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In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 11‐3022, 12‐1180 & 12‐1656 UNITED STATES OF AMERICA, Plaintiff‐Appellee, v. ANTHONY VOLPENDESTO, MARK POLCHAN, and MICHAEL SARNO, Defendants‐Appellants. ____________________ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08‐CR‐115 — Ronald A. Guzmán, Judge. ____________________ ARGUED DECEMBER 11, 2013 — DECIDED MARCH 24, 2014 ____________________ Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit Judges. FLAUM, Circuit Judge. A jury convicted Anthony Vol‐ pendesto, Mark Polchan, and Michael Sarno of numerous offenses—principally racketeering conspiracy, but also con‐ ducting an illegal gambling business, conspiracy to damage property by means of an explosive device, and conspiracy to 2 Nos. 11‐3022, 12‐1180 & 12‐1656 obstruct justice, among others. The appellants now challenge their convictions and sentences. I. Background This case involves a criminal enterprise operating in and around Cicero, Illinois. Through a business called Amuse‐ ments Inc., the enterprise distributed “video gambling de‐ vices” to local bars and restaurants. These machines, which allow customers to deposit money in return for virtual cred‐ its, are legal so long as they are used for amusement only. But the enterprise and the establishment owners permitted trusted customers to redeem their credits for cash. The de‐ vices were modified to track money coming in and being paid out, so that the establishment owners and the enter‐ prise could each take a cut of the profits. Video gambling was a lucrative business, and the enterprise did not take kindly to prospective competitors. When a rival company, C & S Amusements, encroached on Amusements Inc.’s turf, the enterprise placed a pipe bomb outside the rival’s head‐ quarters in order to send a message. In addition to its gambling activities, the enterprise committed over a dozen home and jewelry‐store robberies in Illinois and nearby states. The enterprise fenced many of the stolen items through Goldberg Jewelers, a store owned by appellant Mark Polchan. Members of the enterprise also dealt in other stolen goods, such as cigarettes and electron‐ ics. Appellant Michael Sarno occupied the top spot in the en‐ terprise’s hierarchy. He made high‐level decisions about the gambling operations and had some control over the jewelry thefts as well. Beneath Sarno was Polchan, who exercised a Nos. 11‐3022, 12‐1180 & 12‐1656 3 lesser leadership role. Finally, appellant Anthony Volpendes‐ to was one of the main perpetrators of the robberies. The government indicted Sarno, Polchan, and Volpendes‐ to for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act in violation of
18 U.S.C. § 1962(d). The government also indicted Sarno and Polchan for conducting an illegal gambling business in violation of
18 U.S.C. § 1955. Finally, Polchan was indicted on several more counts; pertinent here are use of an explosive device (the pipe bomb) and conspiracy to do the same, in violation of
18 U.S.C. § 844(i) and (n), and conspiracy to obstruct justice in violation of
18 U.S.C. § 1512(k). The government indicted several other individuals for their involvement in the criminal enterprise, too. Two of them, Casey Szaflarski and Sam Volpendesto, went to trial alongside the appellants. Szaflarski owned Amusements Inc. and handled day‐to‐day operations on the gambling front. Sam Volpendesto, Anthony’s father, served as a jack‐of‐all‐ trades, participating in many robberies and the bombing of C & S. (Where ambiguous, we will refer to father and son by their first and last names.) Another co‐defendant, a Cicero police officer named Dino Vitalo, pled guilty before trial. Two other enterprise members not only pled guilty but also agreed to cooperate as government witnesses: Mark Hay, a central figure in the robberies, and James Formato, a Berwyn police officer. A final enterprise member, Kyle Knight, pled guilty in a separate federal charge and also agreed to coop‐ erate. Knight collaborated with Hay on many robberies, and he also supplied the enterprise with the materials for the pipe bomb. 4 Nos. 11‐3022, 12‐1180 & 12‐1656 The main building blocks of the government’s case against the appellants are discussed below. A. Illegal gambling activity and use of an explosive device Several business owners testified that Amusements Inc. supplied them with video gambling machines and that Ca‐ sey Szaflarski would visit every week or two to divide the profits. (Government agents photographed Szaflarski mak‐ ing rounds to the establishments.) Agents also observed Pol‐ chan organizing the gambling activity, including taking de‐ livery of machines at Goldberg Jewelers. However, Sarno exercised ultimate control, as revealed by witness testimony and wiretaps of Sarno’s multiple phones. In one revealing recording, Polchan told Sarno about an opportunity to place the devices in the clubhouses of the Outlaws Motorcycle Club in Chicago’s south and west suburbs. Sarno counseled Polchan, “We put ‘em, put ‘em in every place, whatever comes out you know, the good will absorb the bad.” The next day, the government observed gambling devices being unloaded at Goldberg Jewelers and then delivered to an Outlaws Motorcycle Clubhouse in Kankakee. Testimony from Hay and others confirmed that Sarno exercised a significant degree of control over the gambling activity. For example, Hay testified that when he inquired about obtaining machines for his brother‐in‐law, Polchan said that he would need to call “my guy”—who Hay under‐ stood to be Sarno—to get approval. Another witness, Henry Rendon, likewise testified that when he tried to obtain video gambling devices from an enterprise member, he was told that “the big guy” (another nickname for Sarno) first had to agree. Nos. 11‐3022, 12‐1180 & 12‐1656 5 To protect the enterprise’s revenue, Sarno ordered the bombing of a rival video gambling business, C & S Amuse‐ ments. The owner of C & S, Vincent Dublino, testified that he began to supply video devices to the 47th Street Grill in Lyons—a business previously serviced by Amusements Inc.—in the summer of 2002. A few weeks after C & S began supplying the machines, Sarno approached Dublino at Dub‐ lino’s restaurant and angrily told him to “stay the fuck away from the 47th Street Grill stop.” Later, Dublino began to re‐ ceive threatening phone calls. In February 2003, a pipe bomb exploded outside C & S in the middle of the night. Reluctant to draw attention to his own illegitimate business, Dublino initially told the police that he thought the explosion was di‐ rected at his neighbor. But at trial he avowed that Sarno was behind it. Kyle Knight confirmed this account. In 2002, Knight and Sam Volpendesto had a conversation about explosive devic‐ es. After their talk, Hay called Knight and told him that Sam Volpendesto wanted Knight to build a bomb. Knight gave the raw materials (potassium perchlorate and aluminum powder) and instructions on how to combine them to Hay for Hay to give to Volpendesto. After the bomb went off out‐ side C & S, Volpendesto approached Knight and offered him $300, telling Knight, “your shit worked really good.” Later, Volpendesto explained to Knight that “the big guy” was “having problems with poker machines, that somebody was putting machines where they shouldn’t be and that he was looking for a way to send a message.” The day after the bombing, Berwyn police officer and en‐ terprise member James Formato told Hay to let Polchan know that the police were looking for a brown van in con‐ 6 Nos. 11‐3022, 12‐1180 & 12‐1656 nection with the crime. Hay told the jury that when he passed along the message, Polchan asked him if the police had a license plate, and then added, “It shows you how smart they are, I wasn’t even in the van.” Formato testified that he also relayed the intelligence about the van to Polchan when he ran into Polchan at a car wash a few days later. Again, Polchan seemed unconcerned, telling Formato, “A lot of people drive brown vans.” A few years after the bombing, the government asked Hay to wear a wire and engage Sam Volpendesto in conver‐ sation about C & S Amusements. During their talk, Vol‐ pendesto described the details of the bombing and com‐ plained that Polchan had been paid for the job but that he had not. Volpendesto also told Hay that “Mark [Polchan] was the original guy that knew what the fuck it was about.” In 2007, the government arrested Kyle Knight and charged him for his participation in the bombing. After Knight’s arrest, agents observed Sarno entering Goldberg Jewelers and conferring with Polchan about some docu‐ ments. Later, agents retrieved shredded documents from the store’s back room. The government determined the docu‐ ments to be news articles about Knight’s arrest and the docket sheet and information in Knight’s case. B. Jewelry store robberies Alongside the gambling activities, the enterprise made money from a slew of armed robberies targeting jewelry stores. Hay, Knight, and Formato, who all participated in many of these crimes, testified that Polchan selected certain targets, participated in some of the robberies, and paid other enterprise members for stolen goods (often re‐sold through Nos. 11‐3022, 12‐1180 & 12‐1656 7 his store, Goldberg Jewelers). In addition to jewelry rob‐ beries, Polchan purchased boosted goods—cigarettes, elec‐ tronics, and so forth—and sold them at Goldberg for below‐ market prices. Hay and Knight also implicated both Volpendestos in the robberies. In particular, they told the jury that Anthony Vol‐ pendesto took part in at least nine separate thefts: stealing cars to use as getaway vehicles, aiding in the robberies themselves, transporting goods, and so on. The thefts tapered off after a botched robbery of Marry Me Jewelry Store in August 2003. Anthony Volpendesto had learned from Marry Me’s owner that a salesman would be carrying a briefcase full of valuable jewels—roughly $650,000 worth—from the store at a particular time, and he suggested to Knight and Hay that they rob him. Anthony Volpendesto and Knight entered the store together to inter‐ cept the jewels, but the salesman unexpectedly resisted. Dur‐ ing the struggle, Knight’s pistol discharged and shot the salesman in the chest. The group fled with the loot and drove to Polchan’s house. Polchan agreed to hold on to the jewels, but