### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

A NTHONY V OLPENDESTO

, M ARK P OLCHAN

, and M ICHAEL

S ARNO

, Defendants

‐ Appellants

.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 08

‐ CR

‐ 115

— Ronald A. Guzmán

, Judge

.

____________________

A RGUED D ECEMBER 11, 2013

— D ECIDED M ARCH 24, 2014

____________________

Before W OOD

, Chief Judge

, and F LAUM and S YKES

, Circuit

Judges

.

F LAUM

, Circuit Judge

. A jury convicted Anthony Vol

‐ pendesto, Mark Polchan, and Michael Sarno of numerous

offenses—principally racketeering conspiracy, but also con

‐ ducting an illegal gambling business, conspiracy to damage

property by means of an explosive device, and conspiracy to2 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

obstruct justice, among others. The appellants now challenge

their convictions and sentences.

I. Background

This case involves a criminal enterprise operating in and

around Cicero, Illinois. Through a business called Amuse

‐

ments Inc., the enterprise distributed “video gambling de

‐

vices” to local bars and restaurants. These machines, which

allow customers to deposit money in return for virtual cred

‐

its, are legal so long as they are used for amusement only.

But the enterprise and the establishment owners permitted

trusted customers to redeem their credits for cash. The de

‐

vices were modified to track money coming in and being

paid out, so that the establishment owners and the enter

‐ prise could each take a cut of the profits. Video gambling

was a lucrative business, and the enterprise did not take

kindly to prospective competitors. When a rival company,

C & S Amusements, encroached on Amusements Inc.’s turf,

the enterprise placed a pipe bomb outside the rival’s head

‐

quarters in order to send a message.

In addition to its gambling activities, the enterprise

committed over a dozen home and jewelry

‐ store robberies in

Illinois and nearby states. The enterprise fenced many of the

stolen items through Goldberg Jewelers, a store owned by

appellant Mark Polchan. Members of the enterprise also

dealt in other stolen goods, such as cigarettes and electron

‐

ics.

Appellant Michael Sarno occupied the top spot in the en

‐ terprise’s hierarchy. He made high

‐ level decisions about the

gambling operations and had some control over the jewelry

thefts as well. Beneath Sarno was Polchan, who exercised aNos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 3

lesser leadership role. Finally, appellant Anthony Volpendes

‐

to was one of the main perpetrators of the robberies.

The government indicted Sarno, Polchan, and Volpendes

‐

to for conspiracy to violate the Racketeer Influenced and

Corrupt Organizations Act in violation of 18 U.S.C.

§ 1962(d). The government also indicted Sarno and Polchan

for conducting an illegal gambling business in violation of 18

U.S.C. § 1955. Finally, Polchan was indicted on several more

counts; pertinent here are use of an explosive device (the

pipe bomb) and conspiracy to do the same, in violation of 18

U.S.C. § 844(i) and (n), and conspiracy to obstruct justice in

violation of 18 U.S.C. § 1512(k).

The government indicted several other individuals for

their involvement in the criminal enterprise, too. Two of

them, Casey Szaflarski and Sam Volpendesto, went to trial

alongside the appellants. Szaflarski owned Amusements Inc.

and handled day

‐ to

‐ day operations on the gambling front.

Sam Volpendesto, Anthony’s father, served as a jack

‐ of

‐ all

‐

trades, participating in many robberies and the bombing of

C & S. (Where ambiguous, we will refer to father and son by

their first and last names.) Another co

‐ defendant, a Cicero

police officer named Dino Vitalo, pled guilty before trial.

Two other enterprise members not only pled guilty but also

agreed to cooperate as government witnesses: Mark Hay, a

central figure in the robberies, and James Formato, a Berwyn

police officer. A final enterprise member, Kyle Knight, pled

guilty in a separate federal charge and also agreed to coop

‐

erate. Knight collaborated with Hay on many robberies, and

he also supplied the enterprise with the materials for the

pipe bomb.4 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

The main building blocks of the government’s case

against the appellants are discussed below.

A. Illegal gambling activity and use of an explosive device

Several business owners testified that Amusements Inc.

supplied them with video gambling machines and that Ca

‐

sey Szaflarski would visit every week or two to divide the

profits. (Government agents photographed Szaflarski mak

‐ ing rounds to the establishments.) Agents also observed Pol

‐

chan organizing the gambling activity, including taking de

‐ livery of machines at Goldberg Jewelers. However, Sarno

exercised ultimate control, as revealed by witness testimony

and wiretaps of Sarno’s multiple phones. In one revealing

recording, Polchan told Sarno about an opportunity to place

the devices in the clubhouses of the Outlaws Motorcycle

Club in Chicago’s south and west suburbs. Sarno counseled

Polchan, “We put ‘em, put ‘em in every place, whatever

comes out you know, the good will absorb the bad.” The

next day, the government observed gambling devices being

unloaded at Goldberg Jewelers and then delivered to an

Outlaws Motorcycle Clubhouse in Kankakee.

