United States v. Schiro

• Citation: 679 F.3d 521
• Decision Date: 23 July 2012
• Docket Number: 09–2093,09–1602,09–1287,09–2109.,09–1376,Nos. 09–1265,s. 09–1265
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Paul SCHIRO, et al., Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

679 F.3d 521

UNITED STATES of America, Plaintiff–Appellee,
v.
Paul SCHIRO, et al., Defendants–Appellants.

Nos. 09–1265, 09–1287, 09–1376, 09–1602, 09–2093, 09–2109.

United States Court of Appeals,
Seventh Circuit.

Argued Feb. 13, 2012.
Decided May 1, 2012.
Rehearing En Banc Denied July 23, 2012.

[679 F.3d 524]

Stuart D. Fullerton (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Heather L. Winslow (argued), Attorney, Chicago, IL, for Defendant–Appellant in No. 09–1265.

Paul Schiro, pro se.

Johanna M. Christiansen (argued), Attorney, Jonathan E. Hawley, Fed. Pub. Def., Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant in No. 09–1287.

Francis C. Lipuma (argued), Attorney, Law Offices of Francis C. Lipuma, Chicago, IL, for Defendant–Appellant in No. 09–1376.

Marc W. Martin (argued), Attorney, Marc Martin, Ltd., Chicago, IL, for Defendants–Appellants in Nos. 09–1602 & 09–2109.

Thomas J. Scorza (argued), Attorney, Chicago, IL, for Defendant–Appellant in No. 09–2093.

Before POSNER, WOOD, and SYKES, Circuit Judges.

POSNER, Circuit Judge.

This long-running criminal case is before us for the second time. In the first appeal, decided in United States v. Calabrese, 490 F.3d 575 (7th Cir.2007), two defendants, Frank J. Calabrese, Sr., and James Marcello, charged with violating RICO by conspiring to conduct an enterprise's affairs through a pattern of racketeering activity, 18 U.S.C. § 1962(d), appealed from the denial of their motions to dismiss the indictment. The indictment charged them, along with other members of the “Chicago Outfit”—the long-running lineal descendant of Al Capone's gang—with having conducted the Outfit's affairs through a pattern of racketeering activity that extended from the 1960s to 2005 and included a number of murders, along with extortion, obstruction of justice, and other crimes. Calabrese and Marcello contended that the trial, which was scheduled to begin on June 19, 2007, would place them in double jeopardy, and so they moved the district court to dismiss the charges. We affirmed the denial of their motions, holding that they had failed to show a sufficient overlap between the current indictment and previous indictments to establish that the new prosecution was placing them in double jeopardy, though we noted that, depending on the approach taken by the government in the forthcoming trial, the trial might vindicate their claim. United States v. Calabrese, supra, 490 F.3d at 580–81.

So they were tried, together with three other members of the Outfit—Joseph Lombardo, Paul Schiro, and Anthony Doyle. The trial lasted almost three months, and resulted in the conviction of all five defendants by the jury. The judge

[679 F.3d 525]

sentenced Calabrese, Marcello, and Lombardo to life in prison, Schiro to 20 years, and Doyle to 12 years, and also imposed forfeiture and restitution on all the defendants. All five defendants appeal. The most substantial claims are renewed claims of double jeopardy by Calabrese and Marcello, and we begin there.

The Outfit conducts its operations in Chicago through “street crews.” Calabrese was the boss of the Calabrese Street Crew (also known as the South Side/26th Street Crew). Marcello was a member of the Carlisi Street Crew (also known as the Melrose Park Crew). Marcello had been indicted in 1992 along with eight others for conspiring, in violation of RICO, to conduct the affairs of the Carlisi Street Crew by means of a variety of criminal acts committed between 1979 and 1990, including the operation of an illegal gambling business, extortion, intimidation, conspiracy to commit arson and murder, and the collection of unlawful gambling debts. He had been convicted in 1993 and sentenced to 150 months in prison, and his conviction and sentence had been affirmed in United States v. Zizzo, 120 F.3d 1338 (7th Cir.1997). Calabrese had been charged in 1995 with participation in a similar conspiracy, though the offense period was 1978 through 1992. He had pleaded guilty in 1997 and been sentenced to 118 months in prison. He had not appealed.

