
allegedly conspired to violate RICO. A RICO “enterprise”
is loosely defined as “a group of persons associated
together for a common purpose of engaging in a course
28 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
of conduct.” United States v. Turkette, 452 U.S. 576, 583
(1981).
This case requires us to decide under what circum-
stances it is permissible to carve multiple “enterprises”
out of one group. And we must do so with reference to
the tightly organized, hierarchical organization com-
monly known as the Chicago Outfit. As the prosecu-
tion has conceded, the Chicago Outfit was organized
as follows between 1960 and 2005:
Each Street Crew was headed by its own Boss, called a
“Capo” (literally meaning “head,” from the Latin word
“capus”—familiar to English speakers from the word
“decapitate,” meaning to cut off the head). As I will
describe in more detail in a moment, it is true that the
earlier prosecutions of Calabrese and Marcello focused
primarily on their work at the Street Crew level than on
the relation between the Crews and the Boss, while the
current cases look at the big picture. But that does not
Nos. 09-1265, 09-1287, 09-1376, 29
09-1602, 09-2093, 09-2109
change the fact that both cases are inescapably about
the entirety of the operation. Tempting though it may be
to slice these activities more finely when we evaluate
the earlier cases (pretending that the Street Crews were
somehow independent of the higher echelons of the
organization) and to focus on the vertical relation
between the Boss and the Crews (pretending that the
organization as a whole had some existence apart
from its Street Crews), the facts compel the conclusion
that those inside and outside the group understood
throughout every relevant time that this was all one
integrated, highly coordinated organization.
The majority has drawn an analogy to complex
legitimate corporate enterprises (which obviously
should be no worse off under either RICO or the Double
Jeopardy Clause than their illicit counterparts), but this
exercise does not strengthen its point. Suppose we think
of the Outfit as a company and the Street Crews as its
branch offices, rather like the Ford Motor Company and
its River Rouge Complex. The majority concedes that a
worker at the Ford River Rouge Complex is affiliated
not only with that immediate Complex, but is in fact
an employee of the overarching enterprise known as
Ford Motor Company. Ante at 5. By working on the
assembly line there, he contributes to Ford’s business.
Id. And if Ford made two different products—say cars
and bicycles (or sawed-off shotguns, as the majority
postulates)—the worker on the car line would still be
working for Ford, just as the worker in the bicycle plant
(or the shotgun business) would be. The key point is
30 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
that there is only one enterprise, which makes money
through multiple lines of commerce.
The majority notes that certain actions can be taken
by the line workers (the Crew members) only with the
approval of central management (the Boss). In the
Outfit’s case, this includes committing murder; in the
Ford example, we can imagine a host of more mundane
activities such as deciding to build a new line of cars,
making a hiring decision, or authorizing an expendi-
ture over $1,000. Such limitations on the authority of
lower management and line workers are routine in the
business world; no one subject to them would think for
a moment that the actions he was authorized to take on
his own (such as expenditures below the threshold)
were not for the enterprise’s welfare, while actions he
took with approval of higher management were. The
Ford employee is still a Ford employee, whether he
exercises delegated discretion or whether he must
follow the orders of his Ford superiors. Should the jani-
torial staff at the River Rouge Complex be considered
to be conspiring with a different “enterprise” than a
notional enterprise made up of the assembly line
workers? What if the sanitation workers required ap-
proval from HR before they hired a new janitor to join
their ranks? Would the action of hiring a janitor some-
how become associated with the “HR-enterprise,” but
all other janitorial actions remain confined to the “janitor-
enterprise”? Nothing in either the Double Jeopardy
Clause or RICO calls for such inconsequential distinc-
tions. Indeed, if the majority’s view were correct, we
Nos. 09-1265, 09-1287, 09-1376, 31
09-1602, 09-2093, 09-2109
would eviscerate any protection the Double Jeopardy
Clause provides against repeat prosecutions for con-
spiracy; single organizations could be carved into any
number of different “enterprises” to avoid the Clause’s
protection. (I note in passing that the Supreme Court
has treated corporations as “persons” for purposes of
the Double Jeopardy Clause. See, e.g., United States v.
Martin Linen Supply Co., 430 U.S. 564 (1977).)