Testimony from Hay and others confirmed that Sarno

exercised a significant degree of control over the gambling

activity. For example, Hay testified that when he inquired

about obtaining machines for his brother

‐ in

‐ law, Polchan

said that he would need to call “my guy”—who Hay under

‐

stood to be Sarno—to get approval. Another witness, Henry

Rendon, likewise testified that when he tried to obtain video

gambling devices from an enterprise member, he was told

that “the big guy” (another nickname for Sarno) first had to

agree.Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 5

To protect the enterprise’s revenue, Sarno ordered the

bombing of a rival video gambling business, C & S Amuse

‐

ments. The owner of C & S, Vincent Dublino, testified that

he began to supply video devices to the 47th Street Grill in

Lyons—a business previously serviced by Amusements

Inc.—in the summer of 2002. A few weeks after C & S began

supplying the machines, Sarno approached Dublino at Dub

‐

lino’s restaurant and angrily told him to “stay the fuck away

from the 47th Street Grill stop.” Later, Dublino began to re

‐

ceive threatening phone calls. In February 2003, a pipe bomb

exploded outside C & S in the middle of the night. Reluctant

to draw attention to his own illegitimate business, Dublino

initially told the police that he thought the explosion was di

‐

rected at his neighbor. But at trial he avowed that Sarno was

behind it.

Kyle Knight confirmed this account. In 2002, Knight and

Sam Volpendesto had a conversation about explosive devic

‐

es. After their talk, Hay called Knight and told him that Sam

Volpendesto wanted Knight to build a bomb. Knight gave

the raw materials (potassium perchlorate and aluminum

powder) and instructions on how to combine them to Hay

for Hay to give to Volpendesto. After the bomb went off out

‐

side C & S, Volpendesto approached Knight and offered him

$300, telling Knight, “your shit worked really good.” Later,

Volpendesto explained to Knight that “the big guy” was

“having problems with poker machines, that somebody was

putting machines where they shouldn’t be and that he was

looking for a way to send a message.”

The day after the bombing, Berwyn police officer and en

‐ terprise member James Formato told Hay to let Polchan

know that the police were looking for a brown van in con

‐6 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

nection with the crime. Hay told the jury that when he

passed along the message, Polchan asked him if the police

had a license plate, and then added, “It shows you how

smart they are, I wasn’t even in the van.” Formato testified

that he also relayed the intelligence about the van to Polchan

when he ran into Polchan at a car wash a few days later.

Again, Polchan seemed unconcerned, telling Formato, “A lot

of people drive brown vans.”

A few years after the bombing, the government asked

Hay to wear a wire and engage Sam Volpendesto in conver

‐

sation about C & S Amusements. During their talk, Vol

‐ pendesto described the details of the bombing and com

‐ plained that Polchan had been paid for the job but that he

had not. Volpendesto also told Hay that “Mark [Polchan]

was the original guy that knew what the fuck it was about.”

In 2007, the government arrested Kyle Knight and

charged him for his participation in the bombing. After

Knight’s arrest, agents observed Sarno entering Goldberg

Jewelers and conferring with Polchan about some docu

‐

ments. Later, agents retrieved shredded documents from the

store’s back room. The government determined the docu

‐

ments to be news articles about Knight’s arrest and the

docket sheet and information in Knight’s case.

B. Jewelry store robberies

Alongside the gambling activities, the enterprise made

money from a slew of armed robberies targeting jewelry

stores. Hay, Knight, and Formato, who all participated in

many of these crimes, testified that Polchan selected certain

targets, participated in some of the robberies, and paid other

enterprise members for stolen goods (often re

‐ sold throughNos. 11

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‐ 1180 & 12

‐ 1656 7

his store, Goldberg Jewelers). In addition to jewelry rob

‐

beries, Polchan purchased boosted goods—cigarettes, elec

‐

tronics, and so forth—and sold them at Goldberg for below

‐

market prices.

Hay and Knight also implicated both Volpendestos in the

robberies. In particular, they told the jury that Anthony Vol

‐ pendesto took part in at least nine separate thefts: stealing

cars to use as getaway vehicles, aiding in the robberies

themselves, transporting goods, and so on.

The thefts tapered off after a botched robbery of Marry

Me Jewelry Store in August 2003. Anthony Volpendesto had

learned from Marry Me’s owner that a salesman would be

carrying a briefcase full of valuable jewels—roughly

$650,000 worth—from the store at a particular time, and he

suggested to Knight and Hay that they rob him. Anthony

Volpendesto and Knight entered the store together to inter

‐

cept the jewels, but the salesman unexpectedly resisted. Dur

‐ ing the struggle, Knight’s pistol discharged and shot the

salesman in the chest. The group fled with the loot and

drove to Polchan’s house. Polchan agreed to hold on to the

jewels, but said that he would be unable to move the goods

until things calmed down. He also told Hay, Knight, and

Anthony Volpendesto to stay away from Goldberg Jewelers

until he contacted them. Polchan never paid the men any

proceeds from the Marry Me heist.

