United States v. Anthony Calabrese ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2861
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY C ALABRESE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 239—Amy J. St. Eve, Judge.
A RGUED M AY 28, 2009—D ECIDED JULY 14, 2009
Before E VANS, W ILLIAMS, and T INDER, Circuit Judges.
E VANS, Circuit Judge. A jury convicted Anthony
Calabrese of three counts of robbery and three counts
of using a firearm in connection with those crimes. On
appeal, he asks us to reverse his convictions on several
grounds: that the court should have conducted separate
trials for each of the robberies; that the judge should
have excluded an audiotape that recorded what was
said during a beating administered to a potential witness;
and that the evidence was otherwise insufficient to
support the convictions. Failing that, Calabrese seeks
2 No. 08-2861
resentencing because he says the one he received, though
consistent with our decision in United States v. Roberson,
474 F.3d 432 (7th Cir. 2007), is excessive. We review the
facts in the light most favorable to the verdict. And so
viewed, the facts read like a Nicholas Pileggi/Martin
Scorsese screenplay.
The evidence established that a group of Chicago-area
thugs knocked off three local businesses in a crime spree
that stretched from April to September 2001. The
robberies were orchestrated by Calabrese from the back
office of his auto shop (Tony C’s First Impressions), and
everything generally went according to plan. Afterwards,
however, police nabbed one of the crew members and
persuaded him to cooperate. The main target was
Calabrese. Besides his role in the robberies, Calabrese
was supposedly linked to organized crime. He was also
the suspected triggerman in a pair of unsolved mob
hits. 1 Outfitting the cooperating witness with a wire—and
turning other crew members in the meantime—the
police eventually gained enough evidence to charge
Calabrese with the robberies. Whether the police
planned all along to use those charges as leverage in
the murder case or not—those deaths remain un-
solved—Calabrese went to trial on the lesser charges
and ended up with an effective life sentence. Along the
way the jury heard tales of violence that made Calabrese
1
Steven Warmbir, The Tony Calabrese Trial So Far, Chicago Sun-
Times Blog (Feb. 7, 2008) at http://blogs.suntimes.com/mob/
2008/02/the_tony_calabrese_trial_so_fa.html (last visited June 1,
2009).
No. 08-2861 3
look like Tommy DeVito 2 come back to life.
The first job was to knock off a store called the Leather
Connection. Apart from Calabrese, the crew consisted of
Robert Cooper, Sean Smith, Walter Polino, and Marcus
Baker. After meeting up at the auto shop, the gang took
off in two vehicles—Polino’s car and a cargo van rented
by Calabrese—and headed for the store. Calabrese gave
Cooper a roll of duct tape and a gun; they were locked
and loaded. But then, following a cell-phone conversa-
tion in which he obtained more information about the
target, Calabrese had second thoughts. He directed the
crew to stop at a Chinese restaurant so they could discuss
the plan over lunch. Feeling better on a full stomach,
Calabrese decided they should go for it.
Cooper strolled into the store with Smith and, flashing
his pistol, forced the owner, Cary Feldman, and Feldman’s
mother, Molly Nudell, into a storeroom. Calabrese fol-
lowed and watched as Cooper bound them with duct
tape. Then the threesome got to work loading leather
coats into the van—together with roughly $10,000 dis-
2
Tommy DeVito is the violent sociopath played by Joe Pesci
(who won the Academy Award for Best Supporting Actor) in
the 1990 movie classic Goodfellas. The movie, directed by Martin
Scorsese and based on a nonfiction book (Wiseguy) by Nicholas
Pileggi, recalls, among other things, the travails of mobster
“Two-Gun Tommy” DeSimone, the best buddy of the real-life
lead character in the movie (Henry Hill) played by Ray Liotta.
As the movie opens, Hill harkens back to how it all began,
explaining that, at the age of twelve, his ambition was to
become a gangster: “To me,” he explains, “being a gangster was
better than being the president of the United States.”
4 No. 08-2861
covered along the way—while Polino and Baker remained
in the car as lookouts. Afterwards the crew split up—
Calabrese went back to First Impressions, and the rest
of the gang hit up a local bar for a few drinks until
Calabrese called them back to divvy up the booty.
