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United States v. Calabrese

September 10, 2008


The opinion of the court was delivered by: Judge James B. Zagel


On September 10, 2007, the jury in this case returned guilty verdicts as to James Marcello (counts 1, 2, 3, and 8); Joseph Lombardo (counts 1 and 9); Frank Calabrese, Sr. (counts 1, 4, and 5); Paul Schiro (count 1); and Anthony Doyle (count 1). Then, on September 27, 2007-after deliberating a second time-the jury returned special verdicts on whether the Government had proven the murder allegations charged as part of the racketeering conspiracy. The jury reached a unanimous decision regarding ten of the murders charged, but deadlocked as to the remaining eight.

Thereafter, Messrs. Lombardo, Calabrese, Sr., Marcello, Schiro and Doyle (collectively, "Defendants") filed post-trial motions seeking a judgment of acquittal or, in the alternative, a new trial.*fn1 For the reasons that follow, those motions are denied.


Defendants have all moved for judgment of acquittal due to insufficiency of the evidence. Rule 29(c) of the Federal Rules of Criminal Procedure governs motions for judgment of acquittal made following a jury verdict. A motion for judgment of acquittal should be granted only where there is insufficient evidence to sustain the conviction. United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000); United States v. Jones, 222 F.3d 349, 351-52 (7th Cir. 2000).

In considering the sufficiency of the evidence, I view the evidence in the light most favorable to the Government and overturn a conviction only "if the record contains no evidence on which a rational jury could have returned a guilty verdict." United States v. O'Hara, 301 F.3d 563, 569-70 (7th Cir. 2002); accord United States v. Duprey, 895 F.2d 303, 310 (7th Cir. 1989) (evidence and inferences are viewed in the light most favorable to the government). Additionally, when considering these motions, I will neither re-weigh the evidence nor judge the credibility of the witnesses. "As long as there is a reasonable basis in the record for the jury's verdict, it must stand." Galati, 230 F.3d at 258 (citations omitted).

I am denying the motions for judgment of acquittal because there was ample evidence to support the jury's verdict. The jury heard from a number of Government witnesses (Nicholas Calabrese, Frank Calabrese, Jr., William "Red" Wemmette, Ronald Seifert, Emma Seifert, Alva Johnson Rodgers, James Stolfe, Frank Giudice, Anne Spilotro, Richard Clearly, Salvatore Romano, etc.). In addition, the jury heard a great many recordings, including some of the Defendants themselves. Finally, three of the five defendants took the witness stand. The jury was well within its right to believe the testimony of the Government witnesses; believe (and draw inferences from) what it heard on the recordings; and disbelieve some, much, or all of the testimony of the testifying Defendants. In light of the current procedural posture (where I am to treat the Government's evidence as veritable Gospel), it is quite clear that there was sufficient evidence upon which the jury could reasonably return a verdict of guilty against Defendants.*fn2

It is possible that some of the witnesses may have been shaky in part. It is also possible that some of the witnesses were simply wrong about some details. This, however, does not necessarily discredit their testimony in whole. The maxim "Falsus In Uno, Falsus In Omnibus," while often a guidepost for lawyers, is profoundly misleading. While the maxim may make some sense when "Falsus" means perjurious, even witnesses who deliberately lie about some things (e.g., that they acted unwillingly), may well be truthful about other things (e.g., what they did).

In addition, false testimony includes good faith mistakes and understandable slips of memory that do not necessarily discredit the witness's testimony in whole. Further, a great deal of the persuasive evidence in this case came from the mouths of the defendants themselves (either from the witness stand, or from recordings, or both). One of the defendants testified on the witness stand that his statements on the tapes were lies. The jury was within its rights to judge the statements from the defendants. In the case of the defendant who testified that his recorded statements were lies, the jury was perfectly within its rights to find that the statements from the witness stand-as opposed to those from the recordings-were a lie.

Because Defendants fail to satisfy the standards set forth in Federal Rule of Criminal Procedure 29, their motions for a judgment of acquittal are denied.


Defendants point to various supposed errors that they argue, individually or collectively, warrant a new trial. Motions for a new trial are considered under Federal Rule of Criminal Procedure 33. "A defendant is entitled to a new trial if there is a reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict." United States v. Van Eyl, 468 F.3d 428, 436 (7th Cir. 2006) (citing United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996)). The Seventh Circuit has warned that when considering a motion for new trial, "Courts are to grant them sparingly and with caution, doing so only in those really 'exceptional cases.'" United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999); accord United States v. DePriest, 6 F.3d 1201, 1216 (7th Cir. 1993) (explaining that motions for new trial must be approached with great caution and that judges should be wary of second-guessing determinations made by juries).

I will address Defendants' various arguments in turn.

A. Admission of Purported Hearsay and "Double Hearsay"

Several Defendants insist that they were unfairly prejudiced by the admission of hearsay. They also argue that I erred by admitting so-called "double hearsay."

The Government sought to introduce coconspirator statements as part of its evidence against Defendants. The Federal Rules of Evidence permit this. See Fed. R. Evid. 801(d)(2)(E) (defining statements made "by a coconspirator of a party during the course and in furtherance of the conspiracy" as not hearsay). Thus, the Government submitted a pre-trial proffer pursuant to United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), overruled on other grounds by Bourjaily v. United States, 483 U.S. 171 (1987). On May 11, 2007, I overruled Messrs. Lombardo and Marcello's objections to the Government's Santiago proffer. See Docket #513. I thereby concluded that the Government had proven "by a preponderance of the evidence . . . that

(1) a conspiracy existed, (2) the defendant and the declarant were members of the conspiracy, and (3) the statement(s) sought to be admitted were made during and in furtherance of the conspiracy." United States v. Rodriguez, 975 F.2d 404, 406 (7th Cir. 1992).