Sarno’s connection to the robberies was less overt than

his connection to the gambling, but the government present

‐

ed several pieces of circumstantial evidence suggesting that

Sarno exercised control from behind the scenes. For exam

‐ ple, Hay said that he and Knight consulted with Polchan to

decide whether to rob a dice game. Polchan told them to8 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

“stay away from the dice game,” because “his guy” said

“not to get anywhere near it.” Hay testified that he under

‐

stood “his guy” to be a reference to Sarno.

In a similar vein, Hay told the jury about a time that he

discovered his son in the possession of stolen basketball

cards. Hay’s son told Hay that Sam Volpendesto had given

him a ride to the store and instructed him to steal the cards.

When Hay told Polchan what had happened, Polchan be

‐

came furious, saying that “his guy” would hold Polchan re

‐ sponsible if Sam Volpendesto got arrested for stealing bas

‐

ketball cards. Finally, Hay also told the jury that Polchan

had once asked Sarno to settle a simmering dispute between

Polchan and a robbery victim, Lenny DeGrado. Apparently,

DeGrado blamed Polchan for the offense. Polchan told Hay

that he had asked “his guy” to talk to DeGrado and that Sar

‐

no had taken care of the problem.

The government also recorded a call placed to Sarno re

‐ garding a home burglary, in which the caller stated that his

house had been robbed. The caller asked Sarno to check

“your shops that these kids are bringing laptops to.” Sarno

hung up and called Polchan at Goldberg Jewelers to ask if

the items had shown up. When Polchan said they hadn’t,

Sarno replied, “I wish they did.”

Other evidence indicated that Sarno exercised leadership

over Polchan generally. Polchan introduced Sarno to both

Knight and Hay as his “boss,” telling them to shake Sarno’s

hand but not to engage him in conversation. Sarno would

frequently visit Goldberg Jewelers and speak to Polchan pri

‐ vately. During these visits, Polchan would sometimes pro

‐

vide Sarno with merchandise, cash, or both.Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 9

C. Conspiracy to obstruct justice

In 2003, a federal grand jury began investigating the

C & S bombing. The investigation was still open in 2007.

From March to May of that year, the government used a

microphone hidden in Goldberg Jewelers to record Polchan

meeting with Dino Vitalo, a co

‐ defendant and Cicero police

officer, and other local police officers. Polchan had noticed

suspicious vehicles outside Goldberg. The conversation re

‐

vealed that Polchan had asked the officers to run the vehi

‐

cles’ licenses plates to determine if they were part of a feder

‐

al investigation. The officers had obliged, and they told Pol

‐

chan what they found out (which was largely inconclusive).

One of the officers also used his access to Cicero police sys

‐

tems to run a deconfliction check that would determine

whether the vehicles were surveilling Goldberg or another

business down the street. Later, an officer told Polchan that

individuals identifying themselves as “organized crime”

were observed in one of the suspicious cars.

Polchan did not keep this information to himself. In one

recording, Polchan told Sarno that his officers said “they got

a case, that they were government, they work for the gov

‐

ernment. FBI or something.” In another recording, Polchan

can be heard agreeing with Reyes Silva—a frequent custom

‐

er of Polchan’s shop who dealt in stolen goods—that law en

‐

forcement could be watching Silva. Polchan also warned Sil

‐

va that he might be served with a subpoena.

* * *

After a six

‐ week trial, the jury returned guilty verdicts on10 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

all counts. Polchan, Sarno, and Anthony Volpendesto now

appeal. 1

II. Discussion

The appellants raise many issues. We start with the dis

‐

trict court’s pretrial order disqualifying Polchan’s counsel of

choice. We then consider Polchan, Sarno, and Volpendesto’s

challenges to their convictions and their claims of error at

trial. All three appellants challenge the sufficiency of the ev

‐

idence on the RICO conspiracy count, and Polchan challeng

‐

es his conviction for conspiracy to obstruct justice; Polchan

and Sarno object to a number of evidentiary rulings; and all

three appellants challenge the jury instructions. Finally, hav

‐ ing disposed of those trial

‐ related issues, we turn to Sarno’s

and Polchan’s challenges to their sentences.

A. Disqualification of counsel

Prior to trial, the government moved to disqualify Pol

‐

chan’s attorney, Alex Salerno. The government was con

‐

cerned that Salerno had previously represented three of Pol

‐

chan’s co

‐ defendants. First, Salerno represented Mark Hay

on state burglary charges. Some of these charges arose from

1 Szaflarski chose not to appeal his conviction. Sam Volpendesto did ap

‐ peal, and his case was originally consolidated with this one, but he died

shortly after the appellants submitted their opening brief. Accordingly,

we dismissed his appeal with instructions to dismiss the indictment. See

United States v. Moehlenkamp

, 557 F.2d 126, 128 (7th Cir. 1977) (“[T]he

death of an appellant during the pendency of his appeal of right from a

criminal conviction abates the entire course of the proceedings brought

against him.”). There remains a question about what happens to the res

‐

titution order the district court assessed against Volpendesto under 18

U.S.C. § 3663A, which we will address in a separate opinion (No. 11

‐

3020).Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 11

enterprise burglaries in which Polchan himself was involved.

