United States v. Michael Davis ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3671
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL “MICKEY” DAVIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 CR 138 — Samuel Der-Yeghiayan, Judge.
____________________
ARGUED SEPTEMBER 27, 2016 — DECIDED DECEMBER 30, 2016
____________________
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. In June 2012, defendant Michael
“Mickey” Davis made a $300,000 start-up loan to Ideal Mo-
tors, Inc., a car dealership in Melrose Park, Illinois, owned by
R.J. Serpico and his father Joseph Serpico. Within a matter of
months, Joseph had gambled the money away and Ideal Mo-
tors had fallen deep in arrears. The following summer, a man
named “Mickey” conspired to have R.J. Serpico’s legs broken.
Though the scheme was never carried out, defendant Davis
2 No. 15-3671
was eventually convicted at trial of attempted extortion and
using extortionate means to collect a loan.
Davis has appealed, raising five issues. The first is whether
the district court erred by admitting against Davis the out-of-
court statements by several people involved in the conspiracy
to hurt Serpico. The second is whether the district court
abused its discretion in allowing the prosecutors to impeach
the testimony of a key prosecution witness with his prior in-
consistent statements to government agents. Those two issues
are substantial, but we find no reversible error. Davis raises
three other issues concerning witness immunity, the scope of
cross-examination, and the government’s closing argument.
Those issues also provide no grounds for setting aside the
convictions. We affirm Davis’s convictions and sentence.
I. Co-Conspirator Statements
A. The Government’s Case
To set the stage for the legal issues, we first summarize the
government’s theory that Davis became angry with the Ser-
picos and turned to violent means to punish R.J. Serpico for
the default on the outstanding debt. The scheme came to light
when Paul Carparelli, a reputed Chicagoland mobster, con-
tacted George Brown, his long-time associate. Brown was
then cooperating with the FBI and recorded a number of rel-
evant telephone calls. Carparelli told Brown that their mutual
“friend … in Burr Ridge”—a restaurant owner named Gigi
Rovito—had a “job” for them. During a series of conversa-
tions among Carparelli, Brown, and Gigi’s brother John
Rovito, the details of the job came into focus. The target: R.J.
Serpico, the manager of a local Ford dealership. The mission:
a “thorough” beating. The payout: “ten thousand clams.”
No. 15-3671 3
And the client? The mysterious “Mickey,” a “partner” of a
man named Solly DeLaurentis.
The scheme was not just talk. On July 11, 2013, “Mickey”
delivered a $5000 down-payment to Gigi Rovito, who for-
warded the payment to Carparelli via John Rovito. On July 16,
Carparelli told Brown that their client was “breathin’ down
my f***in’ neck.” Later that day, John Rovito told Brown that
he would place an “anonymous phone call” to the Ford deal-
ership to investigate R.J. Serpico’s working hours. Rovito said
that he would tell their client the job would be “handled” by
the following weekend. On July 17, at the direction of the FBI,
Brown told Carparelli that he had identified Serpico’s home
address. On July 21, in an effort to stall for time, Brown told
Carparelli that two (fictitious) hit-men he had hired to attack
Serpico had visited his home and spotted Serpico but had
called off the attack after Serpico’s wife and children ap-
peared. Fortunately for Serpico, the scheme ended two days
later when FBI agents arrested Carparelli and seized the $5000
down-payment from his residence.
The defendant in this case, Mickey Davis, was never rec-
orded on any of the calls, but the government convinced a
jury that Davis was the “Mickey” who had ordered the beat-
ing of R.J. Serpico and advanced the $5000 down-payment.
The jury found Davis guilty of using extortionate means to
collect a debt in violation of 18 U.S.C. § 894 and attempting to
affect commerce by extortion in violation of 18 U.S.C. § 1951.
