United States v. Frank J. Calabrese, Sr., and James Marcello

490 F.3d 575, 2007 U.S. App. LEXIS 13726

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 12, 2007
• Docket: 07-1962, 07-1969
• Status: Published

Opinions

POSNER, Circuit Judge.

Two defendants in a pending RICO prosecution for conspiracy to conduct an enterprise’s affairs through a pattern of racketeering activity, 18 U.S.C. § 1962(d), appeal from the denial of their motion to dismiss the indictment. They contend that the trial, scheduled to begin on June 19, will place them in double jeopardy.

Marcello's claim is based on a 1992 indictment charging him and eight others with conspiring to conduct the affairs of the Carlisi Street Crew by means of numerous illegal acts between 1979 and 1990-acts such as extortion, intimidation, arson, conspiracy to commit murder, usury, witness tampering, and efforts to collect unlawful gambling debts. Such acts, if proved, are "predicate acts" two or more of which establish the "pattern of racketeering activity" required for a violation of RICO. Marcello was convicted in 1993 and sentenced to 150 months in prison, and his conviction was affirmed in United States v. Zizzo, 120 F.3d 1338 (7th Cir.1997). Cala-brese, the other appellant, was charged in a 1995 indictment, together with six others, with participation in a similar conspiracy, though the offense period was 1978 through 1992 and the enterprise was a different street crew-the Street Crew. Calabrese pleaded guilty 1997 and was sentenced to 118 months prison. He did not appeal.

The two street crews are components of the "Chicago Outfit," the lineal descendant of Al Capone's gang, http://en.wikipedia. org/wild/Chicago-Outfit (visited June `1, 2007). The new indictment charges our two defendants, along with seven others only one of whom was a defendant in the previous prosecutions, with conspiring to conduct the affairs of the Chicago Outfit itself through a pattern of racketeering activity. The offense period runs from the 1960s to 2005 and thus overlaps the periods of the conspiracies with which Gala-brese and Marcello had previously been charged. The predicate acts alleged include some of the criminal acts charged in the earlier indictments but also a number of criminal acts that were not charged, including many murders, usurious loans, incidents of witness tampering and other obstructions of justice, and travel in interstate commerce for the purpose of accom-pushing the Outfit's criminal objectives. Some of the predicate acts occurred after the offense periods charged in the earlier prosecutions, but others occurred before or during those periods.

The purpose of the Fifth Amendment's double jeopardy clause is to prevent the government from harassing people by prosecuting them for the same conduct that was the subject of a prior prosecution. The purpose is most strong-iy engaged when the prior prosecution resulted in an acquittal; for then, were it not for the double jeopardy defense, the government could keep retrying the defendant until a jury convicted him-with enough throws of a pair of dice the desired combination is bound to appear eventually. Even when the initial prosecution is successful, allowing the government to prosecute the defendant again for the same crime, perhaps long after he has been released from prison, would result in punishment beyond what the law allows. For even if the defendant received the same sentence and it was made to run concurrently with the sentence imposed ii~ the first prosecution, he would have been subjected to the burden of a second trial. That is why our two defendants can appeal from the denial of their motion to dismiss the indictment rather than having to wait until conviction and sentence to appeal. Abney v. United States, 431 U.S. 651, 659-62, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). "The burden of a second trial is one of the harms that the double-jeopardy clause is intended to prevent, and {it is] a harm that (unlike the harm of conviction) is irreparable once the second trial has been conducted." Reimnitz v. State's Attorrtey of Cook County, 761 F.2d 405, 410 (7th Cir.1985).

The government may not bring a second prosecution under a statute the elements of which are included in the elements of the statute under which the defendant was previously prosecuted. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); United States v. Olmeda, 461 F.3d 271 (2d Cir.2006); see Rutledge v. United States, 517 U.S. 292, 297-98, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); Blockburger v. United States, 284 U.S. 299, 303-04, 52 S.Ct. 180, 76 L.Ed. 306 (1932). And so it may not, for example, charge him in the second prosecution with having attempted to murder someone, when in the first case he had been charged with murdering the person. Cf. United States v. Luskin, 926 F.2d 372, 377-78 (4th Cir.1991). For the proof that the government would have had to present to establish his guilt of murder would, without more, establish attempted murder as well.

