In the
United States Court of Appeals
For the Seventh Circuit
No. 95-3577
United States of America,
Plaintiff-Appellee,
v.
Robert Salerno,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 90 CR 87--Ann Claire Williams, Judge.
Argued October 23, 1996--Decided March 4, 1997
Before Harlington Wood, Jr., Ripple, and Kanne, Circuit
Judges.
Kanne, Circuit Judge. Robert Salerno was convicted
under 18 U.S.C. sec. 1952B/1 for murder and
conspiracy to commit murder for the purpose of
maintaining or increasing his position in a
racketeering enterprise. He challenges his
conviction on four grounds: 1) that the government
violated the Speedy Trial Act by allowing 17 months
to elapse between the conclusion of Salerno's first
trial and the announcement of its intent to retry
Salerno; 2) that the district court erred in
permitting the government to present extensive
evidence of other crimes to show the existence of,
and defendant's participation in, an enterprise; 3)
that the admission of evidence of other crimes for
which Salerno had been acquitted violated the issue
preclusion component of the Double Jeopardy Clause;
and 4) that the district court erred in admitting
into evidence the government's scale model of the
crime scene, which the jury was also permitted to
examine during its deliberations. Because we find
these claims to be without merit, we affirm the
decision of the district court.
I. History
This case involves the murder of Hal Smith,
allegedly by the defendant, Robert Salerno, and his
cohorts Rocco Infelise, Louis Marino, and Robert
Bellavia. All four men were members of the Ferriola
Street Crew--a unit of Chicago's organized crime
establishment, often referred to as the "Outfit."
The Chicago Outfit operates through "street crews,"
and the Ferriola Street Crew (named after Joseph
Ferriola, the boss of the crew from 1979 to 1989)
engaged in a number of criminal activities
including the collection of protection money (or
"street tax") from bookmakers, houses of
prostitution, and adult theaters. Infelise became
the boss of the Ferriola Street Crew upon
Ferriola's death in 1989.
On February 10, 1985, Smith's stabbed, strangled,
and tortured body was found in the trunk of his own
car. Smith ran a lucrative independent bookmaking
operation in Lake County, Illinois. Beginning
around 1981, Smith was aware that Marino and
Salvatore DeLaurentis--another member of the
Ferriola Street Crew--were attempting either to
collect street taxes from independent bookmakers or
to force them to become partners with the Ferriola
crew. After initially resisting these efforts,
Smith and his two bookmaking partners began paying
DeLaurentis $3,000 per month in street tax in 1983.
In late February or early March 1984, DeLaurentis
arranged to meet Smith and one of his phone clerks
at an Arlington Heights restaurant. At the meeting,
DeLaurentis asked Smith to pay $6,000 per month in
street tax. Smith offered to pay $3,000 and then
$3,500, but DeLaurentis insisted upon the $6,000.
At that point, Smith and DeLaurentis had a loud
argument over who had more money and power, and
they began throwing money at each other. Smith then
ordered DeLaurentis to leave before he kicked his
"olive oil smelling ass" back to Sicily.
DeLaurentis retorted that Smith would be "trunk
music."
In the spring of 1984, Infelise asked William
Jahoda, an Outfit bookmaker, where Smith lived so
that the street crew could collect the tax.
Throughout the summer of 1984, Salerno, Infelise,
Marino, and Bellavia used Jahoda's Long Grove,
Illinois house as a base for their "stalking"
operation of Smith in an attempt to learn his
whereabouts and identify his car. On or about
February 4, 1985, Infelise ordered Jahoda to bring
Smith to Jahoda's house. Jahoda arranged to meet
Smith at a tavern on February 7 and informed
Infelise of the meeting.
On the afternoon of February 7, 1985, Salerno,
Infelise, Marino, and Bellavia came to Jahoda's
house. Infelise instructed Jahoda to bring Smith
back to Jahoda's house in Smith's car. He also
wanted Jahoda to remain outside and let Smith enter
the house alone through the kitchen. That night,
Jahoda met Smith and brought him back to his house.
Smith entered the house by himself while Jahoda
pretended to go to the mailbox. Jahoda saw Smith
through the kitchen door and windows, and he saw
Salerno come up behind Smith. Jahoda waited in the
garage until Infelise came outside looking for
Smith's car. Infelise, however, returned to the
kitchen to get Smith's car keys. At that time,
Jahoda saw Smith lying on the kitchen floor but
still conscious, surrounded by Bellavia, Marino,
and Salerno. Marino removed Smith's car keys from
Smith's coat pocket and gave them to Infelise.
Infelise then drove Jahoda back to the tavern and
instructed him to burn his clothes.
Everybody was gone when Jahoda returned home
later that evening. Jahoda noticed that part of the
kitchen floor had been mopped, and he found a brown
bag, a plastic bag for vinyl twine, and a hardware
store receipt. He also received a phone call from
Infelise who asked Jahoda to look for a cigar and
some glasses that Marino thought he had left
behind. Jahoda did not find these items; the
Arlington Police, however, later recovered both the
cigar and glasses from Smith's car. In the years
after the murder, Infelise, Bellavia, and Salerno
made statements to Jahoda regarding the "stalk" and
murder of Smith. Little did they know, however,
that Jahoda became an informant for the government
in April 1989.
A grand jury returned a multi-count superseding
indictment against twenty individuals, including
Salerno, charging them with a variety of crimes
including RICO conspiracy. Salerno was also named
in three RICO predicate acts and two substantive
counts. Count 8 charged Salerno of conspiring with
Infelise, DeLaurentis, Bellavia, and Marino to
murder Smith in order to maintain or increase their
positions in a racketeering enterprise. Count 9
charged Salerno, Infelise, Bellavia, and Marino
with the actual murder of Smith, again for the
purpose of maintaining or enhancing their positions
in the enterprise.
The government's case against these defendants
proceeded to trial, and on March 10, 1992, the jury
delivered its verdict. The jury found Salerno not
guilty of RICO conspiracy, but it convicted
Infelise, DeLaurentis, Bellavia, and Marino on the
RICO conspiracy count, as well as other counts. The
jury, however, could not reach a verdict on Counts
8 or 9 as to Salerno, Infelise, Bellavia, and
Marino./2 Seventeen months later, the government
announced its intention to retry only Salerno on
Counts 8 and 9. In the second trial, a jury found
Salerno guilty on both counts.