Calabrese kept the lion’s share.
The next target was the Metamorphous Tattoo Parlor.
It wasn’t a robbery so much as a beat-down. The “artist,”
who was co-owner of the shop, supposedly tattooed a
mob boss’s underage daughter, and the father was none
too pleased. Instead of working this one personally,
however, Calabrese asked associate Ed Frank to find
some guys to shut the place down for good. Frank in
turn reached out to his drug dealer, Martin Flores, who
said he was game. When the three met up at First Im-
pressions to cover the details of the job, Calabrese
stressed three things: Flores needed to break the artist’s
hands; he needed to steal the tattoo machines; and he
needed to take ID cards from any witnesses to deter
them from contacting the police.3 Flores agreed. After
recruiting his cousin and another buddy—and picking up
plastic zip ties and a gun supplied by Calabrese—Flores
and his pals proceeded to the job.
Flores and the other hoods came through the door in
classic stick-up fashion. Flores waved his pistol and
ordered everyone to the floor, and his sidekicks
3
Another scene right out of Goodfellas, when Robert DeNiro’s
character (Jimmy “the Gent” Conway) confiscates the drivers
license of a trucker whose cargo has just been hijacked, remind-
ing him that “now I know where you live.”
No. 08-2861 5
restrained the bunch with zip ties. Although that was
the extent of the terror for three of the four victims,
Mike Farell (the “artist”) was in for special treatment.
Following through on Calabrese’s orders, the crew
pulled Farell into the back and beat him severely, pound-
ing his hands with a hammer. They then told Farell to
“get out of Lockport,” rounded up the expensive tattoo
equipment and everyone’s ID, and fled the scene. Once
again, the rendevous point was First Impressions. At
Calabrese’s direction, Frank paid Flores and his buddies
for their work. Calabrese took the stolen machines and
ID cards, and they called it a day.
The final job was a plain old cash grab, though it turned
out to be far less lucrative than Calabrese had hoped.
The target this time was Morris’ Meat Packing. One of
Calabrese’s associates, Richard Dawson, had a friend on
the inside who said the joint kept large amounts of money
on site, perhaps as much as $200,000. That proved to be
wishful thinking, as the crew scored only a little over
$15,000. Once again, Calabrese organized the heist. He
tapped Frank as his partner, and when Dawson
recruited Dave Sims, the gang was set at four. On the
way to the store, Calabrese told Frank and Dawson that
the three of them would go inside while Sims waited as
the getaway driver. Dawson objected, however, so Sims
took his place. When the three entered the store, Calabrese
and Sims were packing heat. They headed to the back
office where Frank Masellis, one of the shop’s owners,
was talking with Irma Powell, the mother to one of its
retail butchers. Calabrese demanded cash, and Masellis
handed him $15,500 from a pair of file cabinets. Before
fleeing, Calabrese took Masellis’s driver’s license and
6 No. 08-2861
told him that if he didn’t keep quiet, his kids would end
up dead. When the crew reconvened at First Impressions,
Calabrese once more kept the bulk of the loot; he gave
$1,000 each to Dawson and Sims, and $1,300 to Frank.
The jury heard all about this saga through a collection
of victims and accomplices turned state’s evidence.
Though the accomplices had their share of credibility
issues—and the victims’ memories seemed cloudy at
tim es— the testimony overwhelmingly portrayed
Calabrese as a ruthless crook constantly on the prowl for
new scores. And if there were any doubt about just how
violent he was, a recorded conversation made it clear
as day.
A few months after the crime spree, Frank showed up
unexpectedly at First Impressions. Calabrese was there,
as was Cooper, but they were suspicious. For whatever
reason—perhaps because Frank was recently in custody
on an unrelated charge—Calabrese and Cooper were
concerned that Frank was cooperating with authorities,
maybe even wearing a wire. Their instincts were right, of
course, but despite searching Frank they never found
the bug. Instead, the wire captured the whole conversa-
tion, including references to crime, death threats to
Frank, and a few knocks so he wouldn’t forget. Here’s a
sample of what the jury heard:
CALABRESE: I mean any little stupid shit you
know that goes on around here, you
know to keep your mouth shut.
