/f3d/490/0575-01

United States Court of Appeals for the Seventh Circuit · 2007-06-12

Original case on neochart.com

Case and law context

18 U.S.C. § 1962

Role: background; posture: criminal; pretrial; two defendants previously convicted of RICO conspiracy take an interlocutory appeal from denial of their motion to dismiss a new RICO-conspiracy indictment on double-jeopardy grounds; affirmed (2-1 as to trimming overlapping predicate acts); result: not-decided; claim: (d)

Instances and excluded annotation blocks

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopeVariantExact source quotations
/f3d/490/0575-01 — United States Court of Appeals for the Seventh Circuit · 2007Conduct or participate in the conduct of enterprise affairs (§ 1962(c) operation or management test)not_reached
Excluded from merits counts
background / merits

claim: (d)

Unspecified variantNo source quotation recorded for this block.
/f3d/490/0575-01 — United States Court of Appeals for the Seventh Circuit · 2007Conspiracy to violate § 1962(a), (b), or (c) (§ 1962(d))not_reached
Excluded from merits counts
background / merits

claim: (d)

Charged offense is (d) conspiracy to violate (c); merits untried. The opinion decides only that the charged conspiracy is a separate offense from the earlier ones.
Unspecified variant
They are being charged with participating in a con- spiracy to operate an enterprise by means of criminal acts that include murder, arson, intimidation, etc.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [6868:7025] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/490/0575-01 — United States Court of Appeals for the Seventh Circuit · 2007Enterprise (§ 1961(4)): legal entity or association-in-factnot_reached
Excluded from merits counts
background / procedural

claim: (d); party: the Chicago Outfit (enterprise charged in 2005) vs. the Carlisi and Calabrese street crews (enterprises in the earlier prosecutions); theory: identity of the enterprise across prosecutions (parent organization vs. component crews); subject: party=the Chicago Outfit (enterprise charged in 2005) vs. the Carlisi and Calabrese street crews (enterprises in the earlier prosecutions); theory=identity of the enterprise across prosecutions (parent organization vs. component crews)

Not a holding that an enterprise exists (uncontested) but that enterprise A != enterprise B: parent criminal organization and its crews treated like parent corporation and subsidiaries. Dissent: crews are "branch offices", same enterprise. Was `satisfied [pleaded]` (QA2). Nothing about the enterprise element is decided: the court provisionally treats the charged Outfit as a different enterprise from the crews, for double-jeopardy purposes only. Fact polarity here is relative to "an enterprise distinct from the crews is charged".
association-in-fact/organized-crime-parent-distinct-from-its-street-crews
The two street crews are components of the "Chicago Outfit," the lineal descendant of Al Capone's gang
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [1336:1438] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

the other appellant, was charged in a 1995 indictment, together with six others, with participation in a similar conspiracy, though the offense period was 1978 through 1992 and the enterprise was a different street crew-the Street Crew.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [1010:1246] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Of course, being an illegal enterprise, it cannot have formal subsidiaries, but if the street crews are functional subsidiaries, that should suffice for purposes of analyzing a double jeopardy defense.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [10692:10893] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The enterprise is the Chicago Outfit, and insofar as is known at this time, it is a different enterprise from the Carlisi and Calabrese street crews.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [7026:7175] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/490/0575-01 — United States Court of Appeals for the Seventh Circuit · 2007Pattern of racketeering activity (§ 1961(5)): at least two predicate acts with relatedness and continuitynot_reached
Excluded from merits counts
background / merits

claim: (d)

Overlap of predicate acts between the old and new patterns is discussed only as a double-jeopardy factor; no trimming of overlapping acts ordered.
Unspecified variantNo source quotation recorded for this block.
/f3d/490/0575-01 — United States Court of Appeals for the Seventh Circuit · 2007Racketeering activity (§ 1961(1) enumerated state and federal predicate offenses)not_reached
Excluded from merits counts
background / merits

claim: (d)