II. Analysis
A. Speedy Trial Act
The first issue on appeal is whether the district
court erred in finding no violation of the Speedy
Trial Act despite the fact that 17 months elapsed
between the first jury's verdict and the
government's announcement that it would retry
Salerno on Counts 8 and 9. We review a district
court's interpretation of the Speedy Trial Act de
novo and its factual findings for clear error.
United States v. Wimberly, 60 F.3d 281, 284 (7th
Cir. 1995), cert. denied, 116 S. Ct. 744 (1996).
On March 10, 1992, the jury in the first trial
returned a partial verdict against the five
defendants, including Salerno. Although four
defendants--i.e., Infelise, Marino, DeLaurentis,
and Bellavia--were found guilty on the RICO
conspiracy count, Salerno was acquitted of this
charge. The jury, however, failed to reach a
verdict for Infelise, Marino, Bellavia, and Salerno
on Counts 8 and 9 of the indictment, which charged
them with conspiring to murder and the actual
murder of Smith in order to maintain or increase
their positions in a racketeering enterprise. Thus,
these defendants remained subject to retrial on
Counts 8 and 9./3
After the first trial, the district court endured
an onslaught of complex post-trial and sentencing
motions from the defendants and the government. The
district court later described the post-trial
proceedings as "remarkable for both the breadth and
complexity of the issues presented," noting that it
"issued more than a dozen separate opinions,
totaling more than 400 pages." Memorandum Opinion
and Order, United States v. Salerno, No. 90 CR 87-
5, at 2 (N.D. Ill. Jan. 26, 1994) (denying
Salerno's motion to dismiss the indictment based on
the Speedy Trial Act). After the resolution of the
post-trial motions and sentencing proceedings, the
government pronounced that it would retry only
Salerno on Counts 8 and 9. At that point, Salerno
complained that the government violated the Speedy
Trial Act by not beginning his retrial within the
70-day statutory period. See 18 U.S.C. sec.
3161(e). The district court denied Salerno's motion
to dismiss the indictment, finding the entire
period from March 10, 1992 to August 24, 1993 to be
excludable under 18 U.S.C. secs. 3161(h)(1)
and (h)(7)./4
Section 3161(e) of the Speedy Trial Act provides,
in part, that when a "defendant is to be tried
again following a declaration by the trial judge of
a mistrial . . . the trial shall commence within
seventy days from the date the action occasioning
the retrial becomes final." 18 U.S.C. sec.
3161(e). This section further provides, however,
that the "periods of delay enumerated in Section
3161(h) are excluded in computing the time
limitations specified in this section." Id.
It is undisputed that 70 days passed between the
date of the verdict in the first trial ("the date
the action occasioning the trial bec[ame] final")
and the government's statement of its intention to
retry Salerno on Counts 8 and 9. Thus, we must
determine whether the district court correctly
decided that the 17-month "post-trial" period was
properly excludable for Speedy Trial Act purposes.
Because this was a multiple-defendant
prosecution, we first turn to sec. 3161(h)(7) to
guide our analysis. That section provides an
exclusion for a "reasonable period of delay when
the defendant is joined for trial with a
codefendant as to whom the time for trial has not
run and no motion for severance has been granted."
18 U.S.C. sec. 3161(h)(7). We have repeatedly held
that under this section, "the excludable delay of
one defendant may be ascribed to all codefendants
in the same case, absent severance." United States
v. Tanner, 941 F.2d 574, 580 (7th Cir. 1991)
(quoting United States v. Dennis, 737 F.2d 617, 620
(7th Cir. 1984)). In this case, Salerno and his
four codefendants were all subject to retrial on
Counts 8 or 9, and Salerno neither sought nor was
granted severance from his codefendants. Therefore,
any reasonable period of time that could be
excluded as to Infelise, Marino, DeLaurentis, or
Bellavia could similarly be excluded as to Salerno.
We agree with the district court that the entire
period from March 10, 1992 to August 24, 1993 was
excludable as to Salerno's codefendants. Section
3161(h)(1) generally provides for the exclusion of
a "period of delay resulting from other proceedings
concerning the defendant." 18 U.S.C. sec.
3161(h)(1). That section also supplies a non-
exhaustive list of proceedings in which a period of
delay "shall be excluded" in computing the time
within which the trial must commence. See United
States v. Garrett, 720 F.2d 705, 709 (D.C. Cir.
1983) (noting that the listed proceedings in sec.
3161(h)(1)(A)-(J) are "merely illustrative and not
intended to be exhaustive"). Section 3161(h)(1)
exclusions "operate automatically" to deduct time
from the Speedy Trial Act clock, United States v.
Montoya, 827 F.2d 143, 151 (7th Cir. 1987), and
courts have discretion to determine "the nature of
those proceedings which fall within the 'other
proceedings' language" of that section, United
States v. Lopez-Espindola, 632 F.2d 107, 110 (9th
Cir. 1980).
The proceedings in this case--post-trial and
sentencing motions--are not expressly cited as
excludable under sec. 3161(h)(1). Nonetheless, the
district court properly found that these post-trial
matters are "other proceedings" within the general
language of sec. 3161(h)(1). In that regard,
courts have adopted a broad interpretation of
"other proceedings," Garrett, 720 F.2d at 710, and
found excludable delay in the following instances:
time spent in a defendant's plea bargaining
negotiations, Montoya, 827 F.2d at 150; time spent
litigating a codefendant's bond violation and
subsequent bail hearing, Garrett, 720 F.2d at 709-
10; and time spent by an appellant in state custody
due to probation revocation proceedings, Lopez-
Espindola, 632 F.2d at 110.
In this case, we similarly find that the time
spent litigating post-trial motions and resolving
sentencing disputes was excludable under sec.