Second, Salerno represented Sam Volpendesto at his ar

‐ raignment, although he withdrew as Volpendesto’s counsel

shortly thereafter. Finally, Salerno had some sort of relation

‐ ship with Sarno. Its precise scope was not clear—the district

court found Salerno “less than forthcoming” on the matter—

but two incidents were revealing. In 2004, Sarno had identi

‐

fied Salerno as his attorney, and Salerno had once shown up

to monitor federal agents while they conducted a search of

Sarno’s house.

Polchan, Sam Volpendesto, and Sarno—but not Hay—

waived any conflicts that might arise from Salerno’s previous

representation of them. Polchan also retained another attor

‐

ney, Damon Cheronis, to serve as Salerno’s co

‐ counsel; Che

‐

ronis represented that he would cross

‐ examine Hay at trial

and that Salerno would not share any privileged information

with him. And Polchan filed an affidavit from a third lawyer

stating that the lawyer had consulted with Polchan about the

benefits of cooperating with the government.

Nevertheless, the district court granted the government’s

motion to disqualify Salerno. The court first found it signifi

‐

cant that Salerno had previously represented Hay in state

court for criminal conduct that would be encompassed with

‐

in the federal indictment, pointing out that it “cannot know

what information Salerno has learned from his previous cli

‐

ent [Hay] that would be detrimental to that client in this

case” and that “[c]ross

‐ examination by an independent

counsel would not safeguard against

... impermissible use of

confidential information.” The court further observed that

Hay refused to consent to Salerno’s representing Polchan.12 Nos. 11

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‐ 1180 & 12

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Salerno’s relationship to Sam and Sarno further deepened

the court’s concern.

Summing up, the court explained that “the potential and

actual conflicts are so numerous and multi

‐ faceted

... that

they cannot be adequately safeguarded against by admoni

‐

tions from the Court or the intervention of independent

counsel to perform discrete functions during the trial.” The

court disqualified Salerno.

Polchan argues that the district court erred in making this

determination. We disagree. The district court’s decision to

disqualify Salerno was reasonable in light of Salerno’s prior

representation of multiple co

‐ defendants, including a co

‐

defendant that had already agreed to testify on behalf of the

government.

“It is well

‐ settled

... that a criminal defendant’s right to

his chosen attorney may be outweighed by a serious poten

‐

tial for conflict due to the attorney’s prior representation of

other defendants charged in the same criminal conspiracy.”

United States v. Algee

, 309 F.3d 1011, 1013 (7th Cir. 2002). In

Algee

, the government moved to disqualify a lawyer who

had previously represented two co

‐ defendants, both of

whom the government was likely to call as principal wit

‐

nesses. The district court in Algee observed that “ethical con

‐

straints would prohibit [the lawyer] from cross

‐ examining

[his former clients] in any meaningful way” and granted the

government’s motion. Id. at 1014. We found no abuse of dis

‐

cretion.

Polchan argues that Salerno’s disqualification cannot be

squared with United States v. Turner

, 594 F.3d 946 (7th Cir.

2010), where we said that the “mere possibility ” that jointlyNos. 11

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‐ 1180 & 12

‐ 1656 13

represented defendants “would decide to cooperate with the

government against the other” was not enough to disqualify

a defendant’s counsel of choice. Id. at 953. But the district

court was not dealing with a mere possibility. Hay had al

‐ ready decided to cooperate with the government and testify

against his co

‐ defendants when the government moved to

disqualify Salerno. And Salerno had represented Hay on

closely related state charges, including charges that involved

Polchan, where he might have obtained damaging evidence

about Hay’s credibility or his guilt. What is more, Turner rec

‐ ognized that “a breach of the code of professional ethics ob

‐ viously qualifies” as an actual conflict. Id. at 952. Here, Sa

‐

lerno could not represent Polchan—over Hay’s objection—

without violating his ethical obligations to his former client.

Under the Illinois Rules of Professional Conduct, Hay’s re

‐

fusal prohibited Salerno from taking on Polchan as a client.

See Ill. R. Prof’l Conduct 1.9(a), 1.6(a) (2010).

In short, this case involved an actual conflict, not a poten

‐

tial one. And we said in Turner that where the court “finds

an actual conflict of interest that seriously undermines coun

‐

sel’s effectiveness, ‘there can be no doubt that [the court]

may decline a proffer of waiver.’” 594 F.3d at 952 (quoting

Wheat v. United States

, 486 U.S. 153, 162 (1988)). We affirm the

district court’s decision to disqualify Salerno.

B. Trial issues

1. Sufficiency of the evidence

The appellants raise two different sufficiency challenges.