said that he would be unable to move the goods until things calmed down. He also told Hay, Knight, and Anthony Volpendesto to stay away from Goldberg Jewelers until he contacted them. Polchan never paid the men any proceeds from the Marry Me heist. Sarno’s connection to the robberies was less overt than his connection to the gambling, but the government present‐ ed several pieces of circumstantial evidence suggesting that Sarno exercised control from behind the scenes. For exam‐ ple, Hay said that he and Knight consulted with Polchan to decide whether to rob a dice game. Polchan told them to 8 Nos. 11‐3022, 12‐1180 & 12‐1656 “stay away from the dice game,” because “his guy” said “not to get anywhere near it.” Hay testified that he under‐ stood “his guy” to be a reference to Sarno. In a similar vein, Hay told the jury about a time that he discovered his son in the possession of stolen basketball cards. Hay’s son told Hay that Sam Volpendesto had given him a ride to the store and instructed him to steal the cards. When Hay told Polchan what had happened, Polchan be‐ came furious, saying that “his guy” would hold Polchan re‐ sponsible if Sam Volpendesto got arrested for stealing bas‐ ketball cards. Finally, Hay also told the jury that Polchan had once asked Sarno to settle a simmering dispute between Polchan and a robbery victim, Lenny DeGrado. Apparently, DeGrado blamed Polchan for the offense. Polchan told Hay that he had asked “his guy” to talk to DeGrado and that Sar‐ no had taken care of the problem. The government also recorded a call placed to Sarno re‐ garding a home burglary, in which the caller stated that his house had been robbed. The caller asked Sarno to check “your shops that these kids are bringing laptops to.” Sarno hung up and called Polchan at Goldberg Jewelers to ask if the items had shown up. When Polchan said they hadn’t, Sarno replied, “I wish they did.” Other evidence indicated that Sarno exercised leadership over Polchan generally. Polchan introduced Sarno to both Knight and Hay as his “boss,” telling them to shake Sarno’s hand but not to engage him in conversation. Sarno would frequently visit Goldberg Jewelers and speak to Polchan pri‐ vately. During these visits, Polchan would sometimes pro‐ vide Sarno with merchandise, cash, or both. Nos. 11‐3022, 12‐1180 & 12‐1656 9 C. Conspiracy to obstruct justice In 2003, a federal grand jury began investigating the C & S bombing. The investigation was still open in 2007. From March to May of that year, the government used a microphone hidden in Goldberg Jewelers to record Polchan meeting with Dino Vitalo, a co‐defendant and Cicero police officer, and other local police officers. Polchan had noticed suspicious vehicles outside Goldberg. The conversation re‐ vealed that Polchan had asked the officers to run the vehi‐ cles’ licenses plates to determine if they were part of a feder‐ al investigation. The officers had obliged, and they told Pol‐ chan what they found out (which was largely inconclusive). One of the officers also used his access to Cicero police sys‐ tems to run a deconfliction check that would determine whether the vehicles were surveilling Goldberg or another business down the street. Later, an officer told Polchan that individuals identifying themselves as “organized crime” were observed in one of the suspicious cars. Polchan did not keep this information to himself. In one recording, Polchan told Sarno that his officers said “they got a case, that they were government, they work for the gov‐ ernment. FBI or something.” In another recording, Polchan can be heard agreeing with Reyes Silva—a frequent custom‐ er of Polchan’s shop who dealt in stolen goods—that law en‐ forcement could be watching Silva. Polchan also warned Sil‐ va that he might be served with a subpoena. * * * After a six‐week trial, the jury returned guilty verdicts on 10 Nos. 11‐3022, 12‐1180 & 12‐1656 all counts. Polchan, Sarno, and Anthony Volpendesto now appeal.1 II. Discussion The appellants raise many issues. We start with the dis‐ trict court’s pretrial order disqualifying Polchan’s counsel of choice. We then consider Polchan, Sarno, and Volpendesto’s challenges to their convictions and their claims of error at trial. All three appellants challenge the sufficiency of the ev‐ idence on the RICO conspiracy count, and Polchan challeng‐ es his conviction for conspiracy to obstruct justice; Polchan and Sarno object to a number of evidentiary rulings; and all three appellants challenge the jury instructions. Finally, hav‐ ing disposed of those trial‐related issues, we turn to Sarno’s and Polchan’s challenges to their sentences. A. Disqualification of counsel Prior to trial, the government moved to disqualify Pol‐ chan’s attorney, Alex Salerno. The government was con‐ cerned that Salerno had previously represented three of Pol‐ chan’s co‐defendants. First, Salerno represented Mark Hay on state burglary charges. Some of these charges arose from 1 Szaflarski chose not to appeal his conviction. Sam Volpendesto did ap‐ peal, and his case was originally consolidated with this one, but he died shortly after the appellants submitted their opening brief. Accordingly, we dismissed his appeal with instructions to dismiss the indictment. See United States v. Moehlenkamp,
557 F.2d 126, 128 (7th Cir. 1977) (“[T]he death of an appellant during the pendency of his appeal of right from a criminal conviction abates the entire course of the proceedings brought against him.”). There remains a question about what happens to the res‐ titution order the district court assessed against Volpendesto under 18 U.S.C. § 3663A, which we will address in a separate opinion (No. 11‐ 3020). Nos. 11‐3022, 12‐1180 & 12‐1656 11 enterprise burglaries in which Polchan himself was involved. Second, Salerno represented Sam Volpendesto at his ar‐ raignment, although he withdrew as Volpendesto’s counsel shortly thereafter. Finally, Salerno had some sort of relation‐ ship with Sarno. Its precise scope was not clear—the district court found Salerno “less than forthcoming” on the matter— but two incidents were revealing. In 2004, Sarno had identi‐ fied Salerno as his attorney, and Salerno had once shown up to monitor federal agents while they conducted a search of Sarno’s house. Polchan, Sam Volpendesto, and Sarno—but not Hay— waived any conflicts that might arise from Salerno’s previous representation of them. Polchan also retained another attor‐ ney, Damon Cheronis, to serve as Salerno’s co‐counsel; Che‐ ronis represented that he would cross‐examine Hay at trial and that Salerno would not share any privileged information with him. And Polchan filed an affidavit from a third lawyer stating that the lawyer had consulted with Polchan about the benefits of cooperating with the government. Nevertheless, the district court granted the government’s motion to disqualify Salerno. The court first found it signifi‐ cant that Salerno had previously represented Hay in state court for criminal conduct that would be encompassed with‐ in the federal indictment, pointing out that it “cannot know what information Salerno has learned from his previous cli‐ ent [Hay] that would be detrimental to that client in this case” and that “[c]ross‐examination by an independent counsel would not safeguard against … impermissible use of confidential information.” The court further observed that Hay refused to consent to Salerno’s representing Polchan. 12 Nos. 11‐3022, 12‐1180 & 12‐1656 Salerno’s relationship to Sam and Sarno further deepened the court’s concern. Summing up, the court explained that “the potential and actual conflicts are so numerous and multi‐faceted … that they cannot be adequately safeguarded against by admoni‐ tions from the Court or the intervention of independent counsel to perform discrete functions during the trial.” The court disqualified Salerno. Polchan argues that the district court erred in making this determination. We disagree. The district court’s decision to disqualify Salerno was reasonable in light of Salerno’s prior representation of multiple co‐defendants, including a co‐ defendant that had already agreed to testify on behalf of the government. “It is well‐settled … that a criminal defendant’s right to his chosen attorney may be outweighed by a serious poten‐ tial for conflict due to the attorney’s prior representation of other defendants charged in the same criminal conspiracy.” United States v. Algee,
309 F.3d 1011, 1013 (7th Cir. 2002). In Algee, the government moved to disqualify a lawyer who had previously represented two co‐defendants, both of whom the government was likely to call as principal wit‐ nesses. The district court in Algee observed that “ethical con‐ straints would prohibit [the lawyer] from cross‐examining [his former clients] in any meaningful way” and granted the government’s motion.
Id. at 1014. We found no abuse of dis‐ cretion. Polchan argues that Salerno’s disqualification cannot be squared with United States v. Turner,
594 F.3d 946(7th Cir. 2010), where we said that the “mere possibility” that jointly Nos. 11‐3022, 12‐1180 & 12‐1656 13 represented defendants “would decide to cooperate with the government against the other” was not enough to disqualify a defendant’s counsel of choice.
Id. at 953. But the district court was not dealing with a mere possibility. Hay had al‐ ready decided to cooperate with the government and testify against his co‐defendants when the government moved to disqualify Salerno. And Salerno had represented Hay on closely related state charges, including charges that involved Polchan, where he might have obtained damaging evidence about Hay’s credibility or his guilt. What is more, Turner rec‐ ognized that “a breach of the code of professional ethics ob‐ viously qualifies” as an actual conflict.
Id. at 952. Here, Sa‐ lerno could not represent Polchan—over Hay’s objection— without violating his ethical obligations to his former client. Under the Illinois Rules of Professional Conduct, Hay’s re‐ fusal prohibited Salerno from taking on Polchan as a client. See Ill. R. Prof’l Conduct 1.9(a), 1.6(a) (2010). In short, this case involved an actual conflict, not a poten‐ tial one. And we said in Turner that where the court “finds an actual conflict of interest that seriously undermines coun‐ sel’s effectiveness, ‘there can be no doubt that [the court] may decline a proffer of waiver.’”