3161(h)(1). The entire time between March 10, 1992
and August 24, 1993 was necessary to resolve
several complex, post-trial issues including
defendants' motions for new trials, DeLaurentis's
motion to vacate his conviction, defendants' joint
motion to dismiss based on the government's alleged
taping of attorney-client conversations at the
Metropolitan Correctional Center (MCC), defendants'
motions to interview jurors with regard to written
communications received by the court from a juror,
Infelise's supplemental motion for a new trial,
defendants' motion for the government to release
its MCC investigative report, and defendants'
motion to reconsider the court's prior denial of an
evidentiary hearing. During this entire time, the
court was also forced to adjudicate several
sentencing issues regarding Salerno's codefendants,
including extensive challenges to defendants'
Presentence Investigation Reports (PSIs), the
government's motions for upward departure, and the
defendants' objections to those motions.
Without pointing to any specific dates or
providing any calculation of nonexcludable days of
delay, Salerno simply claims that the period from
January 22, 1993 (the denial of Infelise's
Supplemental Motion for a New Trial) to August 17,
1993 (the "finalization" of the sentencing process)
was a "period of inaction" in excess of the 70-day
Speedy Trial Act requirement. After our own review
of the docket we understand why the defendant
failed to calculate the exact number of
nonexcludable days during this alleged 207-day
"period of inactivity"-- there are simply too many
overlapping post-trial and sentencing motions
during this time period for anyone to ferret out
over 70 days of unexcludable delay./5 As such, we
find no Speedy Trial Act violation.
We reject defendant's argument that the district
court erred in relying upon the "general and
introductory" language of sec. 3161(h)(1) rather
than the more specific requirements of sec.
3161(h)(1)(J) ("subsection (J)"). Subsection (J)
excludes "delay reasonably attributable to any
period, not to exceed thirty days, during which any
proceeding concerning the defendant is actually
under advisement by the court." 18 U.S.C. sec.
3161(h)(1)(J). Our determination that delays from
the post-trial and sentencing proceedings are
excludable under sec. 3161(h)(1)'s general
language does not offend the cannon of statutory
interpretation that a more specific statutory
provision takes precedence over a more general
provision. Subsection (J) is not a catch-all
provision that encompasses every single proceeding
not covered in the other subsections of sec.
3161(h)(1). Rather, subsection (J) automatically
provides a 30-day exclusion for periods covering
any proceedings once they are actually taken under
advisement by the district court, i.e., after the
court has all of the necessary materials and has
conducted the appropriate hearings to decide the
issue. See Henderson v. United States, 476 U.S.
321, 328-29 (1986) (finding that sec.
3161(h)(1)(J) "allows exclusion of up to 30 days
while the district court has a motion 'under
advisement,' i.e., 30 days from the time the court
receives all the papers it reasonably expects").
Moreover, in this circuit we have further
determined that subsection (J)'s 30-day requirement
cannot limit subsection (F), which excludes "delay
resulting from any pretrial motion, from the filing
of the motion through the conclusion of the hearing
on, or other prompt disposition of, such motion."
18 U.S.C. sec. 3161(h)(1)(F). In that regard, we
have reasoned that the Speedy Trial Act cannot
compel a district court to decide numerous pretrial
motions "within a short, fixed period of time," and
thus have held that "in a case of multiple pretrial
motions the limitation is not 30 days, but
reasonable promptness." United States v. Tibboel,
753 F.2d 608, 612 (7th Cir. 1985) (finding 42 days
reasonable to consider 7 pretrial motions); see
United States v. Cheek, 3 F.3d 1057, 1066-67 (7th
Cir. 1993) (finding 50-day delay reasonable for
adjudicating 24 pretrial motions); United States v.
Latham, 754 F.2d 747, 753 (7th Cir. 1985) (finding
68 days reasonable to consider 8 pretrial motions).
Finally, as we noted above, sec. 3161(h)(1)
expressly states that the provided list of
proceedings is not exclusive. Thus, defendant's
reading of the statute would render useless
Congress's express determination that delays
resulting from proceedings not detailed under sec.
3161(h)(1) could nonetheless be excluded for
Speedy Trial Act purposes.
Because the time spent litigating post-trial
motions and sentencing issues was excludable
against Salerno's codefendants, we must now
determine whether that 17-month delay was
reasonable under sec. 3161(h)(7). The facts of
each particular case determine the reasonableness
of the delay. See Tanner, 941 F.2d at 580; Dennis,
737 F.2d at 621. Considering sec. 3161(h)(7)'s
preference for the judicial efficiency of joint
trials, see Dennis, 737 F.2d at 621, as well as the
magnitude and complexity of the issues involved in
the post-trial and sentencing proceedings of this
case, we easily find that the delay here was
reasonable. All five defendants were subject to
retrial on Counts 8 or 9 for their joint
participation in the murder of Hal Smith, and at no
point did Salerno move for severance. See id. The
mere fact that the government ultimately chose
(after the disposition of the post-trial and
sentencing issues) to retry only Salerno on Counts
8 and 9 does not run counter to our reasoning.
Moreover, our review of the record reveals that the
district court handled the deluge of post-trial
motions and sentencing objections in a commendable
manner. Thus, we agree that the 17-month delay
needed to adjudicate the post-trial motions and
sentencing issues was reasonable.
We also find that defendant was not substantially
prejudiced by the delay. The mere passage of time,
without more, is not dispositive. See Barker v.
Wingo, 407 U.S. 514, 532, 534 (1972); Dennis, 737
F.2d at 621 (finding that the 144-day delay before
defendant's trial was not "presumptively
prejudicial" under Barker v. Wingo); cf. Doggett v.
United States, 505 U.S. 647, 655 (1992). Defendant
claims that the delay improperly permitted the
government to hone its trial strategies and perfect
its evidence. However, "'[p]rejudice' is not caused
by allowing the Government properly to strengthen
its case, but rather by delays intended to hamper
defendant's ability to present his defense." United
States v. Tedesco, 726 F.2d 1216, 1221 (7th Cir.
1984). Defendant has provided us with no persuasive
evidence demonstrating that he was somehow less
able to present an adequate defense due to the
passage of time. Finally, defendant cannot
convincingly claim that he was prejudiced by the
"unresolved criminal charges looming over his
head." He was neither incarcerated during the 17-
month period, nor did he seek to modify his bond
conditions during that time. Considering all of
these factors, we find the defendant's Speedy Trial
Act claim to be without merit.
