United States v. Macari, Peter R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2151, 04-2253
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PETER R. MACARI and ALBIN C. BRENKUS,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 1061—Suzanne B. Conlon, Judge.
____________
ARGUED APRIL 14, 2005—DECIDED JULY 14, 2006
____________
Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. On November 6, 2003, a federal
grand jury returned a fourteen-count indictment against
Albin Brenkus, Peter Macari, and seven other members
(or prospective members) of a Chicago projectionist union,
known as Local 110, on charges of arson and, in Brenkus’s
case, obstruction of justice. A jury acquitted Brenkus of
the arson-related charges but convicted him of obstruc-
tion of justice, and he was sentenced to a term of seventy-
eight months. On appeal, Brenkus challenges the suffi-
ciency of the evidence presented on his 18 U.S.C. § 1503
obstruction of justice conviction as well as the district
2 Nos. 04-2151, 04-2253
court’s jury instructions on the obstruction of justice count.1
We affirm the judgment of the district court as it relates to
Brenkus.
Prior to trial, Macari pled guilty to one count of conspir-
acy to promote arson in interstate travel and one count of
aiding and abetting arson and was sentenced to a term of
forty-six months. Thirty-six months of Macari’s sentence
were to be served concurrently with a ten-year Illinois state
sentence he was presently serving on a related, attempted
first degree murder charge, and the remaining ten months
of his federal sentence were to be served consecutive to his
state sentence. Macari appeals only the ten-month portion
of his federal sentence that he was ordered to serve consec-
utive to his state sentence.
Because we are unable to ascertain from the record
whether the district court would have imposed the same
sentence on Macari under an advisory guideline scheme, we
order a limited remand, with respect only to the question of
whether his ten-month consecutive sentence is in accor-
dance with the procedures outlined in United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005).
1
Initially, Brenkus also challenged his sentence as violative
of Blakely v. Washington, 542 U.S. 296 (2004), and as miscalcu-
lated under the Guidelines; however, on February 7, 2005, after
the Supreme Court announced its decision in United States v.
Booker, 543 U.S. 220 (2005), Brenkus withdrew his Sixth Amend-
ment challenge to his sentence in his supplemental brief, stating:
“Brenkus waives any right he may have to resentencing under the
Supreme Court’s decision in Booker, and hereby waives his
challenge to his sentence.” Thus, this issue is no longer before this
court.
Nos. 04-2151, 04-2253 3
I. Background
A. Incendiary Attacks
In 1998, the Motion Picture Projectionists, Operators, and
Video Technicians, Local 110 of the International Alliance
of Theatrical Stage Employees of the United States and
Canada, AFL-CIO (“Local 110”), was comprised of approxi-
mately 350 members. From late 1997 through 2001,
Brenkus was the secretary-treasurer of Local 110 and
served as Local 110’s second-in-command, and his duties
included the negotiation and renegotiation of collective
bargaining agreements between Local 110 and various
theater companies.
In 1998, Local 110 faced two major problems. AMC
Entertainment, Inc. (“AMC”), a Chicago area theater
company, refused to enter into a collective bargaining
agreement with Local 110.2 Also, Local 110’s contracts with
two other Chicagoland theater companies—Loews Theaters
Exhibition Group (“Sony/Loews”) and Cineplex Odeon
Corporation (“Cineplex”)—were about to expire, and if new
contracts could not be negotiated, the union was fearful
other jobs would be lost. To induce the theater companies to
renew or enter into agreements, Brenkus and other mem-
2
In the mid-1990’s, Local 110 had entered into a collective
bargaining agreement with AMC, but sometime prior to 1998,
AMC sold all of its Chicago theaters and its contract with Local
110 expired. In 1998, AMC re-entered the Chicago theater market,
and Local 110 attempted to rekindle its relationship with AMC.
Unfortunately for the members of Local 110, AMC failed to
respond to any advancements by Local 110, making clear that it
had no intention of re-entering into any collective bargaining
agreement with Local 110. AMC’s presence in the Chicago
suburbs caused a problem for Local 110 not only because AMC
refused to hire its members, but also because AMC’s actions
inspired Sony/Loews to question whether it should renew its own
contract with Local 110.
4 Nos. 04-2151, 04-2253
bers of Local 110 began a coordinated campaign to put
pressure on the theater companies. Initially, the campaign
involved a public relations effort, including the advertising
of the labor conflict through the picketing of theaters;
however, after this proved unsuccessful, the campaign
evolved into acts of vandalism on the part of the union
designed to cause economic harm.
In February of 1998, Brenkus discussed the concept of the
use of an incendiary device to Kent Dickinson, a Local 110
projectionist and fellow union negotiating committee
member.3 According to Dickinson, Brenkus planned to
use the apparatuses in the two Chicago area AMC theaters
in hope of conveying a clear message to AMC. Dickinson
asked Carl Covelli, another Local 110 member, to enlist two
non-union members (referred to at trial only as “Covelli’s
boys”) to assist Dickinson. On the evening of March 29,
1998, Dickinson planted two incendiary devices at an AMC
theater in Warrenville, Illinois, while Covelli’s boys con-
ducted a simultaneous strike in Barrington, Illinois. The
media uncovered the motive for this felonious conduct, and
these tactics generated a large amount of negative publicity
against Local 110. Thus, shortly after the publicity relating
to these two incidents, Brenkus ordered Dickinson to cease
incendiary operations in the Chicago area.
According to Dickinson, in order to pressure Loews to
renegotiate a contract with Local 110, Brenkus decided that
3
The incendiary devices used by Local 110 members consisted of
a combination of chlorine tablets and brake fluid. The result-
ing mixture often produced smoke with a strong chlorine smell
and visible flames. An important feature of the incendiary devices
was the delay between combining the ingredients and any
noticeable production of smoke and smell. The time delay allowed
members of Local 110 to place a device in a darkened auditorium
and exit several minutes before patrons and theater employees
realized the vandalism had occurred.