Polchan, Sarno, and Anthony Volpendesto challenge their

convictions for racketeering conspiracy, and Polchan chal

‐ lenges his conviction for obstruction of justice. As usual, we14 Nos. 11

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‐ 1180 & 12

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review the evidence presented at trial in the light most fa

‐

vorable to the government and ask whether any reasonable

juror could have found the defendants guilty of the charged

crime beyond a reasonable doubt. United States v. Useni

, 516

F.3d 634, 646 (7th Cir. 2008).

a. RICO conspiracy

The Racketeer Influenced and Corrupt Organizations Act

makes it illegal for “any person employed by or associated

with any enterprise

... to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s affairs through

a pattern of racketeering activity.” 18 U.S.C. § 1962(c). An en

‐ terprise includes “any union or group of individuals associ

‐

ated in fact,” which is to say, “associated together for a

common purpose of engaging in a course of conduct.” Boyle

v. United States

, 556 U.S. 938, 944 (2009) (quoting United

States v. Turkette

, 452 U.S. 576, 583 (1981)).

The RICO statute also prohibits conspiracy to commit a

violation of its provisions. See 18 U.S.C. § 1962(d). To prove

conspiracy under § 1962(d), the government must show that

the conspirators were “aware of the essential nature and

scope of the enterprise and intended to participate in it.”

Useni

, 516 F.3d at 646. In United States v. Neapolitan

, 791 F.2d

489 (7th Cir. 1986), we said that a RICO conspiracy “can be

analyzed as composed of two agreements”: (1) “an agree

‐

ment to conduct or participate in the affairs of an enter

‐ prise,” and (2) “an agreement to the commission of at least

two predicate acts.” Id. at 499. The government does not

have to prove that a conspirator agreed to commit the predi

‐

cate crimes personally, only that “a particular defendant

agreed that a member of the conspiracy would commit twoNos. 11

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‐ 1656 15

predicate racketeering acts.” United States v. Benabe

, 654 F.3d

753, 776 (7th Cir. 2011).

Polchan, Sarno, and Anthony Volpendesto appear to ad

‐

mit that there is evidence that they conspired to commit at

least two predicate crimes. However, they argue that the

government failed to show that they agreed to do so as part

of an ongoing criminal enterprise. They urge that the gov

‐

ernment’s evidence “is equally consistent with various de

‐

fendants independently agreeing to commit various specific

criminal acts as it is with the defendants agreeing to partici

‐

pate in the acts of an ongoing criminal enterprise.” In other

words, they say, all the government showed was that they

engaged in “accidentally parallel action.”

We find this contention highly implausible. The govern

‐

ment does not need to put forth direct evidence of the de

‐

fendants’ agreement to participate in an ongoing criminal

enterprise. As with conspiracy in general, circumstantial ev

‐

idence that the defendants agreed to participate in the enter

‐ prise is sufficient. See Useni

, 516 F.3d at 646. Here the evi

‐

dence showed that Sarno, Polchan, and Volpendesto were

part of a group with a cohesive, hierarchical structure that

persisted over a long period of time. Polchan directed and

Volpendesto participated in about a dozen robberies; Pol

‐

chan also helped operate the ongoing illegal gambling busi

‐

ness. In turn, Polchan consistently answered to Sarno, who

exercised ultimate control over both activities. Based on this

evidence, it is no great leap to conclude that each of the men

agreed not just to commit isolated acts but also “to associate

together for a common purpose”—to make money for the

enterprise. Boyle

, 556 U.S. at 938.16 Nos. 11

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‐ 1656

The appellants’ individual arguments for insufficiency

fare no better. Polchan claims that he was not present for the

majority of the robberies and burglaries. But we have never

suggested that a defendant is guilty of racketeering conspir

‐

acy only if he participates in every aspect of the enterprise’s

affairs. To the contrary, “[s]ection 1962(d) [is] broad enough

to encompass those persons who, while intimately involved

in the conspiracy, neither agreed to personally commit nor

actually participated in the commission of the predicate

crimes.” United States v. Tello

, 687 F.3d 785, 792 (7th Cir. 2012)

(citing Neapolitan

, 791 F.2d at 498). Here, Polchan was inti

‐ mately involved. He participated in some robberies person

‐ ally, purchased and resold the stolen goods from many oth

‐

ers, played a significant role in the gambling business, and

participated in the pipe bombing of C & S.

