U.S. v. Calabrese

• Decision Date: 12 June 2007
• Docket Number: No. 07-1969.,No. 07-1962.,07-1962.,07-1969.
• Citation: 490 F.3d 575
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank J. CALABRESE, Sr., and James Marcello, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

490 F.3d 575

UNITED STATES of America, Plaintiff-Appellee, v. Frank J. CALABRESE, Sr., and James Marcello, Defendants-Appellants.

No. 07-1962.

No. 07-1969.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 2007.

Decided June 12, 2007.

Mitchell A. Mars (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Joseph R. Lopez (argued), Michael W. Martin, Chicago, IL, for Defendants-Appellants.

Before POSNER, WOOD, and SYKES, Circuit Judges.

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). Calabrese, the other appellant, was charged in a 1995 indictment, together with six others, with participation in a similar conspiracy, though the offense period was 1978 through 1992 and the enterprise was a different street crew—the Calabrese Street Crew. Calabrese pleaded guilty in 1997 and was sentenced to 118 months in prison. He did not appeal.

The two street crews are components of the "Chicago Outfit," the lineal descendant of Al Capone's gang, http://en.wikipedia.org/wiki/Chicago—Outfit (visited June 1, 2007). The new indictment charges our two defendants, along with seven others only one of whom was a 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 Calabrese and Marcello had previously been charged. The predicate acts alleged include some of the criminal acts charged in the earlier indictments but also a number of criminal acts that were not charged, including many murders, usurious loans, incidents of witness tampering and other obstructions of justice, and travel in interstate commerce for the purpose of accomplishing the Outfit's criminal objectives. Some of the predicate acts occurred after the offense periods charged in the earlier prosecutions, but others occurred before or during those periods.

The purpose of the Fifth Amendment's double jeopardy clause is to prevent the government from harassing people by prosecuting them for the same conduct that was the subject of a prior prosecution. The purpose is most strongly engaged when the prior prosecution resulted in an acquittal; for then, were it not for the double jeopardy defense, the government could keep retrying the 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 in the first prosecution, he would have been subjected to the burden of a second trial. That is why our two defendants can appeal from the denial of their motion to dismiss the indictment rather than having to wait until conviction and sentence to appeal. Abney v. United States, 431 U.S. 651, 659-62, 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 Attorney of Cook County, 761 F.2d 405, 410 (7th Cir.1985).

The government may not bring a second prosecution under a statute the elements of which are included in the elements of the statute under which the defendant was previously prosecuted. United States v. Dixon, 509 U.S. 688, 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—sufficient to establish a pattern of racketeering activity under 18 U.S.C. § 1961(5)—and, by holding in reserve other predicate acts, bring future RICO prosecutions against participants in the same enterprise." United States v. Russotti, 717 F.2d 27, 34 (2d Cir.1983).

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

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

To illustrate, suppose the defendants were officers of a corporation and also members of the board of directors of a wholly owned subsidiary of the corporation, and they agreed to conduct the affairs of the wholly owned subsidiary through a pattern of racketeering activity and the affairs of the parent corporation through a pattern of racketeering activity as well. These would be different conspiracies and hence different crimes even if the acts constituting the pattern of racketeering activity 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 "reprosecute a defendant for the same offense whenever it obtains broader evidence of criminal culpability." United States v. Thornton, 972 F.2d 764, 765 (1992) (emphasis added). But the two 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...