Nos. 04-2151, 04-2253 5
more acts of vandalism were necessary. However, to avoid
the negative publicity that resulted from the prior attacks,
Brenkus ordered new acts of intimidation and violence to
occur outside of the Chicago area. On June 7, 1998,
Dickinson and another Local 110 member, Peter Lipa,
traveled to Indianapolis, Indiana, where Dickinson placed
incendiary instruments in two Loews theaters. Then, on
July 24, 1998, Local 110 members Joseph Marjan and
Gregory Tortorello, Jr. set off smoke producing flares in a
Loews theater in Streamwood, Illinois, and on August 2,
1998, Dickinson and Marjan discharged incendiary devices
in a Loews theater in Beavercreek, Ohio.
After the Ohio incident, Brenkus expressed his dissatis-
faction with the lack of success with the intimidation
tactics, noting that they were not having the desired effect
as Loews continued to refuse to negotiate a new contract
with the Local. Despite his complaints about the lack of
success of their approach, Brenkus instructed Dickinson
to set off an incendiary gadget at Loews’ flagship theater in
New York, New York, in August of 1998. Shortly after this
episode, Loews decided to resume contract negotiations with
Local 110. However, Loews delayed signing the new
contract, and, as a result, Brenkus instructed Dickinson to
execute another incursion against Loews. On October 3,
1998, Dickinson and Marjan discharged an incendiary
device in two Loews theaters in Secaucus, New Jersey, and,
shortly thereafter on October 27, 1998, Loews entered into
a collective bargaining agreement with Local 110.
In late 1998, a fourth theater company, Cinemark, U.S.A.,
Inc. (“Cinemark”), entered Chicago’s first-run theater
market,4 and Local 110 sent letters of introduction to
Cinemark management in an effort to initiate contract
negotiations. Despite repeated requests, Cinemark refused
4
First-run theaters show only newly released films.
6 Nos. 04-2151, 04-2253
to negotiate with Local 110. Thus, in order to induce
negotiations, and encouraged by the perceived capitulation
of Loews, Local 110 members began targeting Cinemark.
On November 14, 1998, Marjan planted incendiary instru-
ments in a Cinemark theater in North Aurora, Illinois, and,
on December 5, 1998, he placed incendiary devices in a
Cinemark theater in Joliet, Illinois. On February 27, 1999,
Dickinson and Marjan set off an incendiary invention in a
Cinemark theater in North Canton, Ohio, and on April 3,
1999, they struck two other Cinemark theaters in
Lexington, Kentucky. On May 15, 1999, Dickinson, Marjan,
and Michael Rossi, another one of “Covelli’s boys” who did
not belong to Local 110 at the time but hoped to “earn” or
gain his way in, placed incendiary devices in two Cinemark
theaters in Dallas, Texas, and in two theaters near
Cinemark’s headquarters in Plano, Texas.
After waiting several weeks without a response from
Cinemark, on June 6, 1999, Dickinson and Marjan struck
a Cinemark theater in Mishawaka, Indiana, and on June
27, 1999, they struck another Cinemark theater in
Kenosha, Wisconsin. On July 10, 1999, Dickinson traveled
alone to Ames, Iowa, to carry out yet another strike on
a Cinemark theater, and a final assault occurred on August
20, 1999, against one of their theaters in Merriam, Kansas.
After the Kansas trip, Dickinson informed Brenkus that he
and Marjan would no longer participate in the planting of
any more incendiary apparatuses, and Brenkus agreed,
instructing Dickinson to stop the offensive due to increased
investigatory “heat.”
B. Assault of Theater Manager Leyland
According to the witnesses, in addition to the plan of
intimidation through the use of incendiary devices, through-
out the summer of 1999, members of Local 110 picketed in
front of non-union theaters, including a Cinemark theater
Nos. 04-2151, 04-2253 7
in Melrose Park, Illinois. Cinemark’s corporate headquar-
ters instructed Jeffrey Leyland, the Melrose Park Cinemark
theater manager at the time, to photograph the union
picketers. According to Covelli, in response to Leyland’s
actions, Brenkus began taking pictures of Leyland and
asked Covelli if he “could get somebody to slap [Leyland]
around.” Covelli contacted his brother, Louis, and Louis
contacted a Peter Macari, who, at the time, was training to
become a union projectionist. In July or August of 1999,
Louis and Carl Covelli met with Macari. At that meeting
Carl Covelli informed him that before he could start
working as a union projectionist, “the boss” needed him to
“send a message to [Leyland]” by “giving him a beating.”5
After mulling the matter over for a week, Macari agreed to
fulfill or participate in the requested assault in exchange
for a promise of employment with the union.
On the morning of August 18, 1999, Macari ambushed
Leyland outside of his home in Elmhurst, Illinois, and
struck him “three times” with a baseball bat, including once
in the head. As a result of the beating, Leyland suffered
multiple skull fractures, a broken arm, and broken fingers.6
On August 20, 1999, Brenkus personally thanked Macari
and remarked, “I think [Leyland] got the message. I’m going
to recommend that you start working probably starting the
following week.” Despite this assurance, Macari never did
work as a union projectionist for the Illinois State Police
and the FBI began investigating his participation in the
Leyland assault resulting in his arrest on June 13, 2003.
After his arrest, he received $5,000 from Local 110 to retain
counsel. On June 16, 2003, Macari pled guilty to an Illinois
5
Macari testified that “the boss” was Brenkus.
6
At sentencing, the parties stipulated that Leyland suffered life-
threatening or permanent injuries within the meaning of Guide-
line § 2A2.2., and that a baseball bat was used in the assault.
8 Nos. 04-2151, 04-2253
state charge of attempted first degree murder and was
sentenced to ten years’ imprisonment.
