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UNITED STATES v. MARCY

December 28, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
PAT MARCY AND FRED ROTI, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Presently before the court is defendant Fred Roti's motion for mistrial. For the reasons set forth below, Roti's motion is denied.

 I. Background

 It is no accident that approximately two years have passed between defendants' arraignment and the commencement of their trial on December 14, 1992. Indeed, much of the delay is attributable directly to Roti. Not only did Roti opt to postpone his trial until after the resolution of two related cases but, once this case was set to proceed on a date agreed to by his attorney, Roti's attorney made himself unavailable by becoming involved in the trial of a complicated and lengthy out-of-state matter. Further, upon the completion of the out-of-state proceedings, Roti decided to discharge his attorney, turning to another lawyer who was completely uninformed regarding the substantive and procedural posture of the ongoing action. The long delayed trial finally commenced on December 14. After the completion of five days, Roti's codefendant, Pat Marcy, was afflicted with a medical condition sufficiently serious to warrant a mistrial on his behalf. *fn1" In an apparent attempt to piggyback on Marcy's misfortune, Roti has filed a motion for mistrial of his own advocating yet another detour.

 In support of his motion for mistrial, Roti offers the following arguments. First, as the evidence introduced concerning the Aleman and Colella fixes--fixes which do not directly involve Roti--would not have been admissible against Roti had he initially stood trial alone, forcing Roti to defend against such charges upon Marcy's departure would violate his constitutional right to a fair trial. Second, Roti asserts that he has been prejudiced by the "organized crime-outfit-mafia-syndicate-mob connotations" that have been injected into the trial to date, such references only permissible by virtue of Marcy's presence as a defendant. Third, as a result of our procedure requiring defendants in multiple-defendant trials to pool their preemptory challenges, Roti contends that the jury as selected does not represent the "tribunal" that he would have garnered had he been tried alone from the outset. Roti's fourth claim to a mistrial rests with his assertion that, had he known that he was facing trial alone, "he would have advanced a different defense, made a different opening statement and foregone the concessions associated with a joint defense." Finally, Roti maintains that, with Marcy's absence, the government will not be able to prove some of the facts it recounted in its opening argument, thus mandating a mistrial. We address, and reject, each of Roti's contentions seriately.

 II. Discussion

 At the threshold, we note that a trial judge possesses "broad discretion in deciding whether, in the context of the entire trial, a defendant's motion for a mistrial should be granted." United States v. Mealy, 851 F.2d 890, 902 (7th Cir. 1988). At the crux of this determination is whether the questioned event so prejudices the defendant to deny him a fair trial. See United States v. Phillips, 640 F.2d 87, 91 (7th Cir.), cert. denied, 451 U.S. 991, 101 S. Ct. 2331, 68 L. Ed. 2d 851 (1981). Further, to the extent that this court finds that any incident may cause a defendant prejudice, it is within our discretion to issue a cautionary instruction, rather than declare a mistrial, to cure such potential prejudice. See United States v. McClellan, 868 F.2d 210, 217 (7th Cir. 1989); Mealy, 851 F.2d at 902; United States v. Fulk, 816 F.2d 1202, 1205-06 (7th Cir. 1987).

 A. The Aleman and Colella Fixes

 The first of Roti's five purported grounds for mistrial indisputably constitutes the heart of his motion. To be sure, the government and Roti have taken diametric positions on the issue of the admissibility of evidence concerning the Aleman and Colella fixes in a trial with Roti as the sole defendant. Because this court believes that such evidence would be admissible against Roti had he initially stood trial alone, and because the probative value of the evidence outweighs its prejudicial impact, we conclude that, despite the introduction of this contested evidence prior to Marcy's leave, continuing the proceedings against Roti would not deprive him of a fair trial.

