The opinion of the court was delivered by: ANN CLAIRE WILLIAMS
This case is currently before the court on Marino's and the government's objections to the PSI, Marino's objection to the retroactive application of federal sentencing guidelines, and the government's motion for upward departure. For the reasons stated below, this court finds that Marino's total adjusted offense level is 43, his criminal history category is I and his guideline sentence is life in prison. Since none of the counts for which Marino was convicted bear a maximum penalty of life imprisonment, this court will impose consecutive sentences on all counts to best effectuate this sentence. Given the length of this opinion, this court has provided an index.
A. Overview of the Ferriola Street Crew's Illegal Activities
1. Illegal Gambling Operations
2. The Collection of Unlawful Debts
B. Defendant Marino's Role in the Ferriola Street Crew
II. Objections to the PSI and the Government's Motion for Upward Departure
A. Section 3C1.1: Obstruction of Justice
2. Payment of Hush Money to Robert Covone
3. Police Protection for Patrick Gervais
B. Section 3B1.1(b): Crew Supervisor or Manager
C. Section 5K2.0: Upward Departures
2. Participation in Organized Crime
3. Defendant's Ex Post Facto Objection to Upward Departures
D. Objections to Statements in the PSI
1. Section 3E1.1: Acceptance of Responsibility
2. Factual Inaccuracies in the PSI
E. Base Offense Levels for Racketeering Acts 6, 9(a), and 10(a)
F. Base Offense Levels for Racketeering Acts 11(a)-(b)
G. Further Objections to Statements in the PSI
H. Objections to the Government's Version of the Offense
1. Extortion of Thomas Skryd
2. Extension of a Juice Loan Bankroll to James Basile
3. Other Objections to Statements in the Government's Version of the Offense
I. Base Offense Level for Racketeering Act 10
1. Extension of Juice Loan Bankroll to Dominic Basso
2. Extension of Juice Loan Bankroll to Mike Pascucci
3. Extension of Juice Loan Bankroll to James Nicholas
A. Overview of the Ferriola Street Crew's Illegal Activities
This case involves the illegal activities of one operating unit of the Chicago Outfit or mob known as the Ferriola Street Crew. This crew existed primarily to provide income to its members through: (1) the operation of various illegal gambling businesses such as sports bookmaking, parlay cards, and casino games, (2) the collection of "juice" or interest on usurious loans made by the crew, (3) the collection of "street tax" or money from individuals engaged in illegal or quasi-illegal businesses, and (4) the use of these proceeds in the criminal enterprise and other business ventures.
To conceal their actions, the crew also provided monetary payments to crew members who refused to testify against the crew, instructed potential grand jury witnesses to lie, and attempted to and bribed various police officers, judges, and other political officials.
From 1979 through the indictment in this case, the Ferriola Street Crew was involved in several illegal gambling businesses including a sports bookmaking business, two parlay card businesses from 1979 through 1983, floating blackjack games, and a casino. DeLaurentis also operated gambling rooms in 1982 and a floating dice game from 1986 through 1989 on behalf of the crew.
From 1976 through 1979, defendant William Jahoda operated a sports bookmaking business with Sam Sammarco. In early 1979, Jahoda told Sammarco that he wanted to switch to another bookmaking group and later told Sammarco that he would be working with Infelise. Shortly thereafter, Jahoda had several meetings with Infelise regarding setting up a bookmaking business. In the spring of 1979, Jahoda and representatives of the Ferriola Street crew agreed to form a bookmaking partnership by which profits would be split evenly between Jahoda, Infelise, and the crew. Jahoda was given responsibility for the day-to-day operation of the gambling operation including supervision of the wirerooms. Jahoda reported to Infelise on almost a daily basis regarding daily operations. This partnership continued until 1988 and generated profits of approximately $ 8 million.
In 1988, Jahoda was arrested twice for operating illegal blackjack games for the crew. As a result, Infelise replaced Jahoda with DeLaurentis, who became a partner and assumed responsibility for the day-to-day management of their gambling operation.
Defendant William DiDomenico acted as DeLaurentis' principal assistant. Jahoda remained involved in the business as a 50/50 bookmaker.
Many other defendants were involved in the sports bookmaking business. For example, Bellavia was a collector and a supervisor for the operation. He also supervised the bookmaking activities of Freddie Braun. Marino started as an agent
and later became a collections supervisor. Marino also supervised the bookmaking activities of Homer Gonzalez for the crew. Michael Zitello acted, at various times, as an agent, 50/50 bookmaker, wireroom clerk, manager, and collector. Robert Covone, Ronald DeRosa, and Frank Maltese were agents, James Coniglio was a 50/50 bookmaker and a collector, James Nicholas was a 50/50 bookmaker, and Thomas McCandless and Robert Garrison were 50/50 bookmakers and wireroom clerks. Paul Spano permitted his business, Flash Interstate Delivery System, Inc. ("Flash Trucking") to be used as a meeting place and operations center for the business. He also kept money at Flash for use in the crew's bookmaking business.
