Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 02 CR 1050-7, -4, -3, -2, -10--James B. Zagel, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
ARGUED FEBRUARY 13, 2012--
Before POSNER, WOOD, and SYKES, Circuit Judges.
This long-running criminal case is before us for the second time. In the first appeal, de- cided in United States v. Calabrese, 490 F.3d 575 (7th Cir. 2007), two defendants, Frank J. Calabrese, Sr., and James Marcello, charged with violating RICO by conspiring to conduct an enterprise's affairs through a pattern of racke- teering activity, 18 U.S.C. § 1962(d), appealed from the denial of their motions to dismiss the indictment. The indictment charged them, along with other members of the "Chicago Outfit"--the long-running lineal descendant of Al Capone's gang--with having conducted the Outfit's affairs through a pattern of racketeering activity that extended from the 1960s to 2005 and included a number of murders, along with extortion, obstruction of justice, and other crimes. Calabrese and Marcello contended that the trial, which was scheduled to begin on June 19, 2007, would place them in double jeopardy, and so they moved the district court to dismiss the charges. We affirmed the denial of their motions, holding that they had failed to show a sufficient overlap between the current indictment and previous indictments to establish that the new prosecution was placing them in double jeopardy, though we noted that, depending on the approach taken by the government in the forth- coming trial, the trial might vindicate their claim. United States v. Calabrese, supra, 490 F.3d at 580-81.
So they were tried, together with three other members of the Outfit--Joseph Lombardo, Paul Schiro, and Anthony Doyle. The trial lasted almost three months, and resulted in the conviction of all five defendants by the jury. The judge sentenced Calabrese, Marcello, and Lombardo to life in prison, Schiro to 20 years, and Doyle to 12 years, and also imposed forfeiture and restitution on all the defendants. All five defendants appeal. The most sub- stantial claims are renewed claims of double jeopardy by Calabrese and Marcello, and we begin there.
The Outfit conducts its operations in Chicago through "street crews." Calabrese was the boss of the Calabrese Street Crew (also known as the South Side/26th Street Crew). Marcello was a member of the Carlisi Street Crew (also known as the Melrose Park Crew). Marcello had been indicted in 1992 along with eight others for con- spiring, in violation of RICO, to conduct the affairs of the Carlisi Street Crew by means of a variety of criminal acts committed between 1979 and 1990, including the operation of an illegal gambling business, extortion, intimidation, conspiracy to commit arson and murder, and the collection of unlawful gambling debts. He had been convicted in 1993 and sentenced to 150 months in prison, and his conviction and sentence had been affirmed in United States v. Zizzo, 120 F.3d 1338 (7th Cir. 1997). Calabrese had been charged in 1995 with participa- tion in a similar conspiracy, though the offense period was 1978 through 1992. He had pleaded guilty in 1997 and been sentenced to 118 months in prison. He had not appealed.
Double jeopardy can take two forms. One is prosecu- tion for a crime the elements of which overlap the elements of a crime involving the same facts for which the defendant had been prosecuted previously. And in such a case, a case "where the same act or transaction constitutes a violation of two distinct statutory provi- sions, the test to be applied to determine whether there are two offenses or only one, is whether each provi- sion requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932); see also United States v. Dixon, 509 U.S. 688, 696 (1993); United States v. Doyle, 121 F.3d 1078, 1089-90 (7th Cir. 1997). For example, there would be only one offense for purposes of assessing double jeopardy if the second prosecution was for a lesser included offense of the crime for which the defendant had been prosecuted the first time. The other form of double jeop- ardy is prosecuting a person a second or subsequent time for the same offense, and that can be a difficult determination to make when the offense is conspiracy. Id.; United States v. Calabrese, supra, 490 F.3d at 578.
Heraclitus famously said that one never steps into the same river twice. What he meant was that one never steps into the same water; the river is the same, even though its substance is always changing. And so a conspiracy can be the same even if all the acts committed pursuant to it are different, because it is the terms of the agreement rather than the details of implementation that determine its boundaries.