C. Investigation
James Grady, a special agent with the Bureau of Alco-
hol, Tobacco, and Firearms (“ATF”), began investigating
Local 110 in 1998 for an unrelated incendiary gadget
incident but the initial investigation went stale shortly
after the case was opened. He did not pursue Local 110
again until early 2003 when he interviewed Gregory
Tortorello about the incendiary attacks against the the-
aters. Although he noted that he was not personally
involved with the theater probe until 2003, Grady testi-
fied during Brenkus’s trial that “other federal agencies” had
been conducting investigations into the incidents between
“2001 and 2003.”
Special agent John Mallul of the Federal Bureau of
Investigation (“FBI”) began looking into Local 110 in 2001.
He was involved in a proffer session with Dickinson in
September of 2002, and on November 19, 2002, he acquired
evidence from the Warrenville Police Department regarding
property vandalism to the AMC theater in Warrenville,
Illinois, that occurred in March of 1998. By 2003, there was
a grand jury investigation into Local 110’s role in the
theater attacks that had been “ongoing” and that the
FBI’s investigation resulted in the grand jury’s indictment
of Local 110 members on arson and obstruction of justice
charges. Special agent John Malooly of the ATF likewise
testified that the FBI had been investigating the use of
incendiary devices as far back as 2001. He noted that on
October 9, 2001, FBI chemist Ronald Kelly prepared a
report concerning the chemical properties of the incendiary
devices used by Local 110 members for use in the investiga-
tion.
Jody Colangelo, Local 110’s office manager from 1995
through June of 2000, verified that in August of 1999, Local
Nos. 04-2151, 04-2253 9
110 received a subpoena from the FBI requesting Local
110’s “records, lists of names, phone numbers, rosters, [and]
things of that nature.” The subpoena was issued under the
name of the SPECIAL JANUARY 1999-1 Grand Jury (“1999
Special Grand Jury subpoena”). Colangelo stated that when
she received the 1999 Special Grand Jury subpoena, she
made two copies and provided one copy to Steve Spano, the
president of Local 110, and the other copy to Brenkus.
According to Colangelo, after she gave copies to Spano and
Brenkus, she met with them to discuss the items ordered to
be turned over in compliance with the subpoena.
Joseph Marjan disclosed that in March of 2001, FBI
agents contacted him and requested his cooperation with
the investigation into Local 110’s acts of vandalism on
theaters. Marjan agreed to assist and cooperate with the
FBI and he proceeded to meet with FBI agents more than
twenty times from March 2001 until “about the grand
jury.”7 He also revealed that, around the same time he
began cooperating with the FBI, he met with assistant
United States attorneys from the Northern District of
Illinois to discuss Local 110’s activities in 1998 and 1999.
At the request of FBI agents, Marjan agreed to record his
conversations with union members believed to be involved
in the incendiary scheme, including Dickinson and Brenkus.
On June 5, 2001, Marjan recorded a conversation with
Dickinson, at which time Dickinson admitted his involve-
ment in several of the crimes.8 Then, on October 22, 2001,
7
The “grand jury” that Marjan referred to in his testimony
was the Special February 2002-2 Grand Jury, convened in
February of 2002, that indicted Brenkus and other Local 110
members.
8
According to Marjan, his tape recorded conversation with
Dickinson gave the government “a lot of evidence about what Kent
(continued...)
10 Nos. 04-2151, 04-2253
Marjan recorded a conversation between he and Brenkus
after a Local 110 meeting at the union’s headquarters in
Chicago. According to Marjan, after the meeting they
retreated to a utility room in the building to discuss the
incendiary attacks. During this conversation, Marjan told
Brenkus that Scott Fagan, another union projectionist, had
revealed to him that “Covelli was involved in the grand jury
and . . . you know, he’s the second person this month.”
Marjan then asked Brenkus, “[S]hould I be scared?” Marjan
understood Brenkus’s response and direction to be “if
anyone came to me [Marjan], any law enforcement comes to
me tell them that I don’t know nothing” and to deny any
knowledge of any illegal activities conducted by Local 110.9
Marjan and Brenkus also discussed Rossi’s training as a
projectionist. Marjan testified that Brenkus told him that
if “law enforcement” ever asked him whether he had trained
Rossi, he was to deny it.
8
(...continued)
Dickinson did and said and knew” regarding the scope of Local
110’s incendiary activities.
9
The exact transcription of the audiotape is disputed by the
parties. The parties provided separate transcripts of the re-
corded conversation at trial. However, due to the inconsistencies
found in the submitted transcripts, only the actual audiotape of
the recorded conversation was admitted into evidence and not the
transcripts. According to Marjan and the government, during
their conversation Brenkus said, “I think you should say you don’t
know nothing,” and “just play stupid.” Brenkus argues that in the
recording you only hear Brenkus state to Marjan, “[Y]ou don’t
know nothing,” and that Brenkus never preceded this phrase with
“I think you should say,” nor did he tell Marjan to “just play
stupid.” According to Marjan, the difficulty in deciphering the
audiotape is due to the fact that the utility room in which he and
Brenkus talked contained equipment that exuded “a loud exhaust
sound.”
Nos. 04-2151, 04-2253 11
On October 27, 2001, a few days after Marjan’s recorded
conversation with Brenkus, FBI agents served Dickinson
with a subpoena to appear before the grand jury then
sitting. The following day, Dickinson met with Brenkus
to discuss his subpoena and visit from the FBI. According
to Dickinson’s trial testimony, Brenkus said that he also
received a grand jury subpoena. The next month, in Novem-
ber of 2001, Dickinson met with government representa-
tives to discuss his involvement in the incendiary attacks.10
From November of 2001 until May 23, 2002—the date
Dickinson testified before the February 2002-2 Special
Grand Jury that indicted Brenkus— Dickinson participated
10
It is unclear from the trial testimony to whom Dickinson was
referring when he said that he met with “the government.”