To make the analogy clearer, let’s pretend that a hypo-
thetical car manufacturer, Voiture, is using some of
its employees to run a video poker side-business at a
local bar, and that the employees are well aware that
these activities violate the law. Let’s further assume that
a Voiture employee works full-time at its assembly line
in Indiana, spending most of her days at that facility
making cars but occasionally conferring about the
poker business with her superiors at headquarters over
the phone or in person. Law enforcement agents get
wind of illegal conduct taking place and bring an indict-
ment against the Indiana employee. The indictment
charges that the Indiana facility is a RICO enterprise,
and that the employee has conspired with members of
that enterprise to further the activities of the video
poker business at the bar in question, using company
facilities and time. After a trial, a jury finds her guilty
and she serves time in prison.
Years pass, and another Voiture employee decides that
he has had enough with the corporation and its illegal
activities. He decides to turn on his coworkers and tell
law enforcement everything he knows. (Or perhaps,
32 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
closer to this case, confronted with his own misdeeds
he comes clean in exchange for the government’s le-
niency.) Through this informant, officials have proof for
the first time that the employee who was prosecuted
earlier actually was handling video poker for Voiture in
all of central Indiana, not just in the bar that was
involved in the first case. They decide to charge her
again, this time with an indictment covering the full
scope of her crimes. Again, rather than charge her for
the underlying substantive conduct, they charge her
with conspiracy. This time, prosecutors are careful to
say that the enterprise is Voiture as a whole, not just
the Indiana regional center. Moreover, they emphasize
that Voiture’s central management had to approve
each location for the illegal machines. This, they say,
avoids any double jeopardy problem, because (the argu-
ment goes), the enterprise whose illegal activities she
was furthering the second time was Voiture, not its
Indiana plant.
Such a distinction would be absurd. Higher manage-
ment was already fully implicated in the earlier
scheme. Nothing separates the “enterprise” of the plant
from the “enterprise” of the company as a whole. Compa-
nies work through people; large companies usually
find it convenient to work through divisions based on
geography, line of business, or both. The Indiana em-
ployee, by working for the Indiana assembly plant and
consulting as need be with higher management, was by
definition working for the company as a whole. The fact
that Voiture organizes itself in a vertical structure
Nos. 09-1265, 09-1287, 09-1376, 33
09-1602, 09-2093, 09-2109
with regional manufacturing centers does not mean
that each center is a separate enterprise from Voiture
itself, even if the centers cannot take certain actions
without the approval of Voiture’s management. This
reality cannot be evaded by naming the regional center
of Voiture in the charging documents the first time
around. Nor, in this case, can it be evaded by naming
the Street Crews first and later appealing to an Outfit-
wide conspiracy.
Returning to our case, no one disputes the fact that
the Calabrese and Marcello Street Crews operated within
and exclusively for the Outfit. This can only mean that
their prosecutions were for the work that they did for
the Outfit, each one through his own Street Crew.
The facts developed at trial simply do not support the
proposition that the Crews were stand-alone operations,
acting as independent contractors for the Outfit. Nor is
this a case in which either Calabrese or Marcello is
being asked to be criminally responsible for the activities
of other Street Crews, qua Street Crews. The only differ-
ence between the present case and each man’s earlier
prosecution—a difference to which the government
alludes repeatedly—is the wider scope of the recent
prosecution, and especially the fact that it encompasses
murders authorized at the highest levels of the Outfit.
Disturbing though this conduct is, however, these
murders do not support the proposition that the enter-
prise known as the Outfit is different from the enterprises
involved in the first cases. We must recognize, as have
our sister circuits, that a crime family in “a lower level of
34 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
authority within the hierarchy of organized crime” is still
a component of the same crime family. United States v.
Langella, 804 F.2d 185, 189 (2d Cir. 1986); see also United
States v. Ciancaglini, 858 F.2d 923 (3d Cir. 1988) (con-
cluding that two Philadelphia-based crime families
were part of the same enterprise). If the Street Crews
were “self-sufficient enterprises that function[] without
oversight” from the Outfit, we would have a different
case. Langella, 804 F.2d at 189. But as the majority
concedes, they are not. The Street Crews were the
mob’s hands, the Outfit its head. There is no way to
divide the two.
II
My dissent does not proceed from the assumption
that one person is incapable of entering into two
different RICO conspiracies with the same enterprise.
I agree with the majority that the contrary is true.
As the Second Circuit noted in United States v.
Basciano, “enterprise and pattern are distinct elements
of racketeering.” 599 F.3d 184, 204 (2d Cir. 2010).
