United States v. Ambrose

• Decision Date: 16 February 2012
• Docket Number: No. 09–3832.,09–3832.
• Citation: 668 F.3d 943
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John T. AMBROSE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

668 F.3d 943

UNITED STATES of America, Plaintiff–Appellee,

v.John T. AMBROSE, Defendant–Appellant.

No. 09–3832.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 25, 2011.Decided Feb. 16, 2012.

Diane MacArthur (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Francis C. Lipuma (argued), Attorney, Law Offices of Francis C. Lipuma, Chicago, IL, for Defendant–Appellant.

Before EASTERBROOK, Chief Judge, and ROVNER and WOOD, Circuit Judges.

ROVNER, Circuit Judge.

The U.S. Marshals Service is the nation's oldest federal law enforcement agency, having served our country since 1789 when President George Washington appointed the first 13 U.S. Marshals following the passage of the first Judiciary Act. U.S. Marshals Service, http:// www. usmarshals. gov/ duties/ factsheets/ general- 2011. html (last visited January 26, 2012). It is tasked with a wide variety of critical functions, among them the capture of fugitives from justice, the housing and transport of prisoners, witness security, and judicial security—including the protection of all federal judges. Id. Its performance has been consistently exemplary. For instance, in fiscal year 2010 alone, the Marshals Service arrested more than 36,100 federal fugitives. Id.

Those successes have not been without the greatest of sacrifices. Over its history, more than 200 persons in the Marshals Service have given their lives in service. http:// www. usmarshals. gov/ history/ roll_ call. htm. Nothing better captures the ethos of the Marshals Service than its motto: Justice, Integrity, Service. http:// www. usmarshals. gov/ history/ seal. htm.

One of the most sensitive functions of the Marshals Service is the Witness Security Protection Program (“WITSEC”), also known as the witness protection program. Through that program, the Marshals Service provides for the security, health, and safety of government witnesses and their immediate family members, whose lives are endangered as a result of their testimony in the criminal prosecution of those involved in organized crime, drug trafficking, terrorism, and other major criminal enterprises. http:// www. usmarshals. gov/ duties/ factsheets/ witsec- 2011. html. Those prosecutions involve the most dangerous people, and the threat to the witnesses is real and substantial. Since the program's inception in 1971, the U.S. Marshals have relocated and protected more than 8,300 witnesses and 9,800 of their family members. Id. It is a testament to the dedication and professionalism of its members that in that time, no WITSEC participant who followed security guidelines was harmed while under the active protection of the U.S. Marshals. Id.

Without the protection of such high-risk witnesses, many of the most serious federal crimes would escape prosecution. In fact, our system of justice depends at its core on the integrity of its law enforcement officers and the ability to protect witnesses who testify against wrongdoers. John T. Ambrose, a Deputy U.S. Marshal, was convicted in district court on charges that go to the heart of those core principles. He is accused of betraying the confidentiality of WITSEC and revealing information to organized crime figures concerning the cooperation of witness Nicholas (“Nick”) Calabrese, a “made” member of the mob. Such a betrayal could present a threat to the safety of Calabrese, his family, and even the Marshals protecting him.

The grand jury returned a four-count indictment, charging him in Counts 1 and 2 with stealing government property and disclosing without authorization information regarding Calabrese, a witness protected in the WITSEC program, in violation of 18 U.S.C. § 641 and 18 U.S.C. § 3521. In Counts 3 and 4, the grand jury charged him with making false statements to law enforcement agents regarding his conduct in violation of 18 U.S.C. § 1001. The jury found Ambrose guilty on Counts 1 and 2, and not guilty of Counts 3 and 4. The district court sentenced Ambrose to four years on each count, to be served concurrently, and 3 years' supervised release.

In pretrial motions, Ambrose moved to suppress inculpatory statements that he made to investigators. After an expansive hearing spanning six days of testimony, the district court denied that motion to suppress. Ambrose now appeals that determination, and also raises a number of challenges to the trial and sentence.

He alleges that the district court should have suppressed his statements because he was subjected to custodial interrogation without receiving the Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In addition, he asserts that the trial court improperly allowed the admission of evidence in violation of the hearsay rule and the Confrontation Clause of the Sixth Amendment, and erred in providing a supplemental instruction of law to the jury. Finally, Ambrose argues that the court improperly sentenced him in that it engaged in speculation and failed to consider the § 3553(a) factors.