594 F.3d at 952(quoting Wheat v. United States,
486 U.S. 153, 162 (1988)). We affirm the district court’s decision to disqualify Salerno. B. Trial issues 1. Sufficiency of the evidence The appellants raise two different sufficiency challenges. Polchan, Sarno, and Anthony Volpendesto challenge their convictions for racketeering conspiracy, and Polchan chal‐ lenges his conviction for obstruction of justice. As usual, we 14 Nos. 11‐3022, 12‐1180 & 12‐1656 review the evidence presented at trial in the light most fa‐ vorable to the government and ask whether any reasonable juror could have found the defendants guilty of the charged crime beyond a reasonable doubt. United States v. Useni,
516 F.3d 634, 646 (7th Cir. 2008). a. RICO conspiracy The Racketeer Influenced and Corrupt Organizations Act makes it illegal for “any person employed by or associated with any enterprise … to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.”
18 U.S.C. § 1962(c). An en‐ terprise includes “any union or group of individuals associ‐ ated in fact,” which is to say, “associated together for a common purpose of engaging in a course of conduct.” Boyle v. United States,
556 U.S. 938, 944 (2009) (quoting United States v. Turkette,
452 U.S. 576, 583 (1981)). The RICO statute also prohibits conspiracy to commit a violation of its provisions. See
18 U.S.C. § 1962(d). To prove conspiracy under § 1962(d), the government must show that the conspirators were “aware of the essential nature and scope of the enterprise and intended to participate in it.” Useni,
516 F.3d at 646. In United States v. Neapolitan,
791 F.2d 489(7th Cir. 1986), we said that a RICO conspiracy “can be analyzed as composed of two agreements”: (1) “an agree‐ ment to conduct or participate in the affairs of an enter‐ prise,” and (2) “an agreement to the commission of at least two predicate acts.”
Id. at 499. The government does not have to prove that a conspirator agreed to commit the predi‐ cate crimes personally, only that “a particular defendant agreed that a member of the conspiracy would commit two Nos. 11‐3022, 12‐1180 & 12‐1656 15 predicate racketeering acts.” United States v. Benabe,
654 F.3d 753, 776 (7th Cir. 2011). Polchan, Sarno, and Anthony Volpendesto appear to ad‐ mit that there is evidence that they conspired to commit at least two predicate crimes. However, they argue that the government failed to show that they agreed to do so as part of an ongoing criminal enterprise. They urge that the gov‐ ernment’s evidence “is equally consistent with various de‐ fendants independently agreeing to commit various specific criminal acts as it is with the defendants agreeing to partici‐ pate in the acts of an ongoing criminal enterprise.” In other words, they say, all the government showed was that they engaged in “accidentally parallel action.” We find this contention highly implausible. The govern‐ ment does not need to put forth direct evidence of the de‐ fendants’ agreement to participate in an ongoing criminal enterprise. As with conspiracy in general, circumstantial ev‐ idence that the defendants agreed to participate in the enter‐ prise is sufficient. See Useni,
516 F.3d at 646. Here the evi‐ dence showed that Sarno, Polchan, and Volpendesto were part of a group with a cohesive, hierarchical structure that persisted over a long period of time. Polchan directed and Volpendesto participated in about a dozen robberies; Pol‐ chan also helped operate the ongoing illegal gambling busi‐ ness. In turn, Polchan consistently answered to Sarno, who exercised ultimate control over both activities. Based on this evidence, it is no great leap to conclude that each of the men agreed not just to commit isolated acts but also “to associate together for a common purpose”—to make money for the enterprise. Boyle,
556 U.S. at 938. 16 Nos. 11‐3022, 12‐1180 & 12‐1656 The appellants’ individual arguments for insufficiency fare no better. Polchan claims that he was not present for the majority of the robberies and burglaries. But we have never suggested that a defendant is guilty of racketeering conspir‐ acy only if he participates in every aspect of the enterprise’s affairs. To the contrary, “[s]ection 1962(d) [is] broad enough to encompass those persons who, while intimately involved in the conspiracy, neither agreed to personally commit nor actually participated in the commission of the predicate crimes.” United States v. Tello,
687 F.3d 785, 792 (7th Cir. 2012) (citing Neapolitan,
791 F.2d at 498). Here, Polchan was inti‐ mately involved. He participated in some robberies person‐ ally, purchased and resold the stolen goods from many oth‐ ers, played a significant role in the gambling business, and participated in the pipe bombing of C & S. Sarno argues that the jury heard no evidence tying him to any enterprise activity except the gambling. Not so: testimo‐ ny from Dublino and Knight and the recorded conversation between Hay and Sam Volpendesto directly implicated Sar‐ no in the C & S bombing. And Hay’s testimony showed that Sarno knew about—and exercised a degree of control over— the robberies, as well. Recall that Sarno, via Polchan, forbade Hay and Knight from robbing a dice game; that Sarno called Polchan to try to track down a friend’s stolen laptop; and that Polchan brought in “his guy” (Sarno) to mollify a jewel‐ ry store owner who had been the victim of an enterprise robbery.2 2 Sarno claims that much of Hay’s testimony about Sarno was based on pure speculation. Polchan never specifically stated who “his guy” was, Sarno contends, so Hay had no basis for concluding that Polchan was talking about Sarno. But Hay was a member of the enterprise and knew Nos. 11‐3022, 12‐1180 & 12‐1656 17 It is hardly unexpected that members of a large criminal enterprise will have varying degrees of participation in its activities, because a racketeering enterprise is often charac‐ terized by a differentiated structure. See United States v. Rog‐ ers,
89 F.3d 1326, 1337 (7th Cir. 1996) (“The continuity of an informal enterprise and the differentiation among roles can provide the requisite ‘structure’ to prove the element of ‘en‐ terprise.’”). An individual need not agree to perform each individual activity to violate RICO. In the Fifth Circuit’s words, “[t]he gravamen of the [RICO] conspiracy charge … is not that each defendant agreed to commit arson, to steal goods from interstate commerce, to obstruct justice, or to sell narcotics; rather, it is that each agreed to participate, directly and indirectly, in the affairs of the enterprise by commit‐ ting”—or by agreeing that a member will commit—“two or more predicate crimes.” United States v. Elliott,
571 F.2d 880, 902 (5th Cir. 1978). Here, Sarno clearly agreed to participate in the enterprise’s affairs, and he directed both the gambling and, at least to some extent, the robbery activities. That is enough for the jury to find him guilty of violating section 1962(d). Cf. Salinas v. United States,
522 U.S. 52, 65 (1997) (“It suffices that [a conspirator] adopt the goal of furthering or facilitating the criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts necessary for a crime’s completion.”). Whereas Sarno argues that he only participated in the gambling, Anthony Volpendesto argues that he only partici‐ pated in the robberies. Furthermore, he claims that he com‐ the relevant players. Indeed, Hay testified that Polchan first introduced Sarno to Hay as “my guy.” Hay’s testimony was direct evidence about the enterprise that the jury was entitled to credit if it found Hay credible. 18 Nos. 11‐3022, 12‐1180 & 12‐1656 mitted most of his illegal activity only with Hay and Knight, that he had no contact with Sarno, and that he received no proceeds from the majority of the enterprise’s crimes. But again, the government did not need to show that Anthony Volpendesto participated in every one of the enterprise’s ac‐ tivities, only that he was “aware of the essential nature and scope of the enterprise and intended to participate in it.” Useni,
516 F.3d at 646; see also United States v. Zichettello,
208 F.3d 72, 100 (2d Cir. 2000) (“To be convicted as a conspirator, one must be shown to have possessed knowledge of only the general contours of the conspiracy.”). In this case, the charged enterprise was formed in order to generate illegal income for its members. The jewelry robberies made up a significant portion of that income. Volpendesto took part in nine enterprise robberies, sometimes selecting targets and bringing them to other members himself (as with the Marry Me Jewelers robbery that went sour). Indeed, after he was arrested, Volpendesto passed messages to the enterprise via his father warning the other members that Hay was possibly cooperating with the government. We think a jury could conclude from these facts that Volpendesto was aware of the essential aspects of the enterprise and agreed to participate in it. b. Conspiracy to obstruct justice Polchan also challenges his conviction for conspiracy to obstruct justice in violation of
18 U.S.C. § 1512(k). Polchan and Cicero police officer Dino Vitalo were charged with agreeing to violate
18 U.S.C. § 1512(c)(2), which penalizes one who “corruptly”—that is, with a wrongful purpose— “obstructs, influences, or impedes any official proceeding or Nos. 11‐3022, 12‐1180 & 12‐1656 19 attempts to do so.”3 This “expansive” subsection “operates as a catch‐all to cover ‘otherwise’ obstructive behavior” that might not constitute a more specific offense like document destruction, which is listed in (c)(1). United States v. Burge,
711 F.3d 803, 809 (7th Cir. 2013). There is a key limitation to § 1512(c)(2): one must ob‐ struct (or agree to obstruct) “an official proceeding.” A fed‐ eral grand jury investigation counts. See