I therefore have no quarrel with the proposition that a
person who has once been prosecuted for a low-level
conspiracy (perhaps to sell marijuana from a corrupt
branch office of a company), is not immune from pros-
ecution in a different, much larger conspiracy (such as
a nationwide conspiracy orchestrated at the highest
levels to commit financial fraud). In that example, even
though the wrongdoer would have made a second agree-
Nos. 09-1265, 09-1287, 09-1376, 35
09-1602, 09-2093, 09-2109
ment with the same enterprise, it would have been an
agreement to commit a different pattern of racketeering
activity.
As I read the majority’s opinion, it accepts that if the
Carlisi and 26th Street Crews were doing the actual
work of the Outfit during the times covered by their
earlier indictments, then this would be a different
case. But, they conclude, neither Crew was doing so. My
problem with that conclusion is not with the theory
but with the application. As I said before, it is certainly
possible that a case could arise in which actions taken
by the Outfit amounted to a different pattern of racke-
teering than the activities that take place at the Crew level,
even though the two are part of the same enterprise.
But the facts of this case show instead a single co-
ordinated operation. We can see this by considering
the various types of evidence that shed light on the ques-
tion whether two conspiracies conducted by the same
enterprise are distinct. This includes “(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 gov-
ernment seeks to punish under each charge; and (5) the
places where the corrupt activity took place.” United
States v. Marren, 890 F.2d 924 (7th Cir. 1989); see also
United States v. Sertich, 95 F.3d 520 (7th Cir. 1996). When
the answers to each of these questions point in the
same direction, the court must find that there is just
36 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
one pattern of racketeering and the conspiracies had
essentially the same object. In such a case, it would
violate double jeopardy to bring a second prosecution.
It may help in this case to compare the first and second
prosecutions using a table, beginning with Calabrese’s
case. It is undisputed that the time and location of his
earlier indictment are completely subsumed within the
present one. I thus focus on the parts of the indictment
summarizing the offenses charged:
Calabrese 1995 Indictm ent 2005 Indictm ent
Enterprise “The Calabrese Street Crew was “The Chicago Outfit was known
part of a larger criminal organi- to its members and associates as
zation known to the public as ‘the Outfit’ and was also known
‘the Mob,’ and to its members to the public as ‘organized
and associates as ‘The Outfit.’ ” crime,’ the ‘Chicago Syndicate’
and the ‘Chicago Mob.’ ”
Purpose “The Calabrese Street Crew ex- “The Chicago Outfit existed to
isted: (1) to generate income for generate income for its members
its members through illegal ac- and associates through illegal
tivities, and (2) to cover up and activities.”
to conceal evidence of the crew’s
involvement in illegal activities
after commission of those illegal
acts.”
Nos. 09-1265, 09-1287, 09-1376, 37
09-1602, 09-2093, 09-2109
Activities “The illegal activities of the crew “The illegal activities of the Chi-
included, but were not limited to: cago Outfit included, but were
(1) making loans to individuals not limited to: (1) collecting
at usurious rates of interest [juice ‘street tax,’ that is, extortion
loans] . . . (2) ‘collecting’ through payments required as the cost of
‘extortionate means’ juice loans operating various businesses;
constituting ‘extensions of (2) the operation of illegal gam-
credit,’ . . . (3) collecting debts bling businesses, which in-
incurred in the crew’s juice loan cluded sports bookmaking and
business, . . . (4) using threats, the use of video gambling ma-
violence and intimidation to col- chines; (3) making loans to indi-
lect juice loan debts and to disci- viduals at usurious rates of in-
pline crew members; (5) devising terest [juice loans]; (4) ‘collect-
a scheme to defraud and to ob- ing’ through ‘extortionate
tain money and property by means’ juice loans constituting
means of false and fraudulent ‘extensions of credit’ . . . (5) col-
representations through the use lecting debts incurred in the
of the mails; and (6) tampering Chicago Outfit’s illegal gam-
with witnesses to, and victims of, bling business . . . (6) collecting
the crew’s illegal activities.” debts incurred in the Chicago
Outfit’s juice loan business . . .
(7) using threats, violence, and
intimidation to collect street tax
and juice loan debts; (8) using
threats, violence, and intimida-
tion to discipline Chicago Outfit
members and associates; (9) us-
ing murder of Chicago Outfit
members, associates and others
to advance the interests of the
Chicago Outfit’s illegal activi-
ties; (10) obstructing justice and
criminal investigations by . . .
murdering witnesses . . . and
(11) traveling in interstate com-
merce to further the goals of the
criminal enterprise.”