From 1979 through 1983, the crew operated a parlay card business. This operation was initially operated by Infelise, Marino, DeLaurentis, Jahoda, and George Miller. During this time, parlay cards were distributed through agents. In the early 1980's, DeLaurentis attempted to take over all the parlay card businesses in Lake County, Illinois. During the business' later period, it was operated by Infelise, Jahoda, DeLaurentis, Michael Sarno, James Damopoulos, and others. Sarno provided the parlay cards for distribution.
From 1986 through 1988, the crew also operated a floating blackjack game managed by Jahoda under Infelise's supervision. Bellavia, Garrison, Nicholas, and Damopoulos acted as agents for this game. The blackjack games' net profits were split equally between Infelise, Jahoda, Ferriola, and Chuck Burge. The games were rigged through the use of professional card cheats and mirrored shoes. In total, approximately 24 floating blackjack games were held and nearly $ 1 million in profits was generated.
And, in the spring and summer of 1982, the crew operated a casino in a house in Libertyville, Illinois known as the Rouse House. The casino was managed by Jahoda under Infelise's supervision. The casino had rigged blackjack and craps games. Marino, DeLaurentis, McCandless, and Zitello worked at the casino, and DeLaurentis, McCandless, Zitello, and others provided players for the games. Casino profits were split equally between Infelise, Jahoda, Ferriola, and the crew. During its operation, the casino generated approximately $ 500,000 in profits.
The Ferriola Street Crew also collected unlawful debts, including gambling debts from losing bettors and interest and principal payments on juice loans. Interest on juice loans varied from 10% per month to 10% per week. Losing bettors who were unable to pay their gambling debts often were given juice loans for the balance of their gambling debts.
The crew also provided bankrolls to crew members and other from which to make juice loans and from which the crew received a percentage of the money obtained.
Beginning in approximately 1974, the crew also sought to control all independent sports bookmaking businesses, particularly in northern Cook, Lake, and McHenry Counties, Illinois.
The crew forced independent bookmakers to either pay the crew a monthly street tax, make the crew a partner in their bookmaking business, or get out of the business. Partnerships were usually 50% partnerships by which the crew and the bookmaker would share profits and losses on a 50/50 basis.
In the late 1970's and early 1980's, the crew expanded this operation to include collecting street tax from houses of prostitution and adult book stores. During the early 1980's, the crew also attempted to take over independent parlay card gambling businesses and independent high stakes card games. Violence or the threat of violence was used by crew members to maintain control over the independent operators.
The Ferriola Street Crew also made great efforts to conceal their illegal activity. For example, the crew provided monetary payments to imprisoned members who refused to testify against the crew. During the grand jury investigation of this case, crew members Garrison, Nicholas, John Caulderullo, and Anthony Petronella, and street tax victim Chuck Cesario were subpoenaed to testify, asserted their Fifth Amendment privilege, were immunized, and still refused to testify before the grand jury. All five were ultimately incarcerated for civil contempt. While incarcerated, they received cash payments which were deducted from the crew's profits.
Crew members Jahoda, Harry Aleman, and Jerry Scalise also received cash payments from the crew during or after their imprisonment for various offenses.
Crew members also instructed potential grand jury witnesses to lie. For example, DeLaurentis told street tax victim Gerry Otto to lie to the grand jury. Infelise and R.J. McDonnell joked about the "story" agent Navorat Boonpituk told to the grand jury. And, DeLaurentis and DiDomenico created a story for undercover agent Larry Weeks
to tell authorities if he was contacted regarding their Lake Geneva bribery scheme.
In addition, crew members attempted to and bribed police officers, judges, and other political officials to assure the acquittal of crew members indicted on criminal charges and for police protection for the crew's gambling operation.
For example, in 1977, Robert Cooley fixed a murder trial for Aleman. On Pat Marcy's instructions, Cooley paid $ 10,000 to presiding Judge Frank Wilson to fix the case.
Aleman was subsequently acquitted in a bench trial.
In 1981, Ken Eto made a series of monthly $ 1,000 payments to John Monteleone through Infelise and Marino. These payments were to buy police protection from the Vice Control Division of the Chicago Police Department for Eto's monte game.
In 1982, Pat Gervais paid a total of $ 12,000 to the crew for permission to operation his house of prostitution in Lake County, Illinois. DeLaurentis and Marino told Gervais that his $ 3,000 per month payment would take care of the crew and the Lake County Sheriff's Department, and that the sheriff's department would give him advance warning of any raids or investigations. Gervais received such a warning about a raid in March 1982.
