SUBSEQUENT HISTORY:  [**1]  Certiorari Denied December 1, 1997, Reported at: 1997 U.S. LEXIS 7130.

PRIOR HISTORY: Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 CR 1064. Paul E. Plunkett, Judge.

DISPOSITION: AFFIRMED.

CORE TERMS: crew, conspiracy, juice, gambling, extortionate, illegal gambling, juror, organized crime, racketeering, bet, interstate commerce, indictment, collection, loansharking, big, murder, coconspirator, prosecutor, sentencing, departure, abuse of discretion, admit, conversation, guideline, theater, fine, collecting, perjury, betting, assigned

COUNSEL: For UNITED STATES OF AMERICA, Plaintiff - Appellee: Marsha A. McClellan, OFFICE OF THE UNITED STATES ATTORNEY, Criminal Division, Chicago, IL USA. Mark J. Vogel, Barry Rand Elden, Chief of Appeals, OFFICE OF THE UNITED STATES ATTORNEY, Criminal Appellate Division, Chicago, IL USA.
 
For ANTHONY C. ZIZZO, Defendant - Appellant (No. 95-1643): Robert S. Bailey, Cynthia Giacchetti, Chicago, IL USA. Julius L. Echeles, Pompano Beach, FL USA. For RICHARD GERVASIO, Defendant - Appellant (No. 95-3369): Terrence P. LeFevour, Chicago, IL USA. Samuel V.P. Banks, LAW OFFICES OF SAMUEL V.P. BANKS, Chicago, IL USA. For JAMES J. MARCELLO, Defendant - Appellant (No. 95-1886): George N. Leighton, NEAL & ASSOCIATES, Chicago, IL USA. John Thomas Moran, Jr., Chicago, IL USA. For ANTHONY N. CHIARAMONTI, Defendant - Appellant (No. 95-3434): David G. Duggan, Chicago, IL USA. For BRETT K. O'DELL, Defendant - Appellant (No. 95-4083): Ralph E. Meczyk, Chicago, IL USA. For SAMUEL A. CARLISI, Defendant - Appellant (No. 96-1762): Thomas P. Sullivan,  [**2]  JENNER & BLOCK, Chicago, IL USA. Arthur N. Nasser, Chicago, IL USA. Raymond J. Smith, SMITH, LODGE & SCHNEIDER, Chicago, IL USA. Herbert Shafer, Atlanta, GA USA.

JUDGES: Before BAUER, FLAUM, and EVANS, Circuit Judges.

OPINIONBY: EVANS

OPINION:  [*1343]  EVANS, Circuit Judge. In December 1992 a grand jury indicted eleven members of the Chicago Outfit, the Windy City's notorious crime syndicate, for their roles in the illegal gambling and loansharking operations of two of the Outfit's street-crew subdivisions. Two mobsters pled guilty and the rest of the indictees took their chances with a jury. All but one were convicted, and six appealed. After we consolidated their appeals, one of the defendants, Samuel "Wings" Carlisi, the Outfit's former boss of all bosses--a title once held by the likes of Al Capone and Tony "Big Tuna" Accardo--died. As we'll explain below, we vacate his conviction but affirm the convictions and sentences of the other defendants in all respects. First let's meet the cast of characters in this appeal.

The lion's share of the defendants below were members of the Carlisi Street Crew, an arm of the Outfit operating in western Cook and DuPage Counties throughout the 1980's. As the  [**3]  crew's name suggests, Carlisi--dubbed "Wings" in his youth for his unrivaled ability to elude the authorities while swiftly shuttling fellow gangsters from place to place--was the leader and financial backer of the group. James Marcello worked as Carlisi's chauffeur, emissary, and all-around right-hand man. Third in command was Anthony Zizzo. Known on the street as "Little  [*1344]  Tony," Zizzo supervised both Frank Bonavolante, the head of the crew's gambling operations, and Anthony "Big Tony" or "Tony the Hatch" Chiaramonti, who managed the crew's juice loan racket. The crew also employed a horde of other charming characters including Brett O'Dell, who helped Big Tony with the juice loan operation, and Richie Gervasio, who took bets for the crew and sometimes collected gambling debts.

It's a safe bet that the crew's decade-long, illegal gambling operation was its biggest moneymaker. Through an extensive network of "offices," which were often relocated to throw nosy government agents off of the trail, the crew took bets on professional sports and horse races. Just how lucrative was the crew's business? One of its bookies, Kenton "Kappy" Pielet, took in between $ 75,000 and $ 125,000 in wagers  [**4]  on an "average" weekend. And another office--one which cost over $ 500,000 to open--had a weekly payroll of around $ 30,000 and served a whopping 800 customers.