I mean you understand what’ll hap-
pen?
FRANK: Tony, do I look like I wanna be dead?
No. 08-2861 7
COOPER: No one said . . .
CALABRESE: Nobody said you’re gonna be dead.
FRANK: I, I know the seriousness of what goes
on here. I ain’t stupid.
CALABRESE: There ain’t no seriousness. I mean, you
know when people get in trouble
sometimes they fuckin’ make shit up.
We don’t want you to fuckin’ be mak-
ing anything up, that’s all. I fuckin’
bust my balls here all day long, I got
enough fuckin’ shit going on here.
I don’t need no, don’t need nobody
else to fuckin’ start rumors or fuckin’
shit, so.
....
COOPER: Where you living at?
FRANK: In a hotel.
COOPER: Which hotel?
FRANK: Eh, why is that all that necessary?
COOPER: Because I asked for it, that’s why.
CALABRESE: Yeah, why?
FRANK: Tony, I don’t really feel safe to say.
COOPER: Why not?
CALABRESE: Fuck you, motherfucker, fuck you,
what did you say? Fuck you.
(Fighting in the background)
8 No. 08-2861
FRANK: I’m sorry, I’m sorry, I’m sorry, I’m
sorry, I’m sorry.
CALABRESE: Fuck you.
FRANK: I’m sorry, I’m sorry, I’m sorry.
CALABRESE: Cocksucker. Fuckin’ did everything for
you, you’re gonna act like that to me.
FRANK: I’m sorry, Tony.
CALABRESE: Fuck you.
COOPER: Punk ass bitch. Get your ass back up.
You wanna feel safe? I’ll give you
something safe. Remember the last
time, I told you? Do you?
FRANK: Yes, sir.
....
CALABRESE: Let me tell you something. Anything
fuckin’ happens, anything happens to
me, anything around here, we’ll
fuckin’ kill you.
The judge excluded the worst parts of the tape—death
threats to Frank’s family—but, as one can see, the
balance was pretty awful.4
With all this evidence, finding Calabrese guilty as
charged was an easy task. Sentencing was more diffi-
cult. Though the judge viewed the crimes as “very violent,”
4
The judge also excluded, throughout the trial, any references
to organized crime.
No. 08-2861 9
she was troubled by the statutory minimums on the three
gun counts. Under 18 U.S.C. § 924(c)(1)(A)(ii), she was
required to impose at least a seven-year sentence for the
first gun conviction and, under § 924(c)(1)(C)(i), consecu-
tive sentences of at least 25 years for each of the other two
convictions. So that made 57 years at a minimum, and it
had to run consecutively to whatever sentence the judge
imposed for the robbery counts. Had she the liberty to do
so, the judge said she would have considered the 57-year
minimum when crafting the robbery sentence. But the
judge felt compelled by our decision in Roberson to view
the robberies independently. Accordingly, she sentenced
Calabrese to 67 months—still below the guidelines
range—for the robbery convictions. All said and done,
Calabrese, 42 at the time, caught a sentence just over
62 years (67 months, plus 7, 25, and 25 years, all consecu-
tive).
Calabrese’s first argument is that the court should have
conducted a separate trial for each robbery. The general
rule, of course, is that multiple counts can be charged in
a single indictment “if the offenses charged . . . are of the
same or similar character, or are based on the same act
or transaction, or are connected with or constitute parts
of a common scheme or plan.” Fed. R. Crim. P. 8(a).
Calabrese does not argue that this standard was not
met; he concedes that all counts were properly brought
together in the indictment. Nevertheless, he says the
court erred in denying his motion for severance under
Rule 14. That Rule authorizes a court to order separate
trials of counts if a single trial “appears to prejudice a
defendant or the government . . . .” Fed. R. Crim. P. 14(a).