However, it is clear from the following exchange that he was not
referring to the FBI:
Q: Now, this wasn’t the first time that you sat and met with
the government and [FBI] agents and told them about
these activities, was it? You met with them earlier, isn’t
that true?
A: I’m going to say yes because you said earlier that [that]
was my second [meeting.]
Q: In fact, you met with them November 21st of 2001.
A: Okay, that would be the first visit, okay.
Q: Maybe I can help you. The FBI visited with you in
October of 2001?
A: Right. Correct.
Q: And then the next month you met with the government,
correct?
A: Correct.
Q: And you had a lengthy discussion with them on that
date, correct?
A: Yes.
12 Nos. 04-2151, 04-2253
in “several” meetings with both the FBI and other unidenti-
fied government officials, providing them with detailed
information about the incendiary attacks.
D. Brenkus’s Trial and Sentencing
On November 6, 2003, a federal grand jury returned a
fourteen-count indictment against Brenkus, charging him
with thirteen counts of arson-related offenses (Counts 1
through 13), stemming from the use of incendiary devices
in theaters, and one count of obstruction of justice in
violation of 18 U.S.C. § 1503 (Count 14), based on Brenkus’s
recorded statements to Marjan. Brenkus pled not guilty to
all charges, and his case was tried before a jury beginning
on March 1, 2004.
At the close of the evidence offered at trial, Brenkus
proffered a set of proposed jury instructions to the district
court on Count 14. Specifically, Brenkus requested that the
jury be instructed that in order to find him guilty of ob-
struction of justice based on his statements to Marjan, they
had to find that Marjan “was a [grand jury] witness” and
that Brenkus “endeavored to influence, intimidate, and
impede Joseph Marjan by advising him to lie on account of
his being a witness.” 11 The district court re
11
Brenkus’s proposed instruction was modeled after a Seventh
Circuit Pattern Criminal Federal Jury Instruction for a § 1503
obstruction of justice charge—Influencing or Injuring a
Witness—which states, in relevant part:
To sustain the charge of obstruction of justice, the govern-
ment must prove the following propositions:
First, that (name) was a witness;
Second, that the defendant endeavored to [influence, intimi-
date, impede] (name) by (here insert act as described in the
(continued...)
Nos. 04-2151, 04-2253 13
jected Brenkus’s proposed instruction on Count 14, noting
that influencing an actual witness is but one way to prove
obstruction of justice. Instead, the district court followed
the general, “catch-all”12 Seventh Circuit Pattern Criminal
Jury Instruction for obstruction of justice and instructed
the jury as follows:
To sustain the charge of obstruction of justice, the
government must prove the following propositions:
First, that the defendant endeavored to influence,
obstruct, and impede the due administration of justice
by directing and advising Joseph Marjan that in re-
sponse to any inquiries in a federal grand jury investi-
gation
(a) Marjan should state that he “don’t know no-
body,” and that he “don’t know nothin,”
(b) Marjan should further respond to any such
inquiries by stating, “I don’t know what you’re
talking about,”
(c) In response to any inquiries regarding the
projectionist training provided by Marjan and
others to Michael Rossi, Marjan should state
that he “didn’t try to train nobody.”
11
(...continued)
indictment) on account of his being a witness;
Third, that the defendant acted knowingly; and
Fourth, that the defendant’s acts were done corruptly, that is,
with the purpose of wrongfully impeding the due administra-
tion of justice.
12
The term “catch-all” is referenced in the Seventh Circuit’s form
jury instructions. “This instruction is for use when the omnibus,
or catch-all, provision of Section 1503 is used.” 2A Kevin O’Malley,
et al., Federal Jury Practice & Instructions § 48.03 (5th ed. 2000),
notes, Seventh Circuit, committee comment. See also United
States v. Aguilar, 515 U.S. 593, 598 (1995).
14 Nos. 04-2151, 04-2253
Second, that the defendant acted knowingly; and
Third, that the defendant’s acts were done corruptly,
that is, with the purpose of wrongfully impeding the
due administration of justice.
If you find from your consideration of all the evidence
that each of these propositions has been proven be-
yond a reasonable doubt, then you should find the
defendant guilty.
If, on the other hand, you find from your consideration
of all the evidence that any one of these propositions
has not been proved beyond a reasonable doubt, then
you must find the defendant not guilty.
The jury acquitted Brenkus of the arson-related charges
(Counts 1 through 13) but found him guilty of obstruction
of justice.
On May 1, 2004, the district court conducted Brenkus’s
sentencing hearing. Based on the testimony of Leyland,
Covelli, and Macari, the trial judge enhanced Brenkus’s
base offense level for obstruction of justice from twelve
to twenty-six and sentenced him to a prison term of
seventy-eight months, the maximum term allowed under
the Guidelines for a person without a criminal history
and consisted of an offense level of twenty-six.
E. Macari’s Sentence
The grand jury indictment of November 6, 2003, also
charged Macari with three counts of arson, including one
count of conspiracy to travel interstate to promote arson
in violation of 18 U.S.C. § 371 (Count 2) and two counts of
aiding and abetting travel in interstate commerce to
promote arson in violation of 18 U.S.C. § 1952(a)(3) (Counts
Nos. 04-2151, 04-2253 15
10 and 13).13 On February 9, 2004, Macari pled guilty,
without entering into a plea agreement, to Counts 2 and 13,
and the district court, on the government’s motion, dis-
missed Count 10. The district court sentenced Macari to a
prison term of thirty-six months on Count 2, to be served
concurrently with his ten-year Illinois state prison sentence
for the attempted first degree murder of Leyland, and a
term of ten months imprisonment on Count 13, to be served
consecutive to his Illinois state prison sentence. Macari
appeals only the ten-month consecutive prison sentence.
