United States v. Calabrese, Frank ( 2007 )

I N THE
U NITED S TATES C OURT OF A PPEALS
FOR THE S EVENTH C IRCUIT
________________________
Nos. 07–1962, 07–1969
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANK J. CALABRESE, SR., and JAMES MARCELLO,
Defendants-Appellants.
__________________________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 1050—James B. Zagel, Judge.
__________________________
Argued May 29, 2007—Decided June 12, 2007*
__________________________
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, which is 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
*
The opinions are being released in typescript because of the imminence
of the trial that they concern.
Nos. 07–1962, 07–1969 2
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 also 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
Nos. 07–1962, 07–1969 3
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 (1977);
Green v. United States, 355 U.S. 184, 187–88 (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 (1993); United States v. Olmeda, 461 F.3d 271, 278, 292
(2d Cir. 2006); see Rutledge v. United States, 517 U.S. 292,
297–98 (1996); Blockburger v. United States, 284 U.S. 299,
303–04 (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 is there
Nos. 07–1962, 07–1969 4
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.
Nos. 07–1962, 07–1969 5
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. 704,
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
Nos. 07–1962, 07–1969 6
affairs of the subsidiary by a pattern of racketeering activity,
were prosecuted a second time on the theory that by that
very conduct they had enriched the parent and so had
conducted its affairs as well through a pattern—albeit the
same pattern—of racketeering activity. The offenses would
not be the same; the second would require proof that the first
had not required. United States v. Kimbrew, 406 F.3d 1149,
1152 (9th Cir. 2005); see United States v. Dixon, supra, 509
U.S. at 700–02; United States v. Hatchett, supra, 245 F.3d at639–40. It would be just like our hypothetical robbery case.
And in this case the defendants are not only charged with a
different conspiracy from what was charged in their previous
prosecutions, but charged in the current case with having
conspired to conduct the affairs of the parent (the Outfit) by
acts that are not identical to the acts charged in the first set
of prosecutions, though there is overlap. United States v.
Ciancaglini, supra, 858 F.2d at 925–26.
Corporate analogies are appropriate because the Chicago
Outfit is a substantial commercial firm, albeit an illegal one
(yet it has outlasted many a legal firm). Of course, being an
illegal enterprise, it cannot have formal subsidiaries, but if
the street crews are functional subsidiaries, that should
suffice for purposes of analyzing a double jeopardy defense.
It would be beyond paradoxical if by virtue of their
employers‘ being forbidden by law to form subsidiaries, the
employees of criminal enterprises obtained broader rights
under the double jeopardy clause than the employees of legal
ones.
Civil analogies are also appropriate, given the
resemblance between double jeopardy and res judicata.
Imagine, then, successive suits for copyright infringement.
The first is against the publisher of an abridged book that
copies passages from the plaintiff’s copyrighted work, and
the suit names the publisher’s employee who did the actual
copying as an additional defendant. The second suit
complains about an unabridged edition of the same book,
which copies those passages plus others and which was
published at the same time as the abridged edition but by
Nos. 07–1962, 07–1969 7
the parent of the publisher of that edition, and names the
same employee as an additional defendant because he either
is employed by both the parent and the subsidiary or moved
between them, copying the plaintiff’s work for the editions
published by his successive employers. The second claim
against the employee would not be barred by res judicata
despite the overlap, cf. Realex Chemical Corp. v. S.C.
Johnson & Son, Inc., 849 F.2d 299, 303 (8th Cir. 1988), and
the same thing is true in this case with respect to double
jeopardy.
As the overlap between two prosecutions of the same
person grows, however, the characterization of the two
proceedings as charging separate criminal acts becomes less
convincing. Finally a point is reached at which the
differences are minor and it seems that the government
contrived the differences to evade the prohibition against
placing a person in double jeopardy. For while the
government is not required to charge in its first prosecution
of a person all the possible offenses that the facts in the
government’s possession would enable it to charge (as in our
robbery case), United States v. Dixon, supra, 509 U.S at
704–05, it can still be precluded from bringing “a later
prosecution for a separate offense where the Government has
lost an earlier prosecution involving the same facts.” Id. at
705; see United States v. DeCologero, supra, 364 F.3d at 18;
United States v. Lopez, 356 F.3d 463, 467 (2d Cir. 2004) (per
curiam); United States v. Ciancaglini, supra, 858 F.2d at
930. But we are not at that point in this case, and this apart
from the fact that the government did not lose the previous
cases.
