In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 07-1962, 07-1969

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANK J. CALABRESE, SR., and JAMES MARCELLO,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 CR 1050—James B. Zagel, Judge.

____________

ARGUED MAY 29, 2007—DECIDED JUNE 12, 2007

____________

Before POSNER, WOOD, and SYKES, Circuit Judges.

POSNER, Circuit Judge. Two defendants in a pending

RICO prosecution for conspiracy to conduct an enterprise’s affairs through a pattern of racketeering activity,

18 U.S.C. § 1962(d), appeal from the denial of their motion to dismiss the indictment. They contend that the trial,

scheduled to begin on June 19, will place them in double

jeopardy.

Marcello’s claim is based on a 1992 indictment charging

him and eight others with conspiring to conduct the

affairs of the Carlisi Street Crew by means of numerous
2 Nos. 07-1962, 07-1969

illegal acts between 1979 and 1990—acts such as extortion,

intimidation, arson, conspiracy to commit murder, usury,

witness tampering, and efforts to collect unlawful gambling debts. Such acts, if proved, are “predicate acts” two

or more of which establish the “pattern of racketeering

activity” required for a violation of RICO. Marcello was

convicted in 1993 and sentenced to 150 months in prison,

and his conviction was affirmed in United States v. Zizzo,

120 F.3d 1338 (7th Cir. 1997). Calabrese, the other appellant,

was charged in a 1995 indictment, together with six others,

with participation in a similar conspiracy, though the

offense period was 1978 through 1992 and the enterprise

was a different street crew—the Calabrese Street Crew.

Calabrese pleaded guilty in 1997 and was sentenced to

118 months in prison. He did not appeal.

The two street crews are components of the “Chicago

Outfit,” the lineal descendant of Al Capone’s gang, http://

en.wikipedia.org/wiki/Chicago_Outfit (visited June 1,

2007). The new indictment charges our two defendants,

along with seven others only one of whom was a defendant in the previous prosecutions, with conspiring to

conduct the affairs of the Chicago Outfit itself through a

pattern of racketeering activity. The offense period runs

from the 1960s to 2005 and thus overlaps the periods of the

conspiracies with which Calabrese and Marcello had

previously been charged. The predicate acts alleged

include some of the criminal acts charged in the earlier

indictments but also a number of criminal acts that

were not charged, including many murders, usurious

loans, incidents of witness tampering and other obstructions of justice, and travel in interstate commerce for the

purpose of accomplishing the Outfit’s criminal objectives.

Some of the predicate acts occurred after the offense
Nos. 07-1962, 07-1969 3

periods charged in the earlier prosecutions, but others

occurred before or during those periods.

The purpose of the Fifth Amendment’s double jeopardy

clause is to prevent the government from harassing people

by prosecuting them for the same conduct that was the

subject of a prior prosecution. The purpose is most

strongly engaged when the prior prosecution resulted in

an acquittal; for then, were it not for the double jeopardy

defense, the government could keep retrying the defendant until a jury convicted him—with enough throws of a

pair of dice the desired combination is bound to appear

eventually. Even when the initial prosecution is successful,

allowing the government to prosecute the defendant again

for the same crime, perhaps long after he has been released from prison, would result in punishment beyond

what the law allows. For even if the defendant received the

same sentence and it was made to run concurrently with

the sentence imposed in the first prosecution, he would

have been subjected to the burden of a second trial. That

is why our two defendants can appeal from the denial of

their motion to dismiss the indictment rather than having

to wait until conviction and sentence to appeal. Abney v.

United States, 431 U.S. 651, 659-62 (1977); Green v. United

States, 355 U.S. 184, 187-88 (1957). “The burden of a second trial is one of the harms that the double-jeopardy

clause is intended to prevent, and [it is] a harm that (unlike

the harm of conviction) is irreparable once the second trial

has been conducted.” Reimnitz v. State’s Attorney of Cook

County, 761 F.2d 405, 410 (7th Cir. 1985).

The government may not bring a second prosecution

under a statute the elements of which are included in the

elements of the statute under which the defendant was

previously prosecuted. United States v. Dixon, 509 U.S. 688,
4 Nos. 07-1962, 07-1969

696 (1993); United States v. Olmeda, 461 F.3d 271, 278, 292

(2d Cir. 2006); see Rutledge v. United States, 517 U.S. 292,

297-98 (1996); Blockburger v. United States, 284 U.S. 299, 303-

04 (1932). And so it may not, for example, charge him in

the second prosecution with having attempted to murder

someone, when in the first case he had been charged

with murdering the person. Cf. United States v. Luskin, 926

F.2d 372, 377-78 (4th Cir. 1991). For the proof that the

government would have had to present to establish his

guilt of murder would, without more, establish attempted murder as well.