II. Analysis
On appeal, Brenkus contends that the district court erred
in denying his motion for judgment of acquittal arguing
that the government failed to establish either that there
was a “pending judicial proceeding” at the time of Brenkus’s
alleged obstruction or that Brenkus “corruptly intended” to
influence that judicial proceeding as required for a convic-
tion under 18 U.S.C. § 1503. He also claims that the district
court erred when it refused to accept his proposed jury
instruction on his theory of the obstruction count and failed
to sua sponte provide limiting instructions to the jury
regarding Marjan’s recorded statements to Brenkus.
Brenkus did not request these limiting instructions at trial.
The only issue raised by Macari on appeal is whether the
trial judge abused her discretion when she sentenced him to
13
Covelli, Dickinson, Lipa, Marjan, Rossi and Tortorello were also
named in the November 6, 2003, indictment and were charged
with various arson-related crimes. Covelli, Dickinson, Marjan and
Rossi all either pled guilty to their respective charges or the
government voluntarily dismissed their charges. Lipa
and Tortorello pled not guilty, were tried in the same trial as
Brenkus, and were eventually acquitted of all charges against
them.
16 Nos. 04-2151, 04-2253
a ten-month federal prison sentence to be served consecu-
tive to his ten-year Illinois state prison sentence.
A. Defendant Brenkus
1. Sufficiency of the Evidence
We review de novo the district court’s decision to deny
a motion for judgment of acquittal. United States v. Jones,
222 F.3d 349, 351-52 (7th Cir. 2000). In reviewing a jury
conviction for sufficiency of the evidence, we consider the
evidence in the light most favorable to the prosecution,
drawing all reasonable inferences in the government’s
favor. United States v. Paneras, 222 F.3d 406, 410 (7th Cir.
2000). Reversal is appropriate only when, after viewing the
evidence in such a manner, no rational jury “could have
found the defendant to have committed the essential
elements of the crime.” Id. (quoting United States v. Masten,
170 F.3d 790, 794 (7th Cir. 1999)). Thus, we will overturn
the jury’s verdict “ ‘only if the record contains no evidence,
regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt.’ ” United States v.
Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003) (quoting
United States v. Granados, 142 F.3d 1016, 1019 (7th Cir.
1998)).
Brenkus was convicted of obstruction of justice for
violating the “Omnibus Clause,” or “catch-all provision,” of
18 U.S.C. § 1503 charging that he directed and advised
Joseph Marjan to lie in response to inquiries in the grand
jury investigation of Local 110’s criminal activities. The
“Omnibus Clause” of § 1503 makes it a crime to “cor-
ruptly . . . endeavor[ ] to influence, obstruct, or impede, the
due administration of justice.” 18 U.S.C. § 1503. “[T]he due
administration of justice,” as that phrase is used in the
statute, includes pending judicial proceedings. United
States v. Aguilar, 515 U.S. 593, 599 (1995); Fassnacht, 332
Nos. 04-2151, 04-2253 17
F.3d at 447. Accordingly, to prove an obstruction of jus-
tice charge under § 1503, the government must demonstrate
“that there was a pending judicial proceeding, that the
defendant was aware of that proceeding, and that
the defendant corruptly intended to impede the administra-
tion of that judicial proceeding.” Fassnacht, 332 F.3d at 447.
Brenkus asserts that the government failed to establish
there was a pending judicial proceeding because it failed to
prove that a grand jury had been impaneled at the time of
Brenkus’s alleged act of obstruction of justice, and, further-
more, that even if the government had produced sufficient
evidence to establish that a grand jury was sitting at the
time of Brenkus’s obstruction, it failed to establish that
Brenkus corruptly intended to influence the grand jury.
It is well established that a grand jury investigation
constitutes a pending judicial proceeding for purposes of
§ 1503. Id. at 448. However, a government agency’s
investigation—such as the FBI’s—that is separate and
apart from the court’s or the grand jury’s authority does not
constitute a “judicial proceeding.” Id. (citing Aguilar, 515
U.S. at 599). In order to establish that an FBI investigation
constituted a “judicial proceeding” for purposes of § 1503,
the government must establish that the FBI, at the time in
question, was acting as an aid to and as an “arm of the
grand jury” when it conducted its investigation, i.e., that it
undertook the investigation to supply information to the
grand jury on this issue in direct support of a grand jury
investigation. Id. at 449. To establish that the FBI was
acting as an arm of the grand jury, the government must
demonstrate that the FBI agents were “integrally involved”
in the grand jury investigation, Fassnacht, 332 F.3d at 449
(quoting United States v. Furkin, 119 F.3d 1276, 1282-83
(7th Cir. 1997)), and that the FBI’s investigation of Local
110’s activities was “undertaken with the intention of
presenting evidence before [the] grand jury,” United States
v. Maloney, 71 F.3d 645, 657 (7th Cir. 1995) (citing United
States v. McComb, 744 F.2d 555, 561 (7th Cir. 1984)).
18 Nos. 04-2151, 04-2253
The testimony of a number of witnesses at trial supports
the finding that between August of 1999 and November of
2003 (when the indictment was returned against Brenkus
and other members of Local 110), the FBI was gathering
and presenting evidence sporadically to a grand jury
investigating Local 110’s criminal activities. Based upon the
testimony of Jody Colangelo, Local 110’s office manager
from 1995 through June of 2000, the jury could very well
have reasoned that a grand jury investigation into Local
110 began as early as August of 1999, when the FBI served
Local 110 with a grand jury subpoena requesting its
“records, lists of names, phone numbers, rosters, [and]
things of that nature.”14 Colangelo testified that after
receiving the subpoena, she provided copies of it to Spano
and Brenkus and then met with the two of them to dis-
cuss how to respond. Additionally, Dickinson testified that
in September of 1999, he informed Brenkus that he and
Marjan would not participate in any future attacks because
they “were just worn out.” In response, Brenkus agreed that
the attacks should cease due to increased investigatory
“heat” and that they should “just stop everything.” The
testimony of Colangelo and Dickinson coupled with the
grand jury subpoena from August of 1999 provide evidence
from which the jury could find that a grand jury investiga-
tion into Local 110’s theater attacks existed as early as
1999 and continued for some period of time and, addition-
ally, that Brenkus had knowledge of the inquiry.