At least we are not at that point yet. For suppose that at
the trial of the defendants under the new indictment the
only predicate acts the government is able to prove are the
acts that it proved against Marcello in the first prosecution
of him and that Calabrese acknowledged as part of his guilty
plea in his first prosecution, and the government’s defense to
the claim of double jeopardy is merely that when the two
defendants were committing illegal acts on behalf of their
Nos. 07–1962, 07–1969 8
respective street crews, they were simultaneously
committing those acts on behalf of the Outfit, the crews’
parent. That would be a merely formal difference (like saying
they were committing the acts on behalf of their families,
whom they hoped to enrich) between the successive
prosecutions, unless the government went on to prove that
the later conspiracy had as an objective not involved in the
earlier conspiracies to enrich or otherwise advance objectives
of the Outfit that were distinct from the objectives of the
street crews. But the appeals are from the denial of the
motion to dismiss the indictment, not from judgment after
trial. We have no basis at this preliminary stage for thinking
that the government will fail to prove separate conspiracies.
United States v. Flick, 716 F.2d 735, 738–39 (9th Cir. 1983).
It will be a more difficult case if the evidence presented
by the government at the new differs only trivially from the
evidence upon which Calabrese’s and Marcello’s previous
convictions were based. (This is conceivable because the five-
year statute of limitations applicable to RICO prosecutions,
18 U.S.C. § 3282; Agency Holding Corp. v. Malley-Duff &
Associates, Inc., 483 U.S. 143, 155–56 (1987), does not bar
conviction for a RICO conspiracy involving predicate acts
committed more than five years before the prosecution was
commenced, provided the conspiracy continued into the
limitations period. E.g., United States, v. Yashar, 166 F.3d
873, 875–76 (7th Cir. 1999); United States v. Gonzalez, 921
F.2d 1530, 1547–48 (11th Cir. 1991); United States v.
Bortnovsky, 879 F.2d 30, 36 n. 11 (2d Cir. 1989).) With the
tail thus wagging the dog, a conviction would be in jeopardy
of placing the defendants in double jeopardy, a conclusion
that many cases would reach by application of a five-factor or
“totality of the circumstances” test that amounts to asking
how much the two prosecutions overlap. E.g., United States
v. Sertich, 95 F.3d 520, 524 and n. 1 (7th Cir. 1996); United
States v. Ciancaglini, supra, 858 F.2d at 927; United States
v. Russotti, supra, 717 F.2d at 32–34 (2d Cir. 1983). At this
stage, we cannot know how great the overlap will be, and so
we have no basis for forbidding the trial to go forward. But
Nos. 07–1962, 07–1969 9
“if it becomes clear from the trial that [the defendant] is
being prosecuted twice for the same conspiracy, he is free to
raise such arguments after trial if he is convicted on the
RICO conspiracy count.” United States v. Solano, 605 F.2d
1141, 1145 (9th Cir. 1979); see also United States v. Flick,
supra, 716 F.2d at 738; United States v. Stricklin, 591 F.2d
1112, 1119 (5th Cir. 1979); United States v. Young, 503 F.2d
1072, 1077 n. 17 (3d Cir. 1974). All three of the judges on
this panel agree that the defendants must stand trial again;
the incremental burden of having to litigate with reference to
some acts that may have been involved in the earlier
prosecutions is therefore likely to be modest.
AFFIRMED.
DIANE P. WOOD, Circuit Judge, concurring in part and
dissenting in part. Fifteen years and twelve years ago
respectively, James Marcello and Frank Calabrese, Sr., were
indicted under the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1962(d), for conspiring to
engage in a pattern of racketeering activity through an
enterprise. The enterprise in question for Marcello was the
“Carlisi Street Crew,” which was specifically alleged to be
“part of a larger criminal organization known as ‘the mob’ or
‘the Outfit.’” Paragraph 4 of the indictment charged that “the
‘boss’ of the Crew was ultimately responsible to the head of
the Outfit and was required to ensure that the leadership of
the Outfit received a share of the proceeds from the Crew’s
activities.” Paragraph 5(b) went on to allege that Marcello
served as a go-between for Samuel Carlisi, the head of the
Crew, and representatives of other Chicago “Outfit” street
crews. In short, the 1992 indictment made it clear that the
criminal organization with which Marcello was associated
was part and parcel of the Chicago Outfit. The same picture
emerges from the 1995 indictment against Calabrese. It, too,
Nos. 07–1962, 07–1969 10
asserts in paragraph 1 that “[t]he Calabrese Street Crew was
part of a larger criminal organization known to the public as
‘the Mob,’ and to its members and associates as ‘The Outfit.’”