38 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
These quotations from the two indictments demon-
strate that the only difference between the earlier and
the later one is that the second contains a wider array of
alleged criminal activity. But federal courts use a “same
offense” test for double jeopardy purposes, not a “same
evidence” or even a “same allegation” test. United States
v. Dixon, 509 U.S. 688, 696 (1993). Thus, if the pattern
of activity is the same, even if there are some difference
in detail, this points to a finding of “same offense.”
Here, the second indictment adds to the first’s list of
the Outfit’s illegal activities and in some respects is more
specific. It offers more detail about the street tax and
illegal gambling operations, and it squarely accuses the
defendants of committing murder in furtherance of
their illegal conspiracy. Obviously, murder is as serious
a charge as can be made, but the addition of murder to
the list does not change the nature of the offense with
which these defendants were charged: RICO conspiracy.
Although the government and majority focus on murder
as the key distinguishing feature, they overlook the
fact that the earlier indictment accused Calabrese of
being responsible for highly violent activity against
both Outfit members and witnesses. When the federal
government later uncovers additional evidence of
discrete acts of such violence, it is free to prosecute
Calabrese for those acts (assuming that a federal statute
covers them) or assist state authorities in a state pros-
ecution, but it cannot reprosecute him for the agreement
he made with the Outfit to engage in that pattern of
conduct just because it finds evidence of ever more
Nos. 09-1265, 09-1287, 09-1376, 39
09-1602, 09-2093, 09-2109
heinous actions in support of that agreement. It is
worth noting that if the earlier charge had been a sub-
stantive one accusing Calabrese of extortion, and the
new indictment charged him with the substantive
offense of murder, the situation would be entirely dif-
ferent: those are two different offenses. Indeed, the gov-
ernment might this time around have been able to prose-
cute one or both of these defendants for conspiracy
to commit murder for the purpose of gaining entrance
to or maintaining a position in an enterprise engaged
in racketeering, in violation of 18 U.S.C. § 1959(a). See
Basciano, 599 F.3d at 198-99 (holding that a conspiracy
to violate Section 1959 is not the same offense as a con-
spiracy to violate Section 1962). But that is not the
choice that it made.
The overlap in Marcello’s two indictments is even
greater. Calabrese’s second indictment differed slightly
from the first because it contained more detailed
references to illegal gambling, street tax, and the addi-
tional allegations of specific murders. Marcello’s first
indictment is even closer to the second because the
first referred to illegal gambling and attempted murder.
And because Marcello went to trial in both the earlier
and present cases, the evidence presented at his trials
brings the double jeopardy violation into even sharper
view. Crucially, given the majority’s current emphasis
on the murder evidence, the government also pre-
sented evidence about the commission of six murders
at Marcello’s first trial. Finally, in both of Marcello’s
trials the government elicited testimony that implicated
40 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
the same nineteen people (in addition to the five
standing trial) in the Outfit’s conspiracy. The current
trial had an unmistakable air of déja vu.
The majority may well be correct that its hypothetical
Ford worker who agrees to manufacture guns at time
A could also be convicted of a separate conspiracy if, at
time B, he agrees to work at corporate headquarters
to conceal the illegal income from guns. Ante at 6. To
determine whether those two prosecutions would be
barred by the Double Jeopardy Clause we would look to
the same five-factor test outlined above; if the activities
were indeed sequential and did not overlap and the
activities were distinct as they seem to be (building
guns versus concealing income), there may be no
problem with prosecuting the income-concealment con-
spiracy after gun-manufacturing conspiracy. Unfortu-
nately, that example does not describe this case.
Here, the government’s charges against Marcello and
Calabrese covered the same period of time and the
same pattern of racketeering activity. The Outfit’s com-
mission of violence and murder was a greater focus of
the government’s case the second time around, but it
was also a component of the first two prosecutions.
Perhaps the government played its cards too soon
by moving ahead with the earlier prosecutions (how
could it have known that in 1999 the FBI would
rediscover gloves that Nick Calabrese carelessly dis-
carded after the 1986 Fecarotta murder, that the
gloves would still have Nick’s DNA on them, and that
Nos. 09-1265, 09-1287, 09-1376, 41
09-1602, 09-2093, 09-2109
this would lead him to flip), but that is the price that
occasionally is exacted by the Double Jeopardy Clause.
Conspiracy can reach back almost indefinitely. If the
conspiracy itself is a durable one that lasts over many
years or even decades, as this one did, the indictment
could (as this one did) reach back even to the year in
which the distinguished U.S. Attorney for the Northern
District of Illinois was born. When the government
chooses to use this broad and powerful tool once,
however, “its choice has consequences.” Basciano, 599
F.3d at 203. One of those consequences is refraining
from prosecuting the defendant again, for the same con-
spiracy, when it obtains broader evidence of criminal
culpability. As I explained in my separate opinion
before these trials went forward, I see no difference in
the essential agreement that was at issue in the earlier
cases and in this case. I would reverse Calabrese
and Marcello’s convictions on the ground that the
present trial has violated their rights under the Double
Jeopardy Clause. To this extent, I therefore respectfully
dissent.
