U.S. v. Zizzo

• Decision Date: 29 July 1997
• Docket Number: Nos. 95-1643,95-1886,95-4083 and 96-1762,95-3434,95-3369,s. 95-1643
• Citation: 120 F.3d 1338
• Parties: 155 A.L.R. Fed. 755, 47 Fed. R. Evid. Serv. 739 UNITED STATES of America, Plaintiff-Appellee, v. Anthony C. ZIZZO, James J. Marcello, Richard Gervasio, Anthony N. Chiaramonti, Brett K. O'Dell, and Samuel A. Carlisi, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1338

120 F.3d 1338

155 A.L.R. Fed. 755, 47 Fed. R. Evid. Serv. 739

UNITED STATES of America, Plaintiff-Appellee, v. Anthony C. ZIZZO, James J. Marcello, Richard Gervasio Anthony N. Chiaramonti, Brett K. O'Dell, and Samuel A. Carlisi, Defendants-Appellants.

Nos. 95-1643, 95-1886, 95-3369, 95-3434, 95-4083 and 96-1762.

United States Court of Appeals Seventh Circuit.

Argued Jan. 17, 1997.

Decided July 29, 1997.

Marsha A. McClellan, Office of the United States Attorney, Criminal Division, Mark J. Vogel (argued), Barry Rand Elden, Chief of Appeals, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Robert S. Bailey, Cynthia Giacchetti (argued), Chicago, IL, Julius L. Echeles, Pompano Beach, FL, for Anthony C. Zizzo.

George N. Leighton (argued), Neal & Associates, John Thomas Moran, Jr., Chicago, IL, for James J. Marcello.

Terrence P. LeFevour (argued), Samuel V.P. Banks, Law Offices of Samuel V.P. Banks, Chicago, IL, for Richard Gervasio.

David G. Duggan (argued), Chicago, IL, for Anthony N. Chiaramonti.

Ralph E. Meczyk (argued), Chicago, IL, for Brett K. O'Dell.

Thomas P. Sullivan, Jenner & Block, Arthur N. Nasser (argued), Raymond J. Smith, Smith, Lodge & Schneider, Chicago, IL, Herbert Shafer, Atlanta, GA, for Samuel A. Carlisi.

Before BAUER, FLAUM, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

In December 1992 a grand jury indicted eleven members of the Chicago Outfit, the Windy City's notorious crime syndicate, for their roles in the illegal gambling and loansharking operations of two of the Outfit's street-crew subdivisions. Two mobsters pled guilty and the rest of the indictees took their chances with a jury. All but one were convicted, and six appealed. After we consolidated their appeals, one of the defendants, Samuel "Wings" Carlisi, the Outfit's former boss of all bosses--a title once held by the likes of Al Capone and Tony "Big Tuna" Accardo--died. As we'll explain below, we vacate his conviction but affirm the convictions and sentences of the other defendants in all respects. First let's meet the cast of characters in this appeal.

The lion's share of the defendants below were members of the Carlisi Street Crew, an arm of the Outfit operating in western Cook and DuPage Counties throughout the 1980's. As the crew's name suggests, Carlisi--dubbed "Wings" in his youth for his unrivaled ability to elude the authorities while swiftly shuttling fellow gangsters from place to place--was the leader and financial backer of the group. James Marcello worked as Carlisi's chauffeur, emissary, and all-around right-hand man. Third in command was Anthony Zizzo. Known on the street as "Little Tony," Zizzo supervised both Frank Bonavolante, the head of the crew's gambling operations, and Anthony "Big Tony" or "Tony the Hatch" Chiaramonti, who managed the crew's juice loan racket. The crew also employed a horde of other charming characters including Brett O'Dell, who helped Big Tony with the juice loan operation, and Richie Gervasio, who took bets for the crew and sometimes collected gambling debts.

It's a safe bet that the crew's decade-long, illegal gambling operation was its biggest moneymaker. Through an extensive network of "offices," which were often relocated to throw nosy government agents off of the trail, the crew took bets on professional sports and horse races. Just how lucrative was the crew's business? One of its bookies, Kenton "Kappy" Pielet, took in between $75,000 and $125,000 in wagers on an "average" weekend. And another office--one which cost over $500,000 to open--had a weekly payroll of around $30,000 and served a whopping 800 customers.

Because all bets, no matter how large, were accepted on credit, the crew prided itself on its effective debt-collection practices and held its bookies personally responsible for their customers' past-due accounts. Often the crew would dispatch muscle to threaten or rough up deadbeat debtors. For example, when a gambler named Anthony Pape failed to make good on his $15,000 gambling debt, Bonavolante let him know that "not even God was going to help" him. Another of Carlisi's heavies threatened to beat the completely bald Pape until his head turned so black and blue people would think he had hair. Pape eventually saved his scalp by persuading his father to cash in a $16,000 retirement annuity.