B. The Co-Conspirator Statements
To prove that Davis was the mysterious “Mickey,” the gov-
ernment relied in large part on recorded conversations among
4 No. 15-3671
George Brown, John Rovito, and Paul Carparelli. These re-
cordings were admitted as co-conspirator statements under
Federal Rule of Evidence 801(d)(2)(E). Davis contends the dis-
trict court erred by admitting these statements because the
government failed to lay a sufficient foundation to support a
finding that Davis was a member of the conspiracy. We review
the district court’s evidentiary rulings for abuse of discretion,
with any findings of fact reviewed for clear error. United States
v. Pust, 798 F.3d 597, 602 (7th Cir. 2015).
Under Rule 801(d)(2)(E), co-conspirator statements are ad-
missible against a defendant if the trial judge finds by a pre-
ponderance of the evidence that (1) a conspiracy existed, (2)
the defendant and the declarant were involved in the conspir-
acy, and (3) the statements were made during and in further-
ance of the conspiracy. E.g., United States v. Haynie, 179 F.3d
1048, 1050 (7th Cir. 1999), citing United States v. Godinez, 110
F.3d 448, 454 (7th Cir. 1997). Under long-settled circuit law, a
district court may admit co-conspirator statements condition-
ally based on the government’s pretrial proffer, known in this
circuit as a “Santiago proffer.” See United States v. Santiago, 582
F.2d 1128, 1130–31 (7th Cir. 1978), overruled in part on other
grounds by Bourjaily v. United States, 483 U.S. 171 (1987). “If at
the close of its case the prosecution has not met its burden to
show that the statements are admissible, the defendant can
move for a mistrial or to have the statements stricken.”
Haynie, 179 F.3d at 1050.
In considering whether to admit alleged co-conspirator
statements conditionally, the district court may consider the
contents of the statements themselves. See Bourjaily, 483 U.S.
at 180. However, the record must also contain independent
evidence corroborating the existence of the conspiracy and
No. 15-3671 5
the participation of defendant and declarant. Standing alone,
the statements themselves will not suffice. United States v. Har-
ris, 585 F.3d 394, 399 (7th Cir. 2009).
The Santiago procedure requires the government to close
the evidentiary loop at trial. The procedure assumes the gov-
ernment knows what its witnesses will say at trial. Cooperat-
ing witnesses, however, can be unpredictable. This case poses
the problem of a Santiago proffer that the government could
not satisfy completely.
In this case, the government’s detailed Santiago proffer de-
scribed the evidence it intended to introduce at trial to show
that Davis conspired with the men whose telephone calls
were recorded. The proffer highlighted the expected testi-
mony from John Rovito, including the following:
• That Gigi Rovito asked John Rovito to re-
cruit Carparelli to conduct the beating, and
that John did so;
• That John Rovito observed Davis at Gigi
Rovito’s restaurant on the night of the down-
payment; and
• That Carparelli told John Rovito that “the
beating was in relation to a car dealership.”
Rovito’s trial testimony differed from the government’s prof-
fer in several respects. He testified, for instance, that he first
learned about the beating conspiracy from either Carparelli or
Brown and that he did not recall “having a conversation with
Gigi about a beating or his friend Mickey about a beating.”
John Rovito acknowledged that Gigi had introduced him to a
“Mickey” at one point, but he testified that he did not recall
seeing “Mickey” at Gigi’s restaurant the night he retrieved the
6 No. 15-3671
down-payment. John Rovito later repeated that he “recall[ed]
meeting the gentleman one time,” perhaps as early as two
weeks before he retrieved the down-payment. Most signifi-
cant, Rovito flatly denied any knowledge that the beating had
anything to do with a car dealership, testifying variously that
he did not know “what was going on, what it was for,” that
he had “no knowledge” of “Mickey’s” and R.J. Serpico’s in-
volvement with a car dealership, that he did not “recall any
dealership,” and that he did not recall telling the FBI any dif-
ferently.
When the government’s evidence does not fulfill its Santi-
ago proffer in key respects, the trial judge must take a fresh
look at the admissibility of co-conspirator statements to de-
cide whether the evidence actually offered at trial satisfies the
government’s burden under Rule 801(d)(2)(E). At various
points during Davis’s trial, in response to defense objections,
the judge determined that the government had carried its bur-
den. Those determinations were not an abuse of discretion.