III
Although I agree with the outcome the majority
reaches on the remaining issues, I find two of those ques-
tions to be closer than they do, and so I add a few words
about them.
42 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
A. Voir Dire
All of the defendants except Doyle argue that the
district court should have asked the jurors whether
they had been exposed to various news articles that
were published during the trial. I agree with my
colleagues that the district court’s decision not to do so
does not amount to reversible error. Even if a district
court’s failure to voir dire is error, we reverse only if
“there is any substantial likelihood that the defendants
were denied a fair trial.” United States v. Balistrieri, 779
F.2d 1191, 1214 (7th Cir. 1985). Here, even if the jurors
had read all of the items the defendants have com-
plained about, it would not have made any difference
to them. Things might be different if the news articles
had contained references to inadmissible evidence or
information going beyond the horrific account to which
the jurors were exposed during the trial, but I am
satisfied that those problems did not arise.
My concern is over the district court’s wholesale
refusal to explore the jurors’ exposure to outside pub-
licity. My colleagues find no problem with that and
so do not need to reach the issue of harmless error; I am
not so sure. When a defendant’s notoriety “guarantee[s]
extensive press coverage,” ante at 14, it is imperative
that the court be ready to make use of the limited
two-step voir dire process we established in Margoles
v. United States, 407 F.2d 727, 735 (7th Cir. 1969),
to ensure that the trial is fair. Voir dire helps to
guarantee that a trial’s outcome is determined by events
Nos. 09-1265, 09-1287, 09-1376, 43
09-1602, 09-2093, 09-2109
inside the courtroom, not what is going on outside in
the court of public opinion. Since Margoles, we have
repeatedly told district courts that when “prejudicial
publicity is brought to the court’s attention during a
trial . . . the court must ascertain if any jurors who had
been exposed to such publicity had read or heard [it].”
United States v. Trapnell, 638 F.2d 1016, 1022 (7th Cir.
1980) (emphasis added). This is not meant to be a bur-
densome procedure; only when a juror admits that she
has read or heard the item in question must the court
go on to examine that juror about the publicity’s effect.
Id. Far from insulting the jurors, asking a simple ques-
tion about whether they have read or heard an item
reiterates the importance of the court’s instruction to
avoid the news, and thus communicates to the jury the
court’s respect for the fair trial rights of the accused. For
a court to refuse to conduct voir dire even once in the
course of a sensitive and lengthy trial with extensive
media coverage, especially after defendants brought
to light some articles that were borderline prejudicial
(such as the op-ed telling jurors they were “stupid”
if they did not convict), was a move that could have
undermined the whole trial. A court should not risk
jeopardizing the outcome of the trial by failing even
to check that jurors were following the instructions.
The fact that the gamble worked here, and that the
record does not support a finding of prejudicial error,
is not enough to commend this practice.
44 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
B. Marcello’s Voice Identification Expert
Finally, I do not believe the district court’s decision
to exclude expert testimony on the reliability of voice
identification evidence was correct, although I agree
with my colleagues that it does not require reversal.
Marcello was accused of murdering Michael Spilotro.
Spilotro’s daughter, Michelle, testified that on the day
of her father’s murder, a man called their home and
asked to speak to him. She testified that the same
person had regularly called her father. Three years
after Spilotro’s death, Michelle listened to a “voice
lineup” put together by the FBI. The first five voices on
the tape were those of officers reading a sample piece
of text; the last was Marcello’s. Michelle picked
Marcello’s voice as the one she remembered hearing on
the day of her father’s death. At trial, she told the jury
that she was “100 percent sure” it was Marcello’s voice
she had heard on the phone.
Marcello sought to have an expert, Dr. Daniel Yarmey,
testify about the reliability of voice identification.
Dr. Yarmey is a professor of psychology who has con-
ducted extensive research in the areas of memory; he
has investigated voice identification in particular. His
testimony would have done much more than tell
jurors “voice identifications frequently are mistaken.”