This case is different because the statutory offense charged is the same one as in the previous prosecutions, and the question is simply how great a difference there is between the conduct charged in the previous prosecutions and in the present one. As regards the predicate acts charged in the present indictment that occurred after the offense periods in the earlier ones, there can be no question of double jeopardy. For those acts show that the defendants continued conspiring after the previous prosecution. And there is no suggestion that the government, knowing that the defendants were continuing to engage in criminal acts up to the date of their arrests or indictments, backdated the offense periods so that if the prosecutions failed the defendants could be prosecuted on the basis of acts they committed after those offense periods. The double jeopardy clause deprives the prosecution “of an opportunity ... to supply evidence at a successive trial that it failed to present the first time around.” United States v. Estrada, 320 F.3d 173, 180 (2d Cir.2003). Otherwise there would be “concern that the government may be free to pursue successive prosecutions under RICO by merely alleging two predicate acts&emdash;suffi- cient to establish a pattern of racketeering activity under 18 U.S.C. § 1961(5)&emdash;and, by holding in reserve other predicate acts, bring future RICO prosecutions against participants in the same enterprise.” United States v. Russotti, 717 F.2d 27, 34 (2d Cir.1983).

The concern of the defendants in this case is different. It is that some of the predicate acts in the new indictment were predicate acts in the old ones. And so the defendants ask us, if we are unwill- ing to order the entire indictment thrown out, at least to order it trimmed to elimi- nate the overlap.

The argument misunderstands the actual charge in the indictment. The defen- dants are not being charged with murder, or arson, or intimidation, etc. They are being charged with participating in a con- spiracy to operate an enterprise by means of criminal acts that include murder, arson, intimidation, etc. The enterprise is the Chicago Outfit, and insofar as is known at this time, it is a different enterprise from the Carlisi and Calabrese street crews. United States v. Langella, 804 F.2d 185, 189 (2d Cir.1986). Were it the same enter- prise, we would have a different case. United States v. DeCologero, 364 F.3d 12, 17-18 (1st Cir.2004). But it is not, and that is critical.

To illustrate, suppose thedefendants were officers of a corporation and also members of the board of directors of a wholly owned subsidiary of the corpora- tion, and they agreed to conduct the affairs of the wholly owned subsidiary through a pattern of racketeering activity and the racketeering activity and the affairs of the parent corporation through a pattern of racketeering activity as well. These would be different conspiracies and hence different crimes even if the acts constituting the pattern of racketeering activity overlapped. See id. at 18; United States v. Ciancaglini, 858 F.2d 923, 928 (3d Cir.1988); United States v. Langella, supra, 804 F.2d at 188-90; United States v. Ruggiero, 754 F.2d 927, 934 n. 15 (11th Cir.1985). Prosecutors often have a choice between charging a single conspiracy or multiple conspiracies when dealing with members of a loose-knit, reticulated criminal enterprise. E.g., United States v. Reiter, 848 F.2d 336, 340-41 (2d Cir.1988); United States v. Ingman, 541 F.2d 1329, 1330-31 (9th Cir.1976) (per curiam). What the government may not do is “reprose-cute a defendant for the same offense whenever it obtains broader evidence of criminal culpability.” United States v. Thornton, 972 F.2d 764, 765 (1992) (emphasis added). But the two conspiracies in this case are two separate offenses.

Even if the predicate acts in the previous and present prosecutions were identical and the enterprises were under common control, separate prosecutions might not be barred. If a defendant drives two of his friends to an intersection where there are two banks, and each friend robs one of the banks, the driver could be prosecuted twice for two different offenses of aiding and abetting bank robbery, even though he drove only once. For he would have committed two separate offenses, and in United States v. Dixon, supra, 509 U.S. at 704, 113 S.Ct. 2849, the Supreme Court made clear that that is the test. See also United States v. Hatchett, 245 F.3d 625, 639-40 (7th Cir.2001). Or suppose in our hypothetical corporate example that the defendants, having been prosecuted for conducting the affairs of the subsidiary by a pattern of racketeering activity, were prosecuted a second time on the theory that by that very conduct they had enriched the parent and so had conducted its affairs as well through a pattern — albeit the same pattern — of racketeering activity. The offenses would not be the same; the second would require proof that the first had not required. United States v. Kimbrew, 406 F.3d 1149, 1152 (9th Cir.2005); see United States v. Dixon, supra, 509 U.S. at 700-02, 113 S.Ct. 2849; United States v. Hatchett, supra, 245 F.3d at 639-40. It would be just like our hypothetical robbery case. In this case the defendants are not only charged with a different conspiracy from what was charged in their previous prosecutions, but also charged with having conspired to conduct the affairs of the parent (the Outfit) by acts that are not identical to the acts charged in the first set of prosecutions, though there is overlap. United States v. Ciancaglini, supra, 858 F.2d at 925-26.

Corporate analogies are appropriate because the Chicago Outfit is a substantial commercial firm, albeit an illegal one (yet it has outlasted many a legal firm). Of course, being an illegal enterprise, it cannot have formal subsidiaries, but if the street crews are functional subsidiaries, that should suffice for purposes of analyzing a double jeopardy defense. It would be beyond paradoxical if by virtue of their employers’ being forbidden by law to form subsidiaries, the employees of criminal enterprises obtained broader rights under the double jeopardy clause than the employees of legal ones.

