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United States v. Salerno

March 4, 1997

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

ROBERT SALERNO,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 90 CR 87

Before Harlington Wood, Jr., Ripple, and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Ann Claire Williams, Judge.

Argued October 23, 1996

Decided March 4, 1997

Robert Salerno was convicted under 18 U.S.C. sec. 1952B *fn1 for murder and conspiracy to commit murder for the purpose of maintaining or increasing his position in a racketeering enterprise. He challenges his conviction on four grounds: 1) that the government violated the Speedy Trial Act by allowing 17 months to elapse between the conclusion of Salerno's first trial and the announcement of its intent to retry Salerno; 2) that the district court erred in permitting the government to present extensive evidence of other crimes to show the existence of, and defendant's participation in, an enterprise; 3) that the admission of evidence of other crimes for which Salerno had been acquitted violated the issue preclusion component of the Double Jeopardy Clause; and 4) that the district court erred in admitting into evidence the government's scale model of the crime scene, which the jury was also permitted to examine during its deliberations. Because we find these claims to be without merit, we affirm the decision of the district court.

I. History

This case involves the murder of Hal Smith, allegedly by the defendant, Robert Salerno, and his cohorts Rocco Infelise, Louis Marino, and Robert Bellavia. All four men were members of the Ferriola Street Crew -- a unit of Chicago's organized crime establishment, often referred to as the "Outfit." The Chicago Outfit operates through "street crews," and the Ferriola Street Crew (named after Joseph Ferriola, the boss of the crew from 1979 to 1989) engaged in a number of criminal activities including the collection of protection money (or "street tax") from bookmakers, houses of prostitution, and adult theaters. Infelise became the boss of the Ferriola Street Crew upon Ferriola's death in 1989.

On February 10, 1985, Smith's stabbed, strangled, and tortured body was found in the trunk of his own car. Smith ran a lucrative independent bookmaking operation in Lake County, Illinois. Beginning around 1981, Smith was aware that Marino and Salvatore DeLaurentis --another member of the Ferriola Street Crew -- were attempting either to collect street taxes from independent bookmakers or to force them to become partners with the Ferriola crew. After initially resisting these efforts, Smith and his two bookmaking partners began paying DeLaurentis $3,000 per month in street tax in 1983.

In late February or early March 1984, DeLaurentis arranged to meet Smith and one of his phone clerks at an Arlington Heights restaurant. At the meeting, DeLaurentis asked Smith to pay $6,000 per month in street tax. Smith offered to pay $3,000 and then $3,500, but DeLaurentis insisted upon the $6,000. At that point, Smith and DeLaurentis had a loud argument over who had more money and power, and they began throwing money at each other. Smith then ordered DeLaurentis to leave before he kicked his "olive oil smelling ass" back to Sicily. DeLaurentis retorted that Smith would be "trunk music."

In the spring of 1984, Infelise asked William Jahoda, an Outfit bookmaker, where Smith lived so that the street crew could collect the tax. Throughout the summer of 1984, Salerno, Infelise, Marino, and Bellavia used Jahoda's Long Grove, Illinois house as a base for their "stalking" operation of Smith in an attempt to learn his whereabouts and identify his car. On or about February 4, 1985, Infelise ordered Jahoda to bring Smith to Jahoda's house. Jahoda arranged to meet Smith at a tavern on February 7 and informed Infelise of the meeting.

On the afternoon of February 7, 1985, Salerno, Infelise, Marino, and Bellavia came to Jahoda's house. Infelise instructed Jahoda to bring Smith back to Jahoda's house in Smith's car. He also wanted Jahoda to remain outside and let Smith enter the house alone through the kitchen. That night, Jahoda met Smith and brought him back to his house. Smith entered the house by himself while Jahoda pretended to go to the mailbox. Jahoda saw Smith through the kitchen door and windows, and he saw Salerno come up behind Smith. Jahoda waited in the garage until Infelise came outside looking for Smith's car. Infelise, however, returned to the kitchen to get Smith's car keys. At that time, Jahoda saw Smith lying on the kitchen floor but still conscious, surrounded by Bellavia, Marino, and Salerno. Marino removed Smith's car keys from Smith's coat pocket and gave them to Infelise. Infelise then drove Jahoda back to the tavern and instructed him to burn his clothes.