Frank J. Calabrese, Sr., according to paragraph 3(a) of the
indictment, “resolved disputes both within the Calabrese
Street Crew and between that crew and other organized
crime street crews,” and he “represented the Calabrese
Street Crew in meetings with members of other organized
crime crews.”
In the indictment now before us, both Marcello and
Calabrese have been charged once again with participating
in a RICO conspiracy in violation of 18 U.S.C. § 1962(d). This
time, the alleged “enterprise” is the Outfit itself, rather than
any of its constituent parts. There is also a temporal
difference between the Second Superseding Indictment
before us, which was returned by the Special August 2003-2
Grand Jury on June 2, 2005, and the earlier two
indictments. It covers more than forty years, “[f]rom
approximately the middle of the 1960s through the date of
the return of this indictment.” Marcello’s earlier indictment
spanned the time period from approximately 1979 through
“at least” May 1990, and Calabrese’s specified the period
from 1978 through April of 1992. Finally, although (as the
government concedes) some of the predicate acts supporting
the RICO charge are the same as the ones alleged in the two
men’s earlier indictments, the 2005 indictment asserts many
more.
In the interest of a prompt decision in this case, I do not
wish to belabor the points I am making here. In brief,
however, I do agree with the majority in one significant
respect. As they note, ante at 3-4, there can be no question
of double jeopardy for acts that took place as part of the
continuation of the conspiracy after the time periods covered
by the earlier indictments. No matter what, therefore, these
defendants are not entitled to avoid altogether the trial that
is scheduled to begin soon. The more difficult question is
Nos. 07–1962, 07–1969 11
whether the government is entitled to rely on predicate acts
that were committed during the time periods for which
Marcello and Calabrese have already stood trial and been
convicted, whether or not those acts were identified earlier
as support for the earlier RICO conspiracies. The defendants
are correct to emphasize, in this connection, that they were
found guilty (by jury and by plea) of conducting a RICO
conspiracy, not of committing a series of discrete criminal
acts. They freely concede that there would be no double
jeopardy problem if the government wanted to indict them
for the substantive crimes reflected in many of the predicate
acts, such as murder, money laundering, or fraud.
The majority, by drawing analogies to corporate
governance models and the law of copyright, is satisfied that
the conspiracy in the present case is not quite the same as
the conspiracy charged in the earlier cases. It is willing to
give the defendants half a loaf with respect to their double
jeopardy defense, by inviting them to renew this motion after
trial if it turns out that they have been convicted on the basis
of evidence that has been recycled from the earlier trials.
But, as the majority rightly notes, the Fifth Amendment
protects people from twice having to stand trial for a given
offense. See Abney v. United States, 431 U.S. 651 (1977). It
is not limited to an ex post vindication at the end of a trial.
Perhaps the majority’s analogies would be apt, if it were
clear that the focus earlier had been exclusively on actions
taken respectively by the Carlisi Street Crew and the
Calabrese Street Crew. But the earlier indictments show
that the charges encompassed the role that the two crews
were playing in the larger Chicago Outfit – precisely the
enterprise that is alleged in this new case. In United States
v. DeCologero, 364 F.3d 12, 17-18 (1st Cir. 2004), the court
explicitly refused to conclude that enterprises resembling
those charged in this case were distinct:
Nos. 07–1962, 07–1969 12
The present indictment charges the defendants with
participating in a nominally different enterprise –
the “DeCologero Crew” – said by the government to
be “a separate entity from the Patriarca La Cosa
Nostra (‘LCN’) Family, yet ... structured in a similar
manner to a crew or regime of La Cosa Nostra” and
“aligned with” the Carrozza faction of the Patriarca
Family. According to the charge, the DeCologero
Crew’s aim was “controlling, supervising, and
financing illegal activities,” including generating
money through robbery and drug sales “for the
personal use of members ... and to build up a war
chest of firearms, weapons, and ammunition which
was to be used, in part, to support the” Carrozza
faction.
If the double jeopardy problem turned solely on
whether the two cases involved the same enterprise,
we would be faced with a hard question. The RICO
statute loosely defines an “enterprise” to include not
only any legal entity (e.g., a corporation) but also
“any union or group of individuals associated in fact.”
18 U.S.C. § 1961(4). Although the DeCologero
indictment alleges that the Carrozza faction and
DeCologero crew were separate enterprises, the
proffered evidence could support the view that both
were part of a vertically organized endeavor, with
DeCologero somewhere in the middle of the
organizational pyramid.