Unspecified variantNo source quotation recorded for this block.
/f3d/490/0575-01 — United States Court of Appeals for the Seventh Circuit · 2007Fifth Amendment Double Jeopardy bar against successive RICO conspiracy/substantive prosecutionsnot
Excluded from merits counts
applied / procedural

basis: pleaded; claim: (d); party: Marcello (1993 conviction, Carlisi Street Crew) and Calabrese (1997 guilty plea, Calabrese Street Crew); count: 2005 RICO-conspiracy indictment naming the Chicago Outfit as the enterprise; subject: party=Marcello (1993 conviction, Carlisi Street Crew) and Calabrese (1997 guilty plea, Calabrese Street Crew); count=2005 RICO-conspiracy indictment naming the Chicago Outfit as the enterprise

Offense unit of a RICO conspiracy = (enterprise, pattern). A different enterprise makes a different offense even with overlapping predicates. Provisional: defense may be renewed after trial if the proof turns out to differ only trivially/formally from the earlier cases.
successive-rico-conspiracy/different-enterprise-parent-organization-vs-subunit
Marcello's claim is based on a 1992 indictment charging him and eight others with conspiring to conduct the affairs of the Carlisi Street Crew by means of numerous illegal acts between 1979 and 1990-acts such as extortion, intimidation, arson, conspiracy to commit murder, usury, witness tampering, and efforts to collect unlawful gambling debts.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [345:691] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The new indictment charges our two defendants, along with seven others only one of whom was a defendant in the previous prosecutions, with conspiring to conduct the affairs of the Chicago Outfit itself through a pattern of racketeering activity.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [1510:1755] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The predicate acts alleged include some of the criminal acts charged in the earlier indictments but also a number of criminal acts that were not charged, including many murders, usurious loans, incidents of witness tampering and other obstructions of justice, and travel in interstate commerce for the purpose of accom-pushing the Outfit's criminal objectives.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [1917:2277] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Some of the predicate acts occurred after the offense periods charged in the earlier prosecutions, but others occurred before or during those periods.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [2278:2428] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

These would be different conspiracies and hence different crimes even if the acts constituting the pattern of racketeering activity overlapped.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [7799:7942] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

What the government may not do is “reprose-cute a defendant for the same offense whenever it obtains broader evidence of criminal culpability.”
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [8457:8600] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 1 (1 = tagged; 0 = not tagged)

In this case the defendants are not only charged with a different conspiracy from what was charged in their previous prosecutions, but also charged with having conspired to conduct the affairs of the parent (the Outfit) by acts that are not identical to the acts charged in the first set of prosecutions, though there is overlap.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [10144:10473] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

At this stage, we cannot know how great the overlap will be, and so we have no basis for forbidding the trial to go forward.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [15999:16123] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/490/0575-01 — United States Court of Appeals for the Seventh Circuit · 2007Statute of limitations (4-year civil under Agency Holding; 5-year criminal under 18 U.S.C. § 3282)not_reached
Excluded from merits counts
background / merits

claim: (d)

Dictum: the 5-year limitation (18 U.S.C. § 3282) does not bar a RICO conspiracy resting on old predicate acts if the conspiracy continued into the limitations period.
Unspecified variantNo source quotation recorded for this block.

Court interpretations recorded from this case

interpretation

These would be different conspiracies and hence different crimes even if the acts constituting the pattern of racketeering activity overlapped.

/f3d/490/0575-01 — United States Court of Appeals for the Seventh Circuit · 2007

These would be different conspiracies and hence different crimes even if the acts constituting the pattern of racketeering activity overlapped.
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [7799:7942] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evaluated under a totality-of-the-circumstances five-factor test (time, persons, statutory offenses, overt acts/predicates, locus/enterprise) to determine whether two indictments charge the same enterprise/conspiracy.

interpretation

What the government may not do is “reprose-cute a defendant for the same offense whenever it obtains broader evidence of criminal culpability.”

/f3d/490/0575-01 — United States Court of Appeals for the Seventh Circuit · 2007

What the government may not do is “reprose-cute a defendant for the same offense whenever it obtains broader evidence of criminal culpability.”
Source: docroot/ir/caselaw/f3d_490.jsonl#/f3d/490/0575-01; Unicode character offsets [8457:8600] (end exclusive); SHA-256 d3f7952bc44164fe54f852372a101a8e7a1d40c97a01f7a57d5fb26c65d9e235.

Evaluated under a totality-of-the-circumstances five-factor test (time, persons, statutory offenses, overt acts/predicates, locus/enterprise) to determine whether two indictments charge the same enterprise/conspiracy.