10 No. 08-2861
When the initial joinder is not at issue, we review denial
of a severance motion for abuse of discretion. United
States v. Quilling, 261 F.3d 707, 714 (7th Cir. 2001). Apart
from the hurdle of deferential review, the Rule 14
standard is exacting: “The defendant must be able to
show that the denial of severance ‘caused him actual
prejudice in that it prevented him from receiving a
fair trial; it is not enough that separate trials may
have provided him a better opportunity for an acquittal.’ ”
Id. at 715 (quoting United States v. Alexander, 135 F.3d
470, 477 (7th Cir. 1998)). “Because Rule 14 assigns to the
district court the task of balancing the cost of multiple
trials against the possible prejudice inherent in a single
trial, a defendant bears ‘an extremely difficult burden’ of
showing that the district court abused its discretion.”
United States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002)
(quoting United States v. Moore, 115 F.3d 1348, 1362 (7th
Cir. 1997)).
Measured against this standard, we must reject
Calabrese’s argument. He claims that he was prejudiced
because the evidence was shaky as to his involvement
in each individual robbery, but when the jury heard about
his role in the overall scheme it likely borrowed evidence
from the other robberies to reinforce a finding of guilt.
Certainly, evidence of other crimes or bad acts can have
a tendency to influence a jury’s analysis, which is
why Federal Rule of Evidence 404(b) prohibits this evi-
dence to prove a criminal character. But the judge in-
structed the jury that “[e]ach count and the evidence
relating to it should be considered separately,” and there
is nothing to indicate the jury ignored this command.
No. 08-2861 11
Moreover, the premise of Calabrese’s argument is
flawed—the evidence was not shaky as to each
individual robbery; it was overwhelming. So even if
there was some improper “spill-over effect,” it was harm-
less error. Calabrese has failed to establish that holding
a single trial caused him actual prejudice. On top of that,
if separate jury trials were conducted, a good bit of evi-
dence about the other robberies would have no doubt
been properly received by the jury as Rule 404(b) evidence
to show things like intent, preparation, motive, and
absence of mistake.
Similarly, Calabrese fails to show reversible error in
the admission of the audiotape. We review this claim for
an abuse of discretion, as the district court has
broad latitude to control the admission of evidence.
United States v. Ozuna, 561 F.3d 728, 738 (7th Cir. 2009). We
will reverse only where “no reasonable person could
take the view adopted by the trial court.” Id. Here, the
trial court determined both that the conversation on the
audiotape was relevant and that, with the worst parts
excised, its probative value was not substantially out-
weighed by the danger of unfair prejudice. See Fed. R.
Evid. 403. A reasonable person could take that view.
Relevance cannot be genuinely disputed; we have repeat-
edly observed that intimidation of a witness suggests
consciousness of guilt, United States v. Miller, 276 F.3d
370, 373 (7th Cir. 2002); United States v. Balzano, 916 F.2d
1273, 1281 (7th Cir. 1990), and the inference holds true
in this case. There’s just not much to the argument that
the conversation lacked relevance because it didn’t ex-
plicitly refer to one of the crimes at issue. As a practical
12 No. 08-2861
matter, specifics were unlikely to come up because
Calabrese was worried about a wire. And the possibility
that they were talking about another crime only made
the conversation incrementally less relevant, not
irrelevant altogether. On the other hand, whether the
risk of unfair prejudice outweighed that relevance is a
closer call. Letting the jury hear the sounds of the beating,
as opposed to providing a transcript, might, in some
minds, seem over the top. But the judge might have
reasonably thought that the tape worked better overall.
Voices can reveal meaning that words alone might
mask (e.g., insincerity when Calabrese insisted, “There
ain’t no seriousness.”), and the beating showed just how
concerned Calabrese really was. True, a reasonable judge
could have decided to use a transcript instead, or even to
eliminate some of the vulgarities, but that’s just the
point—reasonable minds can differ. There was no abuse
of discretion.