Past cases have stressed that conspiracies cannot be
artificially broken up for the purpose of bringing
separate cases, see Braverman v. United States, 317
U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942), and there
is no reason why the rule should be any different for
RICO enterprises. But whether there was one
enterprise or two need not be resolved. Every circuit
to have examined the issue has agreed that double
Nos. 07–1962, 07–1969 13
jeopardy only bars successive RICO charges
involving both the same enterprise and the same
pattern of racketeering activity. In our view the
current RICO charges do involve a different pattern
than the old.
Id. See also United States v. Ciancaglini, 858 F.2d 923, 929
(3d Cir. 1988) (“Because of the overlap, however, we are
unable to conclude that this was not the same ‘enterprise.’
Both indictments involved Philadelphia-based crime
families, and both alleged enterprises with the same goal.”).
The DeCologero court thus ultimately found no double
jeopardy problem, but only because “all of the [racketeering
acts] in the present indictment are different from those
charged in the [previous] case.” Id. at 19 (emphasis in
original).
The majority and the government also cite United States
v. Langella, 804 F.2d 185, 189 (2d Cir. 1986), but that case is
easily distinguished. Although the court held that “the
Colombo Organized Crime Family of La Cosa Nostra” and
“the Commission of La Cosa Nostra” were two different
enterprises, it carefully explained that “the Commission” is
an independent entity with a separate purpose from an
individual family of La Cosa Nostra, such as the Colombo
family. Id. As Langella recognized, “The indictment alleged
that the Commission was a council of leaders of various
organized crime families, ‘an enterprise distinct from the
individual Families,’ established with the special purposes
of, inter alia, resolving disputes among families and carrying
out ‘joint ventures’ involving more than one family.” Id. at
187. Indeed, the court signaled that it might feel differently
about a case like ours:
Although the Commission and the Colombo Family,
in a sense, are vertically organized segments of an
intricate, organized crime structure, the allegations
of the two indictments sufficiently demonstrate that
Nos. 07–1962, 07–1969 14
they are two separate and independent criminal
enterprises. Significantly, the Colombo Family is not
merely a lower level of authority within the
hierarchy of organized crime: Within its own sphere
of operation, the Colombo Family is a self-sufficient
enterprise that functions without oversight by the
Commission.
Id. at 189 (emphasis added). The patterns of racketeering
charged also distinguish Langella from our case. The
Langella court began its comparison of the nature and scope
of the racketeering charged in the two indictments by
stating, “Here, there is absolutely no overlap of any kind
between the patterns of racketeering activity alleged in the
two indictments.” Id. (emphasis added). No one asserts that
the same is true here. As the government candidly conceded
at oral argument, “There will be some overlapping proofs
with respect to what was covered in the first case. . .”
This court has already held, in United States v.
Thornton, 972 F.2d 764 (7th Cir. 1992), that the government
may not bring one narrow charge first and then later bring a
broader charge that entirely encompasses the first one:
The government has taken great pains to emphasize
that the conspiracy alleged in the Pennsylvania
indictment lasted only a few months, involved many
fewer people, and was therefore much smaller in
scope than the conspiracy alleged in the Illinois
indictment, which involved some forty plus
coconspirators, trafficking to numerous states, and
encompassed a seven-to-nine-year time frame.
Moreover, the government emphasized in the
hearing before the district judge that the agent
involved in the [narrower] Pennsylvania indictment
knew nothing about the activities alleged in the
[broader] Illinois indictment. It appears that in
making such arguments the government is implying
Nos. 07–1962, 07–1969 15
that even assuming that the Pennsylvania
indictment charged the same conspiracy as the
Illinois indictment, there is no double jeopardy
problem because the first-charged conspiracy was
only a small subset of the later-charged conspiracy
and because the government did not know that this
was one conspiracy. We must remember, however,
the double jeopardy clause imposes limits on a
defendant’s criminal exposure. In order to stay true
to these finality requirements, the government
cannot reprosecute a defendant for the same offense
whenever it obtains broader evidence of criminal
culpability.