18 U.S.C. § 1515(a)(1)(A). And a grand jury was investigating the C & S bombing during the charged period, March to May 2007. During this time, Polchan noticed suspicious vehicles outside Goldberg Jewelers. Recordings from Polchan’s store reveal that he asked corrupt local police officers, including Vitalo, to run the vehicles’ license plates and perform a de‐ confliction check to discover whether the surveillance was for Goldberg or another business down the street. The offic‐ ers did Polchan’s bidding, and after they told Polchan what they had found, another recording caught Polchan dissemi‐ nating some of that information to Sarno (“Yeah, they said they were fuckin’, um, they got a case, that they were gov‐ ernment, that they work for the government”). In another recording, Polchan can be heard agreeing with his associate Reyes Silva, who thought that he (Silva) might be being fol‐ 3 As proof that Polchan took his actions corruptly, the government of‐ fered a stipulation that Vitalo’s assistance was in contravention of Cicero Police Department orders forbidding officers from confirming the exist‐ ence of any investigation to an unauthorized individual, communicating information to suspects that might enable them to conceal evidence, making unauthorized inquiries into other law enforcement investiga‐ tions, or giving out motor vehicle information. On appeal, Polchan does not appear to contest the government’s showing on this element. 20 Nos. 11‐3022, 12‐1180 & 12‐1656 lowed, that “they are going to keep continuing.” Polchan al‐ so warned Silva that he should expect a subpoena. Polchan now asserts that the evidence at his trial was in‐ sufficient to establish that he violated § 1512(k). He admits that he sought to learn about the federal investigation, and that he discussed the investigation with the police officers and with his cohorts. But there was no evidence, he main‐ tains, that he agreed to take the further step of interfering with the evidence that would be presented to the grand jury. The government’s case against Polchan on this count was not airtight. But as with a racketeering conspiracy, see Useni,
516 F.3d at 646, an unlawful agreement to obstruct justice often must be inferred from the circumstances. And taken in the light most favorable to the government—as we must do at this stage—there was enough circumstantial evidence for a jury to conclude beyond a reasonable doubt that Polchan’s efforts were not merely in service of his curiosity, but out of desire to influence what evidence came before the grand ju‐ ry. Polchan had testified before a grand jury in the past, and he knew that information collected during the investigation would, in turn, be presented to the grand jury itself. He had enlisted a cadre of corrupt cops to feed him information that he had no right to have. And he showed a willingness to pass this wrongfully obtained information along to his asso‐ ciates. Although it is a close case, it was fair for the jury to infer that Polchan agreed to impede the grand jury’s investi‐ gation. 2. Evidentiary rulings We now address a series of objections to the district court’s evidentiary rulings at trial. Unless otherwise noted, Nos. 11‐3022, 12‐1180 & 12‐1656 21 we review the district court’s decision to admit or exclude evidence for abuse of discretion only. United States v. Spiller,
261 F.3d 683, 689 (7th Cir. 2001). a. Admission of Sam Volpendesto’s recorded state‐ ments Polchan first argues that incriminating out‐of‐court statements made by Sam Volpendesto should not have been introduced at trial as substantive evidence of Polchan’s guilt on the bombing counts. The statements at issue (which we discussed briefly above) are from a May 17, 2005 recording made by government informant Mark Hay while he was driving Sam Volpendesto around town. Hay purposefully engaged Volpendesto in conversation about the bombing at C & S Amusements, which had happened about two years earlier. Volpendesto obliged. Their conversation revealed many details about how Volpendesto and Polchan had car‐ ried out the job. Volpendesto and Hay also discussed how, right after the bombing, James Formato had told Hay to pass a message along to Polchan to warn him that law enforce‐ ment thought a brown van was involved in the crime. Polchan objected to the government introducing the rec‐ orded conversation as substantive evidence of his guilt. In particular, he took issue with the following statements that tended to incriminate him: Sam Volpendesto’s comment, as Hay drove past C & S Amusements, that “we blew part of that away” and that it was a “nice job.” Volpendesto’s identifying Polchan as the person who involved him in the job: “Mark 22 Nos. 11‐3022, 12‐1180 & 12‐1656 was the original guy that knew what the fuck it was about, you know what I mean?” Volpendesto’s expression of frustration that Polchan (often referred to as “Goldberg,” as in the name of his store) was compensated more generously for his services: “Goldberg made money [from the bombing], I made shit.” Volpendesto’s statement, in response to Hay’s recollection that Formato had said police were looking for a brown van: “Yeah, a brown van … That’s not what we had.” When Hay mentioned that maybe the police were right that a van was used, Sam said, “But it wasn’t us. No we didn’t have a van. That’s why we laughed the next day when we found out that they were saying it was a van.” Volpendesto’s statement, after Hay men‐ tioned that he had passed the message about the brown van along to Polchan: “Yeah, he told me.” The district court admitted all of those statements under the statement‐against‐interest exception to the hearsay rule. See Fed. R. Evid. 802, 804(b)(3). We agree with the district court that the portions de‐ scribed above fit comfortably within the exception. For Rule 804(b)(3) to apply, the proponent of an inculpatory hearsay statement must show: (1) that the declarant is unavailable to testify at trial; (2) that the statement was against the declar‐ ant’s penal interest when made; and (3) that corroborating Nos. 11‐3022, 12‐1180 & 12‐1656 23 circumstances clearly suggest that the statement is trustwor‐ thy. United States v. Loggins,
486 F.3d 977, 981 (7th Cir. 2007). At trial, Volpendesto invoked his right against self‐ incrimination; there is no dispute that, with respect to the first requirement, he was unavailable to testify. With respect to the second requirement, a statement is sufficiently inculpatory “if it would be probative at trial against the declarant.” United States v. Nagib,
56 F.3d 798, 804 (7th Cir. 1995). We have said that “statements that demon‐ strate a declarant’s inside knowledge of a crime” count. United States v. York,
933 F.2d 1343, 1360 (7th Cir. 1991), over‐ ruled on other grounds by Wilson v. Williams,
182 F.3d 562(7th Cir. 1999) (en banc); see also United States v. Shukri,
207 F.3d 412, 416 (7th Cir. 2000) (statements that display the declar‐ ant’s “intimate knowledge” of a crime are against the de‐ clarant’s penal interest). All of the challenged portions of the recording—Sam Volpendesto’s revealing that Polchan got him involved in the bombing, his frustration that Polchan made more money from the job than he did, and his discus‐ sion of the government’s false lead with the brown van— demonstrated Volpendesto’s inside knowledge of the crime and its surrounding events. As for the third requirement—the trustworthiness of the statements—the district court found that Volpendesto’s ac‐ count was corroborated by the in‐court testimony of Hay and Knight (who provided Volpendesto with the bomb‐ making material), and that everything Volpendesto de‐ scribed about the bomb itself was consistent with the foren‐ sic evidence at the scene. We have said that “[t]he district judge’s determination as to the trustworthiness of an out‐of‐ court statement is entitled to considerable deference and 24 Nos. 11‐3022, 12‐1180 & 12‐1656 should be upheld unless clearly erroneous.” United States v. Jackson,
540 F.3d 578, 588 (7th Cir. 2008) (internal quotation marks omitted). Especially because Volpendesto “thought he was speaking privately to a confederate,” United States v. Watson,
525 F.3d 583, 588 (7th Cir. 2008), we see no reason to doubt the district court’s assessment that his statements were reliable. Accordingly, we find that the court was within its discretion to admit the challenged statements under Rule 804(b)(3). Nor is it an issue that Volpendesto’s remarks were admit‐ ted as evidence against Polchan as well. The statement‐ against‐interest exception to the hearsay rule is rooted in a theory about such statements’ reliability. See Watson,
525 F.3d at 586(“Most people would not say that they knocked over a bank, spit on a policeman, or shoved their mother if it wasn’t true.”). Once the hearsay is deemed sufficiently relia‐ ble to qualify for the exception, it may be used for any pur‐ pose, including as substantive evidence of a co‐defendant’s guilt. See, e.g.,
id.at 586–88 (evaluating a co‐conspirator’s hearsay statement under Rule 804(b)(3) to determine wheth‐ er it was properly admitted against the appealing defend‐ ant); United States v. Hamilton,
19 F.3d 350, 354–57 (7th Cir. 1994) (rejecting an argument that admitting a co‐defendant’s hearsay statement against a non‐declarant defendant under Rule 804(b)(3) constitutes a Bruton violation). Polchan points out that the district court found that some of what Sam Volpendesto said in the May 17, 2005 recording was not against Volpendesto’s penal interest. For example, when discussing Formato’s tip about the brown van, Vol‐ pendesto mentioned that Polchan did in fact own a brown van and speculated that was why law enforcement had Nos. 11‐3022, 12‐1180 & 12‐1656 25 thought one was involved. The district court found that this part of the conversation—and a few other threads that we need not go into—did not qualify for the Rule 804(b)(3) ex‐ ception because these portions did not clearly incriminate Volpendesto. However, the government redacted the non‐ qualifying portions of the recording, and they were not played at trial. So we are not sure what Polchan is complain‐ ing of.4 In sum, the redacted recording was properly admit‐ ted under Rule 804(b)(3).5 Polchan argues in the alternative that even if Volpendes‐ to’s incriminating statements were properly admitted under a hearsay exception, their admission nonetheless violated his rights under the Sixth Amendment Confrontation Clause be‐ cause he could not cross‐examine Volpendesto at trial. Unlike evidentiary rulings, we review this constitutional claim de novo, Watson,
525 F.3d at 586, but here the standard of review does not much matter. The Confrontation Clause only concerns the admission of statements that are testimo‐ nial in nature. Crawford v. Washington,
541 U.S. 36, 68 (2004). 4 We notice that a single oblique reference to Polchan’s owning a brown van seems to have stayed in even after the redactions. See Government Exhibit Hay 5/17/2005 Transcript, at 18 (“VOLPENDESTO: He had the brown van he had.”). But any error as a result of this oversight was un‐ doubtedly harmless; Formato later testified to the fact that Polchan owned a brown van. 5 The district court alternatively admitted the incriminating statements against Polchan under the co‐conspirator exception to the hearsay defini‐ tion. See Fed. R. Evid. 801(d)(2)(E). Due to our conclusion that all of the statements implicating Polchan were properly introduced under the statement‐against‐interest exception, we need not explore this basis for their admission. 26 Nos. 11‐3022, 12‐1180 & 12‐1656 As such, Polchan’s confrontation argument is foreclosed by our decision in Watson, which held that “[a] statement un‐ wittingly made to a confidential informant and recorded by the government is not ‘testimonial’ for Confrontation Clause purposes.”