Consistent with my May 11 ruling, I permitted the Government to offer a number of statements that, but for Rule 801(d)(2)(E), might otherwise have been hearsay. Further, I am satisfied that the Government's evidence at trial sufficiently tracked what was set forth in the Santiago proffer. In their pre-trial objections to the Santiago proffer, and again in these post-trial motions, some of the defendants referred to some of the statements offered as gossip or idle chatter. I reject these characterizations. Moreover, "[e]ven if the jury was exposed to evidence that was not properly before it . . ., a defendant is not automatically entitled to relief." United States v. Garcia, 528 F.3d 481, 485 (7th Cir. 2008) (quoting United States v. Gonzalez, 319 F.3d 291, 297 (7th Cir.2003)). I should only order a new trial if "there is a reasonable possibility that the evidence had a prejudicial effect-that is, where the error is not harmless." Id. Assuming, arguendo, that I improperly permitted certain statements (an assumption I reject), I decline to find that such statements amounted to sufficient prejudice such that a new trial is warranted.

I also reject the objections to so-called "double hearsay." Rule 805 of the Federal Rules of Evidence covers "double hearsay." The rule states: "Hearsay included within hearsay is not excluded under the hearsay rule if each part or the combined statement conforms with an exception to the hearsay rule provided in these rules." Fed. R. Evid. 805.

Under the rule, in order for "double hearsay" to be admitted, "each statement in the chain must fit 'an exception,' and this term should be read also to reach statements that qualify as 'not hearsay' under Fed. R. Evid. 801(d) and statements offered for non-hearsay purposes." Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8.136 (3d ed. 2007).

The key exception*fn3 in this matter is the above-referenced co-conspirator exception. See Fed. R. Evid. 801(d)(2)(E). The Seventh Circuit has confirmed that the co-conspirator exception can be used to admit both links in a double hearsay chain. In a 1973 case, the court considered the admissibility of testimony of a witness who testified as to what one defendant told him that a second defendant had said. United States v. Cogwell, 486 F.2d 823 (7th Cir. 1973). The panel stated: "it is well-settled that where a witness testifies that one coconspirator related the statement of a second coconspirator and both statements were made in the course of and in furtherance of the conspiracy, the evidence of the out-of-court statement by the second coconspirator (as well as that of the first coconspirator) is fully admissible against the second coconspirator and his fellow coconspirators." Cogwell, 486 F.2d at 832 n.5 (citing United States v. Aloisio, 440 F.2d 705, 708-709 (7th Cir. 1971); United States v. Santos, 385 F.2d 43 (7th Cir. 1967)).

The Seventh Circuit again addressed this issue in a 1995 case. See United States v. Sturman, 49 F.3d 1275 (7th Cir. 1995). In Sturman, the defendant objected to the admission, through A, of instructions that he (the defendant) gave to B. 49 F.3d at 1280. The panel held that such statements were admissible as a statement of a party opponent. Id. The court stated: had [B] testified as to what [the defendant] told him, it would have been admissible. The next layer of statements, [B's] relaying to [A] what [the defendant] told him to do, is admissible because as a statement of a co-conspirator, it is not hearsay. Anything said by one conspirator within the scope of the conspiracy is attributed to the other conspirators.


Other Circuits have reached the same conclusion. In United States v. Sharpe, 193 F.3d 852, 869 (5th Cir. 1999), the Fifth Circuit held that a district court properly admitted co-conspirator A's testimony that co-conspirator B called co-conspirator C to ask about a murder, and co-coconspirator C confirmed committing the murder. 193 F.3d at 869. The court found the testimony admissible because "both [C's] statements to [B] and [B's] statements to [A] were admissible as statements of co-conspirators made in furtherance of the conspiracy." Id.; see also United States v. Diaz, 248 F.3d 1065, 1087 (11th Cir. 2001) (holding that since the court determined that the 801(d)(2)(E) elements were satisfied, "[co-conspirator A] was not precluded from testifying about what [co-conspirator B] told him regarding a conversation with [co-coconspirator C].").

The Cogwell and Sturman cases, as well as the cases from other circuits, confirm that the co-conspirator exception can be used to admit both layers in a "double hearsay" situation. The objections that some of the defendants made do not warrant a new trial.*fn4

B. Severance

Defendants argue that I should have granted their respective motions for severance. A court may order separate trials on separate counts if the joinder of offenses in an indictment appears to prejudice the defendant. Fed. R. Crim. P. 14(a). "[A] district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539 (1993). Defendants must do more than simply show that they would have preferred separate trials or that separate trials may have given them a better chance of acquittal. United States v. Rice, 520 F.3d 811, 817 (7th Cir. 2008) (citing United States v. Quilling, 261 F.3d 707, 715 (7th Cir. 2001)).

I am confident that the jury was able to give Defendants separate consideration. First, I instructed the jurors, both at the outset of the trial, and when I formally instructed them following the close of the evidence, that they were to give each defendant separate consideration. I presume the jury followed my instruction. See United States v. Corley, 519 F.3d 716, 728 (7th Cir. 2008); United States v. Serfling, 504 F.3d 672, 677 (7th Cir. 2007).

Second, counsel for Defendants repeatedly implored the jurors to remember that they should give Defendants separate consideration.

And third, Defendants differentiated themselves throughout the trial. Defendants all sat at different tables and were all represented by separate counsel. Three of the five defendants (Messrs. Lombardo, Calabrese, Sr., and Doyle) each testified in very different ways. Several of the defendants complain that they were prejudiced by the conduct of one or more of the other defendants. The very conduct ...

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