Also in 1982, Infelise instructed Jahoda to give him $ 1,500 per month out of the Rouse House casino profits so that he could bribe the Lake County Sheriff to get advance notice of raids. Infelise told Jahoda that Ferriola had a contact in the sheriff's department and Infelise had a "hot phone" installed in the casino where the advance raid warnings would be received.
In 1986, Infelise, through Pat Marcy and others, bribed his federal probation officer by finding the probation officer's son a job. The probation officer's son interviewed with Frank Maltese and Dino Marino, Louis Marino's son and a high ranking employee at the Town of Cicero Department of Public Works. The probation officer's son subsequently obtained a job in this department.
In 1987, DeLaurentis informed Jahoda that he paid $ 1,000 per month to the Forest Park Police Chief to protect the crew's floating craps game. Shortly thereafter, Infelise told Jahoda that the game had been moved to the Argo/Willow Springs area and that protection money was being paid there.
In 1988, Infelise told Jahoda that he had been giving $ 5,000 per month to Undersheriff of Cook County James Dvorak to be forwarded to the Cook County Sheriff for protection. In the fall of 1988, Infelise told Jahoda that this payoff had been increased to $ 10,000 per month. In September 1989, Infelise again confirmed to Jahoda that the crew was paying Dvorak monthly payoffs and that $ 35,000 in crew funds were being paid each month to incarcerated crew members and "the coppers."
In February 1988, Jahoda was arrested by the Illinois State Police for operating a blackjack game at the Arlington Hilton Hotel in Arlington, Illinois. From the time of his arrest through the fall of 1989, Jahoda had a series of conversations with Infelise, DeLaurentis, and Maltese regarding payoffs they were offering to three Cook County judges to fix Jahoda's case. Infelise told Jahoda that he believed something could be done to have the first judge on the case, Judge Christy Berkos, take care of Jahoda's case.
In the summer of 1988, Maltese told Infelise and Jahoda that he had met with Berkos and that Berkos was holding out for a trip for two to Hawaii. In early 1989, Berkos recused himself from the case. The second judge on the case, Judge Thomas Hett, recused himself during the summer of 1989. After Hett's recusal, Infelise told Jahoda that Maltese had met with Hett and that Hett would have been given $ 7,500 to take care of the case. Later, Infelise and DeLaurentis told Jahoda that the third judge assigned to his case, Judge Richard Neville, would be paid $ 10,000 to fix the case. According to Infelise, Pat Marcy was to handle it. The State eventually dismissed the case on its own motion.
In September 1989, Garrison wanted to run a regular high stakes poker game in Lake County, Illinois. DeLaurentis gave him permission to operate this game on the condition that Garrison pay the crew half of his profits and $ 250 per month for police protection.
Also in 1989, at DeLaurentis' request, Rocco Pellettiere attempted to make a payoff to DeLaurentis' former brother-in-law, Lake County Deputy Sheriff Willie Smith. Pellettiere offered Smith $ 500 per month for his approval to place DeLaurentis' joker poker machines in certain Lake County bars and early warning of any police raids on those bars. DeLaurentis later confirmed to Jahoda his belief that Smith had been bribed to permit them to operate illegal gambling activities in Lake County, Illinois.
Every Christmas, Infelise also instructed Jahoda to give him or DeLaurentis money from the bookmaking business to payoff various individuals in the Cook County Sheriff's Department. Upon DeLaurentis' demand, Lake County bookmaker Gerry Otto also paid $ 1,000 per year into this "Christmas fund." These payoffs ranged from $ 1,500-$ 5,000 per year.
The Crew was also responsible for conspiring to murder independent bookmaker Hal Smith.
Since at least 1981, Smith was aware of the efforts of the Ferriola Street Crew, particularly Marino and DeLaurentis, to impose a street tax on independent bookmakers in Lake County or force them to become partners with the crew. Smith resisted these efforts. In March 1983, the IRS seized $ 600,000 in cash from Smith's home during a highly publicized raid. After this raid, the crew stepped up its efforts to gain control over Smith's bookmaking operation. For six months in 1983, Smith and his partners, Dave Puhl and Phil Janis, paid DeLaurentis $ 3,000 per month in street tax.
In the fall of 1983, DeLaurentis arranged a meeting with Janis and Robbie Hildebrandt, one of Smith and Janis' phone clerks. At this meeting, DeLaurentis told Janis and Hildebrandt that they and Smith would have to pay street tax. When Hildebrandt told Smith about the meeting, Smith said "fuck that little guinea" and told Hildebrandt that he would take care of it. Janis retired to Florida shortly thereafter.
