September 27, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 CR138 - Samuel
Bauer, Rovner, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
2012, defendant Michael "Mickey" Davis made a $300,
000 start-up loan to Ideal Motors, Inc., a car dealership in
Melrose Park, Illinois, owned by R.J. Serpico and his father
Joseph Serpico. Within a matter of months, Joseph had gambled
the money away and Ideal Motors had fallen deep in arrears.
The following summer, a man named "Mickey"
conspired to have R.J. Serpico's legs broken. Though the
scheme was never carried out, defendant Davis was eventually
convicted at trial of attempted extortion and using
extortionate means to collect a loan.
has appealed, raising five issues. The first is whether the
district court erred by admitting against Davis the
out-of-court statements by several people involved in the
conspiracy to hurt Serpico. The second is whether the
district court abused its discretion in allowing the
prosecutors to impeach the testimony of a key prosecution
witness with his prior inconsistent statements to government
agents. Those two issues are substantial, but we find no
reversible error. Davis raises three other issues concerning
witness immunity, the scope of cross-examination, and the
government's closing argument. Those issues also provide
no grounds for setting aside the convictions. We affirm
Davis's convictions and sentence.
The Government's Case
the stage for the legal issues, we first summarize the
government's theory that Davis became angry with the
Ser-picos and turned to violent means to punish R.J. Serpico
for the default on the outstanding debt. The scheme came to
light when Paul Carparelli, a reputed Chicagoland mobster,
contacted George Brown, his long-time associate. Brown was
then cooperating with the FBI and recorded a number of
relevant telephone calls. Carparelli told Brown that their
mutual "friend ... in Burr Ridge" -a restaurant
owner named Gigi Rovito-had a "job" for them.
During a series of conversations among Carparelli, Brown, and
Gigi's brother John Rovito, the details of the job came
into focus. The target: R.J. Serpico, the manager of a local
Ford dealership. The mission: a "thorough" beating.
The payout: "ten thousand clams." And the client?
The mysterious "Mickey, " a "partner" of
a man named Solly DeLaurentis.
scheme was not just talk. On July 11, 2013,
"Mickey" delivered a $5000 down-payment to Gigi
Rovito, who forwarded the payment to Carparelli via John
Rovito. On July 16, Carparelli told Brown that their client
was "breathin' down my f***in' neck." Later
that day, John Rovito told Brown that he would place an
"anonymous phone call" to the Ford dealership to
investigate R.J. Serpico's working hours. Rovito said
that he would tell their client the job would be
"handled" by the following weekend. On July 17, at
the direction of the FBI, Brown told Carparelli that he had
identified Serpico's home address. On July 21, in an
effort to stall for time, Brown told Carparelli that two
(fictitious) hit-men he had hired to attack Serpico had
visited his home and spotted Serpico but had called off the
attack after Serpico's wife and children appeared.
Fortunately for Serpico, the scheme ended two days later when
FBI agents arrested Carparelli and seized the $5000
down-payment from his residence.
defendant in this case, Mickey Davis, was never recorded on
any of the calls, but the government convinced a jury that
Davis was the "Mickey" who had ordered the beating
of R.J. Serpico and advanced the $5000 down-payment. The jury
found Davis guilty of using extortionate means to collect a
debt in violation of 18 U.S.C. § 894 and attempting to
affect commerce by extortion in violation of 18 U.S.C. §
The Co-Conspirator Statements
prove that Davis was the mysterious "Mickey, " the
government relied in large part on recorded conversations
among George Brown, John Rovito, and Paul Carparelli. These
recordings were admitted as co-conspirator statements under
Federal Rule of Evidence 801(d)(2)(E). Davis contends the
district court erred by admitting these statements because
the government failed to lay a sufficient foundation to
support a finding that Davis was a member of the conspiracy.
We review the district court's evidentiary rulings for
abuse of discretion, with any findings of fact reviewed for
clear error. United States v. Pust, 798 F.3d 597,
602 (7th Cir. 2015).
Rule 801(d)(2)(E), co-conspirator statements are admissible
against a defendant if the trial judge finds by a
preponderance of the evidence that (1) a conspiracy existed,
(2) the defendant and the declarant were involved in the
conspiracy, and (3) the statements were made during and in
furtherance of the conspiracy. E.g., United States v.
Haynie, 179 F.3d 1048, 1050 (7th Cir. 1999), citing
United States v. Godinez, 110 F.3d 448, 454 (7th
Cir. 1997). Under long-settled circuit law, a district court
may admit co-conspirator statements conditionally based on
the government's pretrial proffer, known in this circuit
as a "Santiago proffer." See United
States v. Santiago, 582 F.2d 1128, 1130-31 (7th Cir.
1978), overruled in part on other grounds by Bourjaily v.
United States, 483 U.S. 171 (1987). "If at the
close of its case the prosecution has not met its burden to
show that the statements are admissible, the defendant can
move for a mistrial or to have the statements stricken."
Haynie, 179 F.3d at 1050.
considering whether to admit alleged co-conspirator
statements conditionally, the district court may consider the
contents of the statements themselves. See
Bourjaily, 483 U.S. at 180. However, the record must
also contain independent evidence corroborating the existence
of the conspiracy and the participation of defendant and
declarant. Standing alone, the statements themselves will not
suffice. United States v. Harris, 585 F.3d 394, 399
(7th Cir. 2009).
Santiago procedure requires the government to close
the evidentiary loop at trial. The procedure assumes the
government knows what its witnesses will say at trial.
Cooperating witnesses, however, can be unpredictable. This
case poses the problem of a Santiago proffer that
the government could not satisfy completely.
case, the government's detailed Santiago proffer
described the evidence it intended to introduce at trial to
show that Davis conspired with the men whose telephone calls
were recorded. The proffer highlighted the expected testimony
from John Rovito, including the following:
• That Gigi Rovito asked John Rovito to recruit
Carparelli to conduct the beating, and that John did so;
• That John Rovito observed Davis at Gigi Rovito's
restaurant on the night of the down-payment; and
• That Carparelli told John Rovito that "the
beating was in relation to a car ...