Id. at 765. In my opinion, that is what the government is
trying to do here, insofar as the charges cover the same time
periods as those in the earlier indictments. That is why the
majority’s bank robbery analogy is inapposite. In that
example, the government can certainly bring two separate
charges against the driver. But that is because the driver’s
single act aided the commission of two separate crimes: the
robbery of Bank 1 and the robbery of Bank 2. That analogy
assumes the answer to the question before us: whether the
government is now charging these defendants with new
crimes for which they never stood trial, in which some of the
evidence that supported their earlier conviction also
underlies the new charges. My response is that we do not
have two distinct crimes analogous to the two bank
robberies. Instead, the indictments from the previous cases
are entirely subsumed within the new indictment. The fact
that the new indictment also lists additional predicate acts
does not change the fact that the defendants are currently
exposed to criminal liability for crimes for which they have
already served their punishments. We have already noted
that “[d]eciphering what constitutes prosecution for the same
offense for purposes of double jeopardy is . . . even more
difficult when we move from single layered crimes such as
bank robberies to prosecution for multilayered crimes such
Nos. 07–1962, 07–1969 16
as conspiracies which expand over time and place. The
reason for the added complexity is that it is difficult to apply
double jeopardy’s notions of finality to crimes which have no
easily discernable boundaries with regard to time, place,
persons, and objectives.” Thornton, 972 F.2d at 765 (citations
omitted). Not a single case that has considered the double
jeopardy issue in the RICO conspiracy context involving
organized crime families has permitted an indictment that
encompasses such a substantial portion of a prior one.
As the Supreme Court put it in United States v.
Turkette, 452 U.S. 576 (1981), a RICO “enterprise” is an
entity made up of “a group of persons associated together for
a common purpose of engaging in a course of conduct.” Id. at
583. A “pattern of racketeering activity” is “a series of
criminal acts as defined by the statute.” Id. Comparing the
2005 indictment with its 1992 and 1995 forebears, I conclude
that the government is pursuing the same enterprise now as
it did before. It has merely found broader evidence of
criminal culpability and has added to the list of criminal
predicate acts. The language of the 2005 indictment says as
much, where it charges that “[t]he criminal activities of the
Chicago Outfit were carried out in part by sub-groups, or
‘crews,’ which were generally given territories in different
locations in the Chicago area.” See also United States v.
DiDomenico, 78 F.3d 294, 297-298 (7th Cir. 1996) (“The
Chicago Outfit (the ‘Outfit,’ the ‘Mob,’ the ‘Mafia’) – the
criminal enterprise whose most notorious boss was Al
Capone – operates through ‘street crews.’”); id. at 302(noting, in a case charging twenty members of the “Ferriola
Street Crew,” and in which the indictment defined the
enterprise as “The Joseph Ferriola Street Crew,” that the
district court was entitled to empanel an anonymous jury
because “[t]his is not a case . . . in which the defendants are
rumored to have ‘Mob’ connections. The defendants are the
‘Mob.’” (emphasis in original)). The indictment before us goes
so far as to name both the Carlisi and the Calabrese Street
Crews as subgroups of the Outfit. Borrowing from the
Nos. 07–1962, 07–1969 17
majority’s analysis, the structures of the enterprises charged
in the earlier indictments are more closely analogous to a
branch office or division of one company than they are to a
distinct subsidiary.
While the new indictment alleges more predicate acts
than the earlier ones, the overlaps are considerable. (Thus,
we cannot say, as the DeCologero and Langella courts did,
that “all of the [racketeering acts] in the present indictment
are different from those charged in the [previous] case, 364
F.3d at 19 (emphasis in original), or “there is absolutely no
overlap of any kind between the patterns of racketeering
activity alleged in the two indictments,” 804 F.2d at 189.) As
I noted earlier, many of the predicate acts charged in the
2005 indictment are identical to those in the earlier
indictments. Moreover, if one were to look at the various
“factors” identified in United States v. Marren, 890 F.2d 924(7th Cir. 1989), on which the government is content to rely, it
is hard to resist the conclusion that these cases are about the
same pattern of conduct. Those factors are “(1) the time of
the various activities charged as separate patterns of
racketeering; (2) the identity of the persons involved in the
activities under each charge; (3) the statutory offenses
charged as racketeering activities in each charge; (4) the
nature and scope of the activity the government seeks to
punish under each charge; and (5) the places where the
corrupt activity took place under each charge.” Id. at 935. In
the end, we must decide whether the area of overlap is so
substantial that the two cases must be regarded as
functionally the same. United States v. Sertich, 95 F.3d 520,
524 (7th Cir. 1996). With respect to the period of time
covered by the earlier indictments, the identity of the
predicate acts is, in my view, easily great enough that we
must find for the defendants on this part of the case too.
Although I would deny the defendants’ request for
outright dismissal of these indictments, I would grant their
alternative petition for an order striking all of the averments
Nos. 07–1962, 07–1969 18
in Count One that relate to the prior RICO conspiracy
charges – that is, for Marcello the conspiracy that lasted
from 1979 to 1990, and for Calabrese the conspiracy that
went from 1978 to 1992. To that extent, I therefore dissent
from the majority’s judgment.