In late February or early March 1984, DeLaurentis again contacted Hildebrandt about paying street tax. At a subsequent meeting, DeLaurentis told Hildebrandt and Smith that Smith had to pay $ 6,000 per month in street tax. Smith offered $ 3,000 and then $ 3,500, but DeLaurentis refused these offers. Smith then said, "Now you get nothing." A very loud and public argument ensued in which Smith made numerous ethnic slurs about DeLaurentis. DeLaurentis told Hildebrandt that he was going to get a "slap" and told Smith that he was going to be "trunk music." According to the government, it was Smith's refusal to pay street tax which motivated members of the crew to conspire to kill him. The crew could not let the largest bookmaker in the area get away with not paying street tax and flaunting this fact publicly.
In the spring of 1984, Infelise asked Jahoda to show him where Smith lived. Thereafter, Infelise, Marino, and Bellavia went looking for Smith. Infelise asked Jahoda to set up meetings with Smith so that they could observe him. In the fall of 1984, Infelise instructed Jahoda to keep in contact with Smith.
On or about February 5, 1985, Infelise ordered Jahoda to bring Smith to Jahoda's house in Long Grove, Illinois. Jahoda arranged for Smith to meet him at a bar on February 7, 1985. Jahoda reported this arrangement to Infelise and told Infelise that he would try to get Smith to come back to his house with him.
On February 7, 1985, Infelise, Marino, and Bellavia came to Jahoda's house. Infelise told Jahoda that only he and Smith should come to his house, preferably in Smith's car, Smith should enter the house alone through the kitchen, and Jahoda should try not to go in the house. Later that day, Jahoda met Smith at the bar and brought him back to his house as instructed. Jahoda told Smith to go in through the kitchen while he pretended to go over to his mailbox. Jahoda saw Infelise, Marino, and Bellavia in the house after he arrived with Smith. The last time Jahoda saw Smith, he was dazed and slumped on the floor with Infelise, Marino, and Bellavia surrounding him.
Later that evening, Jahoda returned home and found his house empty. Jahoda noticed that part of the kitchen floor had been mopped. Infelise then called Jahoda and told him to look for a cigar and glasses which Marino thought had been left behind. Jahoda looked for these items but could not find them. Both items were later recovered from Smith's car by the Arlington Heights Police. Jahoda left for Mexico the next day.
Smith's body was found in the trunk of his car on February 10, 1985. The coroner who examined Smith's body concluded that Smith died of strangulation. The coroner also found that Smith had been tortured because Smith had been severely beaten about the head and face, he had numerous superficial incisions and cuts in his neck and chest, and his throat was slit. None of these cuts were fatal.
While in Mexico, Jahoda received a phone call from Infelise who told him that Smith's body had been found. After Jahoda returned from Mexico, he met with Infelise. Infelise told him that they were all "hot" because of "that thing," and Jahoda was particularly hot. Infelise commented that the murder of Chuckie English was a good distraction and would take the heat off the Smith murder. In subsequent conversations, Infelise told Jahoda that Smith was a snitch and Ferriola wanted to thank him for "that Smith thing."
While working as a government informant, Jahoda obtained consensually recorded conversations with Infelise and Bellavia regarding Smith's murder. Jahoda told them that "Officer Friendly," an alleged corrupt police officer, had passed on bits of information about the Smith murder investigation to him. On October 25, 1989, Jahoda showed Infelise a list of clues supposedly gathered by the police regarding the murder, including cigarette evidence left at the crime scene and a reference to the route the police believed Smith's car took the night he was murdered.
After reading the list, Infelise stated: "when you tell me something like this, you think I could go home and sleep, without having this information? It might not be important to you, but maybe I know more than you do. Do you understand, you know?" Infelise also questioned the accuracy of the police notes on Smith's car. He stated: "The car, right? It come from there to your house. It went all the way to mother fuckin' Arlington Heights. That's where they found the car. So how could the speedometer only have three miles on it." Government Exhibit 453.
In an October 30, 1989 consensually recorded conversation, Bellavia and Jahoda also discussed the Smith murder. Jahoda discussed his concern that little clues might have been inadvertently left which would trace the murder to them:
Jahoda: Here's a fucking success. I just want to point out an error or two. He should never have picked up that phone. The biggest break we got is the next day. I don't know if he told you this. Cook County's all over my house. I'm already turned in as, as a missing person.
Jahoda: I got a guy in the house that won't let them in.
Jahoda: And who knows what the hell was in there?
Jahoda: Whoever brought the, the, the rope. I mean, I know everybody's got gloves. What the fuck? But when that rope was bought, it wasn't bought with gloves on. The fucking bag was there. The wrapper was there. The receipt was there. True Value Hardware or whatever. I mean, I, you know, it's just the little things. (Inaudible).
Bellavia: Yeah, right. Them are the little things that, ah . . .
Jahoda: You know, who, whoever, did the floor leaves the fucking mop. You got to make sure that you use gloves, if, if I don't come home that night. If I catch that plane in the morning, which I almost did. I almost stayed at a broad's house.