This case is different because the statutory offense

charged is the same one as in the previous prosecutions,

and the question is simply how great a difference there is

between the conduct charged in the previous prosecutions

and in the present one. As regards the predicate acts

charged in the present indictment that occurred after the

offense periods in the earlier ones, there can be no question of double jeopardy. For those acts show that the

defendants continued conspiring after the previous

prosecution. And there is no suggestion that the government, knowing that the defendants were continuing to

engage in criminal acts up to the date of their arrests or

indictments, backdated the offense periods so that if the

prosecutions failed the defendants could be prosecuted on

the basis of acts they committed after those offense periods.

The double jeopardy clause deprives the prosecution “of an

opportunity . . . to supply evidence at a successive trial

that it failed to present the first time around.” United States

v. Estrada, 320 F.3d 173, 180 (2d Cir. 2003). Otherwise there

would be “concern that the government may be free to

pursue successive prosecutions under RICO by merely

alleging two predicate acts—sufficient to establish a
Nos. 07-1962, 07-1969 5

pattern of racketeering activity under 18 U.S.C. § 1961(5)—

and, by holding in reserve other predicate acts, bring

future RICO prosecutions against participants in the

same enterprise.” United States v. Russotti, 717 F.2d

27, 34 (2d Cir. 1983).

The concern of the defendants in this case is different. It

is that some of the predicate acts in the new indictment

were predicate acts in the old ones. And so the defendants

ask us, if we are unwilling to order the entire indictment

thrown out, at least to order it trimmed to eliminate the

overlap.

The argument misunderstands the actual charge in the

indictment. The defendants are not being charged with

murder, or arson, or intimidation, etc. They are being

charged with participating in a conspiracy to operate an

enterprise by means of criminal acts that include murder,

arson, intimidation, etc. The enterprise is the Chicago

Outfit, and insofar as is known at this time, it is a different

enterprise from the Carlisi and Calabrese street crews.

United States v. Langella, 804 F.2d 185, 189 (2d Cir. 1986).

Were it the same enterprise, we would have a different

case. United States v. DeCologero, 364 F.3d 12, 17-18 (1st Cir.

2004). But it is not, and that is critical.

To illustrate, suppose the defendants were officers of

a corporation and also members of the board of directors

of a wholly owned subsidiary of the corporation, and

they agreed to conduct the affairs of the wholly owned

subsidiary through a pattern of racketeering activity and

the affairs of the parent corporation through a pattern of

racketeering activity as well. These would be different

conspiracies and hence different crimes even if the acts

constituting the pattern of racketeering activity overlapped. See id. at 18; United States v. Ciancaglini, 858 F.2d
6 Nos. 07-1962, 07-1969

923, 928 (3d Cir. 1988); United States v. Langella, supra, 804

F.2d at 188-90; United States v. Ruggiero, 754 F.2d 927, 934 n.

15 (11th Cir. 1985). Prosecutors often have a choice between charging a single conspiracy or multiple conspiracies when dealing with members of a loose-knit, reticulated

criminal enterprise. E.g., United States v. Reiter, 848 F.2d

336, 340-41 (2d Cir. 1988); United States v. Ingman, 541 F.2d

1329, 1330-31 (9th Cir. 1976) (per curiam). What the government may not do is “reprosecute a defendant for the

same offense whenever it obtains broader evidence of

criminal culpability.” United States v. Thornton, 972 F.2d

764, 765 (1992) (emphasis added). But the two conspiracies in this case are two separate offenses.

Even if the predicate acts in the previous and present

prosecutions were identical and the enterprises were under

common control, separate prosecutions might not be

barred. If a defendant drives two of his friends to an

intersection where there are two banks, and each friend

robs one of the banks, the driver could be prosecuted twice

for two different offenses of aiding and abetting bank

robbery, even though he drove only once. For he would

have committed two separate offenses, and in United States

v. Dixon, supra, 509 U.S. 704, the Supreme Court made

clear that that is the test. See also United States v.