 In support of his assertion of the immateriality of the Aleman and Colella fixes, Roti contends that these occurrences "constitute separate conspiracies, not involving Roti, within the context of the overall RICO charges." Motion for Mistrial at 2. Citing Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), Roti claims that due process mandates that he not be called upon to defend against such highly prejudicial acts having no connection to his personal conduct. In Kotteakos, the Supreme Court held that the government may not try thirty-six defendants as members of a single conspiracy when the only connection between the number of separate conspiracies was that one man participated in all of the conspiracies. Kotteakos, 328 U.S. at 773, 66 S. Ct. at 1252. The defendants were convicted under 18 U.S.C. § 88, of conspiring to violate the National Housing Act, 12 U.S.C. §§ 1702, 1703, 1715, 1731. Id. at 752, 66 S. Ct. at 1241. Defendants obtained federal housing loans through a single broker on the basis of false and fraudulent information. Id. at 752-53, 66 S. Ct. at 1242. The broker formed the "common center" of the conspiracy, obtaining loans for separate groups independent from one another. Id. at 754-55, 66 S. Ct. at 1243. Significantly, the government conceded that the proof adduced at trial showed multiple conspiracies, rather than the one conspiracy charged in the indictment. Id. at 755-56, 66 S. Ct. at 1243. The Court found that the variance between the proof at trial and the allegations in the indictment was not harmless beyond a reasonable doubt because the evidence presented to the jury on the many separate conspiracies ran a substantial risk that the jury would unconsciously transfer guilt from one conspiracy to another. Id. at 774, 66 S. Ct. at 1252.

 Kotteakos, however, bears no resemblance to the instant case. Unlike the defendants in Kotteakos, Roti is charged with violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., including conspiracy under § 1962(d). As this court has stated on numerous occasions, most recently in connection with Roti's motion to dismiss Count I of the indictment, "a series of agreements that under pre-RICO law would constitute multiple conspiracies could under RICO be tried as a single 'enterprise' conspiracy in violation of § 1962(d)." United States v. Marcy, 777 F. Supp. 1393, (N.D. Ill. 1991); United States v. Andrews, 754 F. Supp. 1161, 1169 (N.D. Ill. 1990) (quoting United States v. Sutherland, 656 F.2d 1181, 1192 (5th Cir. 1981), cert. denied, 455 U.S. 991, 102 S. Ct. 1617, 71 L. Ed. 2d 852 (1982)). It follows that, although Roti may reasonably claim no direct participation in the Aleman and Colella fixes, such evidence would nonetheless be materially relevant in his individual trial, "because the government is 'entitled to show the entire range of evidence of the [§ 1962(d)] conspiracy against each' defendant." United States v. Gambino, 784 F. Supp. 129, 137 (S.D.N.Y. 1992) (quoting United States v. Nersesian, 824 F.2d 1294, 1304 (2d Cir.), cert. denied, 484 U.S. 958, 108 S. Ct. 357, 98 L. Ed. 2d 382 (1987)); see also United States v. Persico, 621 F. Supp. 842, 852 (S.D.N.Y. 1985).

 More to the point, as necessary elements under RICO, the government bears the burden of establishing an "enterprise" and a "pattern of racketeering." 18 U.S.C. § 1962(c); United States v. DiNome, 954 F.2d 839, 843 (2d Cir.), cert. denied, 113 S. Ct. 94, 121 L. Ed. 2d 56 (1992). It is settled law that "proof of these elements may well entail evidence of numerous criminal acts by a variety of persons, and each defendant in a RICO case may reasonably claim no direct participation in some of those acts. Nonetheless, evidence of those acts is relevant to the RICO charges against each defendant . . . ." DiNome, 954 F.2d at 843; see also United States v. Gambino, 784 F. Supp. at 136 (denying motion to sever because the "evidence relating to racketeering acts allegedly committed by [movants'] codefendants . . . would likely be admissible in individual trials to prove the existence and nature of a RICO enterprise and a pattern of racketeering activity on the part of each defendant, by proving the requisite relationship and continuity of illegal activities").

 In the instant case, Count I of the superseding indictment alleges that an "enterprise" existed, "consisting of a group of individuals associated in fact known as the 'First Ward.'" This group allegedly included Roti, Marcy and other members known and unknown to the grand jury. "The individual members of the enterprise frequently met at Counselor's Row Restaurant in Chicago. Among the purposes of the enterprise were obtaining money, obtaining and maintaining influence over official decisions, and exercising influence over official decisions. Clearly, evidence of the Aleman and Colella fixes tends to make it more probable than not that such an enterprise in fact existed. Further, evidence of these fixes is necessary to establish the nature of the enterprise and, hence, relevant regardless of whether Roti was directly involved in either incident. As poignantly noted by the government, "the Aleman and Colella fixes . . . provide a nexus between the three predicate acts with which defendant Roti is charged--the Chow fix, the zoning fix and the Eldridge v. Carr fix." Government Response at 2. Indeed, evidence of these two fixes precludes "an argument by ...


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