United States v. Davis

• Decision Date: 30 December 2016
• Docket Number: No. 15-3671,15-3671
• Citation: 845 F.3d 282
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael "Mickey" DAVIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

845 F.3d 282

UNITED STATES of America, Plaintiff–Appellee,

v.Michael "Mickey" DAVIS, Defendant–Appellant.

No. 15-3671

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2016

Decided December 30, 2016

Andrianna D. Kastanek, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Thomas Anthony Durkin, Robin V. Waters, Attorneys, Durkin & Roberts, Christopher Grohman, Attorney, Duane Morris LLP, Chicago, IL, John D. Cline, Attorney, Law Office of John D. Cline, San Francisco, CA, for Defendant–Appellant.

Before Bauer, Rovner, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

In June 2012, defendant Michael "Mickey" Davis made a $300,000 start-up loan to Ideal Motors, Inc., a car dealership in Melrose Park, Illinois, owned by R.J. Serpico and his father Joseph Serpico. Within a matter of months, Joseph had gambled the money away and Ideal Motors had fallen deep in arrears. The following summer, a man named "Mickey" conspired to have R.J. Serpico's legs broken

. Though the scheme was never carried out, defendant Davis was eventually convicted at trial of attempted extortion and using extortionate means to collect a loan.

Davis has appealed, raising five issues. The first is whether the district court erred by admitting against Davis the out-of-court statements by several people involved in the conspiracy to hurt Serpico. The second is whether the district court abused its discretion in allowing the prosecutors to impeach the testimony of a key prosecution witness with his prior inconsistent statements to government agents. Those two issues are substantial, but we find no reversible error. Davis raises three other issues concerning witness immunity, the scope of cross-examination, and the government's closing argument. Those issues also provide no grounds for setting aside the convictions. We affirm Davis's convictions and sentence.

I. Co–Conspirator Statements

A. The Government's Case

To set the stage for the legal issues, we first summarize the government's theory that Davis became angry with the Serpicos and turned to violent means to punish R.J. Serpico for the default on the outstanding debt. The scheme came to light when Paul Carparelli, a reputed Chicagoland mobster, contacted George Brown, his long-time associate. Brown was then cooperating with the FBI and recorded a number of relevant telephone calls. Carparelli told Brown that their mutual "friend ... in Burr Ridge"—a restaurant owner named Gigi Rovito—had a "job" for them. During a series of conversations among Carparelli, Brown, and Gigi's brother John Rovito, the details of the job came into focus. The target: R.J. Serpico, the manager of a local Ford dealership. The mission: a "thorough" beating. The payout: "ten thousand clams." And the client? The mysterious "Mickey," a "partner" of a man named Solly DeLaurentis.

The scheme was not just talk. On July 11, 2013, "Mickey" delivered a $5000 down-payment to Gigi Rovito, who forwarded the payment to Carparelli via John Rovito. On July 16, Carparelli told Brown that their client was "breathin' down my f* * *in' neck." Later that day, John Rovito told Brown that he would place an "anonymous phone call" to the Ford dealership to investigate R.J. Serpico's working hours. Rovito said that he would tell their client the job would be "handled" by the following weekend. On July 17, at the direction of the FBI, Brown told Carparelli that he had identified Serpico's home address. On July 21, in an effort to stall for time, Brown told Carparelli that two (fictitious) hit-men he had hired to attack Serpico had visited his home and spotted Serpico but had called off the attack after Serpico's wife and children appeared. Fortunately for Serpico, the scheme ended two days later when FBI agents arrested Carparelli and seized the $5000 down-payment from his residence.

The defendant in this case, Mickey Davis, was never recorded on any of the calls, but the government convinced a jury that Davis was the "Mickey" who had ordered the beating of R.J. Serpico and advanced the $5000 down-payment. The jury found Davis guilty of using extortionate means to collect a debt in violation of 18 U.S.C. § 894 and attempting to affect commerce by extortion in violation of 18 U.S.C. § 1951.

B. The Co–Conspirator Statements

To prove that Davis was the mysterious "Mickey," the government relied in large part on recorded conversations among George Brown, John Rovito, and Paul Carparelli. These recordings were admitted as co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E). Davis contends the district court erred by admitting these statements because the government failed to lay a sufficient foundation to support a finding that Davis was a member of the conspiracy. We review the district court's evidentiary rulings for abuse of discretion, with any findings of fact reviewed for clear error. United States v. Pust , 798 F.3d 597, 602 (7th Cir. 2015).