B. Admission of the "Enterprise" Evidence
Salerno next argues that the district court
improperly allowed the government to present
evidence of other crimes allegedly committed by him
in order to prove the "enterprise" elements of the
crimes charged in the indictment. We review
evidentiary determinations for abuse of discretion,
giving "special deference" to the discretion of the
district court. United States v. Stephens, 46 F.3d
587, 597 (7th Cir. 1995).
At Salerno's second trial, the government sought
to introduce evidence of prior crimes allegedly
committed by Salerno and others in order to
establish the existence of a racketeering
enterprise as required by sec. 1952B. In
particular, this evidence revealed defendant's
prior participation in demanding and collecting
street taxes on behalf of the Ferriola Street Crew.
Salerno objected to the admission of this
testimony, some of which was not offered by the
government at the first trial, arguing that it was
not in furtherance of the charged conspiracy, that
it concerned uncharged acts, and that its probative
value was substantially outweighed by its unfair
prejudice. The district court excluded the
testimony of one witness (Robert Cooley), finding
that the danger of its unfair prejudice
substantially outweighed its probative value; the
court, however, permitted the government to
introduce the testimony of the other witnesses
(David Kopulos, Joel Ross, William Jahoda, Richard
Mara, Carmen Migliore, and George Boulahanis),
finding their testimony relevant to establish the
existence of, and Salerno's participation in, the
charged enterprise. We find that the district court
did not abuse its discretion in permitting the
government to introduce this evidence.
In order to convict Salerno for the charged
crimes the government was required to prove, beyond
a reasonable doubt, the existence of an enterprise.
Because enterprise was an essential element of the
crimes charged, the proffered evidence cannot
properly be characterized as "other crimes"
evidence, and thus, Federal Rule of Evidence 404(b)
does not apply. See United States v. Blyden, 964
F.2d 1375, 1378 (3d Cir. 1992); United States v.
Towne, 870 F.2d 880, 886 (2d Cir. 1989); United
States v. Neapolitan, 791 F.2d 489, 506 (7th Cir.
1986); see also United States v. Jackson, 33 F.3d
866, 873 (7th Cir. 1994) (finding Rule 404(b)
inapplicable because defendant's failure to file
tax returns was "intricately connected" with the
charged conspiracy to impede and obstruct the IRS).
We must, however, still address defendant's
argument that the proffered evidence was irrelevant
and unfairly prejudicial because it did not prove,
nor was it necessary to prove, the charged
enterprise.
As defined under 18 U.S.C. sec. 1952B, an
enterprise "includes . . . any union or group of
individuals associated in fact although not a legal
entity . . . ." 18 U.S.C. sec. 1952B(b)(2) (1984)
(renumbered 18 U.S.C. sec. 1959(b)(2)). The
Supreme Court has characterized an "association-in-
fact enterprise," as "a group of persons associated
together for a common purpose of engaging in a
course of conduct," and "an entity separate and
apart from the pattern of activity in which it
engages." United States v. Turkette, 452 U.S. 576,
583 (1981) (interpreting "enterprise" under RICO's
definition, 18 U.S.C. sec. 1961(4)); see United
States v. Rogers, 89 F.3d 1326, 1335 (7th Cir.)
(finding that sec. 1959(b)(2)'s [sec.
1952B(b)(2)'s] definition of "enterprise" is the
same as under RICO's definition at sec. 1961(4)),
cert. denied, 117 S. Ct. 495 (1996); United States
v. Concepcion, 983 F.2d 369, 380 (2d Cir. 1992)
(same). In that regard, the Court noted that a
party proves enterprise through "evidence of an
ongoing organization, formal or informal, and by
evidence that the various associates [of the
organization] function as a continuing unit."
Turkette, 452 U.S. at 583.
Although the "existence of an enterprise at all
times remains a separate element which must be
proved by the Government," it is also firmly
established that the "proof used to establish these
separate elements [of 'enterprise' and 'pattern of
racketeering activity'] may in particular cases
coalesce." Id.; see Rogers, 89 F.3d at 1336-37;
United States v. Kragness, 830 F.2d 842, 856 n.11
(8th Cir. 1987); United States v. Mazzei, 700 F.2d
85, 89 (2d Cir. 1983). This is such a case. It is
difficult to comprehend how one could prove the
existence of an enterprise comprised of "a group of
individuals associated in fact," and organized
solely for the purpose of committing crimes,
without presenting evidence of the crimes that
detail the structure, common purpose, and
continuity of the charged enterprise. Thus, we have
allowed the government to use uncharged criminal
acts in a RICO prosecution to prove the nature of
an enterprise and the defendant's participation in
it. See, e.g., Neapolitan, 791 F.2d at 501, 506.
The indictment in this case defined the
enterprise as "The Joseph Ferriola Street Crew"--an
"association in fact" of seventeen named
individuals, as well as others known and unknown.
The indictment charged that the enterprise operated
from 1974 through the date of the indictment, and
that it engaged in multiple racketeering acts
including murder, extortion, illegal wagering,
loansharking, and bribery.
Salerno primarily challenges the witness
testimony that revealed his participation in
demanding and collecting street taxes, and the
witnesses' belief that Salerno was acting on behalf
of the Ferriola Street Crew in these instances.
Such evidence was clearly probative of Salerno's
connection to the enterprise and the enterprise's
need to murder Hal Smith for refusing to pay the
street tax.
Defendant complains that some of this testimony
was irrelevant in demonstrating the charged
enterprise because it detailed his extortionate
activities with others not explicitly named in the
indictment as members of the enterprise. This
argument, however, overlooks the fact that the
indictment named as members of the enterprise
seventeen individuals, as well as others "known and
unknown."