Sarno argues that the jury heard no evidence tying him to

any enterprise activity except the gambling. Not so: testimo

‐

ny from Dublino and Knight and the recorded conversation

between Hay and Sam Volpendesto directly implicated Sar

‐

no in the C & S bombing. And Hay’s testimony showed that

Sarno knew about—and exercised a degree of control over—

the robberies, as well. Recall that Sarno, via Polchan, forbade

Hay and Knight from robbing a dice game; that Sarno called

Polchan to try to track down a friend’s stolen laptop; and

that Polchan brought in “his guy” (Sarno) to mollify a jewel

‐

ry store owner who had been the victim of an enterprise

robbery. 2

2 Sarno claims that much of Hay’s testimony about Sarno was based on

pure speculation. Polchan never specifically stated who “his guy” was,

Sarno contends, so Hay had no basis for concluding that Polchan was

talking about Sarno. But Hay was a member of the enterprise and knewNos. 11

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‐ 1180 & 12

‐ 1656 17

It is hardly unexpected that members of a large criminal

enterprise will have varying degrees of participation in its

activities, because a racketeering enterprise is often charac

‐

terized by a differentiated structure. See United States v. Rog

‐

ers

, 89 F.3d 1326, 1337 (7th Cir. 1996) (“The continuity of an

informal enterprise and the differentiation among roles can

provide the requisite ‘structure’ to prove the element of ‘en

‐ terprise.’”). An individual need not agree to perform each

individual activity to violate RICO. In the Fifth Circuit’s

words, “[t]he gravamen of the [RICO] conspiracy charge

...

is not that each defendant agreed to commit arson, to steal

goods from interstate commerce, to obstruct justice, or to sell

narcotics; rather, it is that each agreed to participate, directly

and indirectly, in the affairs of the enterprise by commit

‐ ting”—or by agreeing that a member will commit—“two or

more predicate crimes.” United States v. Elliott

, 571 F.2d 880,

902 (5th Cir. 1978). Here, Sarno clearly agreed to participate

in the enterprise’s affairs, and he directed both the gambling

and, at least to some extent, the robbery activities. That is

enough for the jury to find him guilty of violating section

1962(d). Cf. Salinas v. United States

, 522 U.S. 52, 65 (1997) (“It

suffices that [a conspirator] adopt the goal of furthering or

facilitating the criminal endeavor. He may do so in any

number of ways short of agreeing to undertake all of the acts

necessary for a crime’s completion.”).

Whereas Sarno argues that he only participated in the

gambling, Anthony Volpendesto argues that he only partici

‐ pated in the robberies. Furthermore, he claims that he com

‐

the relevant players. Indeed, Hay testified that Polchan first introduced

Sarno to Hay as “my guy.” Hay’s testimony was direct evidence about

the enterprise that the jury was entitled to credit if it found Hay credible.18 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

mitted most of his illegal activity only with Hay and Knight,

that he had no contact with Sarno, and that he received no

proceeds from the majority of the enterprise’s crimes. But

again, the government did not need to show that Anthony

Volpendesto participated in every one of the enterprise’s ac

‐

tivities, only that he was “aware of the essential nature and

scope of the enterprise and intended to participate in it.”

Useni

, 516 F.3d at 646; see also United States v. Zichettello

, 208

F.3d 72, 100 (2d Cir. 2000) (“To be convicted as a conspirator,

one must be shown to have possessed knowledge of only the

general contours of the conspiracy.”). In this case, the

charged enterprise was formed in order to generate illegal

income for its members. The jewelry robberies made up a

significant portion of that income. Volpendesto took part in

nine enterprise robberies, sometimes selecting targets and

bringing them to other members himself (as with the Marry

Me Jewelers robbery that went sour). Indeed, after he was

arrested, Volpendesto passed messages to the enterprise via

his father warning the other members that Hay was possibly

cooperating with the government. We think a jury could

conclude from these facts that Volpendesto was aware of the

essential aspects of the enterprise and agreed to participate

in it.

b. Conspiracy to obstruct justice

Polchan also challenges his conviction for conspiracy to

obstruct justice in violation of 18 U.S.C. § 1512(k). Polchan

and Cicero police officer Dino Vitalo were charged with

agreeing to violate 18 U.S.C. § 1512(c)(2), which penalizes

one who “corruptly”—that is, with a wrongful purpose—

“obstructs, influences, or impedes any official proceeding orNos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 19

attempts to do so.” 3 This “expansive” subsection “operates

as a catch

‐ all to cover ‘otherwise’ obstructive behavior” that

might not constitute a more specific offense like document

destruction, which is listed in (c)(1). United States v. Burge

,

711 F.3d 803, 809 (7th Cir. 2013).

There is a key limitation to § 1512(c)(2): one must ob

‐

struct (or agree to obstruct) “an official proceeding.” A fed

‐

eral grand jury investigation counts. See 18 U.S.C.

§ 1515(a)(1)(A). And a grand jury was investigating the

C & S bombing during the charged period, March to May

2007. During this time, Polchan noticed suspicious vehicles

outside Goldberg Jewelers. Recordings from Polchan’s store

reveal that he asked corrupt local police officers, including

Vitalo, to run the vehicles’ license plates and perform a de

‐

confliction check to discover whether the surveillance was

for Goldberg or another business down the street. The offic

‐

ers did Polchan’s bidding, and after they told Polchan what

they had found, another recording caught Polchan dissemi

‐ nating some of that information to Sarno (“Yeah, they said

they were fuckin’, um, they got a case, that they were gov

‐

ernment, that they work for the government”). In another

recording, Polchan can be heard agreeing with his associate

Reyes Silva, who thought that he (Silva) might be being fol

‐

3 As proof that Polchan took his actions corruptly, the government of

‐

fered a stipulation that Vitalo’s assistance was in contravention of Cicero

Police Department orders forbidding officers from confirming the exist

‐

ence of any investigation to an unauthorized individual, communicating

information to suspects that might enable them to conceal evidence,

making unauthorized inquiries into other law enforcement investiga

‐

tions, or giving out motor vehicle information. On appeal, Polchan does

not appear to contest the government’s showing on this element.20 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

lowed, that “they are going to keep continuing.” Polchan al

‐

so warned Silva that he should expect a subpoena.