Hatchett, 245 F.3d 625, 639-40 (7th Cir. 2001). Or suppose in

our hypothetical corporate example that the defendants,

having been prosecuted for conducting the affairs of the

subsidiary by a pattern of racketeering activity, were

prosecuted a second time on the theory that by that very

conduct they had enriched the parent and so had conducted its affairs as well through a pattern—albeit the

same pattern—of racketeering activity. The offenses

would not be the same; the second would require proof
Nos. 07-1962, 07-1969 7

that the first had not required. United States v. Kimbrew, 406

F.3d 1149, 1152 (9th Cir. 2005); see United States v. Dixon,

supra, 509 U.S. at 700-02; United States v. Hatchett, supra,

245 F.3d at 639-40. It would be just like our hypothetical

robbery case. In this case the defendants are not only

charged with a different conspiracy from what was

charged in their previous prosecutions, but also charged

with having conspired to conduct the affairs of the parent

(the Outfit) by acts that are not identical to the acts charged

in the first set of prosecutions, though there is overlap.

United States v. Ciancaglini, supra, 858 F.2d at 925-26.

Corporate analogies are appropriate because the Chicago

Outfit is a substantial commercial firm, albeit an illegal

one (yet it has outlasted many a legal firm). Of course,

being an illegal enterprise, it cannot have formal subsidiaries, but if the street crews are functional subsidiaries,

that should suffice for purposes of analyzing a double

jeopardy defense. It would be beyond paradoxical if by

virtue of their employers’ being forbidden by law to form

subsidiaries, the employees of criminal enterprises obtained broader rights under the double jeopardy clause

than the employees of legal ones.

Civil analogies are also appropriate, given the resemblance between double jeopardy and res judicata. Imagine,

then, successive suits for copyright infringement. The

first is against the publisher of an abridged book that

copies passages from the plaintiff’s copyrighted work, and

the suit names the publisher’s employee who did the

actual copying as an additional defendant. The second

suit complains about an unabridged edition of the same

book, which copies those passages plus others and which

was published at the same time as the abridged edition

but by the parent of the publisher of that edition, and
8 Nos. 07-1962, 07-1969

names the same employee as an additional defendant

because he either is employed by both the parent and the

subsidiary or moved between them, copying the plaintiff’s

work for the editions published by his successive employers. The second claim against the employee would not be

barred by res judicata despite the overlap, cf. Realex

Chemical Corp. v. S.C. Johnson & Son, Inc., 849 F.2d 299,

303 (8th Cir. 1988), and the same thing is true in this case

with respect to double jeopardy.

As the overlap between two prosecutions of the same

person grows, however, the characterization of the two

proceedings as charging separate criminal acts becomes

less convincing. Finally a point is reached at which the

differences are minor and it seems that the government

contrived the differences to evade the prohibition against

placing a person in double jeopardy. For while the government is not required to charge in its first prosecution of

a person all the possible offenses that the facts in the

government’s possession would enable it to charge (as in

our robbery case), United States v. Dixon, supra, 509 U.S. at

704-05, it can still be precluded from bringing “a later

prosecution for a separate offense where the Government

has lost an earlier prosecution involving the same facts.” Id.

at 705; see United States v. DeCologero, supra, 364 F.3d at 18;

United States v. Lopez, 356 F.3d 463, 467 (2d Cir. 2004) (per

curiam); United States v. Ciancaglini, supra, 858 F.2d at 930.

But we are not at that point in this case, and this apart from

the fact that the government did not lose the previous

cases.

At least we are not at that point yet. For suppose that

at the trial of the defendants under the new indictment

the only predicate acts the government is able to prove

are the acts that it proved against Marcello in its first
Nos. 07-1962, 07-1969 9

prosecution of him and that Calabrese acknowledged as

part of his guilty plea in his first prosecution, and the

government’s defense to the claim of double jeopardy is

merely that when the two defendants were committing

illegal acts on behalf of their respective street crews, they

were simultaneously committing those acts on behalf of

the Outfit, the crews’ parent. That would be a merely

formal difference (like saying they were committing the

acts on behalf of their families, whom they hoped to enrich)

between the successive prosecutions, unless the government went on to prove that the later conspiracy had as an

objective not involved in the earlier conspiracies to enrich

or otherwise advance objectives of the Outfit that were

distinct from the objectives of the street crews. But the

appeals are from the denial of the motion to dismiss the

indictment, not from judgment after trial. We have no basis

at this preliminary stage for thinking that the government

will fail to prove separate conspiracies. United States v.