525 F.3d at 589. Polchan asks us to overrule Watson. He claims that the decision wrongly looked only to the speaker’s perspective to determine whether a statement was testimonial. Polchan ar‐ gues that we must also consider the subjective intentions of the listener—here, the government informant Hay—to de‐ termine whether a statement is made “with an eye toward trial.” Crawford,
541 U.S. at56 n.7. As he notes, the Supreme Court has said that “both the declarant and interrogators provide objective evidence of the primary purpose of the in‐ terrogation.” Michigan v. Bryant,
131 S. Ct. 1143, 1160 (2011) (emphasis added). But Polchan selectively quotes from Bry‐ ant. There, the Supreme Court instructed that “the relevant inquiry is not the subjective or actual purpose of the individ‐ uals involved in a particular encounter, but rather the pur‐ pose that reasonable participants would have had, as ascer‐ tained from the individuals’ statements and actions and the circumstances in which the encounter occurred.”
Id. at 1156(emphasis added). Thus, contrary to Polchan’s argument, Bryant mandates that we not evaluate the purpose of Hay and Sam Volpendesto’s recorded conversation from the sub‐ jective point of view of Hay, who knew he was secretly col‐ lecting evidence for the government. Instead, we evaluate their conversation objectively. And from an objective per‐ spective, Hay and Volpendesto’s conversation looks like a casual, confidential discussion between co‐conspirators. Be‐ cause the statements in question were not testimonial, their admission did not implicate the Confrontation Clause. Nos. 11‐3022, 12‐1180 & 12‐1656 27 b. The supposed Bruton violation Polchan argues that the government committed a Bruton error at trial that prejudiced his defense on the bombing‐ related counts. We conclude that no Bruton error occurred. If a co‐defendant makes an out‐of‐court confession that inculpates the defendant, and the co‐defendant does not tes‐ tify at their joint trial, the out‐of‐court statement cannot be introduced as evidence at all; the risk of prejudice to the non‐confessing defendant is simply too great, even with a limiting instruction. Bruton v. United States,
391 U.S. 123(1968). We review the district court’s application of Bruton de novo. United States v. Green,
648 F.3d 569, 574 (7th Cir. 2011). At trial, the government was examining its own witness, ATF Agent Tina Sherrow, about Sherrow’s interview of Sam Volpendesto on August 23, 2006. Sherrow first described how she and another agent began the interview, and then described how she confronted Sam Volpendesto with the evidence implicating him in the February 2003 bombing of C & S. Then the following exchange occurred: GOVERNMENT: What, if anything, did Mr. Sam Volpendesto say in response? SHERROW: One of the things he said was that he had been asked to get a business license for a pawn shop. And then when it wasn’t making any money, he had walked away from it—or when he wasn’t getting paid—sorry—that he walked away from it. He indicated that. GOVERNMENT: Did he say anything else? 28 Nos. 11‐3022, 12‐1180 & 12‐1656 SHERROW: He had mentioned that he had been at Goldberg Jewelers that day to— At this point, Agent Sherrow was cut off by a Bruton objec‐ tion from Damon Cheronis, Polchan’s counsel. Polchan argues that before she was interrupted, Agent Sherrow was about to testify that Sam Volpendesto told her that he had been at Goldberg Jewelers on the day of the bombing. However, the government represents that Sherrow was only going to testify that Volpendesto told her that he had been to Goldberg Jewelers on the day of the interview, that is, August 26, 2006. The government was prepared to have Agent Sherrow clarify the point—but after a lengthy sidebar, in which several defense attorneys raised multiple objections on various grounds, the district court decided it was simpler to just strike Sherrow’s answer entirely and instruct the jury to disregard it. Polchan maintains that, given the context of Agent Sher‐ row’s cross‐examination, the jury might have interpreted her answer as he does: that Sam Volpendesto admitted that he had been at Goldberg Jewelers on the day of the bombing. He says that this admission directly implicated Polchan in the C & S bombing—which would amount to a Bruton viola‐ tion, and would mean, in turn, that the district court’s in‐ struction could not suffice to correct the error. This is a stretch. Unlike Bruton and its progeny— Richardson v. Marsh,
481 U.S. 200(1987) and Gray v. Mary‐ land,
523 U.S. 185(1998)—the statement relayed by Sherrow did not amount to a “confession” by Volpendesto that he committed the bombing. If the jury interpreted the statement the way that Polchan does (a rather big “if”), all that Vol‐ Nos. 11‐3022, 12‐1180 & 12‐1656 29 pendesto admitted to was having visited Polchan’s store on the day in question. This is not “powerfully incriminating” either to Volpendesto or to his co‐defendant. Richardson,
481 U.S. at 208. Bruton itself instructed that “[n]ot every admis‐ sion of inadmissible hearsay or other evidence can be con‐ sidered to be reversible error unavoidable through limiting instructions”; its special rule applies only when “the power‐ fully incriminating extrajudicial statements of a co‐ defendant, who stands accused side‐by‐side with the de‐ fendant, are deliberately spread before the jury in a joint tri‐ al.”
391 U.S. at 136. The government did nothing of the sort here. c. Limitation on Sarno’s cross‐examination of Dublino Sarno also argues that the district court’s decision to cur‐ tail his cross‐examination of Dublino violated Sarno’s Sixth Amendment rights. We review de novo whether the court’s limitation offends the Confrontation Clause. United States v. Reese,
666 F.3d 1007, 1018 (7th Cir. 2012). Sarno first complains that the court cut him off when he was trying to impeach Dublino’s credibility. He refers to a portion of cross where his counsel asked Dublino whether he would describe his video gambling business as “lucra‐ tive,” and then asked Dublino about “his Lamborghini.” Counsel aggressively questioned Dublino about how many Lamborghinis he had, when he got them, and what color they were. Dublino refused to play, and insisted repeatedly that “the Lamborghini” was not his. After letting this go on for some time, the district court sustained the government’s objection on relevance grounds. In a sidebar, the court told Sarno’s counsel that if he wanted to ask Dublino how much money he made from his gambling‐machine business and 30 Nos. 11‐3022, 12‐1180 & 12‐1656 whether Dublino underreported this illegal income on his taxes, that was fine, but not to waste more time on cars Dub‐ lino may or may not have had. The court also pointed out that Dublino had already admitted to underreporting his gambling‐machine income. Sarno’s counsel then theorized that Dublino’s purchase of the Lamborghinis rose to the lev‐ el of money laundering. The court responded that Dublino had already admitted that his behavior amounted to crimi‐ nal conduct, and that Sarno’s strategy of asking about fancy cars to get at the possibility of money laundering was too “far afield” for the court to let him continue. Sarno contends that Dublino’s credibility was crucial to the government’s case, and that the court impermissibly lim‐ ited Sarno’s impeachment strategy at a critical juncture. We disagree. “So long as cross‐examination elicits adequate in‐ formation to allow a jury to assess a witness’s credibility, motives, or possible bias, the Sixth Amendment is not com‐ promised.” United States v. Martin,
287 F.3d 609, 620 (7th Cir. 2002). The ultimate point of the Lamborghini digression was that Dublino made illicit gains through his gambling‐ machine business. But Dublino had already admitted that he lied about his gambling business to the authorities and that he failed to report his illegal income on his taxes. Moreover, the court allowed Sarno and the other defendants to contin‐ ue to interrogate Dublino about his tax underreporting. Thus, Sarno had adequate opportunity to elicit the damag‐ ing information—i.e., the fact that Dublino made money through an illegal business and lied about it—necessary for the jury to assess his credibility. Given that “trial courts have wide latitude” to limit a cross‐examination strategy that amounts to “interrogation that is repetitive or only marginal‐ ly relevant,” United States v. McGee,