Additional evidence was presented that the 1999 investi-
gation continued into 2001 and beyond. In March of 2001,
FBI agents contacted Marjan and asked him to cooperate in
the investigation into Local 110’s incendiary attacks on
theaters. Marjan testified at trial that from March 2001
until “about the grand jury,” he participated in several FBI
14
Although the FBI delivered the subpoena, it was issued
under the name of the SPECIAL JANUARY 1999-1 Grand Jury.
Nos. 04-2151, 04-2253 19
interviews and recorded conversations he had with both
Dickinson and Brenkus for the purpose of gathering
information related to Local 110’s incendiary attacks at
selected theaters. Additionally, special agent James Grady
of the ATF testified that although he was not personally
involved in the Local 110 investigation until 2003, other
federal agencies had been conducting investigations into the
incidents between 2001 and 2003. Another ATF agent, John
Malooly, testified that on October 9, 2001, FBI chemist
Ronald Kelly prepared a report concerning the chemical
properties of the incendiary instruments used by Local 110
members. The jury could very well have reasonably inferred
that one purpose for the preparation of Kelly’s report was
to present it to the grand jury.
Then, on October 27, 2001, just five days after Marjan’s
recorded conversation with Brenkus, FBI agents
approached Dickinson at a gas station near his place of
employment and played a tape of the incriminating conver-
sation between he and Marjan that occurred on June 5,
2001. After the agents played the tape, they served
Dickinson with a subpoena to appear before a grand jury.
The next day, Brenkus informed Dickinson that he also had
received a grand jury subpoena. The following month, in
November of 2001, Dickinson was asked to and began
cooperating in the federal investigation. He stated that from
November 2001 until he testified before the February 2002
Special Grand Jury that indicted Brenkus, he participated
in several meetings with counsel for the government and
the FBI and provided them with detailed information on
Local 110’s involvement in criminal activity including the
vandalism of property and obstruction of justice. Of particu-
lar significance is the fact that FBI agents served Dickinson
with a grand jury subpoena immediately after they played
him the tape of the conversation with Marjan and that
Brenkus was served with a grand jury subpoena that same
day (or, at the latest, the next morning). This evidence,
20 Nos. 04-2151, 04-2253
taken in the light most favorable to the prosecution,
sufficiently demonstrates that the FBI’s investigation had
been undertaken with the intention of providing evidence to
the grand jury. Maloney, 71 F.3d at 657.
Brenkus argues, relying on United States v. Vaghela, 169
F.3d 729 (11th Cir. 1999), that the subpoenas issued to
Dickinson and Brenkus do not establish that a judicial
proceeding was pending at the time of Brenkus’s obstruc-
tion because they were served five days after the obstruc-
tion date and they had not yet appeared before the grand
jury. However, in Vaghela, there was no evidence to
establish that any grand jury had been impaneled prior to
the date the defendants allegedly obstructed justice.
Vaghela, 169 F.3d at 735. Conversely, in this case, the
government presented evidence that in January of 1999,
a grand jury had been impaneled to investigate into
Local 110’s activities. The jury could have rationally
concluded, given the aforementioned evidence, that the
original grand jury’s term had been extended or that a
subsequent grand jury had been impaneled to continue the
ongoing investigation of Local 110. See, e.g., 18 U.S.C.
§ 3331(a).15 As we have previously stated, “[t]he practice
of transferring records and cases to subsequent grand juries
is common.” McComb, 744 F.2d at 561 n. 5, 558.
Contrary to Brenkus’s argument, the temporal proximity
between Marjan’s recorded conversation with Brenkus
and the issuance of grand jury subpoenas to Dickinson
and Brenkus actually adds further support to the govern-
ment’s position that Marjan’s wired conversation with
Brenkus was part and parcel of the investigation under-
15
Although a special grand jury’s term is ordinarily eighteen
months, the term may be extended to up to thirty-six months
if the district court determines that the sitting grand jury had not
completed its business during the original term.
Nos. 04-2151, 04-2253 21
taken with the intention of presenting evidence before
an ongoing grand jury proceeding. See McComb, 744 F.2d at
560-61 (“Rather than establish a rigid rule denominating
some act of the grand jury that would be required to
establish pendency, courts have asked ‘whether the sub-
poena is issued in furtherance of an actual grand jury
investigation, i.e., to secure a presently contemplated
presentation of evidence before the grand jury.’ ”); United
States v. Simmons, 591 F.2d 206, 208 (3d Cir. 1979) (gov-
ernment need not demonstrate that the grand jury “has
actually heard testimony or has in some way taken a role in
the decision to issue the subpoena”). The existence of the
1999 grand jury as well as the issuance of grand jury
subpoenas so closely on the heels of Brenkus’s conversation
with Marjan sufficiently demonstrates an effort by the FBI
to secure a “presently contemplated presentation of evi-
dence before the grand jury.” This is particularly true since
Brenkus challenges the sufficiency of the evidence, and
reversal is only appropriate if there is no evidence in the
record on this issue. See Fassnacht, 332 F.3d at 447.
Considering the standard of review to view the evidence in
the light most favorable to the prosecution and the evidence
presented at trial, we reject Brenkus’s contention that the
government failed to present sufficient evidence that a
“pending judicial proceeding” existed on October 22, 2001.
In addition to establishing a pending judicial proceeding,
§ 1503 requires the prosecution to demonstrate that
Brenkus “corruptly intended” to impede the administration
of the judicial proceeding in question. In United States v.