Even without John Rovito’s testimony on those several points
the government had expected from him, the government of-
fered sufficient evidence to support the district court’s finding
that Rule 801(d)(2)(E) was satisfied so as to allow the co-con-
spirator evidence.
First, it is beyond dispute that somebody called “Mickey”
wanted R.J. Serpico’s legs broken and that a group had formed
to carry out the attack. John Rovito and Paul Carparelli were
unquestionably part of the conspiracy, and they implicated
Gigi Rovito. George Brown acted the part, though as noted
above he was an FBI cooperator. In a July 16, 2013 call, John
Rovito told Brown that he expected to see their “friend”
No. 15-3671 7
shortly and that he would tell the friend the job would be han-
dled by the following weekend. At trial, John Rovito testified
that he had been referring in that conversation to “Gigi’s
friend … Mickey.” 1 John also testified that Gigi told him
“Mickey” was the person who wanted the beating. In another
call, Carparelli told Brown that the client was “Solly D’s part-
ner. … Mickey, partner, Mickey, Solly DeLaurentis.” Davis
himself acknowledged in a statement to the FBI that he fre-
quented Gigi’s restaurant, that he knew both Rovitos, and that
DeLaurentis was his good friend.
The government also offered evidence of Davis’s motive to
pursue the beating. Davis lost $200,000 on the Ideal Motors
loan, and he told the FBI himself that he was “extremely
pissed off.” He demonstrated that anger on at least two occa-
sions. In January 2013, Davis confronted R.J. Serpico in his of-
fice at the Ideal Motors facility. As Serpico described it, Davis
had “what looked to be like a sheet of … gambling bets in his
hand and he put it down on [the] desk and leaned over and
sa[id] this wasn’t the f***ing agreement.” (Recall that Serpico’s
father Joseph had gambled away the loan proceeds.) Davis
then asked a series of personal questions about Serpico’s wife
and children. The questions showed that Davis knew a great
deal about Serpico’s family and their activities and move-
ments that Serpico had never told him. For instance, Davis
asked whether the Serpicos still lived in Park Ridge; he also
1John Rovito’s testimony on this point, like much of his testimony,
was equivocal. At first, he implausibly testified that the “friend” was Gigi
Rovito; he then said that he had been referring to “Gigi’s friend …
Mickey.” When the prosecutor pressed him to clarify whether the “friend”
he expected to see was in fact “Mickey,” Rovito said: “It is possible, yes.
I’m not 100 percent sure.”
8 No. 15-3671
asked about the ages of Serpico’s children and whether his
wife still owned a beauty salon in a particular suburb. Serpico
testified that he had never told Davis where he lived, how old
his children were, or where his wife’s salon was located. Ser-
pico perceived that he was “getting threatened,” and that his
“wife and … kids were getting threatened.”
Later, after Serpico left Ideal Motors and alerted another
creditor about vehicles that Davis had arranged to have towed
to a different lot, Davis called Serpico and demanded an ex-
planation. The conversation ended cryptically, with Davis
saying: “If that’s the way it is going to be, then, okay, fine, f***
it, that’s the way it is going to be.” 2
Additional circumstantial evidence tied Davis to the con-
spiracy. Cell phone records indicate that he and Gigi Rovito
were in frequent, increasing contact from January through
July 2013, with 113 calls during that period and 47 in July
alone. On July 2, 2013—the same day that Carparelli first con-
tacted Brown about the “job”—Davis and Gigi had multiple
phone conversations; John Rovito and Carparelli were in close
contact that day as well. Historic cell site location data placed
2 The government highlights a series of actions Davis took after the
Serpicos fell behind on their payments. For example, Davis directed R.J.
Serpico to fire his father Joseph; Davis had his assistant monitor the Ideal
Motors bank statements and inventory; he required Ideal Motors to con-
duct business using a bank account that he jointly owned; and he seized a
1971 Chevrolet that R.J. Serpico had purchased and restored. The govern-
ment characterizes these measures as escalating steps culminating in the
extortion conspiracy. We express no specific view on the legality or con-
tractual propriety of these actions, but we do not believe that Davis’s ex-
ercise of rights as a secured creditor adds any weight to the government’s
case that he later engaged in the criminal conspiracy to beat R.J. Serpico.