Bellavia: There's things that you can be, there's things you can be so careful about, and yet there's little, little things.
Jahoda: Cuz I know that, that there was either, you know, I don't wanna know where it came from, you know, Bobby Salerno or yourself. Just, just learn from our successes.
Bellavia: That's right. That's right.
Government Exhibit 457 at 16-17. Jahoda and Bellavia also discussed Smith's murder on another occasion:
Jahoda: I mean I'm talking about the period. He just never told me a God damn thing.
Bellavia: Well, as a rule they should, but they don't, you know. When a guy's got bones.
Jahoda: He drove me back to the tavern and said, "Burn your clothes and leave. He doesn't say how long you guys are going to be [at Jahoda's house with Smith] or where's he's going.
Jahoda: You know what I mean? Like, I know, that, that guy [Smith] ain't' there to buy tickets to the, to the Knights of Columbus Smoker.
Jahoda: But in my wildest dreams, I don't picture him getting fucking sliced and diced in the kitchen, either.
Government Exhibit 457 at 20-21. In a subsequent discussion, Bellavia further assured Jahoda that Smith was only in the kitchen so he did not have to worry about evidence turning up in another room of Jahoda's house. Jahoda asked: "Except I just want to know one thing. Was that, that guy any place but that kitchen? He never left the kitchen." Bellavia told him "No." When Jahoda stated: "So, all I know is I sterilized that kitchen, but I never went past that kitchen. Kitchen and that side bathroom," Bellavia again responded: "No, that's all. That was it." Government Exhibit 457 at 32-34.
B. Defendant Marino's Role in the Ferriola Street Crew
Marino began his involvement with the Ferriola Street Crew as a bookmaker and a strong-arm collector. During the time the crew was managed by Infelise, Marino's responsibilities increased until he became a crew supervisor, serving directly under Infelise before and after Infelise became the crew boss. In addition to his collections responsibilities, Marino supervised other bookmakers, including Homer Gonzalez, and, at times, handled the bankroll for the bookmaking and juice loan operations. Marino provided juice loan bankrolls to Nicholas, Michael Pascucci, and James "Duke" Basile, and extended juice loans, most notably to bookmaker Dominic Basso.
Marino also supervised various aspects of the crew's gambling operation. For example, Marino supervised the distribution of parlay cards. Sam Malatia testified that in 1980, DeLaurentis hired him to distribute parlay cards. He occasionally received the cards from Marino at Marino's home. After the games were completed, Malatia would report the winners and losers on the cards to Marino or DeLaurentis. While he generally received the money to pay off winning players from DeLaurentis, Malatia testified that on one occasion he received the money from Marino.
On November 13, 1983, federal agents searched Marino's home and found voluminous parlay card stubs with parlay car agents' notations on them. According to the government, this discovery demonstrates that Marino's home was used as a clearing house for the crew's parlay card operation. Federal agents also found "master" parlay card stubs at Marino's house, with the winning and losing teams for each game indicated by being circled. According to the government, such master card stubs would only be used by someone figuring out the winning and losing bets for a parlay card wager. The master parlay card stubs found in Marino's home were in sequence with an identical master parlay card stub found on the same date at Infelise's home.
In recorded conversations with Jahoda in 1989, Infelise, DeLaurentis, and Nicholas indicated that as of that year, Marino supervised Nicholas' wagering activities, at least with respect to the floating blackjack games Nicholas was operating in Greek Town. Marino also provided a juice loan bankroll to Nicholas so that Nicholas could make juice loans to his customers.
Because of his supervisory position, Marino was considered by the crew to be one of the persons capable of keeping the crew's illegal businesses going in the event that other crew bosses went to jail. The following consensually recorded conversation between Jahoda and DeLaurentis took place:
DeLaurentis: Sure. What the fuck? You know, I'm going to try and keep this thing going. Let's say they scoop [arrest] us. I'm putting guys in now to keep this fucking thing going. One thing is going to jail and you still got everything going, and you know that, like you did last time.
DeLaurentis: That's another thing to go we're all closed up, you know. So I'll try to get a couple of guys in line nobody's home, B. You know, either me or Rocky [Infelise] or Louie [Marino], one of us, it will be a lot better if one of us is out on the street.
DeLaurentis: If we're all gone, then the guys behind us. We might lose a little money, somebody might steal a little along the way, but we still got it going.
Government Exhibit 447 at 14-15.
