(CN) – Five members of the Al Capone-descended Chicago Outfit cannot overturn convictions for a battery of crimes including murders and extortion, the 7th Circuit ruled.
Frank J. Calabrese Sr., James Marcello, Joseph Lombardo, Paul Schiro and Anthony Doyle were convicted in 2007. Calabrese, Marcello and Lombardo were sentenced to life in prison. Schiro received a 20-year sentence, and Doyle received a 12-year term. They were also ordered to pay $4 million in restitution for 14 of 18 murder victims whom the defendants were found to have conspired to kill.
Facing appeals from all five, the court began with Calabrese and Marcello’s double jeopardy claims, which say the 2007 case duplicated an earlier indictment. The federal appeals court rejected these same claims when the pair had tried to fight the charges before trial, and a majority would not waver now.
“Heraclitus famously said that one never steps into the same river twice,” Judge Richard Posner wrote for a two-judge majority. “What he meant was that one never steps into the same water; the river is the same, even though its substance is always changing. And so a conspiracy can be the same even if all the acts committed pursuant to it are different, because it is the terms of the agreement rather than the details of implementation that determine its boundaries.”
The Tuesday decision names Calabrese as the boss of the Calabrese Street Crew, which also goes by as the South Side/26th Street Crew. It says Marcello belonged to the Carlisi Street Crew aka the Melrose Park Crew.
Both men served time in prison before the 2007 indictment. Calabrese was sentenced to 118 months stemming from charges filed in 1995, and Marcello was sentenced to 150 months stemming from charges filed in 1992.
Both the earlier and current indictments against the men involved a racketeering conspiracy, and the crimes overlapped, but the court said the conspiracies were not the same.
“The present indictment, and the evidence presented at trial to prove its allegations, concerns conspiracies involving Calabrese and Marcello in their capacity as outfit members, not as street crew members,” Posner wrote. “In particular, they conspired to commit murder, and did commit murder, as members of the outfit, not as members of street crews. One of the murder conspiracies in which they were involved was intended to protect the outfit’s interest in Las Vegas casinos. There was no Las Vegas street crew, though of course members of the outfit oversaw the outfit’s skim of Las Vegas casino profits. The outfit is more than the sum of the street crews.”
“We did not think that the defendants had proved double jeopardy from a comparison of indictments, and their claim is even weaker now that the second trial has been conducted,” he added. “We can’t say that the ‘government contrived the differences to evade the prohibition against placing a person in double jeopardy.’ The present trial substantiated the functional differences between the outfit and the street crews that show that these are different criminal enterprises, with different functions that generate different though overlapping patterns of racketeering activity.”
The court also rejected an evidentiary issue that Marcello raised, and the other defendants’ claims involving the trial judge’s dealings with the jury.
Doyle, who was sentenced to 12 years, did persuade the court to throw out the judgment ordering him to pay 1 percent of the total restitution because all 14 murders occurred before his participation in the conspiracy.
Judge Diane Wood authored a partial dissent in which she said that Calabrese and Marcello did sustain a double jeopardy violation.
“Calabrese and Marcello had each already been convicted and imprisoned for their part in the street crews that lie at the heart of the Outfit’s Chicago operation,” Wood wrote. “Those prosecutions covered the period from 1978 to 1992 for Calabrese and from 1979 to 1990 for Marcello. The current prosecution entirely subsumes the span of those conspiracies. I therefore dissent, on that basis only, from the decision to affirm those two convictions.”