No. 15-3671 9
Davis in the general vicinity of Gigi’s restaurant on the even-
ing of July 11, 2013, the night that Gigi delivered the down-
payment to John Rovito. At 8:54 that evening and again at
9:19, Gigi spoke with Davis. At 9:27, John Rovito called Gigi.
Minutes later, John called Carparelli—and at 9:50, while Da-
vis was still within a couple of miles of Gigi’s restaurant,
Carparelli texted George Brown to tell him that “the package”
had been delivered. These phone records were not conclusive
by themselves, but they added weight to the government’s
theory.
Finally, although the government never asked John Rovito
to identify Davis in court as the “Mickey” with whom he was
familiar, Rovito did testify concerning “Mickey’s” appear-
ance, describing him as a “big guy … like a body builder,”
with “slick black hair” and a tan complexion. Davis, of course,
was sitting in court, and the jury and the district judge had an
opportunity to observe him and to compare his appearance
with Rovito’s description of the “Mickey” in the conspiracy.
(Consistent with Rovito’s testimony, the presentence investi-
gation report described Davis as six feet tall and weighing 232
pounds.)
To be sure, none of the evidence we have just recounted
proves definitively Davis’s role in the beating conspiracy. But
definitive proof or proof beyond a reasonable doubt is not the
standard for admissibility under Rule 801(d)(2)(E), nor is the
judge’s consideration limited to the independent evidence of
the conspiracy and the defendant’s role in it. Rather, the dis-
trict judge must be persuaded by a preponderance of the evi-
dence that both the defendant and the declarant were in-
volved in a conspiracy and that the out-of-court statements
were made in furtherance of that conspiracy. Bourjaily, 483
10 No. 15-3671
U.S. at 176; Haynie, 179 F.3d at 1050. The government is enti-
tled to have the judge consider the contents of the alleged co-
conspirator statements in making the preliminary determina-
tion under Rule 801(d)(2)(E). Bourjaily, 483 U.S. at 181 (reject-
ing “bootstrapping” rule that would bar consideration of
statements themselves in deciding their admissibility).
The government’s case would have been stronger if John
Rovito had testified in a manner entirely consistent with the
government’s pretrial Santiago proffer. Still, the evidence sup-
porting admission of the co-conspirator statements was
strong enough to survive Rovito’s often evasive testimony.
The circumstantial evidence was substantial—and the out-of-
court co-conspirator statements themselves, coupled with
that circumstantial evidence, provided a sufficient foundation
from which the district judge could conclude that Davis was
more likely than not a member of the conspiracy to beat R.J.
Serpico. Those out-of-court statements, spanning 76 pages of
telephone transcripts, cast light on the membership, scope,
and objectives of the conspiracy. The conspirators spoke about
their victim’s identity, his home and workplace, and his sched-
ule; about their client, “Mickey,” the “partner” of Solly De-
Laurentis; about the “thorough” beating that “Mickey” had
ordered and the (fictitious) hit-men George Brown claimed to
have hired; about the $10,000 fee and how it would be appor-
tioned; and about the increasing urgency of the assignment
and the potential consequences of failure.
Considering the independent evidence that the conspiracy
existed and tending to show that Davis participated in it, as
well as the out-of-court statements themselves, there was a
sufficient basis to justify placing the out-of-court statements
before the jury. The district judge did not err in admitting the
No. 15-3671 11
co-conspirators’ statements into evidence under Rule
801(d)(2)(E).
II. Impeachment of John Rovito
Davis next argues that the district court erred in allowing
the government to question John Rovito about his prior incon-
sistent statements to law enforcement and compounded its er-
ror by failing to issue a contemporaneous limiting instruction.
We review these decisions for abuse of discretion. See United
States v. Spiller, 261 F.3d 683, 689 (7th Cir. 2001).