Everybody was gone when Jahoda returned home later that evening. Jahoda noticed that part of the kitchen floor had been mopped, and he found a brown bag, a plastic bag for vinyl twine, and a hardware store receipt. He also received a phone call from Infelise who asked Jahoda to look for a cigar and some glasses that Marino thought he had left behind. Jahoda did not find these items; the Arlington Police, however, later recovered both the cigar and glasses from Smith's car. In the years after the murder, Infelise, Bellavia, and Salerno made statements to Jahoda regarding the "stalk" and murder of Smith. Little did they know, however, that Jahoda became an informant for the government in April 1989.

A grand jury returned a multi-count superseding indictment against twenty individuals, including Salerno, charging them with a variety of crimes including RICO conspiracy. Salerno was also named in three RICO predicate acts and two substantive counts. Count 8 charged Salerno of conspiring with Infelise, DeLaurentis, Bellavia, and Marino to murder Smith in order to maintain or increase their positions in a racketeering enterprise. Count 9 charged Salerno, Infelise, Bellavia, and Marino with the actual murder of Smith, again for the purpose of maintaining or enhancing their positions in the enterprise.

The government's case against these defendants proceeded to trial, and on March 10, 1992, the jury delivered its verdict. The jury found Salerno not guilty of RICO conspiracy, but it convicted Infelise, DeLaurentis, Bellavia, and Marino on the RICO conspiracy count, as well as other counts. The jury, however, could not reach a verdict on Counts 8 or 9 as to Salerno, Infelise, Bellavia, and Marino. *fn2 Seventeen months later, the government announced its intention to retry only Salerno on Counts 8 and 9. In the second trial, a jury found Salerno guilty on both counts.

II. Analysis

A. Speedy Trial Act

The first issue on appeal is whether the district court erred in finding no violation of the Speedy Trial Act despite the fact that 17 months elapsed between the first jury's verdict and the government's announcement that it would retry Salerno on Counts 8 and 9. We review a district court's interpretation of the Speedy Trial Act de novo and its factual findings for clear error. United States v. Wimberly, 60 F.3d 281, 284 (7th Cir. 1995), cert. denied, 116 S. Ct. 744 (1996).

On March 10, 1992, the jury in the first trial returned a partial verdict against the five defendants, including Salerno. Although four defendants -- i.e., Infelise, Marino, DeLaurentis, and Bellavia --were found guilty on the RICO conspiracy count, Salerno was acquitted of this charge. The jury, however, failed to reach a verdict for Infelise, Marino, Bellavia, and Salerno on Counts 8 and 9 of the indictment, which charged them with conspiring to murder and the actual murder of Smith in order to maintain or increase their positions in a racketeering enterprise. Thus, these defendants remained subject to retrial on Counts 8 and 9. *fn3

After the first trial, the district court endured an onslaught of complex post-trial and sentencing motions from the defendants and the government. The district court later described the post-trial proceedings as "remarkable for both the breadth and complexity of the issues presented," noting that it "issued more than a dozen separate opinions, totaling more than 400 pages." Memorandum Opinion and Order, United States v. Salerno, No. 90 CR 87-5, at 2 (N.D. Ill. Jan. 26, 1994) (denying Salerno's motion to dismiss the indictment based on the Speedy Trial Act). After the resolution of the post-trial motions and sentencing proceedings, the government pronounced that it would retry only Salerno on Counts 8 and 9. At that point, Salerno complained that the government violated the Speedy Trial Act by not beginning his retrial within the 70-day statutory period. See 18 U.S.C. sec. 3161(e). The district court denied Salerno's motion to dismiss the indictment, finding the entire period from March 10, 1992 to August 24, 1993 to be excludable under 18 U.S.C. secs. 3161(h)(1) and (h)(7). *fn4

Section 3161(e) of the Speedy Trial Act provides, in part, that when a "defendant is to be tried again following a declaration by the trial judge of a mistrial . . . the trial shall commence within seventy days from the date the action occasioning the retrial becomes final." 18 U.S.C. sec. 3161(e). This section further provides, however, that the "periods of delay enumerated ...


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