Because all bets, no matter how large, were accepted on credit, the crew prided itself on its effective debt-collection practices and held its bookies personally responsible for their customers' past-due accounts. Often the crew would dispatch muscle to threaten or rough up deadbeat debtors. For example, when a gambler named Anthony Pape failed to make good on his $ 15,000 gambling debt, Bonavolante let him know that "not even God was going to help" him. Another of Carlisi's heavies threatened to beat the completely bald Pape until his head turned so black and blue people would think he had hair. Pape eventually saved his scalp by persuading his father to cash in a $ 16,000 retirement annuity.

Another illustrative collection involved the debt of Michael Huber. After betting with crew bookies Kappy Pielet and Thomas Briscoe, Huber was referred to Gervasio, with whom he bet over $ 60,000 in an 18-month period. When Huber failed to make timely payments on a $ 2,500 losing wager, however, Gervasio revoked his betting privileges.  [**5]  After a series of meetings failed to resolve the matter, Gervasio sent Huber to the parking lot of a local restaurant, where he was grabbed, "tapped" in the face by two thugs, and told to return in a week with a payment. When Huber failed to report as directed, Gervasio explained that the matter would soon be out of his hands and Huber would be unwise to miss any more appointments. Huber made it to the next meeting; the money didn't. Less than pleased, one of the crew's enforcers checked Huber for a wire, choked him, and threatened to mess him up. Huber was so frightened that he defecated in his pants. Although Huber managed to steer clear of the crew for almost 2 years after that incident, an Outfit thug named Joe Cumbo later knocked on his door and sought to collect his debt. When Huber explained that he couldn't pay, Cumbo suggested that Huber sell his wife's car. Two days later someone threw a flare into the car, burning its backseat.

On other occasions the crew squeezed additional profits from its delinquent gamblers by referring them to Zizzo, Chiaramonti, and O'Dell for juice loans. For example, when gambler Frank Perri's favorite horse failed to out-pace the other ponies and  [**6]  Perri couldn't cover his bet with Kappy Pielet, Chiaramonti and O'Dell graciously extended him a juice loan. When Perri failed to make a couple of his weekly interest payments, Pielet was forced to pay Zizzo on Perri's behalf. Unhappy about being left on the hook for Perri's past-due loan, Pielet asked O'Dell to look into the matter. O'Dell located Perri, slapped him in the face, and forced him to make a payment on his account.

Carlisi's men also made juice loans unrelated to its gambling operation. Unfortunately for the crew, one of its "business" juice loans was made to Anthony LaBarbera, a cooperating FBI witness. In 1988 LaBarbera needed money to purchase insurance and license plates for his trucking company. When he was unable to secure a bank loan, one of his employees, Vince Falzone, explained that he had worked for Zizzo and Chiaramonti and could check into a juice loan. True to his word, Falzone arranged for Chiaramonti to meet LaBarbera and loan him $ 5,000 (at the crew's normal annual interest rate of 260%). Chiaramonti instructed LaBarbera to drop off $ 250 in interest payments  [*1345]  each week in envelopes addressed to "LT," a reference to Little Tony Zizzo. After making payments  [**7]  on the loan (often with cash fronted by the FBI) for 13 months, LaBarbera fell behind. Chiaramonti called him late at night, informed him that Zizzo was "hollering about the money being late," and warned LaBarbera to pay up "or else." In response, LaBarbera, who had once been choked by Chiaramonti for accusing Falzone of theft, explained that he was caught short when a customer failed to pay his trucking company. Chiaramonti then offered LaBarbera some keen practical advice. He explained LaBarbera had the "legal right to bust [the] head" of anyone who owed him money. Chiaramonti added, "When you got your foot on his throat then tell him now to go get my money."

With that cheery little picture of Carlisi's crew in mind, we turn our attention to the second Outfit subdivision whose activities are relevant to this case, a street crew controlled by infamous mobster Lenny Patrick. In 1986, when Carlisi took the reins as the head of the entire Outfit, the Patrick Street Crew came under his control, and Carlisi was able to call on Patrick's henchmen to help out with his own criminal chores.

One such undertaking involved an attempt to make Willis Johnson an offer he couldn't refuse. Johnson  [**8]  owned a chain of movie theaters and had been in a labor dispute with the projectionists union since 1983. In 1985 Johnson decided to automate projection at one of his cinemas, the Lake Theater. In early 1988, when negotiations with the union broke down, Johnson announced plans to automate all of his theaters. This didn't sit well with Carlisi, Marcello, and Zizzo, whose sons just happened to be card-carrying members of the projectionists union. As a result, Marcello contacted Patrick and explained that Carlisi wanted him to give Johnson "a little trouble" and make him "join the union."