Flick, 716 F.2d 735, 738-39 (9th Cir. 1983).

It will be a more difficult case if the evidence presented

by the government at the new trial differs only trivially

from the evidence upon which Calabrese’s and Marcello’s

previous convictions were based. (This is conceivable

because the five-year statute of limitations applicable to

RICO prosecutions, 18 U.S.C. § 3282; Agency Holding Corp.

v. Malley-Duff & Associates, Inc., 483 U.S. 143, 155-56 (1987),

does not bar conviction for a RICO conspiracy involving

predicate acts committed more than five years before the

prosecution was commenced, provided the conspiracy

continued into the limitations period. E.g., United States v.

Yashar, 166 F.3d 873, 875-76 (7th Cir. 1999); United States v.

Gonzalez, 921 F.2d 1530, 1547-48 (11th Cir. 1991); United

States v. Bortnovsky, 879 F.2d 30, 36 n. 11 (2d Cir. 1989).)
10 Nos. 07-1962, 07-1969

With the tail thus wagging the dog, a conviction would be

in jeopardy of placing the defendants in double jeopardy,

a conclusion that many cases would reach by application of

a five-factor or “totality of the circumstances” test that

amounts to asking how much the two prosecutions overlap. E.g., United States v. Sertich, 95 F.3d 520, 524 and n. 1

(7th Cir. 1996); United States v. Ciancaglini, supra, 858 F.2d

at 927; United States v. Russotti, supra, 717 F.2d at 32-34 (2d

Cir. 1983). At this stage, we cannot know how great the

overlap will be, and so we have no basis for forbidding

the trial to go forward. But “if it becomes clear from the

trial that [the defendant] is being prosecuted twice for the

same conspiracy, he is free to raise such arguments after

trial if he is convicted on the RICO conspiracy count.”

United States v. Solano, 605 F.2d 1141, 1145 (9th Cir. 1979);

see also United States v. Flick, supra, 716 F.2d at 738; United

States v. Stricklin, 591 F.2d 1112, 1119 (5th Cir. 1979); United

States v. Young, 503 F.2d 1072, 1077 n. 17 (3d Cir. 1974). All

three of the judges on this panel agree that the defendants

must stand trial again; the incremental burden of their

having to litigate with reference to some acts that may have

been involved in the earlier prosecutions is therefore

likely to be modest.

AFFIRMED.

WOOD, Circuit Judge, concurring in part and dissenting in

part. Fifteen years and twelve years ago respectively,

James Marcello and Frank Calabrese, Sr., were indicted

under the Racketeer Influenced and Corrupt Organiza-
Nos. 07-1962, 07-1969 11

tions Act, 18 U.S.C. § 1962(d), for conspiring to engage in

a pattern of racketeering activity through an enterprise.

The enterprise in question for Marcello was the “Carlisi

Street Crew,” which was specifically alleged to be “part

of a larger criminal organization known as ‘the mob’ or

‘the Outfit.’ ” Paragraph 4 of the indictment charged that

“the ‘boss’ of the Crew was ultimately responsible to the

head of the Outfit and was required to ensure that the

leadership of the Outfit received a share of the proceeds

from the Crew’s activities.” Paragraph 5(b) went on to

allege that Marcello served as a go-between for Samuel

Carlisi, the head of the Crew, and representatives of other

Chicago “Outfit” street crews. In short, the 1992 indictment

made it clear that the criminal organization with which

Marcello was associated was part and parcel of the

Chicago Outfit. The same picture emerges from the 1995

indictment against Calabrese. It, too, asserts in paragraph

1 that “[t]he Calabrese Street Crew was part of a larger

criminal organization known to the public as ‘the Mob,’

and to its members and associates as ‘The Outfit.’ ” Frank

Calabrese, Sr., according to paragraph 3(a) of the indictment, “resolved disputes both within the Calabrese

Street Crew and between that crew and other organized

crime street crews,” and he “represented the Calabrese

Street Crew in meetings with members of other organized

crime crews.”

In the indictment now before us, both Marcello and

Calabrese have been charged once again with participating in a RICO conspiracy in violation of 18 U.S.C. § 1962(d).