Moreover, even though the government could, and
apparently did, provide other evidence of the
enterprise's structure via surveillance witnesses
and undercover tape recordings, these sources of
evidence make no less relevant the live testimony
of people previously involved in extortions by
Salerno and other members of the Ferriola Street
Crew. In particular, the challenged testimony
provided evidence of the leadership within the
enterprise, the scope of the enterprise, the
specialized functions of various crew members, the
crew's method of collecting the street tax, the
crew's desire to tax independent bookmakers, and
perhaps most importantly, Salerno's actual
participation in enterprise activities. Considering
the experienced district court's explicit Rule 403
analysis of this evidence, we easily find that the
court did not abuse its discretion in admitting the
evidence./6
Salerno's argument that this enterprise evidence
was irrelevant because he did not contest the
existence of an enterprise is without consequence.
Defendant offered no stipulation concerning the
enterprise element, see United States v. Brown, 34
F.3d 569, 573 (7th Cir. 1994), and his lawyer's
pretrial statement that he would not argue at trial
that Salerno did not know other enterprise members
is hardly a concession that the charged enterprise
existed.
We similarly find without merit defendant's
argument that reversal is warranted because the
jury instructions did not limit the jury's
consideration of this challenged evidence to the
enterprise issue. Although defendant objected to
the admission of the enterprise evidence, he never
requested a limiting instruction directing the jury
to consider it only in regard to proving the
charged "enterprise" and not towards proving the
charged "racketeering activity." Before the Supreme
Court's decision in United States v. Olano, 113 S.
Ct. 1770 (1993), we had typically reviewed a
district court's failure to provide an unrequested
jury instruction for plain error. See United States
v. Maloney, 71 F.3d 645, 663 (7th Cir. 1995)
(discussing our cases before and after Olano),
cert. denied, 117 S. Ct. 295 (1996); United States
v. Liefer, 778 F.2d 1236, 1243-44 (7th Cir. 1985).
In this case, however, defendant was well aware of
the potential need for such a limiting instruction.
Thus, his lack of a request for such an instruction
coupled with his affirmative acceptance of the
court's final jury instructions demonstrates that
he intentionally relinquished his known right to
have the jury consider the extortion evidence for
a limited purpose, see Olano, 113 S. Ct. at 1777,
and thus amounts to waiver of the issue. See United
States v. Espino, 32 F.3d 253, 258-59 (7th Cir.
1994); United States v. Lakich, 23 F.3d 1203, 1207-
08 (7th Cir. 1994); see also Fed. R. Crim. P.
30./7
However, even if defendant's failure to request
such an instruction amounted to forfeiture of the
issue rather than waiver, see Olano, 113 S. Ct. at
1777, he has still not shown plain error. Whether
defendant's counsel neglected to request such an
instruction as a tactical move, or simply as an
oversight, he cannot convincingly argue that the
district court erred in failing to provide a
limiting instruction sua sponte. See United States
v. Gregory, 74 F.3d 819, 822 (7th Cir. 1996);
Liefer, 778 F.2d at 1243-44 & n.4. Such a
cautionary instruction was simply not required in
this case where the challenged evidence tended to
prove defendant's participation in the charged
enterprise, see United States v. Perholtz, 842 F.2d
343, 359 (D.C. Cir. 1988) (ruling that no
cautionary instruction was necessary where the
challenged evidence tended to prove the continuity
of an association-in-fact enterprise), and where
the court had determined that the probative value
of the evidence was not substantially outweighed by
the danger of unfair prejudice.
C. Issue Preclusion
Salerno next argues that the government violated
the issue preclusion component of the Double
Jeopardy Clause by admitting evidence of offenses
for which he had been previously acquitted. We use
a de novo standard of review for issue preclusion
determinations. United States v. Bailin, 977 F.2d
270, 281 (7th Cir. 1992); United States v. Gentile,
816 F.2d 1157, 1161 (7th Cir. 1987).
Specifically, defendant claims that the district
court violated the issue preclusion (or collateral
estoppel) component of the Double Jeopardy Clause
by allowing the government to present evidence of
the alleged extortions of William Jahoda and David
Kopulos by the Ferriola Street Crew. In a 1985
federal trial, a jury found Salerno not guilty of
extorting Kopulos. In the first trial of this case,
a jury acquitted Salerno of RICO conspiracy, and in
doing so, it expressly found that Salerno did not
agree to the charged intimidation or extortion of
Jahoda. The district court denied defendant's
pretrial motion to preclude this "extortion"
evidence, finding it relevant "to show the
existence of, and defendant's membership in, the
conspiracy."
Issue preclusion in the criminal context means
that "when an issue of ultimate fact has once been
determined by a valid and final judgment, that
issue cannot again be litigated between the same
parties in any future lawsuit." Ashe v. Swenson,
397 U.S. 436, 443 (1970); accord Bailin, 977 F.2d
at 274. In Bailin, we listed the three procedural
rules that govern the application of issue
preclusion in criminal cases. First, courts should
not apply the collateral estoppel rules in a
hypertechnical manner, but rather should examine
the pleadings, evidence, charge, and other relevant
matter to determine whether a rational jury could
have based its verdict on an issue other than the
one the defendant seeks to foreclose from
consideration. Bailin, 977 F.2d at 280; see Ashe,
397 U.S. at 443. Second, issue preclusion only
applies when a relevant issue in a subsequent
prosecution is an "ultimate issue," i.e., an issue
that must be proven beyond a reasonable doubt.
Bailin, 977 F.2d at 280; see Dowling v. United
States, 493 U.S. 342, 348-51 (1990). Third, the
defendant bears the burden of proving that this
ultimate issue was necessarily determined by the
prior jury. Bailin, 977 F.2d at 280; see Dowling,
493 U.S. at 350-51.
In this case, Salerno cannot demonstrate that
extortion was an "ultimate issue" at his retrial,
or that the prior acquittals necessarily determined
that the charged enterprise or its racketeering
activity did not exist. While defendant properly
asserts that the juries in the two prior trials
failed to find him guilty of extorting money from
Kopulos or Jahoda, that question is completely
irrelevant in this trial. At Salerno's retrial, the
government needed to prove that the charged
enterprise existed, that defendant was a member of
it, and that the enterprise engaged in racketeering
activity (in addition to proving the various
elements for murder and conspiracy to commit
murder). The government, however, was not required
to prove that Salerno ever extorted Kopulos and
Jahoda. As such, these were not "ultimate issues"
for issue preclusion purposes.