Both the earlier and the current indictments of Calabrese and Marcello charge a RICO conspiracy--an "agreement . . . to knowingly facilitate the activities of the operators or managers" of an enterprise that commits crimes that are on a list (in the RICO statute) captioned "racketeering activity." Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7th Cir. 2000); see 18 U.S.C. §§ 1961(1), 1962(d); United States v. Pizzonia, 577 F.3d 455, 466 (2d Cir. 2009). The question is whether the second conspiracy is the same conspiracy. That's a harder question than whether two criminal statutes have the same elements, or whether an indictment for robbery charges the same robbery as a previous indictment.
The earlier and later conspiracies that Calabrese and Marcello were charged with overlapped. The crimes they were accused of agreeing to commit included some that had been alleged in the earlier indictments (the same crimes but different criminal acts) but other crimes as well, crimes with which they had not been charged previously, including murders (particularly emphasized in the current indictments) and travel in interstate com- merce in pursuit of the Outfit's criminal objectives. Calabrese and Marcello argue that their agreement to facilitate the criminal activities of their street crews and their agreement to facilitate the criminal activities of the Outfit itself are one and the same because the street crews are components of the Outfit.
To evaluate the argument we need to distinguish be- tween two situations. In one a defendant initially is prosecuted for his involvement in a component or- ganization and later for his involvement in the parent organization--of which he is a member simply by virtue of having joined one of the component organizations. In the other a defendant is prosecuted successively for joining a parent and one of its component organiza- tions that he serves in different ways.
A worker at Ford Motor Company's River Rouge Com- plex is an employee of Ford Motor Company. His agree- ment to work on the River Rouge assembly line con- tributes both to the plant's output and to the output of the company as a whole, of which River Rouge's output is simply a part. If Ford produced sawed-off shotguns rather than automobiles, the worker could be pros- ecuted for conspiring with employees of Ford or em- ployees at the River Rouge plant to produce an illegal weapon, but he could not be prosecuted for two separate conspiracies, because the members and the objectives and the activities of the two conspiracies (conspiracy with employees of Ford, conspiracy with employees at River Rouge) would be identical.
But if after producing sawed-off shotguns in the River Rouge plant an employee who had worked there is promoted into the Ford executive suite in Detroit as a regional manager and while there prepares financial reports designed to conceal from the government Ford's income from the production of illegal weaponry at River Rouge and other Ford plants, he has joined a separate though overlapping conspiracy.
We see from this example that depending on what the employee does, there can be two different enterprises that he is assisting rather than one even though they are affiliated, and provided that either they are indeed dif- ferent (as in our example) or the patterns of racketeering activity are different (in other than small ways, United States v. Calabrese, supra, 490 F.3d at 580-81; see also
United States v. Pizzonia, supra, 577 F.3d at 464-65; United States v. Ciancaglini, 858 F.2d 923, 930 (3d Cir. 1988), which would suggest that the government was trying to take two bites of what was really just one apple), there is no double jeopardy. United States v. DeCologero, 364 F.3d 12, 18-19 (1st Cir. 2004). The Outfit and its subsidiary street crews are different though overlapping enterprises pursuing different though overlapping patterns of racke- teering. And so they can be prosecuted separately without encountering the bar of double jeopardy. United States v. Pizzonia, supra, 577 F.3d at 463-64; United States v. Wheeler, 535 F.3d 446, 453-54 (6th Cir. 2008); United States v. DeCologero, supra, 364 F.3d at 18-19.
If as in our first Ford hypothetical you do street crew business only, you are not working for two dif- ferent enterprises even though the street crew is a branch; the enterprises are no more different than two nested Russian dolls are. But if you murder, which is Outfit business because it is too sensitive to be left to the street crews, you are working for the Outfit in a respect that is different from your street crew work; you are demonstrating that your agreement to assist the Outfit is broader than and distinct from your agree- ment to assist your street crew, just as conspiring to assemble shotguns at a plant is different from conspiring to conceal the assembly of shotguns at numerous plants.