Double jeopardy can take two forms. One is prosecution for a crime the elements of which overlap the elements of a crime involving the same facts for which the defendant had been prosecuted previously. And in such a case, a case “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); see also United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); United States v. Doyle, 121 F.3d 1078, 1089–90 (7th Cir.1997). For example, there would be only one offense for purposes of assessing double jeopardy if the second prosecution was for a lesser included offense of the crime for which the defendant had been prosecuted the first time. The other form of double jeopardy is prosecuting a person a second or subsequent time for the same offense, and that can be a difficult determination to make when the offense is conspiracy. Id.; United States v. Calabrese, supra, 490 F.3d at 578. Heraclitus famously said that one never steps into the same river twice. What he meant was that one never steps into the same water; the river is the same, even though its substance is always changing. And so a conspiracy can be the same even if all the acts committed pursuant to it are different, because it is the terms of the agreement rather than the details of implementation that determine its boundaries.

Both the earlier and the current indictments of Calabrese and Marcello charge a RICO conspiracy—an “agreement ... to knowingly facilitate the activities of the operators or managers” of an enterprise that commits crimes that are on a list (in the RICO statute) captioned “racketeering activity.” Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7th Cir.2000); see 18 U.S.C. §§ 1961(1), 1962(d); United States v. Pizzonia, 577 F.3d 455, 466 (2d Cir.2009). The question is whether the second conspiracy is the same conspiracy. That's a harder question than whether two criminal statutes have the same elements, or whether an indictment for robbery charges the same robbery as a previous indictment.

[679 F.3d 526]

The earlier and later conspiracies that Calabrese and Marcello were charged with overlapped. The crimes they were accused of agreeing to commit included some that had been alleged in the earlier indictments (the same crimes but different criminal acts) but other crimes as well, crimes with which they had not been charged previously, including murders (particularly emphasized in the current indictments) and travel in interstate commerce in pursuit of the Outfit's criminal objectives. Calabrese and Marcello argue that their agreement to facilitate the criminal activities of their street crews and their agreement to facilitate the criminal activities of the Outfit itself are one and the same because the street crews are components of the Outfit.

To evaluate the argument we need to distinguish between two situations. In one a defendant initially is prosecuted for his involvement in a component organization and later for his involvement in the parent organization—of which he is a member simply by virtue of having joined one of the component organizations. In the other a defendant is prosecuted successively for joining a parent and one of its component organizations that he serves in different ways.

A worker at Ford Motor Company's River Rouge Complex is an employee of Ford Motor Company. His agreement to work on the River Rouge assembly line contributes both to the plant's output and to the output of the company as a whole, of which River Rouge's output is simply a part. If Ford produced sawed-off shotguns rather than automobiles, the worker could be prosecuted for conspiring with employees of Ford or employees at the River Rouge plant to produce an illegal weapon, but he could not be prosecuted for two separate conspiracies, because the members and the objectives and the activities of the two conspiracies (conspiracy with employees of Ford, conspiracy with employees at River Rouge) would be identical.

But if after producing sawed-off shotguns in the River Rouge plant an employee who had worked there is promoted into the Ford executive suite in Detroit as a regional manager and while there prepares financial reports designed to conceal from the government Ford's income from the production of illegal weaponry at River Rouge and other Ford plants, he has joined a separate though overlapping conspiracy.

We see from this example that depending on what the employee does, there can be two different enterprises that he is assisting rather than one even though they are affiliated; and provided that either they are indeed different (as in our example) or the patterns of racketeering activity are different (in other than small ways, United States v. Calabrese, supra, 490 F.3d at 580–81; see also United States v. Pizzonia, supra, 577 F.3d at 464–65;United States v. Ciancaglini, 858 F.2d 923, 930 (3d Cir.1988), which would suggest that the government was trying to take two bites of what was really just one apple), there is no double jeopardy. United States v. DeCologero, 364 F.3d 12, 18–19 (1st Cir.2004). The Outfit and its subsidiary street crews are different though overlapping enterprises pursuing different though overlapping patterns of racketeering. And so they can be prosecuted separately without encountering the bar of double jeopardy. United States v. Pizzonia, supra, 577 F.3d at 463–64;United States v. Wheeler, 535 F.3d 446, 453–54 (6th Cir.2008); United States v. DeCologero, supra, 364 F.3d at 18–19.

If as in our first Ford hypothetical you do street crew business only, you are not working for two...