I.

In 2002, Nick Calabrese began cooperating with the government in the investigation of a number of unsolved murders. He was a “made” member of the Chicago Outfit, also known as the Chicago mob or mafia, who was believed to have participated in 16 murders and to have knowledge of 22 murders. A made member is someone who has gained a heightened role in the Outfit by proving himself based upon his trustworthiness and performance. A person would not even be considered for that status until he had committed a homicide on behalf of the Outfit. Because he was a made member, Calabrese was privy to a great deal of information and access. By all accounts, he was the most important organized crime witness who had ever testified in this district, and would become a key witness in what was known as the “Family Secrets” case which brought RICO charges against the Outfit. In order to secure his cooperation and his safety, Calabrese was accepted into the WITSEC program on approximately August 27, 2002.

In the course of his cooperation, Calabrese traveled to Chicago on two occasions, the first on October 31 to November 1, 2002, and the subsequent trip between May 20 and May 23, 2003. He stayed at a “safe house” where he was guarded by Deputy U.S. Marshals on both trips. The government soon received information indicating that Calabrese's cooperation had been discovered by organized crime figures, and that one of the persons guarding him may have been a source of that information. In court-authorized audio and visual recordings made between organized crime figures Michael Marcello and his brother James at a federal penitentiary, the Marcellos were heard discussing that information had been provided by the “babysitter” of an organized crime member. At the time, the authorities had not ascertained the identity of the “babysitter.”

Additional information was revealed in subsequent recordings. Because the Marcellos spoke in coded terms, and utilized gestures in place of words at times, the authorities had to piece together interpretations of the conversation from the audio and visual tapes. For instance, on January 30, 2003, Michael Marcello indicated to James that “[t]he big thing with them is the Zhivago deal.” From prior experience, the federal investigators had ascertained that “Zhivago” was used as a reference to the murders of Michael and Anthony Spilotro—unsolved murders of which Calabrese had information. ¹ James replied, “he said something about that, they said? I thought it was in another direction?” to which Michael responded, “we don't know what he said about that.... But I'm telling you, you're in there. You know, how far, whatever. I don't know. The guy can only do what he can do. You know what I'm saying?” James then asked, “[w]ell, that's all he saw was names?” to which Michael replied, “[t]he guy had the notes [putting hands out as if indicating a pad of paper.] Everything he was writing down.... Went through the guy's notes.”

The threat assessment that was part of Calabrese's WITSEC file had indicated that he participated in 16 murders and had knowledge of 22 other murders. The investigators were therefore alarmed to hear similar numbers and wording mentioned by the Marcellos during a March 6, 2003, visit, stating “[h]e didn't say that he did nineteen of them things.... He said ... [t]hose that participated in and had knowledge of ... nineteen of them things ... [n]ot that he was.” The government had not released information to the public of the large number of murders to which Calabrese admitted involvement or knowledge.

In a conversation two weeks later, the recorded conversations again identified “the guy” who was giving information as “the babysitter.” Michael asked James if he knew Tony DeRango, a “copper,” and James stated that he “grew up with him” in “our old neighborhood, that district.” Michael then explained in typical cursory fashion, “Marquette, the Marquette Ten,” and that DeRango was friends with “this guy.” He further states “another guy by the name of Guide. Guide was close to this guy.” Michael continued, “they both were, really both of them. They both knew him from Marion Camp [an apparent reference to the Federal Prison Camp in Marion, Illinois].... This kid's father was with them.... On that beef and everything. He went down with them. He died though.... The kid's father died. So they like, you know, the kid comes down. You know what I mean?”

Further evidence of a leak in the program was apparent in a conversation on June 12, 2003. Michael revealed to James, “you know that kid that, that kid that handles him once in a while? ... You know, he was there.... He was there for a week. A little over a week.... Right in front of the thing. They were driving him all over the city. Showed ‘em the [unintelligible].... He took ‘em there, down east by Pagliacci that way.’' [pagliacci means clown in Italian, and is understood as a...