United States v. Volpendesto

• Decision Date: 04 June 2014
• Docket Number: 12–1656.,12–1180,Nos. 11–3022,s. 11–3022
• Citation: 746 F.3d 273
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Anthony VOLPENDESTO, Mark Polchan, and Michael Sarno, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

746 F.3d 273

UNITED STATES of America, Plaintiff–Appellee,

v.Anthony VOLPENDESTO, Mark Polchan, and Michael Sarno, Defendants–Appellants.

Nos. 11–3022, 12–1180, 12–1656.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 11, 2013.

Decided March 24, 2014.

Rehearing and Rehearing En Banc Denied June 4, 2014.

Amarjeet Singh Bhachu, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Cynthia Giacchetti, Attorney, Chicago, IL, for Defendant–Appellant.

Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit Judges.

FLAUM, Circuit Judge.

A jury convicted Anthony Volpendesto, Mark Polchan, and Michael Sarno of numerous offenses—principally racketeering conspiracy, but also conducting an illegal gambling business, conspiracy to damage property by means of an explosive device, and conspiracy to obstruct justice, among others. They now challenge their convictions and sentences.

I. Background

This case involves a criminal enterprise operating in and around Cicero, Illinois. Through a business called Amusements Inc., the enterprise distributed “video gambling devices” to local bars and restaurants. These machines, which allow customers to deposit money in return for virtual credits, are legal so long as they are used for amusement only. But the enterprise and the establishment owners permitted trusted customers to redeem their credits for cash. The devices were modified to track money coming in and being paid out, so that the establishment owners and the enterprise could each take a cut of the profits. Video gambling was a lucrative business, and the enterprise did not take kindly to prospective competitors. When a rival company, C & S Amusements, encroached on Amusements Inc.'s turf, the enterprise placed a pipe bomb outside the rival's headquarters in order to send a message.

In addition to its gambling activities, the enterprise committed over a dozen home and jewelry-store robberies in Illinois and nearby states. The enterprise fenced many of the stolen items through Goldberg Jewelers, a store owned by appellant Mark Polchan. Members of the enterprise also dealt in other stolen goods, such as cigarettes and electronics.

Appellant Michael Sarno occupied the top spot in the enterprise's hierarchy. He made high-level decisions about the gambling operations and had some control over the jewelry thefts as well. Beneath Sarno was Polchan, who exercised a lesser leadership role. Finally, appellant Anthony Volpendesto was one of the main perpetrators of the robberies.

The government indicted Sarno, Polchan, and Volpendesto for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act in violation of 18 U.S.C. § 1962(d). The government also indicted Sarno and Polchan for conducting an illegal gambling business in violation of 18 U.S.C. § 1955. Finally, Polchan was indicted on several more counts; pertinent here are use of an explosive device (the pipe bomb) and conspiracy to do the same, in violation of 18 U.S.C. § 844(i) and (n), and conspiracy to obstruct justice in violation of 18 U.S.C. § 1512(k).

The government indicted several other individuals for their involvement in the criminal enterprise, too. Two of them, Casey Szaflarski and Sam Volpendesto, went to trial alongside the appellants. Szaflarski owned Amusements Inc. and handled day-to-day operations on the gambling front. Sam Volpendesto, Anthony's father, served as a jack-of-all-trades, participating in many robberies and the bombing of C & S. (Where ambiguous, we will refer to father and son by their first and last names.) Another co-defendant, a Cicero police officer named Dino Vitalo, pled guilty before trial. Two other enterprise members not only pled guilty but also agreed to cooperate as government witnesses: Mark Hay, a central figure in the robberies, and James Formato, a Berwyn police officer. A final enterprise member, Kyle Knight, pled guilty in a separate federal charge and also agreed to cooperate. Knight collaborated with Hay on many robberies, and he also supplied the enterprise with the materials for the pipe bomb.

The main building blocks of the government's case against the appellants are discussed below.

A. Illegal gambling activity and use of an explosive device

Several business owners testified that Amusements Inc. supplied them with video gambling machines and that Casey Szaflarski would visit every week or two to divide the profits. (Government agents photographed Szaflarski making rounds to the establishments.) Agents also observed Polchan organizing the gambling activity, including taking delivery of machines at Goldberg Jewelers. However, Sarno exercised ultimate control, as revealed by witness testimony and wiretaps of Sarno's multiple phones. In one revealing recording, Polchan told Sarno about an opportunity to place the devices in the clubhouses of the Outlaws Motorcycle Club in Chicago's south and west suburbs. Sarno counseled Polchan, “We put 'em, put 'em in every place, whatever comes out you know, the good will absorb the bad.'' The next day, the government observed gambling devices being unloaded at Goldberg Jewelers and then delivered to an Outlaws Motorcycle Clubhouse in Kankakee.