Moreover, defendant cannot show that the
existence of the enterprise, the defendant's
membership in the enterprise, or the fact that the
enterprise engaged in racketeering activity were
necessarily precluded by Salerno's prior acquittals
on the two extortion charges. In fact, we
previously found on interlocutory appeal that an
entirely plausible reading of the verdict from
Salerno's first trial was that the "jury believed
that Salerno was associated with the enterprise (or
never reached that question in its deliberations)
but could not agree on whether he participated in
the murder." United States v. Salerno, 1994 WL
399196, No. 94-1331, at *1 (7th Cir. August 1,
1994) (unpublished order). In this regard, one can
easily envision a situation where Salerno did not
extort Kopulos or Jahoda, yet still find that the
Ferriola Street Crew existed, that Salerno was a
member of the Crew, and that the Crew engaged in
racketeering activity.
The crux of defendant's argument rests on the
fact that jury was permitted to consider the
evidence of these acquitted extortions not only as
proof of enterprise, but also as proof of
racketeering activity. The final instructions given
to the jury provided that the government was not
required to show that Salerno "personally
perform[ed] or agree[d] to personally participate
in any racketeering activity committed by the
enterprise" in order to prove that the enterprise
engaged in racketeering activity. (Jury
Instruction, No. 39.) That same jury instruction,
however, stated that "[o]ne way the government may
establish that a defendant knew racketeering
activity would be committed by the enterprise is by
proving the defendant committed racketeering
activity on behalf of the enterprise." Id.
Defendant thus argues that this instruction
permitted the jury to use the two extortion
acquittals as evidence of racketeering activity.
Defendant's argument, however, fails for three
reasons. First, the jury was never required to find
that Salerno extorted anybody; the government
needed to show only that the enterprise engaged in
racketeering activity. Thus, the issue of extortion
was never an "ultimate issue" at Salerno's retrial.
Second, defendant has not met his burden of
demonstrating that the jury necessarily used the
evidence from two prior extortions to satisfy the
racketeering activity element. The government
presented abundant evidence--aside from the
acquitted extortions--detailing the enterprise's
racketeering activity and Salerno's knowledge of
and participation in this activity. This case is
unlike a RICO prosecution where the jury's need to
find explicitly specific predicate acts could more
easily demonstrate that a prior judgment of
acquittal had necessarily precluded an issue from
the jury's consideration. See, e.g., Bailin, 977
F.2d at 282-83.
Third, defendant neither requested a limiting
jury instruction, nor objected to the final
instructions submitted to the jury by the court;
thus, he cannot claim such an error here. Defendant
failed to request that the district court instruct
the jury of the limited nature of the extortion
evidence when it was first introduced by the
government, he failed to offer a proposed
instruction regarding the extortion evidence at the
end of the case, and he affirmatively agreed to the
set of jury instructions on this issue that was
ultimately given by the district court. Based on
these actions, it appears that defendant
intentionally relinquished his known right to have
the jury consider the extortion acquittals for only
a limited purpose, and thus has waived any such
argument on appeal. See Olano, 113 S. Ct. at 1776;
Espino, 32 F.3d at 259; Lakich, 23 F.3d 1207-08./8
Even under plain error review, Salerno would not
be entitled to relief. The district court committed
no error (plain or otherwise) either in admitting
the Kopulos and Jahoda extortion testimony, or in
failing to instruct the jury regarding the limited
purpose for which the testimony was offered.
Salerno's prior acquittals did not necessarily
preclude this jury's finding that the Ferriola
Street Crew enterprise existed and engaged in
racketeering activity. As such, we reject
defendant's issue preclusion claim.
D. Admission of the Scale Model of the Crime Scene
In his final argument, Salerno contends that the
district court erroneously admitted into evidence
a scale model of the crime scene, which the jury
was permitted to examine during its deliberations.
We review a district court's determination
regarding the admissibility of demonstrative
evidence, as well as its decision to send material
to the jury room, for a clear abuse of discretion.
United States v. Hofer, 995 F.2d 746, 748 (7th Cir.
1993); United States v. Burrell, 963 F.2d 976, 982
(7th Cir. 1992). Determinations regarding Federal
Rule of Criminal Procedure 16 are "committed to the
sound discretion of the district court, and we will
reverse only for abuse of discretion prejudicial to
the substantial rights of the defendant." United
States v. D'Antoni, 856 F.2d 975, 984 (7th Cir.
1988) (quoting United States v. Koopmans, 757 F.2d
901, 906 (7th Cir. 1985)).
At Salerno's second trial, the government
introduced into evidence a scale model of the crime
scene (Jahoda's house), which depicted part of the
house, the driveway, the individuals involved in
the crime, and the victim's car. Before the scale
model was finished, the government informed the
defendant of its intent to use the model. The model
was completed shortly before the trial, and the
government informed defendant of its completion. On
the day of opening statements, the government
offered defendant's lawyers the opportunity to
review the model, but they refused.
One week later--the day the government intended
to put Jahoda on the witness stand--the government
presented defendant with a proposed stipulation
regarding the creation of the scale model. An FBI
Visual Information Specialist had built the model
based on photographs, plat surveys, floorplans, and
footprints. The proposed stipulation fueled
defendant's discovery objections, which claimed
that the government had not allowed him enough time
to inspect the model, had failed to provide
"expert" materials regarding the builder of the
model (e.g., a curriculum vitae), and did not
produce the information upon which the builder
relied. Specifically, defendant complained that
although he was aware of the model, he was unaware
that the model would be used in an "expert"
fashion. The district court overruled the
objections, reasoning that the model was a
demonstrative aid and thus, it was not the subject
of expert testimony. The court also ordered the
government to turn over the documents on which the
model was built, which the government promptly
provided later that day.
Due to some days off in the trial schedule, the
government did not actually introduce the model
into evidence for another week. At that point, the
government used the model during Jahoda's testimony
in order to help the eyewitness explain the
movements of the individuals allegedly involved in
Smith's murder on February 7, 1985. Because the
parties never agreed to a stipulation regarding the
creation and accuracy of the model, the model maker
provided foundational testimony one week after the
government first used the model with Jahoda.