Aguilar, the Supreme Court fashioned this requirement
as a “nexus” between the accused’s actions and the judicial
proceeding. 515 U.S. at 599. The “nexus” limitation is best
understood as a connection between the defendant’s
intentional acts and the likelihood of potentially affect-
ing the administration of justice:
The action taken by the accused must be with an intent
to influence judicial or grand jury proceedings; it is not
22 Nos. 04-2151, 04-2253
enough that there be an intent to influence some
ancillary proceeding, such as an investigation independ-
ent of the court’s or grand jury’s authority. Some courts
have phrased this showing as a “nexus” require-
ment—that the act must have a relationship in time,
causation, or logic with the judicial proceedings. In
other words, the endeavor must have the “natural and
probable effect” of interfering with the due administra-
tion of justice. This is not to say that the defendant’s
actions need be successful; an “endeavor” suffices.
Aguilar, 515 U.S. at 599 (citations and quotations omitted);
see also United States v. Quattrone, 441 F.3d 153, 170-71
(2d Cir. 2006). Applying this standard, the Court in Aguilar
struck down the obstruction of justice conviction of a United
States District Court judge who provided false statements
to an investigating agent where the agent had “not been
subpoenaed or otherwise directed to appear before the
grand jury.” 515 U.S. at 601. The Court vacated the convic-
tion because the false statements could not “be said to have
the ‘natural and probable effect’ of interfering with the due
administration of justice.” Id.
Brenkus compares his statements to Marjan—who, at the
time of his recorded conversation with Brenkus, had not yet
been subpoenaed to testify before the grand jury—to those
made to the FBI agents by the Aguilar defendant. In
essence, Brenkus argues that because there was no evi-
dence presented that Marjan had been subpoenaed at the
time of the recorded conversation (and therefore was only
a potential grand jury witness), Brenkus could not have
intended to interfere with the grand jury’s proceedings
when he instructed Marjan to lie to the grand jury. How-
ever, this argument mischaracterizes Aguilar’s holding.
Contrary to Brenkus’s assertion, the Aguilar court did not
draw a line between subpoenaed or “actual” and non-
subpoenaed or “potential” witnesses. See id. at 600-01.
Rather, the Court focused on the defendant’s intent to
Nos. 04-2151, 04-2253 23
obstruct the administration of justice when he performed
the alleged act of lying to investigating FBI agents forming
the basis for the obstruction of justice charge. See id. at
598-601. Because the FBI agents in Aguilar had not been
subpoenaed when the defendant lied to them, the Court
held that it was speculative at best as to whether the
defendant knew that his false statements would ever reach
the grand jury and therefore his actions—lying to the FBI
agents—would not have had the “natural and probable
effect” of impeding the grand jury investigation. Id. at 601.
In contrast, during their recorded conversation on October
22, 2001, Brenkus instructed Marjan to lie to the grand jury
concerning the contents of the criminal activities of Local
110. In the recording, Marjan can be heard telling Brenkus
that “Covelli was involved in the grand jury and Covelli got,
you know, he’s the second person this month,” and then
asking Brenkus, “[S]hould I be scared?” In response,
Brenkus stated, “I think you should say you don’t know
nothing,” and to “just play stupid.” Then, in discussing
possible inquiries into the training of union members such
as Michael Rossi, Brenkus instructed Marjan to say that he
“didn’t try to train nobody.”16 A rational trier of fact could
conclude beyond a reasonable doubt that Brenkus made the
statements with the intention of obstructing the grand
jury’s investigation because there was a logical relationship
between his knowing conduct—directing Marjan to
fabricate—and the effect it was likely to have—keeping
information from reaching the grand jury.
Obviously, Brenkus’s recorded statements to Marjan
are more than sufficient to establish that he intended to
16
Although the parties contest the precise wording of Brenkus’s
responses to Marjan, the jurors, having listened to the tape, were
free to accept or reject Brenkus’s proposed version of the conversa-
tion, and, in our review, we consider the evidence in the light most
favorable to the prosecution.
24 Nos. 04-2151, 04-2253
affect the outcome of the grand jury investigation into Local
110.17 Because the government presented evidence that
Brenkus was aware of the pending grand jury investigation,
see supra pp. 17-21, and because Brenkus’s own words
demonstrate that he intended to impede that investigation,
we conclude that the government sufficiently established
that Brenkus “corruptly intended” to impede the due
administration of justice under § 1503 of the U.S. Federal
Code.
2. Jury Instructions
The district court, following the general, “catch-all”
Seventh Circuit Pattern Criminal Jury Instruction for
obstruction of justice, instructed the jury, in relevant part,
that in order to find Brenkus guilty of obstruction of justice
under § 1503, they had to find that Brenkus
endeavored to influence, obstruct, and impede the due
administration of justice by directing and advising
Marjan that in response to any inquiries in a federal
grand jury investigation . . . Marjan should state that
he ‘don’t know nobody,’ and that he ‘don’t know
nothin,’ . . . should further respond to any such inqui-
ries by stating, ‘I don’t know what you’re talking about,’
[and] should state that he ‘didn’t try to train nobody.’ ”
17
The fact that Marjan was already cooperating with law enforce-
ment at the time Brenkus instructed him to lie, and thus he never
actually lied to the grand jury, does not relieve Brenkus of liability
under § 1503. The statute makes it a crime to “endeavor” to
obstruct justice; it does not require that the defendant actually
obstructed justice. See Aguilar, 515 U.S. at 601-02 (“[§ 1503]
makes conduct punishable where the defendant acts with an
intent to obstruct justice, and in a manner that is likely to
obstruct justice, but is foiled in some way.”).
Nos. 04-2151, 04-2253 25
See supra pp. 12-13 (full text of instruction). Brenkus
contends that the district court erred in giving this instruc-
tion and in refusing his proffered jury instruction on § 1503,
which stated that in order to find Brenkus guilty of obstruc-
tion of justice the jury had to find that Marjan “was a
witness” and that Brenkus “endeavored to influence,
intimidate, and impede Joseph Marjan by advising him to
lie on account of his being a witness.” See supra p. 11 n. 10.