408 F.3d 966, 975 (7th Nos. 11‐3022, 12‐1180 & 12‐1656 31 Cir. 2005), the court did not stymie Sarno’s defense by cut‐ ting off a line of inquiry that promised a very limited payoff, at best. Sarno’s second contention is that the district court im‐ properly prevented him from impeaching Dublino with an allegedly inconsistent statement that Dublino made to feder‐ al agents. This too requires some context. During direct, Dublino testified that Sarno approached him twice in the summer of 2002: once to ask if Dublino wanted to go into business together, and the second time to tell Dublino “to stay the fuck away from the 47th Street Grill stop.” Dublino also testified that two other men, who he did not know, threatened him in person a few weeks after Sarno’s second visit. After their visit, Dublino received several unidentified threatening phone calls; he testified that those calls occurred before the February 2003 bombing of C & S Amusements. On cross, Sarno’s counsel asked Dublino whether he had “received a number of telephone threats” before Sarno ever approached him. Dublino said no, he received the telephone threats later. Sarno’s counsel then sought to impeach Dub‐ lino with the following out‐of‐court statement from a Febru‐ ary 2006 FBI report, apparently written by the interviewing agent: “In addition to the visits with Mr. Sarno, Dublino also received several threatening phone calls on his cell phone prior to the bombing. Dublino recalled he received a call when he first opened C & S and the unidentified caller wanted to invest in the business.” The district court sus‐ tained the government’s objection, noting that the statement in the FBI report did not contradict Dublino’s testimony. True, Dublino’s statement in the FBI report is not crystal clear. But it certainly can be read the way that the court read 32 Nos. 11‐3022, 12‐1180 & 12‐1656 it: that Dublino received the threatening phone calls he de‐ scribed in the period after Sarno’s visits but before the bombing, but that Dublino also received a call from someone asking to invest in the business shortly after he started C & S Amusements. The court did not abuse its discretion in con‐ cluding that the statement was consistent with Dublino’s tes‐ timony. In any event, Sarno tells us that the reason the court’s ex‐ clusion of Dublino’s statement was significant—that is, the reason the exclusion supposedly rose to the level of a con‐ frontation violation—is that Sarno wanted to establish an alternate source of the threats Dublino claimed to have re‐ ceived. But Sarno could not have used the evidence for that purpose. While it would have been proper for Sarno to offer the contradictory statement to show that Dublino was not credible, Sarno could not offer the out‐of‐court, unsworn statement to prove that Dublino did in fact receive threaten‐ ing phone calls before Sarno’s visits. If used for the latter purpose, the statement would be hearsay. And Sarno cannot establish a Sixth Amendment violation based on the district court’s denying him the opportunity to violate the rules of evidence, at least under these circumstances. See United States v. Lewis,
641 F.3d 773, 785 (7th Cir. 2011). Accordingly, we find Sarno’s confrontation arguments without merit. d. Witness testimony about fear of Sarno Next, Sarno argues that the government elicited imper‐ missible character evidence against him. However, the tes‐ timony Sarno identifies was not propensity evidence within the meaning of Federal Rule of Evidence 404(a)(1). Nor did this testimony—or any other evidence offered in the gov‐ ernment’s case—violate the district court’s pretrial ruling Nos. 11‐3022, 12‐1180 & 12‐1656 33 prohibiting the government from linking Sarno to the Chica‐ go Outfit or organized crime. We find that the district court was fully within its discretion in allowing this testimony to come in. The first exchange Sarno complains of concerned gov‐ ernment witness Henry Rendon. On direct, Rendon testified that he borrowed $15,000 from Sarno, to be repaid through the money generated by the video gambling machines that the enterprise had installed in Rendon’s store. Rendon then decided to switch to Dublino’s services—Dublino offered Rendon a bigger take—and he called one of Sarno’s associ‐ ates to tell him. The associate told Rendon that “the big guy” was going to be “pissed.” On cross‐examination, defense counsel brought out the fact that Sarno himself never explicitly threatened Rendon. The district court, in keeping with its pretrial order that “witnesses could testify to their fear of Sarno without linking him to organized crime,” allowed the government to elicit the following testimony on redirect: GOVERNMENT: And you were asked [on cross] whether or not Michael Sarno ever told you he was going to hurt you as a result of not paying back that loan. Do you recall that ques‐ tion? RENDON: Yes. GOVERNMENT: Did Michael Sarno have to threaten you face‐to‐face? RENDON: No. GOVERNMENT: Why not? 34 Nos. 11‐3022, 12‐1180 & 12‐1656 RENDON: Because of who he is. A similar exchange occurred during Dublino’s testimony about the time that Sarno told him to stay away from the 47th Street Grill. Dublino testified as to Sarno’s demeanor during this confrontation and the fact that Dublino felt threatened by him. On cross, defense counsel brought out the fact that Sarno never touched Dublino during their en‐ counter. In response, on redirect, the government brought up the defense’s questions and asked, “Did he need to touch you?” Dublino answered no. The third instance occurred during the government’s di‐ rect examination of Hay. Hay testified that he was thinking about robbing a dice game, but that he consulted with Pol‐ chan first. Polchan told Hay to stay away from the dice game, because Polchan’s “guy” said so. Hay testified that he obeyed: “I knew if I robbed that dice game my life would be in jeopardy.” Sarno argues that all of this was impermissible character evidence in that it tended to show that Sarno is a bad, scary guy. He claims that the admission of this testimony violated Federal Rule of Evidence 404(a)(1). Yet Rule 404(a)(1) only prohibits the introduction of evidence about a defendant’s character when that evidence is offered “to prove that on a particular occasion the person acted in accordance with the character or trait.” That is not what the government offered this testimony for. All three witnesses described Sarno’s reputation in order to establish their own subjective state of mind—that is, to explain why the witness felt threatened by Sarno even in the absence of an explicit threat from Sarno himself. The government never elicited testimony that Sarno actually was a bad person, or violent, or a member of the ma‐ Nos. 11‐3022, 12‐1180 & 12‐1656 35 fia. And the government certainly never argued that any of these qualities made it more likely that Sarno committed the crimes he was accused of. Thus, the district court properly admitted this testimony. Further, this testimony did not run afoul of the district court’s pretrial order forbidding references to the Chicago Outfit or to the mafia more generally. The district court was clear that if the defendants tried to insinuate that a witness was not justified in feeling threatened by Sarno, the court would allow the witness to try to explain why he legitimate‐ ly felt fearful. This sensible approach to handling potentially prejudicial evidence was wholly within the district court’s discretion. And true to its word, the government (and its witnesses) never mentioned the Chicago Outfit or organized crime at any point during the trial. Sarno protests that the government subtly defied the court’s order by “contaminating” the case with “numerous images and references to nefarious people.” But all he can invoke in support of this assertion is the fact that various in‐ dividuals came up in passing, or appeared in a photograph, who Sarno claims have an association with the Chicago Out‐ fit. Sarno did not object to the majority of the references he now complains of. And in any event, he does not establish that it was likely the jury would have known who any of these individuals were. The district court, which was in a much better position to assess the prejudicial effect of these references, wholly rejected the claim that the government had injected the mafia into the case.6 We see no reason to 6 Responding to an objection by Sarno’s attorney that “the government has brought in organized crime and the mob into this case,” the court stated that “the record is exactly the opposite. The phrase hasn’t been 36 Nos. 11‐3022, 12‐1180 & 12‐1656 come to a different conclusion, and we similarly reject Sar‐ no’s claim of error. 3. Jury instructions In our last trial‐related issue, the appellants object to the district court’s jury instructions on the RICO conspiracy count. We review the legal accuracy of a jury instruction de novo, and particular phrasing for an abuse of discretion. United States v. Dickerson,
705 F.3d 683, 688 (7th Cir. 2013). We recognize, however, that “[a] trial judge has considerable discretion in choosing the language of an instruction so long as the substance of the relevant point is adequately ex‐ pressed.” Boyle v. United States,
556 U.S. 938, 946 (2009). The challenged instruction, Instruction No. 30, came from the Federal Criminal Jury Instructions of the Seventh Circuit 322 (1999). It read: To be associated with an enterprise, a person must be involved with the enterprise in a way that is related to its affairs or common pur‐ pose[, although the person need not have a stake in the goals of the enterprise and may even act in a way that subverts those goals]. A person may be associated with an enterprise without being so throughout its existence. The bracketed language, which the government requested, is optional; it echoes our opinion in United States v. Yonan,
800 F.2d 164(7th Cir. 1986), where we declared that “the defend‐ ant need not have a stake in the enterprise’s ‘goals,’ but can mentioned. It hasn’t been used. There’s been no direct reference to it. There’s not even been an indirect reference to it.” Nos. 11‐3022, 12‐1180 & 12‐1656 37 associate with the enterprise by conducting business with it, even if in doing so the defendant is subverting the enter‐ prise’s goals.”