Patrick assigned the task to his second in command, Mario Rainone, a skilled burglar who often branched out into more violent felonies. See United States v. Rainone, 32 F.3d 1203 (7th Cir. 1994). Rainone in turn delegated the job to crew members James LaValley and Nicholas Gio. LaValley and Gio decided the best way to make Johnson "join the union" was to torch the Lake Theater. Although they huffed and they puffed, LaValley and Gio just could not bring the theater down. First, they threw gasoline on the theater's roof and tried to light it with an incendiary grenade. They were unable to get the  [**9]  grenade onto the roof. Next they tried a Molotov cocktail. It, too, failed to do the trick. Figuring he would just have to do the job himself, Rainone, escorted by underling Albie Vena, threw a fragmentation grenade on the theater's roof. Alas, the third attempt at burning down the Lake Theater was simply not the charm. The grenade failed to detonate and was later found by a janitor, who promptly turned the dud over to the police.

In late 1989 the Carlisi crew assigned another task to a member of Patrick's crew. After Anthony "Jeep" Daddino, an Outfit street tax collector, was convicted of extorting cash from porn shops, he appeared ready to spill the beans on the crew's operation in order to shave a few months off of a potentially lengthy prison sentence. Hoping to nip any problem in the bud, Carlisi and Marcello decided to bump Daddino off. As Carlisi put it during a chat with Marcello and Patrick, "There is a million people gonna get hurt, including me, if we don't kill that Jeep." Marcello then met with Rainone and recruited him to pick the lock on Daddino's house (Daddino was out on bond pending sentencing) in order to let the hit men in. Marcello was even kind enough to lend  [**10]  Rainone a walkie-talkie to make sure the job went off without a hitch. When Rainone arrived at the scene, however, he became convinced that he--and not Daddino--was the real target of the hit. Despite Patrick's assurances that there was no contract out on him, Rainone began cooperating with the FBI in exchange for protection from the Outfit.

In addition to using Patrick's men for his own affairs, Carlisi financed the Patrick crew's juice loan operation. Through Marcello, he loaned Patrick $ 200,000. In return, Carlisi demanded repayment of his investment plus one-third of the profits from the loans. In order to protect his financial interests, Carlisi installed a trusted lieutenant,  [*1346]  "Singing Joe" Vento, as the head of Patrick's loan business. It proved to be a sound investment: Patrick steadily repaid the loan, and within 2 years the seed money had ballooned into $ 500,000.

Things started to go south for both crews in 1989. First, after incriminating himself in a taped conversation with Rainone, Patrick became the highest ranking Outfit member ever to turn state's evidence. A few months later another Patrick crew member, Gary Edwards, began cooperating with the FBI. When the Outfit  [**11]  got wind of that possible defection Vento ordered Patrick to shut down his loan operation. Despite the order, Patrick had Edwards funnel a $ 5,000 payment to Carlisi's crew through LaValley. LaValley gave the money to Zizzo, who confirmed that Patrick's debt was down to $ 26,000 and assured LaValley that he would pass the cash along to Marcello. Patrick and LaValley also persuaded Zizzo to overrule Vento's order and allow the crew to resume its loansharking activities. Finally, when LaValley was set to carry another payment to Zizzo, he heard that Edwards was cooperating with the FBI, became frightened, returned the money to Patrick, and called Zizzo to ask if he would be rubbed out for unwittingly aiding Edwards. Zizzo told LaValley not to worry and that he would let Marcello and Carlisi know of Edwards' defection.

In December 1992 a grand jury indicted Carlisi, Marcello, Zizzo, Chiaramonti, O'Dell, Gervasio, and five others for their roles in the Outfit's shady activities. About a dozen of the indictment's 27 counts are relevant to this appeal. Chief among them is Count One. It charged nine of the defendants with conspiring to conduct the affairs of the Carlisi Street Crew through  [**12]  a pattern of racketeering or the collection of unlawful debt, in violation of 18 U.S.C. § 1962(d), the federal RICO statute. The specific offenses underlying that conspiracy included arson, intimidation and murder conspiracies, running an illegal gambling business, as well as the making, financing, and collection of extortionate extensions of credit. Count Two charged all eleven defendants with operating an illegal gambling business in violation of 18 U.S.C. § 1955. Counts Three through Seven alleged that various defendants engaged in a number of extortionate credit transactions prohibited by 18 U.S.C. §§ 892-94. For example, Count Three charged Carlisi and Marcello with financing Patrick's juice loan operation. Counts Four and Five charged Zizzo and Chiaramonti with making and collecting extortionate extensions of credit, and Count Seven charged Gervasio with attempting to collect a debt through extortionate means. The remaining relevant counts charged Chiaramonti and O'Dell with willful failure to file tax returns.

Two of the defendants pled guilty; the others opted for their day in court. After a 10-week trial, a jury convicted eight of them. Only Joseph Braccio, a restauranteur  [**13]  accused of allowing the crew to use his establishment to cover up its shady activities, was acquitted. Carlisi, Marcello, Zizzo, Chiaramonti, Gervasio, and O'Dell appealed, and we consolidated their cases in this proceeding. We consider Carlisi's appeal first.   - continued...