A defendant is entitled to an instruction on his theory
of the case if the proposed instruction meets the follow-
ing criteria: (1) it is an accurate statement of the law; (2) it
is supported by the evidence; (3) it reflects a theory of the
defendant’s case which is not already part of the charge;
and (4) the failure to include the instruction would deny the
defendant a fair trial. United States v. Boykins, 9 F.3d 1278,
1285 (7th Cir. 1993). Brenkus’s proposed instruction fails
the first criteria, that it be an accurate statement of law.
The proffered instruction was based on Brenkus’s contrived
reading of Aguilar that draws a line between actual and
potential grand jury witnesses. See Aguilar, 515 U.S. at
600-01. In Brenkus’s view and mischaracterization of the
relevant statute and case law, he could not have intended
to obstruct justice if Marjan had not been subpoenaed and
was not an actual grand jury witness. As previously
discussed, that is not the holding of Aguilar. See id. Rather,
to prove that Brenkus obstructed justice, the government
was required to show that Brenkus intended to engage in
conduct that would have had the “natural and probable”
effect of impeding the administration of the grand jury
proceeding. Id. at 599. Directing even a potential witness to
lie directly to the grand jury could very easily have had the
“natural and probable effect” of intending to impede the
grand jury’s proceedings, and the government was only
required to show Brenkus’s intention. Thus, Brenkus’s
proposed instruction was not a correct statement of law as
applied to this case.
26 Nos. 04-2151, 04-2253
Brenkus next claims that the trial judge erred when she
failed sua sponte to provide a limiting instruction when she
admitted into evidence Marjan’s statement to Brenkus that
he heard that “Covelli was involved in the grand jury and
Covelli got, you know, he’s the second person this month.”
According to Brenkus, this statement was inadmissible
hearsay and thus could not be considered for the truth of
the matters asserted (that Covelli was the second person
involved in a grand jury investigation in October of 2001).
Since Brenkus neither requested a limiting instruction at
trial nor timely and properly objected in any way to the
admission of Marjan’s statement, he has waived any
argument on this issue absent a showing of plain error. See
United States v. Martinez, 939 F.2d 412, 414 (1991). Plain
error exists only when there has been (1) an error, (2) that
is plain, and (3) that affects substantial rights. Johnson v.
United States, 520 U.S. 461, 466-67 (1997). “If all three
conditions are met, [this court] may then exercise its
discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. at 467 (citations and quotations
omitted).
It is well-settled that statements that are offered for
context, and not for the truth of the matter asserted, are not
hearsay as defined in Rule 801 of the Federal Rules
of Evidence. See United States v. Gajo, 290 F.3d 922, 930
(7th Cir. 2002). Marjan’s statement to Brenkus that “Covelli
was involved in the grand jury and . . . you know, he’s the
second person this month” was offered to provide the
context for Brenkus’s instructions to Marjan that he should
lie to law enforcement. See Gajo, 290 F.3d at 930. Without
Marjan’s statement, Brenkus’s response— “you don’t know
nothing,” and “just play stupid”—would not have made any
sense. Moreover, we have previously held that “[t]he failure
of the trial court to give limiting instructions on the use of
hearsay statements at the time of their admission does not
Nos. 04-2151, 04-2253 27
constitute plain error mandating reversal.” U.S. v. Fleming,
594 F.2d 598, 606 (7th Cir. 1979). We find nothing in this
record to cause us to depart from this rationale and thus we
conclude that the district court did not err when it failed
sua sponte to provide limiting instructions.
Moreover, even if we were to assume arguendo that the
district court’s failure to give limiting instructions was in
error, the error still would not have affected Brenkus’s
substantial rights. As previously discussed, there is more
than sufficient evidence in the record, apart from Marjan’s
statement, to support the jury’s conclusion that a grand
jury investigation was underway at the time Brenkus made
his incriminating statements to Marjan. Accordingly, we
reject Brenkus’s contention that the district court commit-
ted plain error when it failed to provide a limiting instruc-
tion.
B. Defendant Macari
On February 9, 2004, Macari pled guilty to one count of
conspiracy to travel interstate to promote arson in violation
of 18 U.S.C. § 371 (Count 2) and one count of aiding and
abetting travel in interstate commerce to promote arson in
violation of 18 U.S.C. § 1952(a)(3) (Count 13). On April 23,
2004, the district court sentenced Macari to a prison term
of thirty-six months on Count 2, to be served concurrently
with his ten-year Illinois state prison sentence for the
attempted murder of Leyland, and a term of ten months on
Count 13, to be served consecutive to the state sentence.
Macari challenges his ten-month consecutive sentence,
arguing that the district court abused its discretion by
failing to make clear the rationale under which it imposed
the consecutive sentence, and thus that portion of his
sentence should be reversed.
Since Macari failed to raise a Booker issue before the
district court, our review is for plain error only. See United
28 Nos. 04-2151, 04-2253
States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005). As
this court has held in numerous cases, the pre-Booker
mandatory application of the Sentencing Guidelines ipso
facto constitutes plain error. See United States v. White, 406
F.3d 827, 835 (7th Cir. 2005); United States v. Castillo, 406
F.3d 806, 823-24 (7th Cir. 2005). On this record, we cannot
ascertain or say with any exacting degree of certainty
whether the sentencing judge would have imposed the same
term of incarceration for Macari had she known that the
Sentencing Guidelines were not mandatory at the time.
Accordingly, we order a limited remand in this case, while
retaining jurisdiction, for proceedings consistent with this
court’s decision in Paladino. 401 F.3d at 483-84.
III. Conclusion
We AFFIRM Brenkus’s conviction and sentence but order
a LIMITED REMAND of Macari’s sentence in accordance
with the procedures set forth in Paladino.
Nos. 04-2151, 04-2253 29
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-14-06