Salerno first contends that he was prejudiced by
the government's belated disclosure of the scale
model, as well as the government's failure to
disclose a written summary of the "expert"
testimony of the model builder. Defendant asserts
that these belated and non-disclosures violated
Federal Rule of Criminal Procedure 16, thereby
depriving him of the opportunity to investigate the
model, to obtain his own expert witness, to make an
informed plea decision, or to reformulate his trial
strategy.
Rule 16 of the Federal Rules of Criminal
Procedure provides that "[u]pon request of the
defendant the government shall permit the defendant
to inspect and copy or photograph . . . tangible
objects . . . which are within the possession,
custody or control of the government, and which are
material to the preparation of the defendant's
defense or are intended for use by the government
as evidence in chief at the trial." Fed. R. Crim.
P. 16(a)(1)(C). It further states that at the
defendant's request, the government must disclose
"a written summary of [expert] testimony" that it
intends to use. Fed. R. Crim. P. 16(a)(1)(E). "To
succeed in obtaining a reversal on appeal" for a
discovery violation, "a defendant must prove both
an abuse of discretion and prejudice." United
States v. Alvarez, 987 F.2d 77, 85 (1st Cir. 1993).
Initially, we note that it is doubtful that the
government violated Rule 16. Before the trial
began, the government apprised the defendant that
it intended to use the scale model. Once the model
was completed, the government afforded defendant
ample opportunity (two full weeks) to inspect it
before its introduction into evidence, which the
drawn-out trial schedule readily reflects./9
Nor was it apparent that the government violated
Rule 16(a)(1)(E) by failing to turn over a summary
of expert testimony. From the record, it does not
appear that the defendant ever requested any expert
discovery material, as Rule 16 required him to do,
until the fourth day of trial. On that day, the
court ruled that admission of the scale model did
not require expert testimony; as such, there was no
expert testimony for the government to summarize.
In that regard, the district court did not err in
determining that the model was demonstrative
evidence that did not require the testimony of an
expert. Although the model maker was a FBI Video
Information Specialist who had testified as an
expert in the past, his testimony in this trial was
merely foundational. Moreover, the government
promptly complied with any request for "expert"
material that defendant may have made by turning
over the floorplans, blueprints, and other
materials used by the model maker on the very day
those materials were requested by the defendant.
Even if the government had violated Rule 16,
defendant certainly has not demonstrated that he
was substantially prejudiced by any belated
disclosure of the scale model or the non-disclosure
of any "expert" materials of the model maker.
"Substantial prejudice exists when a defendant is
unduly surprised and lacks an adequate opportunity
to prepare a defense or if the mistake
substantially influences the jury." United States
v. Camargo-Vergara, 57 F.3d 993, 998-99 (11th Cir.
1995). Defendant has failed to show such
deficiencies here.
As shown above, defendant had at least two weeks
after the government invited him to inspect the
model, and one week after he actually examined the
model, to obtain expert witnesses or otherwise
alter his trial strategy. Additionally, Salerno
never indicated how additional preparation time
would have altered his strategy, nor does the
record reflect any evidence that defendant sought
out his own expert to examine the model. See
Koopmans, 757 F.2d at 906. Along those lines, we
note that defendant's counsel knew before trial
that the government was going to use a scale model
or "mock up" of the crime scene; thus, defendant
could have retained an expert at that point in case
such an expert was needed later in the trial.
Moreover, the record does not suggest that
defendant's cross-examination of either Jahoda or
the model maker was impaired by any delays. See
United States v. Caudill, 915 F.2d 294, 299-300
(7th Cir. 1990); Koopmans, 757 F.2d at 906.
Salerno next asserts that the district court
abused its discretion in the way it allowed the
government to use and publish the scale model. When
the government first introduced the model, it
sought to have the jury file past it. Defendant
objected, complaining that this presentation was
"overly dramatic" and prejudicial, analogizing it
to mourners filing past a deceased person's casket.
The court overruled defendant's objection and
permitted jurors to file past the model on that
occasion and at two more times during the trial.
Rule 611(a) of the Federal Rules of Evidence
declares that the "court shall exercise reasonable
control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make
the interrogation and the presentation effective
for the ascertainment of the truth . . . ."
Demonstrative aids are regularly used to clarify or
illustrate testimony. See, e.g., Roland v.
Langlois, 945 F.2d 956, 963 (7th Cir. 1991)
(admitting life-sized replica of amusement park
ride into evidence); United States v. Towns, 913
F.2d 434, 445-46 (7th Cir. 1990) (admitting ski
mask and gun into evidence for demonstrative
purpose of providing examples of the mask and gun
used at a bank robbery).
The record in this case reveals that the district
court was concerned about whether all of the jurors
could view the model from their places in the jury
box. After coming to the conclusion that several of
the jurors would not be able see it, the court
allowed the jurors to file past the exhibit. In
doing so, however, the court also instructed the
government that when the jurors walked by the model
they could not elicit testimony from the witness,
the witness had to return to the witness box, and
the government agents and prosecutors could not
stand near the model. The court clearly did not
abuse its discretion in allowing the jury to file
past the model of the crime scene. If anything,
defendant's use of the model during the cross-
examination of Jahoda--by having the witness stand
next to the exhibit while speculating whether the
model was accurate--was more dramatic than the
government's use of it.
Salerno's final argument is that he was
prejudiced by the court's decision to let the scale
model go to the jury room during its deliberation.
Defendant claims that this crucial piece of
demonstrative evidence took on an "air of
infallibility" that improperly bolstered the
eyewitness's (Jahoda's) credibility. He also argues
that the model's presence during jury deliberations
allowed the government's witness to "in effect
accompan[y] the jury into the jury room." United
States v. Ware, 247 F.2d 698, 700 (7th Cir. 1957).
"[A]s long as the district court is evenhanded in
its evidentiary rulings, [it] has wide discretion
in determining whether an exhibit will be allowed
to go into the jury deliberation room." Hofer, 995
F.2d at 749 (citing United States v. Samples, 713
F.2d 298, 303 (7th Cir. 1983)). In this case,
nothing in the record suggests that the district
court favored the government over the defendant in
making its evidentiary determinations.