The street crews (six in number in the relevant period) are operating divisions of the Outfit in Chicago. But the Outfit has powers and responsibilities distinct from those of the street crews. Only the Outfit can approve murders. Murders, or at least the kind of murders that the Outfit commits, generate no revenue directly. The benefits they confer, notably reducing the risk of appre- hension and conviction by eliminating informants and im- posing discipline on members, accrue to the entire or- ganization. Only the Outfit can form ad hoc groups whose members are drawn from two or more street crews to perform special tasks, such as surveillance of a person whom the Outfit's leadership has decided should be murdered. Only the Outfit can authoritatively resolve disagreements between street crews. And only the Outfit has a financial stake in Las Vegas. A member of a street crew is a member of the Outfit, but as in our second Ford example these are separate enterprises despite their affiliation. United States v. Calabrese, supra, 490 F.3d at 578; cf. United States v. DeCologero, supra, 364 F.3d at 17-18; United States v. Langella, 804 F.2d 185, 188- 89 (2d Cir. 1986). One enterprise (the Outfit) coordinates the Chicago mob, and commits crimes such as witness tampering and obstruction of justice to minimize government intrusion into the affairs of the entire mob; the other focuses on street-level vice.
The present indictment, and the evidence presented at trial to prove its allegations, concerns conspiracies involving Calabrese and Marcello in their capacity as Outfit members, not as street crew members. In par- ticular, they conspired to commit murder, and did com- mit murder, as members of the Outfit, not as members of street crews. One of the murder conspiracies in which they were involved was intended to protect the Outfit's interest in Las Vegas casinos. There was no Las Vegas street crew, though of course members of the Outfit oversaw the Outfit's skim of Las Vegas casino profits. The Outfit is more than the sum of the street crews.
All this would be obvious if the Chicago Outfit were a corporation and the street crews were subsidiaries. But it would be beyond paradoxical if by virtue of being forbidden by law to form subsidiaries, employees of criminal enterprises obtained broader rights under the double jeopardy clause than the employees of legal ones.
There is overlap as we said between the successive prosecutions, especially with regard to the types of street- level vice charged in previous indictments. But after we warned in our previous decision that if the govern- ment's evidence at the trial of the present case (which remember was about to start when we rendered that decision) duplicated its evidence in the previous trials of Calabrese and Marcello, the defendants might be able to plead double jeopardy successfully, United States v. Calabrese, supra, 490 F.3d at 580-81; cf. United States v. Laguna-Estela, 394 F.3d 54, 58-59 (1st Cir. 2005); United States v. Solano, 605 F.2d 1141, 1145 (9th Cir. 1979), the government took pains to present evidence in the current trial of conduct that had not figured in the previous ones and that distinguished the scope of the Outfit conspiracy from that of the street crew conspir- acies. We did not think that the defendants had proved double jeopardy from a comparison of indictments, and their claim is even weaker now that the second trial has been conducted. We can't say that the "government contrived the differences to evade the prohibition against placing a person in double jeopardy." United States v. Calabrese, supra, 490 F.3d at 580. The present trial sub- stantiated the functional differences between the Outfit and the street crews that show that these are different criminal enterprises, with different functions that generate different though overlapping patterns of racketeering activity. United States v. Langella, supra, 804 F.2d at 188-89.
But the means by which the government has thwarted the double jeopardy defense raises the question whether the defendants may have a good defense of statute of limitations. The murders that the Outfit orchestrated are the best evidence that the Outfit conspiracy was different from the street crew conspiracies for which Calabrese and Marcello had already been placed in jeopardy. But the last Outfit murder charged, that of John Fecarotta, was committed in 1986, 19 years before the present indictment and therefore well out- side the 5-year statute of limitations for RICO offenses. That is the default federal statute of limitations when a criminal statute fails to specify a statute of limitations, 18 U.S.C. § 3282; Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 155-56 (1987), and RICO is such a statute.