Ante at 13. He was prepared to educate the jury about
error rates associated with voice identification—
in some studies, misidentification rates were as high
as 45%—and the factors that affect the reliability of
Nos. 09-1265, 09-1287, 09-1376, 45
09-1602, 09-2093, 09-2109
voice lineups. Dr. Yarmey had also conducted his
own evaluation of the lineup that Michelle Spilotro
had heard. He recruited 157 undergraduates at his uni-
versity to listen to the lineup, evaluate it using a number
of factors, and try to identify the suspect’s voice. The
listeners were able to do so at a rate that exceeded
pure chance.
The district court refused to admit this expert testi-
mony, not because of any deficiencies in Dr. Yarmey’s
qualifications, but because the district court believed
that this information was something the “jury knows
anyway.” The court also assessed the voice lineup on
its own and concluded that there was “nothing about
the difference [between Marcello’s voice and the others]
that would suggest to a hearer, to a listener, that one
or the other was actually the suspect.”
Even though our review of a district court’s decision
not to admit expert testimony is deferential, see United
States v. Carter, 410 F.3d 942, 950 (7th Cir. 2005), in my
view the district court’s refusal to admit Dr. Yarmey’s
testimony was a mistake. In recent years, courts have
become more aware of the reality that human memory
is not necessarily reliable. A study of 200 wrongful con-
victions revealed that 79% rested in part on mistaken
eyewitness identifications. Brandon L. Garrett, Judging
Innocence, 108 C OLUM . L. R EV. 55, 60 (2008). This does not
mean that courts must impose a blanket ban on such
testimony, but it is critical to be cautious. We cannot
ignore the power that a witness’s claim to be “100% sure”
46 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
may have on a jury, nor can we ignore that such wit-
nesses are sometimes, unfortunately, mistaken. The
Supreme Court recently emphasized that one tool that
courts can use to ensure juries do not give such testi-
mony more weight than it is worth is to allow “expert
testimony on the hazards of eyewitness identification.”
Perry v. New Hampshire, 132 S. Ct. 716, 729 (2012). As
Dr. Yarmey’s resarch shows, a witness’s voice memory
is not exempt from the sort of problems that we more
commonly associate with a witness’s vision; just as
with eyewitness identification, expert testimony on
the reliability of voice identification reveals vulnera-
bilities that lie outside the range of common knowledge.
The district court’s decision not to admit Dr. Yarmey’s
testimony evinces a misunderstanding of the purpose
of expert testimony on the reliability of a witness’s mem-
ory. As we explained in United States v. Bartlett, expert
testimony should not be kept out simply because a
court believes “jurors know from their daily lives that
memory is fallible.” 567 F.3d 901, 906 (7th Cir. 2009). That
may be true, but “[t]he question that social science
can address is how fallible,” id., and thus how deeply
the jury might wish to discount any given identifica-
tion. “That jurors have beliefs about this does not
make expert evidence irrelevant; to the contrary, it
may make such evidence vital, for if jurors’ beliefs are
mistaken then they may reach incorrect conclusions.
Expert evidence can help jurors evaluate whether
their beliefs about the reliability of eyewitness testi-
mony are correct.” Id. As is clear from the district court’s
Nos. 09-1265, 09-1287, 09-1376, 47
09-1602, 09-2093, 09-2109
remarks in this case, the court itself held beliefs about
the reliability and suggestiveness of the voice lineup
that are belied by the expert’s conclusions. As far as
we know, the jurors shared these misconceptions. This
case thus highlights why it is critical for jurors to
hear expert testimony in order to be able correctly to
evaluate a witness’s memory. Just because courts have
routinely admitted laywitness identification in the past
is no reason to continue to do so without skepticism,
in light of modern research showing the fallibility
of such identifications. When a court does admit such
identification testimony, expert testimony will often
be necessary to enable jurors to properly evaluate its
reliability.
I do not believe, however, that this error warrants
reversal of Marcello’s conviction. Even if Michelle
Spilotro had not testified, there was ample additional
evidence—notably Nick Calabrese’s testimony—that
implicated Marcello in Spilotro’s murder. The error
was therefore harmless.
* * *
In conclusion, I would affirm (with the minor adjust-
ment for Doyle’s restitution obligation discussed in
the majority’s opinion) the convictions and sentences of
Joseph Lombardo, Paul Schiro, and Anthony Doyle.
I would reverse the convictions of Frank J. Calabrese, Sr.,
48 Nos. 09-1265, 09-1287, 09-1376,
09-1602, 09-2093, 09-2109
and James Marcello, on the ground that this prosecution
violated each man’s rights under the Double Jeopardy
Clause. To that extent, I respectfully dissent.
5-1-12