Specifically, the court permitted some of
defendant's arguably misleading photographs of the
crime scene to go to the jury room along with the
government's scale model. Moreover, defendant's
lawyer thoroughly challenged the testimony of both
Jahoda and the model maker on cross-examination. In
particular, defense counsel placed a defendant's
exhibit sticker on the model to illustrate the
location of the eyewitness. Thus, defendant cannot
argue that only the "government's voice" regarding
the model was heard in the jury room.
Finally, the district court made an explicit
Federal Rule of Evidence 403 determination
regarding the admission of the model and its
delivery to the jury room. We look upon a district
court's Rule 403 balancing with a "special degree
of deference." United States v. Crockett, 979 F.2d
1204, 1211 (7th Cir. 1992). Although in some cases
it may be better practice to exclude demonstrative
evidence from the jury room in order to reduce the
potential for unfair prejudice, see Towns, 913 F.2d
at 446, in this case, the district court certainly
did not abuse its discretion. See United States v.
Cox, 633 F.2d 871, 874-75 (9th Cir. 1980)
(admitting "mock-up bombs" into evidence for
illustrative purposes and permitting them to go to
the jury room).
For these reasons, we AFFIRM the defendant's
conviction.
FOOTNOTES
/1 In 1988, Congress renumbered this section to 18
U.S.C. sec. 1959.
/2 The jury found DeLaurentis guilty on Count 8,
but the district court vacated this verdict and
declared a mistrial on December 30, 1992.
/3 As noted above, DeLaurentis was also subject to
retrial on Count 8 after the district court vacated
the jury's guilty verdict as to that count.
/4 The district court found that excludable delay
based on sec. 3161(h)(1)(F), which excludes time
for the prompt disposition of pretrial motions,
began on August 24, 1993--the day the government
announced its intention to retry Salerno. The
defendant does not complain about the exclusion of
time from this point (August 24, 1993) up to the
beginning of the trial (February 7, 1995). Thus,
the only period at issue here is the 17-month
period from the date of the partial verdict in
Salerno's first trial (March 10, 1992) to the
announcement of Salerno's retrial (August 24,
1993).
/5 For example, by January 22, 1993, the court and
the government were still waiting for some
defendants' responses to the government's motion
for upward departure from the sentencing
guidelines, which it had filed on September 16,
1992. Our review of the docket shows that in the
several months after the government filed its
motion, several defendants objected to the motion,
and the government subsequently responded to these
objections. On March 5, 1993, the government
responded to DeLaurentis's objections. Thus, as of
March 5, 1993, there are zero days of unexcludable
delay that count towards the Speedy Trial clock.
Meanwhile, the government and DeLaurentis were
litigating DeLaurentis's motion for a mistrial, thereby
postponing the litigation regarding his PSI. The
PSIs for all the defendants were completed in late
August 1992, and the other defendants had been
litigating their objections to their PSIs in the
subsequent months. On April 13, 1993, DeLaurentis
finally filed his objections to his PSI; the
government responded on May 10, 1993, and
DeLaurentis replied on June 21, 1993. Considering
the overlap between the litigation involving the
upward departure motions and the objections to
DeLaurentis's PSI, there are still zero days of
unexcludable delay as of June 21, 1993.
On July 15 and 16, 1993, the district
court issued lengthy opinions ruling
on defendants' various objections. Then on July 22,
1993, the government filed a separate motion for
upward departure regarding DeLaurentis; DeLaurentis
responded, and the government filed its reply on
August 12, 1993. Thus, the entire time from July
22, 1993 to August 12, 1993 is excludable. Adding
the 31 days from June 21 to July 22, and the 5 days
from August 12 to August 17, we are left with only
36 days of unexcludable delay.
This example (which did not even
consider the several other pending
motions or subtract the 30 days for the time that
the court actually took the motions under
advisement) thus demonstrates that the period from
January 22 to August 17, 1993 was anything but a
"period of inaction," and that the actions of the
government and the district court were well within
the confines of the 70-day limit of the Speedy
Trial Act.
/6 We also reject defendant's untimely argument
that these prior extortions were "stale criminal
acts, unconnected to the specific time-frame
charged." Contrary to defendant's assertions, the
relevant time frame was not between the fall of
1984 and February 7, 1985. The indictment
specifically charged that the enterprise (an
essential element of the crimes) began in 1974 and
continued up to 1990 (August 19, 1990--the date of
the original indictment). All of the "stale" crime
evidence fell within this period.
/7 Rule 30 provides, in pertinent part: "No party
may assign as error any portion of the charge or
omission therefrom unless that party objects
thereto before the jury retires to consider its
verdict, stating distinctly the matter to which
that party objects and the grounds of the
objection."
/8 Defendant seemed to shift his argument in order
to avoid the waiver problem. In his initial brief,
defendant claimed that the district court erred by
failing to limit the admission of the extortion
evidence for a particular purpose--i.e., as
evidence of enterprise. After the government raised
the waiver issue, however, defendant asserted in
his reply brief that the court erred in admitting
the extortion evidence for any purpose.
If we assume that defendant's argument
is as he states in his reply
brief--i.e., that he objected to the introduction
of the evidence, not to the court's failure to
provide a limiting instruction--we find that he
cannot now claim that the district court erred by
failing to limit the scope of the extortion
evidence. Defendant's assertion that "[i]t is
questionable whether a limiting instruction would
have done any good," (Appellant's Reply Br. at 16
n.7), demonstrates that his decision not to request
a limiting instruction may have been a tactical
move, and thus, eases our finding of waiver.
/9 Due to federal holidays and a judicial
conference, trial was conducted on February 7-8,
13-16, 21-22, 27, and March 1, 1995. The government
invited the defendant to examine the scale model on
February 7, the day of opening statements. Upon
receiving the government's proposed stipulation
regarding the model on February 14, defendant first
objected to its admission. That was also the first
time that the defendant availed himself of the
opportunity to inspect the model. The government
first used the scale model in court on February 21.