Marcello's operation of illegal gambling machines and Calabrese's participation in street-tax collection (despite his being in prison) persisted into the statutory period, but those are street-crew activities rather than Outfit activities. But a statute of limitations for con- spiracy does not begin to run until the conspiracy ends, United States v. Yashar, 166 F.3d 873, 875-76 and n. 1 (7th Cir. 1999); United States v. Maloney, 71 F.3d 645, 659-61 (7th Cir. 1995); United States v. Yannotti, 541 F.3d 112, 123 (2d Cir. 2008), and the separate conspiracy involving the Outfit continued into the statutory period, even if no predicate acts (crimes that constitute a pattern of racketeering activity) were committed during that period. But some were--namely, as the district judge found, obstructions by Calabrese and Marcello of the government's investigation of the Outfit.
There is another statute of limitations issue. Joseph Lombardo argues that he withdrew from the conspiracy in 1992, which if true means that the five-year statute of limitations had run by the time he was indicted in 2005. The principal evidence of withdrawal was an announce- ment that he placed in the Chicago Tribune and two other Chicago newspapers in which he said he'd just been released from federal prison on parole and that "if anyone hears my name used in connection with any criminal activity please notify the F.B.I., local police and my parole officer, Ron Kumke." The government describes the announcement as a "stunt," but whatever it was, it was not effective withdrawal.
One cannot avoid liability for conspiracy simply by ceasing to participate, United States v. Bafia, 949 F.2d 1465, 1477 (7th Cir. 1991); United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964) (Friendly, J.), hoping the conspiracy will continue undetected long enough to enable the statute of limitations to be pleaded suc- cessfully when one is finally prosecuted, the conspiracy having at last been detected. It is true that although the best evidence of withdrawal is reporting the conspir- acy to the authorities with sufficient particularity to facilitate their efforts to thwart and prosecute it, United States v. Wilson, 134 F.3d 855, 863 (7th Cir. 1998); United States v. Patel, 879 F.2d 292, 294 (7th Cir. 1989); United States v. Randall, 661 F.3d 1291, 1294-95 (10th Cir. 2011), a number of cases hold that an unequivocal statement of resignation communicated to one's conspirators can also constitute withdrawal. E.g., United States v. Arias, 431 F.3d 1327, 1341 (11th Cir. 2005); United States v. Greenfield, 44 F.3d 1141, 1149-50 (2d Cir. 1995). The rationale is that "by communicating his withdrawal to the other members of the conspiracy, a conspirator might so weaken the conspiracy, or so frighten his conspirators with the prospect that he might go to the authorities in an effort to reduce his own liability, as to undermine the conspir- acy." United States v. Paladino, 401 F.3d 471, 479-80 (7th Cir. 2005). This implies that a public announcement that is certain to be seen by one's coconspirators could do the trick, though we can't find any examples. No matter; Lombardo asked for a jury instruction on withdrawal and his request was granted. Doubtless the jury agreed with the prosecution that the Tribune ad was a stunt; and its rejection of the claim of withdrawal was rea- sonable and therefore binds us.
Marcello raises an evidentiary issue. A victim's daughter identified Marcello's voice as that of the man who called her father on the day of the father's disappearance. Mar- cello wanted to present an expert witness who would testify that voice identifications are often mistaken. The judge excluded the evidence. He was skeptical about its empirical basis and also thought that the jury already had a good understanding of the fallibility of "earwitness" identification. We do not suggest that such expert evidence is worthless or that jurors always grasp the risk of misidentification inherent in eyewitness and earwitness testimony. But a trial judge has a respon- sibility to screen expert evidence for reliability and to determine the total effects of proposed evidence, weighing its probative value against its potential to (among other things) confuse the jury. See Fed. R. Evid. 403. Both reliability and potential for confusion were factors in this case and we cannot say the judge abused his discretion in refusing to admit the expert evidence, which the jury might have taken as a signal that it should disregard the witness's identification testimony. See United States v. Bartlett, 567 ...