Testimony from Hay and others confirmed that Sarno exercised a significant degree of control over the gambling activity. For example, Hay testified that when he inquired about obtaining machines for his brother-in-law, Polchan said that he would need to call “my guy”—who Hay understood to be Sarno—to get approval. Another witness, Henry Rendon, likewise testified that when he tried to obtain video gambling devices from an enterprise member, he was told that “the big guy” (another nickname for Sarno) first had to agree.

To protect the enterprise's revenue, Sarno ordered the bombing of a rival video gambling business, C & S Amusements. The owner of C & S, Vincent Dublino, testified that he began to supply video devices to the 47th Street Grill in Lyons—a business previously serviced by Amusements Inc.—in the summer of 2002. A few weeks after C & S began supplying the machines, Sarno approached Dublino at Dublino's restaurant and angrily told him to “stay the fuck away from the 47th Street Grill stop.” Later, Dublino began to receive threatening phone calls. In February 2003, a pipe bomb exploded outside C & S in the middle of the night. Reluctant to draw attention to his own illegitimate business, Dublino initially told the police that he thought the explosion was directed at his neighbor. But at trial he avowed that Sarno was behind it.

Kyle Knight confirmed this account. In 2002, Knight and Sam Volpendesto had a conversation about explosive devices. After their talk, Hay called Knight and told him that Sam Volpendesto wanted Knight to build a bomb. Knight gave the raw materials (potassium perchlorate and aluminum powder) and instructions on how to combine them to Hay for Hay to give to Volpendesto. After the bomb went off outside C & S, Volpendesto approached Knight and offered him $300, telling Knight, “your shit worked really good.” Later, Volpendesto explained to Knight that “the big guy” was “having problems with poker machines, that somebody was putting machines where they shouldn't be and that he was looking for a way to send a message.”

The day after the bombing, Berwyn police officer and enterprise member James Formato told Hay to let Polchan know that the police were looking for a brown van in connection with the crime. Hay told the jury that when he passed along the message, Polchan asked him if the police had a license plate, and then added, “It shows you how smart they are, I wasn't even in the van.” Formato testified that he also relayed the intelligence about the van to Polchan when he ran into Polchan at a car wash a few days later. Again, Polchan seemed unconcerned, telling Formato, “A lot of people drive brown vans.”

A few years after the bombing, the government asked Hay to wear a wire and engage Sam Volpendesto in conversation about C & S Amusements. During their talk, Volpendesto described the details of the bombing and complained that Polchan had been paid for the job but that he had not. Volpendesto also told Hay that “Mark [Polchan] was the original guy that knew what the fuck it was about.”

In 2007, the government arrested Kyle Knight and charged him for his participation in the bombing. After Knight's arrest, agents observed Sarno entering Goldberg Jewelers and conferring with Polchan about some documents. Later, agents retrieved shredded documents from the store's back room. The government determined the documents to be news articles about Knight's arrest and the docket sheet and information in Knight's case.

B. Jewelry store robberies

Alongside the gambling activities, the enterprise made money from a slew of armed robberies targeting jewelry stores. Hay, Knight, and Formato, who all participated in many of these crimes, testified that Polchan selected certain targets, participated in some of the robberies, and paid other enterprise members for stolen goods (often re-sold through his store, Goldberg Jewelers). In addition to jewelry robberies, Polchan purchased boosted goods—cigarettes, electronics, and so forth—and sold them at Goldberg for below-market prices.

Hay and Knight also implicated both Volpendestos in the robberies. In particular, they told the jury that Anthony Volpendesto took part in at least nine separate thefts: stealing cars to use as getaway vehicles, aiding in the robberies themselves, transporting goods, and so on.

The thefts tapered off after a botched robbery of Marry Me Jewelry Store in August 2003. Anthony Volpendesto had learned from Marry Me's owner that a salesman would be carrying a briefcase full of valuable jewels—roughly $650,000 worth—from the store at a particular time, and he suggested to Knight and Hay that they rob him. Anthony Volpendesto and Knight entered the store together to intercept the jewels, but the...