Another illustrative collection involved the debt of Michael Huber. After betting with crew bookies Kappy Pielet and Thomas Briscoe, Huber was referred to Gervasio, with whom he bet over $60,000 in an 18-month period. When Huber failed to make timely payments on a $2,500 losing wager, however, Gervasio revoked his betting privileges. After a series of meetings failed to resolve the matter, Gervasio sent Huber to the parking lot of a local restaurant, where he was grabbed, "tapped" in the face by two thugs, and told to return in a week with a payment. When Huber failed to report as directed, Gervasio explained that the matter would soon be out of his hands and Huber would be unwise to miss any more appointments. Huber made it to the next meeting; the money didn't. Less than pleased, one of the crew's enforcers checked Huber for a wire, choked him, and threatened to mess him up. Huber was so frightened that he defecated in his pants. Although Huber managed to steer clear of the crew for almost 2 years after that incident, an Outfit thug named Joe Cumbo later knocked on his door and sought to collect his debt. When Huber explained that he couldn't pay, Cumbo suggested that Huber sell his wife's car. Two days later someone threw a flare into the car, burning its backseat.

On other occasions the crew squeezed additional profits from its delinquent gamblers by referring them to Zizzo, Chiaramonti, and O'Dell for juice loans. For example, when gambler Frank Perri's favorite horse failed to outpace the other ponies and Perri couldn't cover his bet with Kappy Pielet, Chiaramonti and O'Dell graciously extended him a juice loan. When Perri failed to make a couple of his weekly interest payments, Pielet was forced to pay Zizzo on Perri's behalf. Unhappy about being left on the hook for Perri's past-due loan, Pielet asked O'Dell to look into the matter. O'Dell located Perri, slapped him in the face, and forced him to make a payment on his account.

Carlisi's men also made juice loans unrelated to its gambling operation. Unfortunately for the crew, one of its "business" juice loans was made to Anthony LaBarbera, a cooperating FBI witness. In 1988 LaBarbera needed money to purchase insurance and license plates for his trucking company. When he was unable to secure a bank loan, one of his employees, Vince Falzone, explained that he had worked for Zizzo and Chiaramonti and could check into a juice loan. True to his word, Falzone arranged for Chiaramonti to meet LaBarbera and loan him $5,000 (at the crew's normal annual interest rate of 260%). Chiaramonti instructed LaBarbera to drop off $250 in interest payments each week in envelopes addressed to "LT," a reference to Little Tony Zizzo. After making payments on the loan (often with cash fronted by the FBI) for 13 months, LaBarbera fell behind. Chiaramonti called him late at night, informed him that Zizzo was "hollering about the money being late," and warned LaBarbera to pay up "or else." In response, LaBarbera, who had once been choked by Chiaramonti for accusing Falzone of theft, explained that he was caught short when a customer failed to pay his trucking company. Chiaramonti then offered LaBarbera some keen practical advice. He explained LaBarbera had the "legal right to bust [the] head" of anyone who owed him money. Chiaramonti added, "When you got your foot on his throat then tell him now to go get my money."

With that cheery little picture of Carlisi's crew in mind, we turn our attention to the second Outfit subdivision whose activities are relevant to this case, a street crew controlled by infamous mobster Lenny Patrick. In 1986, when Carlisi took the reins as the head of the entire Outfit, the Patrick Street Crew came under his control, and Carlisi was able to call on Patrick's henchmen to help out with his own criminal chores.

One such undertaking involved an attempt to make Willis Johnson an offer he couldn't refuse. Johnson owned a chain of movie theaters and had been in a labor dispute with the projectionists union since 1983. In 1985 Johnson decided to automate projection at one of his cinemas, the Lake Theater. In early 1988, when negotiations with the union broke down, Johnson announced plans to automate all of his theaters. This didn't sit well with Carlisi, Marcello, and Zizzo, whose sons just happened to be card-carrying members of the projectionists union. As a result, Marcello contacted Patrick and explained that Carlisi wanted him to give Johnson "a little trouble" and make him "join the union."

Patrick assigned the task to his second in command, Mario Rainone, a skilled burglar who often branched out into more violent felonies. See United States v. Rainone, 32 F.3d 1203 (7th Cir.1994). Rainone in turn delegated the job to crew members James LaValley and Nicholas Gio. LaValley and Gio decided the best way to make Johnson "join the union" was to torch the Lake Theater. Although they huffed and they puffed, LaValley and Gio just could not bring the theater down. First, they threw gasoline on the theater's roof and tried to light it with an incendiary grenade. They were unable to get the grenade onto the roof. Next they tried a Molotov cocktail. It, too, failed to do the trick. Figuring he would just have to do the job himself, Rainone, escorted by underling Albie Vena, threw a fragmentation grenade on the theater's roof. Alas, the third attempt at burning down the Lake Theater was simply not the charm. The grenade failed to detonate and was later found by a janitor, who promptly turned the dud over to the police.

In late 19...