John Rovito was, to put it mildly, a difficult witness for the
government. During his two days of testimony, he answered
the government’s questions over one hundred times with
some variation of “I don’t recall,” “I’m not 100 percent sure,”
or an ambivalent “it’s possible.” At certain points, his testi-
mony departed materially from statements he had given ear-
lier to FBI investigators. Three of these differences were dis-
cussed in Part I above in connection with the government’s
Santiago proffer (whether Gigi Rovito asked John Rovito to re-
cruit Carparelli; whether John observed Davis at Gigi’s restau-
rant the night of the down-payment; and whether John un-
derstood that the beating concerned a car dealership). Other
inconsistencies emerged at trial. For example, Rovito denied
using a special term to refer to broken legs when he had pre-
viously told the FBI that “the big guy” (the client) wanted
“lowers.” To impeach some of his testimony, the government
questioned Rovito about some of his out-of-court statements,
which were memorialized in FBI FD-302 reports. Davis ob-
jected to the use of those out-of-court statements at trial, and
he maintains that objection on appeal.
12 No. 15-3671
Under Federal Rule of Evidence 607, any party—including
the party that called a witness—may attack the witness’s cred-
ibility. See United States v. Bileck, 776 F.2d 195, 198 (7th Cir.
1985) (“[T]he government had no choice in whom the defend-
ant chose as his compatriots, and should not be required to
vouch for their credibility.”). We have long recognized, how-
ever, that it would be an abuse of Rule 607 for the prosecution
to “call a witness that it knew would not give it useful evi-
dence, just so it could introduce hearsay evidence against the
defendant in the hope that the jury would miss the subtle dis-
tinction between impeachment and substantive evidence—or,
if it didn’t miss it, would ignore it.” United States v. Webster,
734 F.2d 1191, 1192 (7th Cir. 1984); see also United States v.
Kane, 944 F.2d 1406, 1411 (7th Cir. 1991) (“Impeachment of
one’s own witness cannot be permitted where employed as a
mere subterfuge to present to the jury evidence not otherwise
admissible.”). The exception identified in Webster and Kane is
a narrow one. The test is “whether the prosecution calls the
witness in bad faith.” United States v. Burt, 495 F.3d 733, 737
(7th Cir. 2007), citing Kane, 944 F.2d at 1412, and Webster, 734
F.2d at 1193.
In this case, before John Rovito took the stand, his own
lawyer advised the court, the prosecution, and defense coun-
sel that Rovito disagreed with some of the material in the FD-
302 reports. According to his lawyer, Rovito feared a “perjury
trap.” Davis argues that the prosecution acted in bad faith in
questioning Rovito on matters he discussed with the FBI de-
spite knowing he would dispute the contents of the FD-302
reports. After Rovito’s first day of testimony, however, the
government told the district court that Rovito’s lawyer had
provided just one example of a statement with which Rovito
disagreed. That statement concerned Paul Carparelli’s alleged
No. 15-3671 13
drug dealing, a topic that was never broached at trial and that
had nothing to do with Davis’s case. The defense conceded
that Carparelli’s drug dealing was the only example the law-
yer had provided, and the district judge rightly concluded
that there was “no issue there.” Moreover, Rovito had refused
to meet with government counsel during the weeks leading
up to trial. Although the prosecutors might have hoped and
expected that he would testify consistently with his prior
statements, they had no opportunity to review the proposed
line of questioning with him or to address any concerns he
might have raised.
Since the government did not know in advance the partic-
ular aspects of the FD-302s that John Rovito would disclaim,
we find no evidence that the government acted in bad faith by
calling him as a witness. Despite Rovito’s evasiveness, he pro-
vided helpful testimony on several critical aspects of the gov-
ernment’s case. For instance, he described retrieving an enve-
lope from Gigi Rovito at the restaurant and then forwarding
the envelope to Paul Carparelli, and he acknowledged that the
envelope contained the $5000 down-payment for the beating.
He described how the $10,000 total fee was to be allocated—
$2000 each to himself, to George Brown, to Carparelli, and to
any others involved in the conspiracy. He also corroborated
Brown’s testimony that the client was a man named “Mickey,”
an especially salient detail since so much of the evidence
against Davis was circumstantial or indirect.