Turning to Calabrese’s final argument against the
convictions—insufficiency of the evidence—we find that
we have already answered it. Viewing the evidence in
the light most favorable to the verdict, the facts at trial
placed Calabrese at the center of every robbery. Indeed,
Calabrese does not contend that the testimony, if
believed, would be inadequate. His only claim is that
many of the witnesses lacked credibility. That’s a pretty
desperate argument because we do not second-guess
jury credibility determinations. See United States v. Brandt,
546 F.3d 912, 917 (7th Cir. 2008). Granted, there can come
a point where testimony is so implausible that it cannot
be trusted as a matter of law. But that category of testi-
No. 08-2861 13
mony is exceedingly narrow: “For a witness’s testimony
to be held incredible as a matter of law, ‘it must have
been either physically impossible for the witness to
observe that which he or she claims occurred, or impossi-
ble under the laws of nature for the occurrence to have
taken place at all.’ ” United States v. McEntire, 153 F.3d
424, 435 (7th Cir. 1998) (quoting United States v. Dunigan,
884 F.2d 1010, 1013 (7th Cir. 1989)). Yet, Calabrese
doesn’t argue these sorts of things. He simply points to
relatively minor inconsistences (like whether the crew
wore masks during the Leather Connection robbery)
and motive to lie. Neither inconsistencies nor motive to
fabricate are capable of rendering testimony legally
incredible. Id.; United States v. Wilson, 31 F.3d 510, 514
(7th Cir. 1994).
That brings us to sentencing. Calabrese does not
argue that the court erred in crafting his sentence under
prevailing law. Instead, he asks us to change the law. In
Roberson, we held that the mandatory add-on sentence
flowing from using a gun in a crime of violence may not
be used to justify a lower sentence on the underlying
offense. Roberson, 474 F.3d at 436. To take such an ap-
proach, we explained, would be to contradict “Congress’s
determination to fix a minimum sentence for using a
firearm in a crime of violence.” Id. Even shaving off a
single month from the sentence on the predicate crime
thwarts Congress’s will:
If the judge reduces the defendant’s sentence on the
underlying crime of violence from, say, 50 to 49
months because the defendant used a gun and there-
14 No. 08-2861
fore (if it was brandished) must be sentenced to
84 months on top of the sentence for the underlying
crime, the effect is to reduce the statutory minimum
sentence from 84 months to 83 months.
Id. Courts don’t have that power. We do have the power,
on the other hand, to overturn a prior decision in the
presence of “compelling reasons.” United States v. Shutic,
274 F.3d 1123, 1126 (7th Cir. 2001). But Calabrese doesn’t
offer any. The fact that the law may possibly be different
in other circuits, see United States v. Vidal-Reyes, 562 F.3d
43, 56 (1st Cir. 2009) (holding that district court had
authority to consider statutory minimum for identity
theft, 18 U.S.C. § 1028A, when imposing sentence for non-
predicate crimes charged in the same indictment);
United States v. Ciszkowski, 492 F.3d 1264, 1268 n.3 (11th
Cir. 2007) (observing, but not passing judgment on,
decision to impose a lower sentence due to § 924(c)); United
States v. Angelos, 345 F. Supp. 2d 1227, 1260 (D. Utah 2004)
(imposing sentence of one day on other counts in light
of § 924(c) add-ons), aff’d, 433 F.3d 738 (10th Cir. 2006)
(affirming without comment on this issue), does not by
itself constitute a “compelling reason” to disrupt our
precedent. We are satisfied that the rule we adopted is
the only choice consistent with separation-of-powers
principles, and we are comforted by the fact that the
appellate courts that have ruled on this issue tend to agree,
United States v. Chavez, 549 F.3d 119, 133-35 (2d Cir. 2008);
United States v. Hatcher, 501 F.3d 931, 933 (8th Cir. 2007);
United States v. Franklin, 499 F.3d 578, 583-86 (6th Cir. 2007).
Under Roberson, we simply ask whether Calabrese’s
No. 08-2861 15
sentence for the underlying crimes was reasonable, putting
to the side any concerns arising from the § 924(c) add-ons.
474 F.3d at 437. It’s somewhat unfortunate that we have
to analyze the sentence for the robberies in a vacuum,
but that is what Congress has effectively asked us to do.
Considering the violent nature of the robberies and
Calabrese’s pivotal role, the trial court’s below-guidelines
concurrent sentences of 67 months on each of the
three robbery counts is not unreasonable.
The convictions and sentence are A FFIRMED.
7-14-09