In addition, pursuant to Infelise's order, troublesome accounts were given to Marino and DeLaurentis for collection. Marino would often use strong-arm tactics in making these collections. In 1981, bookmaker Steve Hospodar lost approximately $ 12,000 when his bettors refused to pay him. Hospodar was responsible to the crew for the debt, but did not have the money to pay it. Hospodar recorded several conversations he had with Infelise, Marino, and DeLaurentis about the $ 12,000 debt. On February 6, 1981, Hospodar taped a conversation he had with Marino and DeLaurentis at a restaurant about the money he owed. In part, the following discussion took place:
Marino: (Inaudible) . . . He got any money today?
DeLaurentis: He ain't got nothin', nothin'.
Marino: Nothin' . . . You motherfucker, I wish this was real, you motherfucker, I'll give ya' it right here ya' dirty mother, come on [at this point in the conversation, Marino picked a knife up off the table and stuck it in Hospodar's ribs].
Marino: What do you got, motherfucker, jewelry anythin' you got, I want ever mother . . .
Marino: . . . fucker thing you got (Inaudible) . . .
Hospodar: This is all I got with me now. Here's a bond that I'm pinched. It's a hundred dollar bond.
DeLaurentis: what's this?
Hospodar: That's ah, a guy made a payment.
Hospodar: That's all, what the hell, I don't . . .
Marino: where the fuck is this money comin' from?
Hospodar: Lou, I ain't got nothin'. I got nothin' at all.
Marino: Hey, you took a shot at me, you motherfucker.
Marino: What do I look like, a fuckin' nitwit!
Hospodar: No, no, no, no, I told him I got a buyer for the lot. Let me try and sell the goddam lot!
Marino: Wait, wait, tell me I'm gonna wait until you sell the fuckin' lot?
Marino: I want this motherfuck, I don't give a fuck where you find it, I want this motherfuckin' money. I want money tonight! You hear what I'm tellin' you. I want money tonight, you motherfucker!
Marino: . . . And I mean what I'm tellin' ya'. And don't go hide you motherfucker, you can't hide . . .
Marino: You can't fuckin' hide nowhere.
Hospodar: I never hide from anybody Lou.
Marino: I'll put it, I'll be goin' to sleep with you at night, and you will bring fuckin' money tonight! You hear what the fuck I'm telling you?
Marino: Now I don't have to tell ya' what the fuck is this, how serious this is. Now you hear what I'm tellin' ya'? Ya' hear what I'm tellin' ya?
Marino: 'Cause I'm gonna be in your house, on your doorstep, I'll shake every motherfuckin' thing down in there.
Marino: And don't think that I ain't fuckin' capable. And don't call nobody . . .
Government Exhibit 304.
Zitello and Marino confronted another bettor, Ray Cavanaugh, at the Board of Trade where Cavanaugh worked regarding Cavanaugh's betting account. Bettor Burt Goldstein, who saw the confrontation, told Jahoda that he thought Marino was going to throw Cavanaugh over a balcony. Cavanaugh paid off his debt after Zitello's and Marino's physical confrontation with Cavanaugh.
In 1982, a delinquent bettor who owned a race horse named "Corleone," owed Miller approximately $ 9,000 in gambling debts. Miller turned the collection over to Jahoda who turned it over to Infelise and Marino. Infelise, Marino, and Jahoda had a meeting with the bettor during which Marino physically braced the bettor against a wall. On the night of the confrontation he was to point out the bettor and walk away. After he pointed out the bettor, Miller heard screams coming from the bettor's direction as he walked into the hotel bar. Jahoda later told Miller that they had turned the bettor upside down and Marino took money from the bettor's wallet.
Marino was involved in the intimidation of Kenton Pielet. Pielet acted as a 50/50 bookmaker for the crew starting in the summer of 1979 and as a 25% agent during the basketball season of 1980. During the football season of 1979, Pielet had approximately 50 betting football customers who lost approximately $ 102,000. One of Pielet's bettors, Larry Holler, lost $ 26,000 in one week. After there were difficulties in collecting Holler's debt and Holler indicated that he was going to refuse to pay, a meeting was set up between Holler, Pielet, Marino, and Zitello. Holler paid off the $ 26,000 at this meeting.
Holler was permitted to continue betting during the basketball season of 1980 and ultimately lost over $ 13,000. After Holler did not pay off his debt, a meeting was set up between Pielet, Infelise, and Marino. At this meeting, Pielet told Infelise and Marino that he tried to collect Holler's debt, but that Holler did not have the money. Infelise told Pielet that he was responsible for Holler's debt. When Pielet laughed at this suggestion, Marino slapped him across the face. Infelise then told Pielet that he would have to collect the debt and pay $ 500 per month in street tax. Pielet then agreed to make the street tax payments because the slap by Marino scared him. Pielet later switched to another street crew run by Sam Carlisi. This change in crew membership only occurred after Pielet obtained permission to switch and Holler's $ 13,000 debt was resolved.