Under Rule 801(d)(2)(E), co-conspirator statements are admissible against a defendant if the trial judge finds by a preponderance of the evidence that (1) a conspiracy existed, (2) the defendant and the declarant were involved in the conspiracy, and (3) the statements were made during and in furtherance of the conspiracy. E.g., United States v. Haynie , 179 F.3d 1048, 1050 (7th Cir. 1999), citing United States v. Godinez , 110 F.3d 448, 454 (7th Cir. 1997). Under long-settled circuit law, a district court may admit co-conspirator statements conditionally based on the government's pretrial proffer, known in this circuit as a " Santiago proffer." See United States v. Santiago , 582 F.2d 1128, 1130–31 (7th Cir. 1978), overruled in part on other grounds by Bourjaily v. United States , 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). "If at the close of its case the prosecution has not met its burden to show that the statements are admissible, the defendant can move for a mistrial or to have the statements stricken." Haynie , 179 F.3d at 1050.

In considering whether to admit alleged co-conspirator statements conditionally, the district court may consider the contents of the statements themselves. See Bourjaily , 483 U.S. at 180, 107 S.Ct. 2775. However, the record must also contain independent evidence corroborating the existence of the conspiracy and the participation of defendant and declarant. Standing alone, the statements themselves will not suffice. United States v. Harris , 585 F.3d 394, 399 (7th Cir. 2009).

The Santiago procedure requires the government to close the evidentiary loop at trial. The procedure assumes the government knows what its witnesses will say at trial. Cooperating witnesses, however, can be unpredictable. This case poses the problem of a Santiago proffer that the government could not satisfy completely.

In this case, the government's detailed Santiago proffer described the evidence it intended to introduce at trial to show that Davis conspired with the men whose telephone calls were recorded. The proffer highlighted the expected testimony from John Rovito, including the following:

• That Gigi Rovito asked John Rovito to recruit Carparelli to conduct the beating, and that John did so;

• That John Rovito observed Davis at Gigi Rovito's restaurant on the night of the down-payment; and

• That Carparelli told John Rovito that "the beating was in relation to a car dealership."

Rovito's trial testimony differed from the government's proffer in several respects. He testified, for instance, that he first learned about the beating conspiracy from either Carparelli or Brown and that he did not recall "having a conversation with Gigi about a beating or his friend Mickey about a beating." John Rovito acknowledged that Gigi had introduced him to a "Mickey" at one point, but he testified that he did not recall seeing "Mickey" at Gigi's restaurant the night he retrieved the down-payment. John Rovito later repeated that he "recall[ed] meeting the gentleman one time," perhaps as early as two weeks before he retrieved the down-payment. Most significant, Rovito flatly denied any knowledge that the beating had anything to do with a car dealership, testifying variously that he did not know "what was going on, what it was for," that he had "no knowledge" of "Mickey's" and R.J. Serpico's involvement with a car dealership, that he did not "recall any dealership," and that he did not recall telling the FBI any differently.

When the government's evidence does not fulfill its Santiago proffer in key respects, the trial judge must take a fresh look at the admissibility of co-conspirator statements to decide whether the evidence actually offered at trial satisfies the government's burden under Rule 801(d)(2)(E). At various points during Davis's trial, in response to defense objections, the judge determined that the government had carried its burden. Those determinations were not an abuse of discretion. Even without John Rovito's testimony on those several points the government had expected from him, the government offered sufficient evidence to support the district court's finding that Rule 801(d)(2)(E) was satisfied so as to allow the co-conspirator evidence.

First, it is beyond dispute that somebody called "Mickey" wanted R.J. Serpico's legs broken

and that a group had formed to carry out the attack. John Rovito and Paul Carparelli were unquestionably part of the conspiracy, and they implicated Gigi Rovito. George Brown acted the part, though as noted above he was an FBI cooperator. In a July 16, 2013 call, John Rovito told Brown that he expected to see their "friend" shortly and that he would tell the friend the job would be handled by the following weekend. At trial, John Rovito testified that he had been referring in that conversation to "Gigi's friend ... Mickey."¹ John also testified that Gigi told him "Mickey" was the person who wanted the beating. In another call, Carparelli told Brown that the client was "Solly D's partner.... Mickey,...