Id. at 167. Anthony Volpendesto opposed the inclusion of the op‐ tional language. He argued that it was only appropriate where the indictment concerned a “lawful” enterprise—as in Yonan, where the defendant argued that he could not be “as‐ sociated” with the Cook County State’s Attorney’s Office be‐ cause he had committed crimes against it. The district court demurred, declining to rule on the objection immediately, but noting that the jury was “entitled to know that just be‐ cause one of the enterprise members is sneaking some of the booty off for himself doesn’t mean he can’t be a member of the enterprise.” On the first day of closing arguments, the court told the parties that it was still considering the lan‐ guage of the instruction. The following day, the court reject‐ ed Volpendesto’s proposed alternative and settled on In‐ struction No. 30, including the bracketed language.7 7 The appellants argue that the district court violated Federal Rule of Criminal Procedure 30, which requires the district court to inform the parties before closing arguments how the court intends to rule on re‐ quested instructions. See Fed. R. Crim. P. 30(b). However, no one asked for a final ruling when the court informed the parties that the proposed instructions were under consideration, and we see no plain error. The purpose of Rule 30(b) is “to allow counsel a meaningful opportunity to tailor their closing arguments to the court’s pronouncement of the law governing the case.” United States v. Algee,
599 F.3d 506, 515 (6th Cir. 2010). The appellants already knew that the court felt the jury should be informed that the defendants could be convicted even if they were ulti‐ mately acting in their own self‐interest. And the appellants do not tell us how their argument would have been different if the court had ruled definitively ahead of time. 38 Nos. 11‐3022, 12‐1180 & 12‐1656 The appellants renew this argument on appeal, maintain‐ ing that the instruction made no sense in the context of an unlawful enterprise. However, RICO draws no distinction between “lawful” and “unlawful” enterprises, see
18 U.S.C. § 1961(4) (definition of “enterprise”), and we have never drawn such a distinction in our cases. Nor do we see a rea‐ son to do so here. It makes little sense to construe RICO so that it is more difficult for the statute to reach individuals who associate with illegal enterprises than legal ones. Cf. United States v. Masters,
924 F.2d 1362, 1367 (7th Cir. 1991) (“It would be ironic if the RICO statute, aimed primarily at criminal enterprises such as the Mafia and its many petty imitators, was more effective against legal enterprises.”). Yet that is precisely what Volpendesto’s construction would do. The appellants also suggest that the instruction was mis‐ leading because the indictment charged the defendants with participating in an “association‐in‐fact” enterprise, defined as “a group of persons associated together for a common purpose of engaging in a course of conduct.” Boyle,
556 U.S. at 946. At trial, the appellants—Volpendesto in particular— argued that they could not have agreed to join the enterprise because they did not share a common purpose with the oth‐ er members. By telling the jury that a defendant could still associate with an enterprise even if he did not have “a stake in the goals of the enterprise,” the appellants maintain, In‐ In three sentences, the appellants also argue that the district court violated their Sixth Amendment and due process rights by prohibiting any party from referring to the instructions during closing argument. We treat such a perfunctory argument as waived. See United States v. Warner,
498 F.3d 666, 702 (7th Cir. 2007). Nos. 11‐3022, 12‐1180 & 12‐1656 39 struction No. 30 wrongly implied to the jury that arguments about a lack of a common purpose were irrelevant. But the instructions suggested no such thing. The very first sentence of Instruction No. 30 stated, “To be associated with an enterprise a person must be involved with the en‐ terprise in a way that is related to its affairs or common pur‐ pose.” And the court separately instructed the jury that “[t]he term ‘enterprise’ can include a group of people associ‐ ated together for a common purpose of engaging in a course of conduct.” The appellants were thus completely free to ar‐ gue that they never shared a common purpose with their confederates. Nor is it contradictory to say that someone shares in a common purpose even though that person’s ultimate inter‐ ests diverge from his confederates. A person who agrees to commit multiple robberies with an association‐in‐fact cer‐ tainly shares in the enterprise’s common purpose—to enrich himself and the enterprise through illegal means. He cannot escape liability just because, at the end of the day, he prizes his own self‐interest above the group’s. Instruction No. 30 adequately expressed this point, and it was not an abuse of discretion to give it. Even if we were to find that Instruction No. 30 should not have been phrased as it was, we would reverse “only if it appears both that the jury was misled and that the instruc‐ tions prejudiced the defendant.” Dickerson, 705 F.3d at 688. We do not believe that is the case here. As just discussed, other portions of the instructions clearly stated that an asso‐ ciation‐in‐fact required a common purpose and that a de‐ fendant associated with an enterprise by involving himself in a way that related to that common purpose. Indeed, An‐ 40 Nos. 11‐3022, 12‐1180 & 12‐1656 thony Volpendesto’s lawyer repeatedly emphasized this point during her closing argument. (“How can Tony be in‐ volved in the enterprise … that’s supposed to include all these people, that’s supposed to include all this activity, that’s supposed to cover this timeframe, when he’s not in‐ volved in it and he doesn’t get what the common purpose is, he doesn’t get any money from it.”) Viewed in context, that the jury convicted Volpendesto anyway does not show that it was misled, merely that it did not believe his story. C. Sentencing Finally, we address Sarno’s and Polchan’s challenges to their sentences. We review the district court’s interpretation and application of the U.S. Sentencing Guidelines de novo and its findings of fact for clear error. United States v. White,
737 F.3d 1121, 1139 (7th Cir. 2013). We review the sentences’ substantive reasonableness for abuse of discretion.
Id. 1. Sarno’s sentence Sarno makes three challenges to his sentence: that the district court erred in calculating his guidelines range; that the court failed to consider the
18 U.S.C. § 3553(a) factors, and that the sentence itself was substantively unreasonable. We consider each in turn.8 8 In his reply brief, Sarno adds a new argument: that any facts that in‐ creased his advisory guidelines range beyond the statutory maximums for his offenses should have been found by a jury. He suggests that this is a natural extension of the Supreme Court’s decision in Alleyne v. United States,
133 S. Ct. 2151(2013), in which the Court held that a fact which increases the statutory mandatory minimum sentence must be found by a jury. Sarno’s extension of Alleyne is foreclosed by the opinion itself, which emphasized that its holding “does not mean that any fact that in‐ fluences judicial discretion must be found by a jury. We have long rec‐ Nos. 11‐3022, 12‐1180 & 12‐1656 41 a. The guidelines calculation At sentencing, the district court concluded that Sarno’s adjusted offense level was 42. The court further concluded that Sarno’s criminal history category was VI. His recom‐ mended guidelines range was therefore 360 months to life.9 See U.S.S.G. Ch. 5, Pt. A (sentencing table). Sarno argues that ognized that broad sentencing discretion, informed by judicial factfind‐ ing, does not violate the Sixth Amendment.”
Id. at 2163; see also United States v. Hernandez,
731 F.3d 666, 672 (7th Cir. 2013) (judicial determina‐ tion of a fact that triggers a higher advisory guidelines range does not offend the Fifth or Sixth Amendments). 9 Because we find that the district court properly calculated Sarno’s of‐ fense level, we need not address Sarno’s separate argument, based on Peugh v. United States,
133 S. Ct. 2072(2013), that the court impermissibly applied the career offender rules from the 2010 guidelines when it should have applied the rules from the guidelines in effect during the offense of conviction. Sarno argues that under the pre‐2007 guidelines (namely, the rule in U.S.S.G. § 4A1.2(a)(2) instructing that “[p]rior sen‐ tences imposed in related cases are to be treated as one sentence” for the purposes of the criminal history category), his criminal history category would have been III. The government responds that Sarno’s two prior convictions would not have been considered “related” even under the version of the guidelines that Sarno uses. See U.S.S.G. § 4A1.2(a)(2) (1995), cmt. n. 3. But even if the government were wrong and Sarno right, any error was harmless. That is because an offense level of 42 re‐ sults in a recommended range of 360 months to life regardless of the of‐ fender’s criminal history category—and no matter what guidelines are used. See U.S.S.G. Ch. 5, Pt. A (2011) (the guidelines in effect at the time of Sarno’s February 2012 sentencing); U.S.S.G. Ch. 5, Pt. A (2010) (the guidelines used in the presentence investigation report calculations); U.S.S.G. Ch. 5, Pt. A (1995) (the guidelines Sarno wants to apply). As we ultimately conclude that the district court properly calculated Sarno’s offense level, his recommended guidelines range would have been the same either way. 42 Nos. 11‐3022, 12‐1180 & 12‐1656 the court erred in calculating his offense level in two re‐ spects. Sarno’s first argument is that the court should not have found Sarno accountable for the C & S bombing and the robbery activity. Under the guidelines, when a defendant is convicted of a “jointly undertaken criminal activity,” the sentencing court should take into account as relevant con‐ duct “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity that occurred” during, in preparation for, or to avoid detection of the offense of conviction. U.S.S.G. § 1B1.3(a)(1)(B). So to as‐ cribe another enterprise member’s relevant conduct to Sarno, the court had to determine that the member’s act or omission was both (1) within the scope of the criminal activity that Sarno agreed to undertake, and (2) reasonably foreseeable to him. See United States v. Salem,