Polchan now asserts that the evidence at his trial was in

‐

sufficient to establish that he violated § 1512(k). He admits

that he sought to learn about the federal investigation, and

that he discussed the investigation with the police officers

and with his cohorts. But there was no evidence, he main

‐

tains, that he agreed to take the further step of interfering

with the evidence that would be presented to the grand jury.

The government’s case against Polchan on this count was

not airtight. But as with a racketeering conspiracy, see Useni

,

516 F.3d at 646, an unlawful agreement to obstruct justice

often must be inferred from the circumstances. And taken in

the light most favorable to the government—as we must do

at this stage—there was enough circumstantial evidence for

a jury to conclude beyond a reasonable doubt that Polchan’s

efforts were not merely in service of his curiosity, but out of

desire to influence what evidence came before the grand ju

‐

ry. Polchan had testified before a grand jury in the past, and

he knew that information collected during the investigation

would, in turn, be presented to the grand jury itself. He had

enlisted a cadre of corrupt cops to feed him information that

he had no right to have. And he showed a willingness to

pass this wrongfully obtained information along to his asso

‐

ciates. Although it is a close case, it was fair for the jury to

infer that Polchan agreed to impede the grand jury’s investi

‐ gation.

2. Evidentiary rulings

We now address a series of objections to the district

court’s evidentiary rulings at trial. Unless otherwise noted,Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 21

we review the district court’s decision to admit or exclude

evidence for abuse of discretion only. United States v. Spiller

,

261 F.3d 683, 689 (7th Cir. 2001).

a. Admission of Sam Volpendesto’s recorded state

‐

ments

Polchan first argues that incriminating out

‐ of

‐ court

statements made by Sam Volpendesto should not have been

introduced at trial as substantive evidence of Polchan’s guilt

on the bombing counts. The statements at issue (which we

discussed briefly above) are from a May 17, 2005 recording

made by government informant Mark Hay while he was

driving Sam Volpendesto around town. Hay purposefully

engaged Volpendesto in conversation about the bombing at

C & S Amusements, which had happened about two years

earlier. Volpendesto obliged. Their conversation revealed

many details about how Volpendesto and Polchan had car

‐

ried out the job. Volpendesto and Hay also discussed how,

right after the bombing, James Formato had told Hay to pass

a message along to Polchan to warn him that law enforce

‐

ment thought a brown van was involved in the crime.

Polchan objected to the government introducing the rec

‐

orded conversation as substantive evidence of his guilt. In

particular, he took issue with the following statements that

tended to incriminate him:

 Sam Volpendesto’s comment, as Hay drove

past C & S Amusements, that “we blew part

of that away” and that it was a “nice job.”

 Volpendesto’s identifying Polchan as the

person who involved him in the job: “Mark22 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

was the original guy that knew what the

fuck it was about, you know what I mean?”

 Volpendesto’s expression of frustration that

Polchan (often referred to as “Goldberg,” as

in the name of his store) was compensated

more generously for his services: “Goldberg

made money [from the bombing], I made

shit.”

 Volpendesto’s statement, in response to

Hay’s recollection that Formato had said

police were looking for a brown van:

“Yeah, a brown van

... That’s not what we

had.” When Hay mentioned that maybe the

police were right that a van was used, Sam

said, “But it wasn’t us. No we didn’t have a

van. That’s why we laughed the next day

when we found out that they were saying it

was a van.”

 Volpendesto’s statement, after Hay men

‐

tioned that he had passed the message

about the brown van along to Polchan:

“Yeah, he told me.”

The district court admitted all of those statements under the

statement

‐ against

‐ interest exception to the hearsay rule. See

Fed. R. Evid. 802, 804(b)(3).

We agree with the district court that the portions de

‐

scribed above fit comfortably within the exception. For Rule

804(b)(3) to apply, the proponent of an inculpatory hearsay

statement must show: (1) that the declarant is unavailable to

testify at trial; (2) that the statement was against the declar

‐

ant’s penal interest when made; and (3) that corroboratingNos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 23

circumstances clearly suggest that the statement is trustwor

‐ thy. United States v. Loggins

, 486 F.3d 977, 981 (7th Cir. 2007).

At trial, Volpendesto invoked his right against self

‐

incrimination; there is no dispute that, with respect to the

first requirement, he was unavailable to testify.