John Rovito was much less cooperative on other points.
Perhaps most problematic for the government’s case, Rovito
insisted—even when confronted with his out-of-court state-
ments to the contrary—that he was not aware that the beating
conspiracy had anything to do with a car dealership. But even
14 No. 15-3671
if the prosecution had been on notice that Rovito might vacil-
late, it “cannot be that any time the government suspects that
a witness will lie on some aspect of his testimony that it is
barred from using the witness.” Burt, 495 F.3d at 737. Rather,
the government may elicit testimony from its witnesses in
good faith and may use the impeachment tools that are avail-
able to any litigant if a witness becomes uncooperative. See
Kane, 944 F.2d at 1412 (“When a government witness provides
evidence both helpful and harmful to the prosecution, the
government should not be forced to choose between the
Scylla of [forgoing] impeachment and the Charybdis of not
calling the witness at all.”). 3
As a fallback, Davis argues that if the judge did not err by
allowing the government to question John Rovito about his
out-of-court statements, then at the very least the judge
should have given a contemporaneous limiting instruction
telling the jury that it could not consider those statements as
substantive evidence. If we had been presiding over the trial,
3Davis identifies one instance where the government’s impeachment
effort plainly was improper. In what the district judge treated as an unfor-
tunate slip of the tongue, the prosecutor asked John Rovito whether he
recalled telling the FBI about a conversation between “Davis” and Gigi
Rovito. John Rovito never mentioned Davis’s surname to the FBI. He tes-
tified that he learned the surname only when he was subpoenaed to ap-
pear in court. If the district judge had ignored this error, Davis’s argument
on appeal would have greater force. But the judge handled the mistake
appropriately, instructing the jury to disregard both the question and any
reference by the prosecutor to Davis’s surname. The judge also reminded
the jury that “lawyers’ statements are not evidence.” Given the judge’s
prompt response to the government’s error, we do not think Davis was
unduly prejudiced by the error.
No. 15-3671 15
we might well have agreed that a contemporaneous instruc-
tion would have been preferable, though the judge did
properly advise the jury on the use of impeachment evidence
during final instructions the next day. Our precedents make
clear, however, that whether to give a contemporaneous lim-
iting instruction is “committed to the discretion of the district
court … and our review is deferential.” United States v. Van
Waeyenberghe, 481 F.3d 951, 956 (7th Cir. 2007) (citations and
internal quotation marks omitted); see also United States v. Ox-
ford, 735 F.2d 276, 280 (7th Cir. 1984) (“[T]he trial judge must
determine on the facts of each case whether interim instruc-
tions are necessary … . Once the judge makes a determination
regarding instructions, we will reverse that decision only on
a showing of an abuse of discretion.”).
In this case, in denying Davis’s request for a contempora-
neous limiting instruction, the judge explained that he pre-
ferred not to “bring to the attention of jurors as the fact find-
ers” that he thought somebody was “lying or is inconsistent.”
While a contemporaneous instruction might have been help-
ful, we cannot say that the judge abused his discretion in de-
clining to give one. He was, after all, in a “better position than
we to determine whether a contemporaneous instruction
would unduly emphasize the evidence in the minds of the
jury,” United States v. Dabish, 708 F.2d 240, 243 (6th Cir. 1983).
The district court did not commit a reversible error by allow-
ing the government to impeach John Rovito with his prior
statements to the FBI and by deferring its limiting instruction
until the close of trial.
16 No. 15-3671
III. Additional Issues
A. Use Immunity
Davis makes three additional arguments on appeal. None
has merit. Davis first contends that his due process rights
were violated when the government granted immunity to
John Rovito but not to John’s brother Gigi. After learning that
Gigi Rovito had invoked his Fifth Amendment privilege, Da-
vis filed a “Motion for Defense Immunity” asking the district
court to grant use immunity to Gigi. In denying that motion,
the district judge explained that the decision whether to grant
immunity is one for the government, not the court.
The judge was right. Prosecutors have “significant discre-
tion to decline immunity to a witness, especially when it is
likely that the witness will perjure himself.” United States v.