Marino was also involved in the intimidation and extortion of Patrick Gervais. Before becoming involved with the Ferriola Street Crew, Gervais had a street tax relationship with Victor Spilotro, a boss from another crew. But, within a week of opening a house of prostitution in Lake County, Illinois, Gervais received a phone call from DeLaurentis advising him that he would have to pay a $ 3,000 per month street tax to the Ferriola Street Crew. When Gervais spoke with Spilotro about the phone call, Spilotro told Gervais not to pay DeLaurentis because "he had the muscle." Marino then set up a meeting with Gervais which Spilotro also attended. When Marino and Infelise showed up for the meeting, Spilotro looked surprised to see Infelise. After Spilotro and Infelise had a brief, private discussion, Spilotro told Gervais that "I am out" and that Gervais' house of prostitution was "in their territory." Spilotro also told Gervais that he would have to deal with Marino and Marino commented, "that's right, that's ours." After Infelise's intercession, Gervais began paying street tax to the Ferriola Street Crew. Gervais paid a total of $ 12,000 to the crew to protect his Lake County house of prostitution.
Marino was also involved in the intimidation and extortion of George Miller, Jr. Miller was an independent bookmaker who worked with bookmaker Hal Smith during the late 1970's. In 1980 or 1981, Miller broke away from Smith and began working as an independent bookmaker in Lake County with his father George Miller, Sr. The Millers also ran a lucrative parlay card business during this time. In 1982, Infelise, Marino, and DeLaurentis decided to take over the Millers' operation. A meeting was arranged between the Millers, Infelise, Marino, and DeLaurentis. At the meeting, Marino told the Millers that they had to split their business with them. If they did not join the crew, Infelise told them that they would smash their parlay card printing press. Marino further told them, "We are taking over Lake County. There are only two crews in Lake County, Posner and us."
After this meeting, the Millers discussed their situation with other bookmakers and learned about DeLaurentis' reputation as a mob enforcer. At a second meeting with Infelise, Marino, and DeLaurentis, George Miller Jr. told them that he would join the crew's business. Infelise, Marino, and DeLaurentis subsequently took over the Millers' business on a 50/50 basis and employed Miller in one of their wire rooms. In 1982, the crew received $ 75,000 for their 50% interest. After 1982, Miller basically got out of the parlay card business, but DeLaurentis warned him that if he ever got back into parlay cards again, it had "better be with us."
Marino also collected payments from Roy Salerno. In the summer of 1983, Salerno, one of George Miller's bettors, lost $ 100,000 in baseball wagers to Miller. Miller eventually turned the debt over to Jahoda who in turn advised Infelise about the debt. Infelise told Salerno that he would have to make monthly payments of $ 1,500 until the debt was paid off. Marino, DeLaurentis, and later, Bellavia collected these payments from Salerno for several years until Infelise "cashed out" the debt for approximately $ 10,000-$ 15,000. Miller did not receive any of the money collected by the crew.
Marino was also involved in the intimidation of Ken Eto. Eto had been in the gambling business in one form or another since the late 1950's and had paid street tax to outfit bosses during this time. Eto was introduced to Infelise in the late 1950's or early 1960's by Turk Turello. In 1980, Eto was interested in opening and sought permission from Ferriola to open a Bolita game,
but, if he failed to get permission before opening a game, he could very well get hurt. Ferriola consulted with Vince Solano, Eto's boss from the Rush Street Crew, and they decided that Eto would be required to pay $ 5,000 per month starting in May 1980 to operate the game. Solano told Eto to pay the street tax directly to Infelise. After that meeting, Eto met Infelise and Marino monthly to pay them $ 5,000 until February 1982. In total, Eto paid Infelise and Marino approximately $ 100,000 in street tax.
Eto also paid Infelise and Marino protection money, which was to be passed on to John Monteleone, for a Monte game. In the fall of 1981, Infelise gave Eto permission to move the game to Lake County because of the heat it was getting, but Eto declined because Lake County was too far. Eto also had a bookmaking partnership with Joe Borsellino. In early 1982, Infelise took Borsellino's business away from him because Borsellino owed him $ 20,000. Infelise permitted Eto to maintain his interest in the business and gave Eto a betting line. In late 1982, Eto made arrangements for two independent bookmakers to meet Infelise and Marino to receive a betting line and a number to call for their action. And, in late 1981, Eto sought Infelise's permission to open a strip joint. Infelise told Eto that he could not open the strip joint because his intended location was "sacred territory." According to Infelise, the refusal was not coming from him, but straight from the "old man."