Civil analogies are also appropriate, given the resemblance between double jeopardy and res judicata. Imagine, then, successive suits for copyright infringement. The first is against the publisher of an abridged book that copies passages from the plaintiffs copyrighted work, and the suit names the publisher’s employee who did the actual copying as an additional defendant. The second suit complains about an unabridged edition of the same book, which copies those passages plus others and which was published at the same time as the abridged edition but by the parent of the publisher of that edition, and names the same employee as an additional defendant because he either is employed by both the parent and the subsidiary or moved between them, copying the plaintiffs work for the editions published by his successive employers. The second claim against the employee would not be barred by res judicata despite the overlap, cf. Realex Chemical Corp. v. S.C. Johnson & Son, Inc., 849 F.2d 299, 303 (8th Cir.1988), and the same thing is true in this case with respect to double jeopardy.

As the overlap between two prosecutions of the same person grows, however, the characterization of the two proceedings as charging separate criminal acts becomes less convincing. Finally a point is reached at which the differences are minor and it seems that the government contrived the differences to evade the prohibition against placing a person in double jeopardy. For while the government is not required to charge in its first prosecution of a person all the possible offenses that the facts in the government’s possession would enable it to charge (as in our robbery case), United States v. Dixon, supra, 509 U.S. at 704-05, 113 S.Ct. 2849, it can still be precluded from bringing “a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts.” Id. at 705, 113 S.Ct. 2849; see United States v. DeCologero, supra, 364 F.3d at 18; United States v. Lopez, 356 F.3d 463, 467 (2d Cir.2004) (per curiam); United States v. Ciancaglini, supra, 858 F.2d at 930. But we are not at that point in this case, and this apart from the fact that the government did not lose the previous cases.

At least we are not at that point yet. For suppose that at the trial of the defendants under the new indictment the only predicate acts the government is able to prove are the acts that it proved against Marcello its first prosecution of him and that Calabrese acknowledged as part of his guilty plea in his first prosecution, and the government’s defense to the claim of double jeopardy is merely that when the two defendants were committing illegal acts on behalf of their respective street crews, they were simultaneously committing those acts on behalf of the Outfit, the crews’ parent. That would be a merely formal difference (like saying they were committing the acts on behalf of their families, whom they hoped to enrich) between the successive prosecutions, unless the government went on to prove that the later conspiracy had as an objective not involved in the earlier conspiracies to enrich or otherwise advance objectives of the Outfit that were distinct from the objectives of the street crews. But the appeals are from the denial of the motion to dismiss the indictment, not from judgment after trial. We have no basis at this preliminary stage for thinking that the government will fail to prove separate conspiracies. United States v. Flick, 716 F.2d 735, 738-39 (9th Cir.1983).

It will be a more difficult case if the evidence presented by the government at the new trial differs only trivially from the evidence upon which Calabrese’s and Mar-cello’s previous convictions were based. (This is conceivable because the five-year statute of limitations applicable to RICO prosecutions, 18 U.S.C. § 3282; Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 155-56, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987), does not bar conviction for a RICO conspiracy involving predicate acts committed more than five years before the prosecution was commenced, provided the conspiracy continued into the limitations period. E.g., United States, v. Yashar, 166 F.3d 873, 875-76 (7th Cir.1999); United States v. Gonzalez, 921 F.2d 1530, 1547-48 (11th Cir.1991); United States v. Bortnovsky, 879 F.2d 30, 36 n. 11 (2d Cir.1989).) With the tail thus wagging the dog, a conviction would be in jeopardy of placing the defendants in double jeopardy, a conclusion that many cases would reach by application of a five-factor or “totality of the circumstances” test that amounts to asking how much the two prosecutions overlap. E.g., United States v. Sertich, 95 F.3d 520, 524 and n. 1 (7th Cir.1996); United States v. Ciancaglini, supra, 858 F.2d at 927; United States v. Russotti, supra, 717 F.2d at 32-34 (2d Cir.1983). At this stage, we cannot know how great the overlap will be, and so we have no basis for forbidding the trial to go forward. But “if it becomes clear from the trial that [the defendant] is being prosecuted twice for the same conspiracy, he is free to raise such arguments after trial if he is convicted on the RICO conspiracy count.” United States v. Solano, 605 F.2d 1141, 1145 (9th Cir.1979); see also United States v. Flick, supra, 716 F.2d at 738; United States v. Stricklin, 591 F.2d 1112, 1119 (5th Cir.1979); United States v. Young, 503 F.2d 1072, 1077 n. 17 (3d Cir.1974). All three of the judges on this panel agree that the defendants must stand trial again; the incremental burden of having to litigate with reference to some acts that may have been involved in the earlier prosecutions is therefore likely to be modest.

AFFIRMED.