This time, the alleged “enterprise” is the Outfit itself, rather

than any of its constituent parts. There is also a temporal

difference between the Second Superseding Indictment

before us, which was returned by the Special August 2003-
12 Nos. 07-1962, 07-1969

2 Grand Jury on June 2, 2005, and the earlier two indictments. It covers more than forty years, “[f]rom approximately the middle of the 1960s through the date of the

return of this indictment.” Marcello’s earlier indictment

spanned the time period from approximately 1979 through

“at least” May 1990, and Calabrese’s specified the period

from 1978 through April of 1992. Finally, although (as

the government concedes) some of the predicate acts

supporting the RICO charge are the same as the ones

alleged in the two men’s earlier indictments, the 2005

indictment asserts many more.

In the interest of a prompt decision in this case, I do not

wish to belabor the points I am making here. In brief,

however, I do agree with the majority in one significant

respect. As they note, ante at 4, there can be no question of

double jeopardy for acts that took place as part of the

continuation of the conspiracy after the time periods

covered by the earlier indictments. No matter what,

therefore, these defendants are not entitled to avoid

altogether the trial that is scheduled to begin soon. The

more difficult question is whether the government is

entitled to rely on predicate acts that were committed

during the time periods for which Marcello and Calabrese

have already stood trial and been convicted, whether or

not those acts were identified earlier as support for the

earlier RICO conspiracies. The defendants are correct to

emphasize, in this connection, that they were found guilty

(by jury and by plea) of conducting a RICO conspiracy,

not of committing a series of discrete criminal acts. They

freely concede that there would be no double jeopardy

problem if the government wanted to indict them for the

substantive crimes reflected in many of the predicate

acts, such as murder, money laundering, or fraud.
Nos. 07-1962, 07-1969 13

The majority, by drawing analogies to corporate governance models and the law of copyright, is satisfied that

the conspiracy in the present case is not quite the same as

the conspiracy charged in the earlier cases. It is willing to

give the defendants half a loaf with respect to their double

jeopardy defense, by inviting them to renew this motion

after trial if it turns out that they have been convicted

on the basis of evidence that has been recycled from the

earlier trials. But, as the majority rightly notes, the Fifth

Amendment protects people from twice having to stand

trial for a given offense. See Abney v. United States, 431

U.S. 651 (1977). It is not limited to an ex post vindication at

the end of a trial.

Perhaps the majority’s analogies would be apt, if it were

clear that the focus earlier had been exclusively on actions

taken respectively by the Carlisi Street Crew and the

Calabrese Street Crew. But the earlier indictments show

that the charges encompassed the role that the two crews

were playing in the larger Chicago Outfit—precisely the

enterprise that is alleged in this new case. In United States

v. DeCologero, 364 F.3d 12, 17-18 (1st Cir. 2004), the

court explicitly refused to conclude that enterprises

resembling those charged in this case were distinct:

The present indictment charges the defendants with

participating in a nominally different enterprise—the

“DeCologero Crew”—said by the government to be “a

separate entity from the Patriarca La Cosa Nostra

(’LCN’) Family, yet . . . structured in a similar manner

to a crew or regime of La Cosa Nostra” and “aligned

with” the Carrozza faction of the Patriarca Family.

According to the charge, the DeCologero Crew’s aim

was “controlling, supervising, and financing illegal

activities,” including generating money through
14 Nos. 07-1962, 07-1969

robbery and drug sales “for the personal use of members . . . and to build up a war chest of firearms, weapons, and ammunition which was to be used, in part,

to support the” Carrozza faction.

If the double jeopardy problem turned solely on

whether the two cases involved the same enterprise,

we would be faced with a hard question. The RICO

statute loosely defines an “enterprise” to include not

only any legal entity (e.g., a corporation) but also “any

union or group of individuals associated in fact.” 18

U.S.C. § 1961(4). Although the DeCologero indictment alleges that the Carrozza faction and DeCologero

crew were separate enterprises, the proffered evidence

could support the view that both were part of a vertically organized endeavor, with DeCologero somewhere in the middle of the organizational pyramid.

Past cases have stressed that conspiracies cannot be

artificially broken up for the purpose of bringing

separate cases, see Braverman v. United States, 317 U.S.

49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942), and there is no

reason why the rule should be any different for RICO

enterprises. But whether there was one enterprise or

two need not be resolved. Every circuit to have examined the issue has agreed that double jeopardy only

bars successive RICO charges involving both the same

enterprise and the same pattern of racketeering activity.

In our view the current RICO charges do involve a

different pattern than the old.