Lake, 500 F.3d 629, 633 (7th Cir. 2007). That prosecutorial dis-
cretion is cabined only by the requirement that a prosecutor
may not “immunize witnesses with the intention of distorting
the fact-finding process.” United States v. Burke, 425 F.3d 400,
411 (7th Cir. 2005). Even in a case involving such distortion, a
district court cannot simply order the government to immun-
ize a defense witness. While the court could theoretically dis-
miss the indictment as a sanction, id., Davis cites no case in
which any court in this circuit has taken that drastic step. Cf.
United States v. Chapman, 765 F.3d 720, 732 (7th Cir. 2014) (“As
far as we can tell, this court has never found that the failure to
grant immunity to a defense witness deprived the defendant
of due process.”).
We see no evidence that the government acted improperly
here. During his FBI interviews on March 26 and May 6, 2014,
Gigi Rovito denied any knowledge of the beating conspiracy,
No. 15-3671 17
and he specifically denied forwarding the down-payment
from Davis to his brother John. Those denials are inconsistent
with other evidence that the government acquired, including
the extensive testimony by George Brown and John Rovito
and the inculpatory cell phone records. The government rea-
sonably presumed that if Gigi took the stand, he would likely
perjure himself. The government acted well within its discre-
tion in declining an immunity deal that would have only fa-
cilitated such perjury. See United States v. Wright, 634 F.3d 917,
921 (7th Cir. 2011) (“[A]voiding future violations of the law,
such as potential perjury, is hardly an unjustifiable and illegit-
imate government objective.”). 4
4 Davis argues in the alternative that the district court should have
either admitted Gigi Rovito’s FD-302 reports or given a missing witness
instruction. But as substantive evidence, the FD-302s were plainly inad-
missible hearsay. Whether to give a missing witness instruction rests
within the sound discretion of the district court. “To ‘establish entitlement
to a missing witness instruction, a defendant must prove two things: first,
that the absent witness was peculiarly within the government’s power to
produce; and second, that the testimony would have elucidated issues in
the case and would not merely have been cumulative.’” United States v.
Foster, 701 F.3d 1142, 1154 (7th Cir. 2012), quoting United States v. Gant, 396
F.3d 906, 910 (7th Cir. 2005). We do not see how Gigi Rovito was “peculi-
arly within the government’s power to produce” any more than any other
witness who is closely connected to criminal activity and is therefore re-
luctant to testify. See id. at 1155 (“[T]he government’s ability to grant im-
munity does not make a witness who invokes the Fifth Amendment priv-
ilege peculiarly available to the government[.]”). Given the strong likeli-
hood that Gigi (if he had testified consistently with his statements to the
FBI) would have perjured himself, we do not see how his presence would
have “elucidated issues in the case.”
18 No. 15-3671
B. Scope of Cross-Examination
Davis next argues that the district court erred when it pre-
cluded him from cross-examining George Brown about his
past extortion tactics. As with the other evidentiary issues in
this appeal, we review the district court’s ruling for abuse of
discretion. United States v. Williamson, 202 F.3d 974, 977 (7th
Cir. 2000).
The defense theory was that the planned beating of R.J.
Serpico, discussed in such detail in the recorded phone calls,
had nothing to do with debt collection. That theory would not
only tend to refute elements of both counts of the superseding
indictment but also remove Davis’s apparent motive for par-
ticipating in the conspiracy: anger about the money lost on the
Ideal Motors loan. The defense wanted to question Brown
about his past practices because, the defense said, Brown
would testify that he typically “sent very specific messages to
the victims to pay back the debt they owed,” and that in sev-
eral cases he had performed these extortions on commission.
In this case, by contrast, the job paid a flat $10,000, and the
only message the conspirators were asked to deliver was a
puzzling invective: “This is what you get for f***in’ my sister.”