597 F.3d 877, 886 (7th Cir. 2010). The court found that Sarno ordered the C & S bombing. It also found that Sarno exercised control over the robberies, at least to the extent that he could put certain people or places off‐limits. The court further noted that Sarno seemingly had the ability to confer a degree of protection on his underlings, Polchan in particular. More generally, the court explained that “after you look at all of the evidence in the aggregate … the testimony, the actions of the defendant in going in secre‐ cy to see co‐defendant Polchan when news media events … begin to show there’s a leak in the organization … the rea‐ sonable inference is that he would only care about those things if he was involved in the organization.” This evi‐ dence, the court concluded, gave a “convincing account Nos. 11‐3022, 12‐1180 & 12‐1656 43 which has Mr. Sarno as a person who is in control of much of the action and certainly accountable for virtually all of it.” As to the bombing, Sarno claims that the court’s conclu‐ sions were based on trial testimony that was incredible as a matter of law. For example, with respect to Sarno’s role in the bombing, the court relied on Dublino’s testimony that Sarno threatened him. Sarno argues that Dublino contradict‐ ed himself on the stand and had ample motive to fabricate evidence. But the district court observed Dublino’s testimo‐ ny firsthand and, with knowledge of these possible deficien‐ cies, chose to credit it. That was not clear error. As to the robberies, Sarno argues that there was no evi‐ dence showing his responsibility. But as discussed above, Sarno was connected to the robberies in multiple ways: Pol‐ chan felt the need to check with Sarno before robbing a dice game; Sarno called “his store,” Goldberg, and spoke to Pol‐ chan hoping to locate some stolen property; Polchan was worried that Sarno would become angry if he knew that Sam Volpendesto was participating in petty thefts; and Sarno stepped in to “take care” of a jewelry store owner who was upset at Polchan for a prior robbery. This evidence showed not only that Sarno exercised a degree of control over the robberies, but also that the activity was reasonably foreseea‐ ble to him. Again, the court did not clearly err in concluding that these facts supported attributing the conduct to Sarno under § 1B1.3. Sarno’s second challenge to his offense level calculation relates to the four‐level sentencing enhancement the district court imposed for Sarno’s role as the “organizer or leader” of the criminal activity. See U.S.S.G. § 3B1.1(a). Sarno argues that the government’s only evidence that he was a “lead‐ 44 Nos. 11‐3022, 12‐1180 & 12‐1656 er”—as opposed to a “manager or supervisor,” which trig‐ gers a lesser enhancement—were his nicknames: “my guy,” “big guy,” and so forth. If that were true, Sarno would have a point. However, the district court did not just look at Sar‐ no’s nicknames. Rather, the court incorporated its extensive analysis with regard to the jointly undertaken criminal activ‐ ity determination, and additionally noted the “words of ap‐ proval” that Sarno uttered to Polchan when discussing the distribution of video gambling machines—words that “clear‐ ly indicat[ed] a supervisory position over what was taking place.” The guidelines specify that the “exercise of decision making authority” and the “degree of control and authority exercised over others” are factors that a court should consid‐ er to distinguish a leadership role from a lesser supervisory one. U.S.S.G. § 3B1.1 cmt. n. 4. On these facts, the court’s conclusion that Sarno filled a leadership role was not clearly erroneous. b. Consideration of the § 3553(a) factors Sarno next argues that the district court failed to give ad‐ equate consideration to the factors listed in
18 U.S.C. § 3553(a). See Gall v. United States,
552 U.S. 38, 51 (2007). First, Sarno claims that the court ignored his particular “history and characteristics” in contravention of § 3553(a)(1). Specifically, he says that the court overlooked mitigating ev‐ idence of Sarno’s good works in his community and his support from family and friends. However, the sentencing transcript belies Sarno’s assertion that the court ignored this evidence. The court made a point of noting that “the hard‐ ship to the defendant’s family, his children, the people around him, the Court has no doubt is real and is—the word unfortunate seems insufficient.” The court simply chose to Nos. 11‐3022, 12‐1180 & 12‐1656 45 give this aspect of Sarno’s background little weight in light of the fact that he engaged in criminal activity shortly after serving his previous sentences for similar offenses, his evi‐ dent lack of respect for the law, the danger his crimes posed to the community, and the need to provide deterrence to whoever replaced Sarno in his criminal organization. Sarno may take issue with how the district court weighed the good against the bad, but that is not a claim of procedural error. And in any event, “the sentencing judge was in a superior position to balance these sentencing considerations, and we will not second guess his determinations.” United States v. Farris,
532 F.3d 615, 620 (7th Cir. 2008) (citation omitted). Sarno also contends that the court failed to give adequate attention to his arguments that he posed a lesser risk of re‐ cidivism based on his age and health, his family and com‐ munity ties, and his remorse for his actions. The hearing transcript does not bear out this assertion, either. Sarno’s in‐ vocation of remorse is puzzling, as aside from a vague statement that he had “some deep regrets” but would “leave the rest to [his] lawyers,” Sarno exhibited nothing of the sort at sentencing. Furthermore, the district court considered Sarno’s argument that he no longer posed a risk and wholly rejected it. The court found that Sarno had engaged in “a lifetime of crime,” and determined that, based on Sarno’s criminal history and the evidence presented at trial, “the likelihood that the defendant will continue to engage in this dangerous conduct appears … to be very great.” Thus, Sarno has failed to establish procedural error on this basis. c. Reasonableness of Sarno’s de facto life sentence Finally, Sarno argues that his sentence was substantively unreasonable because it amounted to an effective life sen‐ 46 Nos. 11‐3022, 12‐1180 & 12‐1656 tence. Sarno was age fifty‐four at sentencing, and he re‐ ceived twenty‐five years’ imprisonment. Though his release is technically within his life expectancy, see Social Security Administration, Actuarial Life Table, http://www.ssa.gov/OACT/STATS/table4c6.html (last visited Mar. 14, 2014), Sarno maintains that his poor health means that he will likely die in prison. Although we have acknowledged the “worthy tradition that death in prison is not to be ordered lightly,” and sug‐ gested that “the probability that a convict will not live out his sentence should certainly give pause to a sentencing court,” United States v. Wurzinger,
467 F.3d 649, 652 (7th Cir. 2006), we have never held that a sentencing court must check certain boxes in order to justify an effective life sen‐ tence. And we have previously found de facto life sentences reasonable where the district court determined, as the court did here, that the defendant’s criminal history showed a risk of recidivism and lack of respect for the law. See United States v. Kincannon,
567 F.3d 893, 901 (7th Cir. 2009) (upholding a sentence of thirty years for a seventy‐seven‐year‐old defend‐ ant where the district court noted that his “advanced age … had not deterred or slowed his criminal activity to date”); Wurzinger, 467 F.3d at 653 (“Wurzinger argues that older of‐ fenders are generally less likely to commit crime, but … what matters is whether the court reasonably concluded that Wurzinger in particular is a risk for further crimes.”). In ad‐ dition, the court expressed its conviction that “[i]t would be detrimental to the public interest for this Court or any other to leave the impression that one can engage in a lifetime of crime in the hope of avoiding capture and conviction until the very end and then retire to some sort of peaceful exist‐ ence after having wreaked havoc and chaos among others.” Nos. 11‐3022, 12‐1180 & 12‐1656 47 We find that Sarno’s twenty‐five‐year sentence was within the court’s discretion. 2. Polchan’s sentence Polchan was convicted of RICO conspiracy, conducting an illegal gambling business, conspiracy to commit arson, arson, use of a destructive device in relation to a crime of vi‐ olence, conspiracy to obstruct justice, possession of stolen goods from interstate shipments, and various tax offenses. His resulting guidelines range was 360 months to life. The district court sentenced him to 720 months, or sixty years. He was age forty‐four at sentencing. Polchan makes no procedural challenges to the district court’s guidelines calculation. Instead, he too challenges the substantive reasonableness of his de facto life sentence and argues that the district court did not sufficiently justify its choice. We find that the court properly exercised its sentencing discretion in Polchan’s case as well. The district court ex‐ plained that it chose a sixty‐year sentence because it wanted the length of imprisonment to “reflect[] the seriousness of [Polchan’s] ongoing criminal offense and provide[] a pun‐ ishment that is just for all that he has done.” The judge em‐ phasized how “organized criminal activity performed over a long period of time, deliberate and purposeful, poses a greater threat to the very fiber of our community.” And the judge described his conviction that a serious sentence was necessary because “the public needs to be protected both from Mr. Polchan and from the idea that organized criminal activity might well be worth something, might well be worth doing.” Through this explanation, the court adequately tied 48 Nos. 11‐3022, 12‐1180 & 12‐1656 its sixty‐year sentence to the factors listed in
18 U.S.C. § 3553(a). We cannot say that its ultimate decision—which was within Polchan’s guidelines range—was unreasonable. Polchan also argues that the district court failed to con‐ sider the social and economic costs of a sixty‐year sentence. Drawing on a concurring opinion in United States v. Craig,
703 F.3d 1001(7th Cir. 2012) (per curiam), Polchan argues that the court should have explicitly weighed the expense of imprisonment to the government, which “rises steeply with the prisoner’s age,” against the “incremental deterrent effect of extremely long sentences” and the fact that in general, re‐ cidivism declines with age.
Id.at 1003–04 (Posner, J., concur‐ ring) (emphasis omitted). But of course, Judge Posner was (in his own words) “merely suggesting” that a sentencing judge ought to undertake this form of societal cost‐benefit analysis.
Id. at 1004. We have never held that a district court must explicitly weigh these factors. Accordingly, we affirm Polchan’s sentence. III. Conclusion The judgment of the district court is AFFIRMED.
Document Info
Docket Number： 11-3022
Citation Numbers： 746 F.3d 273
Judges： Flaum
Filed Date： 3/24/2014
Precedential Status： Precedential
Modified Date： 1/12/2023