Id. See also United States v. Ciancaglini, 858 F.2d 923, 929 (3d

Cir. 1988) (“Because of the overlap, however, we are unable

to conclude that this was not the same ‘enterprise.’ Both

indictments involved Philadelphia-based crime families,

and both alleged enterprises with the same goal.”). The
Nos. 07-1962, 07-1969 15

DeCologero court thus ultimately found no double jeopardy problem, but only because “all of the [racketeering

acts] in the present indictment are different from those

charged in the [previous] case.” Id. at 19 (emphasis in

original).

The majority and the government also cite United States

v. Langella, 804 F.2d 185, 189 (2d Cir. 1986), but that case is

easily distinguished. Although the court held that “the

Colombo Organized Crime Family of La Cosa Nostra” and

“the Commission of La Cosa Nostra” were two different

enterprises, it carefully explained that “the Commission”

is an independent entity with a separate purpose from an

individual family of La Cosa Nostra, such as the Colombo

family. Id. As Langella recognized, “The indictment alleged

that the Commission was a council of leaders of various

organized crime families, ‘an enterprise distinct from the

individual Families,’ established with the special purposes of, inter alia, resolving disputes among families

and carrying out ‘joint ventures’ involving more than one

family.” Id. at 187. Indeed, the court signaled that it

might feel differently about a case like ours:

Although the Commission and the Colombo Family, in

a sense, are vertically organized segments of an intricate, organized crime structure, the allegations of the

two indictments sufficiently demonstrate that they are

two separate and independent criminal enterprises.

Significantly, the Colombo Family is not merely a lower level

of authority within the hierarchy of organized crime: Within

its own sphere of operation, the Colombo Family is a

self-sufficient enterprise that functions without oversight by

the Commission.

Id. at 189 (emphasis added). The patterns of racketeering

charged also distinguish Langella from our case. The
16 Nos. 07-1962, 07-1969

Langella court began its comparison of the nature and

scope of the racketeering charged in the two indictments

by stating, “Here, there is absolutely no overlap of any kind

between the patterns of racketeering activity alleged in the

two indictments.” Id. (emphasis added). No one asserts

that the same is true here. As the government candidly

conceded at oral argument, “There will be some overlapping proofs with respect to what was covered in the

first case . . . .”

This court has already held, in United States v. Thornton,

972 F.2d 764 (7th Cir. 1992), that the government may

not bring one narrow charge first and then later bring a

broader charge that entirely encompasses the first one:

The government has taken great pains to emphasize

that the conspiracy alleged in the Pennsylvania indictment lasted only a few months, involved many fewer

people, and was therefore much smaller in scope than

the conspiracy alleged in the Illinois indictment, which

involved some forty plus coconspirators, trafficking

to numerous states, and encompassed a sevento-nine-year time frame. Moreover, the government

emphasized in the hearing before the district judge that

the agent involved in the [narrower] Pennsylvania

indictment knew nothing about the activities alleged in

the [broader] Illinois indictment. It appears that in

making such arguments the government is implying

that even assuming that the Pennsylvania indictment charged the same conspiracy as the Illinois

indictment, there is no double jeopardy problem

because the first-charged conspiracy was only a

small subset of the later-charged conspiracy and

because the government did not know that this was

one conspiracy. We must remember, however, the
Nos. 07-1962, 07-1969 17

double jeopardy clause imposes limits on a defendant’s criminal exposure. In order to stay true to these

finality requirements, the government cannot reprosecute a defendant for the same offense whenever it

obtains broader evidence of criminal culpability.

Id. at 765. In my opinion, that is what the government is

trying to do here, insofar as the charges cover the same

time periods as those in the earlier indictments. That is

why the majority’s bank robbery analogy is inapposite. In

that example, the government can certainly bring two

separate charges against the driver. But that is because the

driver’s single act aided the commission of two separate

crimes: the robbery of Bank 1 and the robbery of Bank 2.