Marino was also involved in the intimidation and extortion of Thomas Skryd,
an attorney who pleaded guilty to tax violations and agreed, pursuant to his plea agreement to cooperate with the government. In approximately March 1984, Skryd and his wife purchased a tavern called "TJ's Pub" in Lyons, Illinois and managed by Ken Kreble. During the first year of Skryd's ownership, a money stakes poker game was played in the rear of the tavern. After he had owned the bar for some time, he was advised that the Outfit did not like the fact that he had a poker game at his tavern. Skryd was then introduced to Marino who he knew to be a member of the Chicago Outfit associated with Infelise and moving up in the ranks of the Outfit. When they met, Marino told Skryd that he had heard about Skryd's poker game. When Skryd told him it was just a neighborhood game, Marino replied: "you're in our business." Marino told Skryd that something could be worked out and to go ahead with the game. Marino said he would see Skryd once a month but he did not know what to charge Skryd because he did not know how much the poker game was worth. Skryd was to tell Marino what he thought it was worth and what payoff seemed fair, and Marino would see how well the game did and adjust the payments accordingly.
Marino also told Skryd not to worry about the card game because "we" have inside information and could warn him about police raids before they occurred. Marino said that there were other games in the same area as Skryd's bar and that he could not let Skryd get away without paying because then the other card game operators would complain. Marino further told Skryd that while attorney Bob Stevenson did some of "their" legal work, he could throw some syndicated gambling cases to Skryd.
After meeting with Marino, Skryd told his manager to stop the game. Skryd stopped the card game because he was not charging for it and therefore did not make money which warranted making monthly payments to Marino. Skryd did not want to have any dealings with Marino since he knew Marino was associated with the Outfit and Skryd was afraid of having any dealing or trouble with it. Skryd never considered continuing the card game without paying Marino. After shutting down the game, Skryd had not further contact with Marino.
Finally, as described in detail above, Infelise, Bellavia, and Marino were involved in the conspiracy to murder Hal Smith.
The Objections To The PSI And The Government's Motion For Upward Departure
A. Section 3C1.1: Obstruction of Justice
The determination of whether Marino should receive a Section 3C1.1 enhancement depends upon a finding that Marino should be held accountable for Hal Smith's death. When reviewing evidence at sentencing, the Seventh Circuit has clearly established that it is appropriate to apply the preponderance of the evidence standard. See United States v. Masters, 978 F.2d 281, 286-87 (7th Cir. 1992); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991). Based upon this court's careful review of the evidence presented regarding Hal Smith's murder, this court is persuaded that the government has shown by a preponderance of the evidence that Marino should be held accountable for Hal Smith's death.
As thoroughly explained in the background section of this opinion, Jahoda testified extensively about the stalking and murder of Hal Smith. Jahoda testified that Smith refused to pay the street tax the crew demanded and this refusal motivated crew members to conspire to murder Smith.
Jahoda also testified that, as arranged during a prior meeting between Jahoda, Marino, Infelise and Bellavia, Jahoda brought Smith to his house on February 7, 1985 and left him there with Infelise, Bellavia, and Marino. Jahoda last saw Smith dazed and slumped on the kitchen floor with Infelise, Bellavia, and Marino standing over him. When Jahoda returned home later that evening, he noticed that part of the kitchen floor had been mopped. Smith's body was found in the trunk of his car three days later, on February 10, 1985.
This court has already determined that sufficient evidence has been presented to prove by a preponderance of the evidence that Infelise and Bellavia participated in Smith's murder.
Jahoda clearly identified Infelise and Bellavia as participating in the stalk and murder of Hal Smith and this court finds Jahoda to be credible. During the trial, Jahoda was on the witness stand for approximately 4-5 weeks, testifying regarding illegal acts committed by Ferriola Street Crew members. On many occasions, Jahoda's testimony was corroborated by other witnesses and tape recorded conversations. See, e.g., United States v. Infelise, 835 F. Supp. 1466 (N.D. Ill. 1993); United States v. Maltese, 1993 U.S. Dist. LEXIS 8403 (N.D. Ill. 1993); United States v. Zitello, 90 CR 87-11, 1993 U.S. Dist. LEXIS 2753 (N.D. Ill. Feb. 17, 1993); United States v. Aleman, 1992 U.S. Dist. LEXIS 19198, 9 CR 87-12 (N.D. Ill. Dec. 16, 1992). This court had the opportunity to view this witness and his cross-examination, and finds his testimony to be credible.
It is clear that this court can rely on Jahoda's testimony alone in meeting the preponderance standard that is applicable here. Indeed, the uncorroborated testimony of a co-conspirator can be relied upon when finding beyond a reasonable doubt that a defendant is guilty of a crime. See United States v. Byerley, 999 F.2d 231, 1993 U.S. App. LEXIS 17476 (7th Cir. 1993); United States v. Trujillo, 959 F.2d 1377 (7th Cir.), cert. denied, 121 L. Ed. 2d 204, 113 S. Ct. 277 (1992). In the instant case the court has relied not only on Jahoda's testimony but corroboration by tape-recorded conversations or other evidence regarding details of the murder.