The district court disallowed the proposed line of inquiry,
noting that the details of Brown’s prior extortions were collat-
eral matters and that the defense theory was merely specula-
tive. On appeal, Davis argues that the excluded evidence was
“vital to the defense theory of its case.” We disagree. While
the excluded evidence might have bolstered Davis’s position,
the evidence was not so critical that it was an abuse of discre-
tion to exclude it. The defense asked Brown whether he knew
the purpose behind the planned beating of R.J. Serpico:
No. 15-3671 19
DEFENSE COUNSEL: [Y]ou certainly weren’t
going to collect money from this man, correct?
BROWN: As per my instruction from Paul
[Carparelli], no, sir.
DEFENSE COUNSEL: Right. You were just—
this was just going to be a beating, correct?
BROWN: That’s correct, sir.
Brown’s admission that the conspiracy, as he understood it,
had nothing to do with debt collection provided direct support
for the defense theory that the excluded evidence might have
supported at best indirectly. Under these circumstances, the
district judge did not abuse his discretion by limiting the
scope of cross-examination.
C. Government’s Rebuttal Argument
Finally, Davis contends that the government construc-
tively amended the superseding indictment during its rebut-
tal argument by implying that the loan from Davis to Ideal
Motors was an extortionate extension of credit in violation of
18 U.S.C. § 892. We review this question de novo. See United
States v. Pigee, 197 F.3d 879, 885 (7th Cir. 1999).
Davis points to several statements by the government that
he interprets as an attack on the loan agreement itself. Early
in his rebuttal argument, the prosecutor commented on the
“math” associated with the loan deal, observing that Davis
anticipated over $430,000 in profit during the three-year loan
period. Several minutes later, the prosecutor said, “Who loans
a known gambler $300,000 and just steps away? Of course not.
He was in this all the way.” The prosecutor later said that the
“man named Mickey loaned $300,000 to a known gambler”
20 No. 15-3671
and “expected to … double[] his money in three years.” Davis
contends that these statements amounted to an argument that
the “loan agreement was, for all intents and purposes, a ‘juice
loan.’”
While it is possible for the government to broaden the ba-
ses for conviction impermissibly through its closing argu-
ment, see United States v. Cusimano, 148 F.3d 824, 829, 830 (7th
Cir. 1998) (finding no constructive amendment of indictment),
that did not happen here. The prosecutor’s reference to the
lucrative loan terms helped him illustrate why Davis was so
angry with R.J. Serpico and why Davis might have resorted to
such extraordinary and extortionate tactics as the planned at-
tack to break Serpico’s legs. Context makes this clear. During
the initial portion of the closing argument, the government
argued that the “evidence establishes beyond a reasonable
doubt that the defendant Mickey Davis attempted to extort
R.J. Serpico and Ideal Motors” and that Davis “used extor-
tionate means to collect an extension of credit.” Later, the gov-
ernment characterized the beating conspiracy as the last in a
series of steps by Davis to collect from Serpico:
In January, he’s playing off … the fear of future
violence. He threatened R.J. Serpico in that con-
versation. He played off that fear for months.
And then when that stopped being productive
… he decided to follow up on that threat. He de-
cided to escalate it, he decided to get violent but
it’s just more of the same. It’s more about collect-
ing what he’s owed.
The prosecutor echoed those remarks at the close of his rebut-
tal, saying: “We are a country of laws. We are not a country of
No. 15-3671 21
men who get to choose how they will collect their debts, what
means they will use to intimidate, to threaten violence.”
Even assuming for the sake of discussion that the prosecu-
tor’s rebuttal language could have created some ambiguity,
the judge corrected matters at the time. Defense counsel ob-
jected to each of the statements Davis now complains about.
In response, the judge reminded the jury that attorneys’ state-
ments are “not evidence” and that the jury would be “given a
copy of the indictment and a copy of the Court’s instructions
as to the law.” Then, during his final instructions to the jury,
the district judge explained that Davis was charged in two
counts, and he described the elements of each count. At no
point did the judge suggest that the Ideal Motors loan was ex-
tortionate from the outset or, as Davis puts it now, a “juice
loan.” Viewing the government’s closing arguments in their
totality and in context, we find no indication of a constructive
amendment to the indictment.
The judgment of the district court is AFFIRMED.