That analogy assumes the answer to the question before

us: whether the government is now charging these defendants with new crimes for which they never stood trial, in

which some of the evidence that supported their earlier

conviction also underlies the new charges. My response

is that we do not have two distinct crimes analogous to the

two bank robberies. Instead, the indictments from the

previous cases are entirely subsumed within the new

indictment. The fact that the new indictment also lists

additional predicate acts does not change the fact that the

defendants are currently exposed to criminal liability for

crimes for which they have already served their punishments. We have already noted that “[d]eciphering what

constitutes prosecution for the same offense for purposes

of double jeopardy is . . . even more difficult when we

move from single layered crimes such as bank robberies to

prosecution for multilayered crimes such as conspiracies

which expand over time and place. The reason for the

added complexity is that it is difficult to apply double

jeopardy’s notions of finality to crimes which have no
18 Nos. 07-1962, 07-1969

easily discernable boundaries with regard to time, place,

persons, and objectives.” Thornton, 972 F.2d at 765 (citations omitted). Not a single case that has considered the

double jeopardy issue in the RICO conspiracy context

involving organized crime families has permitted an

indictment that encompasses such a substantial portion

of a prior one.

As the Supreme Court put it in United States v. Turkette,

452 U.S. 576 (1981), a RICO “enterprise” is an entity made

up of “a group of persons associated together for a common purpose of engaging in a course of conduct.” Id. at

583. A “pattern of racketeering activity” is “a series of

criminal acts as defined by the statute.” Id. Comparing the

2005 indictment with its 1992 and 1995 forebears, I conclude that the government is pursuing the same enterprise now as it did before. It has merely found broader

evidence of criminal culpability and has added to the list

of criminal predicate acts. The language of the 2005 indictment says as much, where it charges that “[t]he criminal activities of the Chicago Outfit were carried out in part

by sub-groups, or ‘crews,’ which were generally given

territories in different locations in the Chicago area.” See

also United States v. DiDomenico, 78 F.3d 294, 297-298 (7th

Cir. 1996) (“The Chicago Outfit (the ‘Outfit,’ the ‘Mob,’ the

‘Mafia’)—the criminal enterprise whose most notorious

boss was Al Capone—operates through ‘street crews.’ ”); id.

at 302 (noting, in a case charging twenty members of

the “Ferriola Street Crew,” and in which the indictment

defined the enterprise as “The Joseph Ferriola Street

Crew,” that the district court was entitled to empanel an

anonymous jury because “[t]his is not a case . . . in which

the defendants are rumored to have ‘Mob’ connections. The

defendants are the ‘Mob.’ ” (emphasis in original)). The
Nos. 07-1962, 07-1969 19

indictment before us goes so far as to name both the Carlisi

and the Calabrese Street Crews as subgroups of the Outfit.

Borrowing from the majority’s analysis, the structures of

the enterprises charged in the earlier indictments are

more closely analogous to a branch office or division of

one company than they are to a distinct subsidiary.

While the new indictment alleges more predicate acts

than the earlier ones, the overlaps are considerable. (Thus,

we cannot say, as the DeCologero and Langella courts did,

that “all of the [racketeering acts] in the present indictment are different from those charged in the [previous]

case,” 364 F.3d at 19 (emphasis in original), or “there is

absolutely no overlap of any kind between the patterns of

racketeering activity alleged in the two indictments,” 804

F.2d at 189.) As I noted earlier, many of the predicate

acts charged in the 2005 indictment are identical to those

in the earlier indictments. Moreover, if one were to look at

the various “factors” identified in United States v. Marren,

890 F.2d 924 (7th Cir. 1989), on which the government is

content to rely, it is hard to resist the conclusion that

these cases are about the same pattern of conduct. Those

factors are “(1) the time of the various activities charged as

separate patterns of racketeering; (2) the identity of the

persons involved in the activities under each charge; (3) the

statutory offenses charged as racketeering activities in

each charge; (4) the nature and scope of the activity the

government seeks to punish under each charge; and (5) the

places where the corrupt activity took place under each

charge.” Id. at 935. In the end, we must decide whether

the area of overlap is so substantial that the two cases

must be regarded as functionally the same. United States v.

Sertich, 95 F.3d 520, 524 (7th Cir. 1996). With respect to the

period of time covered by the earlier indictments, the
20 Nos. 07-1962, 07-1969

identity of the predicate acts is, in my view, easily great

enough that we must find for the defendants on this part

of the case too.

Although I would deny the defendants’ request for

outright dismissal of this indictment, I would grant their

alternative petition for an order striking all of the averments in Count One that relate to the prior RICO conspiracy charges—that is, for Marcello the conspiracy that

lasted from 1979 to 1990, and for Calabrese the conspiracy that went from 1978 to 1992. To that extent,

I therefore dissent from the majority’s judgment.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-19-07