With respect to the second requirement, a statement is

sufficiently inculpatory “if it would be probative at trial

against the declarant.” United States v. Nagib

, 56 F.3d 798, 804

(7th Cir. 1995). We have said that “statements that demon

‐

strate a declarant’s inside knowledge of a crime” count.

United States v. York, 933 F.2d 1343, 1360 (7th Cir. 1991), over

‐

ruled on other grounds by Wilson v. Williams, 182 F.3d 562 (7th

Cir. 1999) (en banc); see also United States v. Shukri

, 207 F.3d

412, 416 (7th Cir. 2000) (statements that display the declar

‐

ant’s “intimate knowledge” of a crime are against the de

‐

clarant’s penal interest). All of the challenged portions of the

recording—Sam Volpendesto’s revealing that Polchan got

him involved in the bombing, his frustration that Polchan

made more money from the job than he did, and his discus

‐

sion of the government’s false lead with the brown van—

demonstrated Volpendesto’s inside knowledge of the crime

and its surrounding events.

As for the third requirement—the trustworthiness of the

statements—the district court found that Volpendesto’s ac

‐

count was corroborated by the in

‐ court testimony of Hay

and Knight (who provided Volpendesto with the bomb

‐ making material), and that everything Volpendesto de

‐

scribed about the bomb itself was consistent with the foren

‐

sic evidence at the scene. We have said that “[t]he district

judge’s determination as to the trustworthiness of an out

‐ of

‐

court statement is entitled to considerable deference and24 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

should be upheld unless clearly erroneous.” United States v.

Jackson

, 540 F.3d 578, 588 (7th Cir. 2008) (internal quotation

marks omitted). Especially because Volpendesto “thought he

was speaking privately to a confederate,” United States v.

Watson

, 525 F.3d 583, 588 (7th Cir. 2008), we see no reason to

doubt the district court’s assessment that his statements

were reliable. Accordingly, we find that the court was within

its discretion to admit the challenged statements under Rule

804(b)(3).

Nor is it an issue that Volpendesto’s remarks were admit

‐

ted as evidence against Polchan as well. The statement

‐ against

‐ interest exception to the hearsay rule is rooted in a

theory about such statements’ reliability. See Watson

, 525

F.3d at 586 (“Most people would not say that they knocked

over a bank, spit on a policeman, or shoved their mother if it

wasn’t true.”). Once the hearsay is deemed sufficiently relia

‐

ble to qualify for the exception, it may be used for any pur

‐

pose, including as substantive evidence of a co

‐ defendant’s

guilt. See, e.g.

, id. at 586–88 (evaluating a co

‐ conspirator’s

hearsay statement under Rule 804(b)(3) to determine wheth

‐

er it was properly admitted against the appealing defend

‐

ant); United States v. Hamilton

, 19 F.3d 350, 354–57 (7th Cir.

1994) (rejecting an argument that admitting a co

‐ defendant’s

hearsay statement against a non

‐ declarant defendant under

Rule 804(b)(3) constitutes a Bruton violation).

Polchan points out that the district court found that some

of what Sam Volpendesto said in the May 17, 2005 recording

was not against Volpendesto’s penal interest. For example,

when discussing Formato’s tip about the brown van, Vol

‐ pendesto mentioned that Polchan did in fact own a brown

van and speculated that was why law enforcement hadNos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 25

thought one was involved. The district court found that this

part of the conversation—and a few other threads that we

need not go into—did not qualify for the Rule 804(b)(3) ex

‐ ception because these portions did not clearly incriminate

Volpendesto. However, the government redacted the non

‐ qualifying portions of the recording, and they were not

played at trial. So we are not sure what Polchan is complain

‐ ing of. 4 In sum, the redacted recording was properly admit

‐

ted under Rule 804(b)(3). 5

Polchan argues in the alternative that even if Volpendes

‐

to’s incriminating statements were properly admitted under

a hearsay exception, their admission nonetheless violated his

rights under the Sixth Amendment Confrontation Clause be

‐

cause he could not cross

‐ examine Volpendesto at trial.

Unlike evidentiary rulings, we review this constitutional

claim de novo, Watson

, 525 F.3d at 586, but here the standard

of review does not much matter. The Confrontation Clause

only concerns the admission of statements that are testimo

‐

nial in nature. Crawford v. Washington

, 541 U.S. 36, 68 (2004).

4 We notice that a single oblique reference to Polchan’s owning a brown

van seems to have stayed in even after the redactions. See Government

Exhibit Hay 5/17/2005 Transcript, at 18 (“VOLPENDESTO: He had the

brown van he had.”). But any error as a result of this oversight was un

‐ doubtedly harmless; Formato later testified to the fact that Polchan

owned a brown van.

5 The district court alternatively admitted the incriminating statements

against Polchan under the co

‐ conspirator exception to the hearsay defini

‐

tion. See Fed. R. Evid. 801(d)(2)(E). Due to our conclusion that all of the

statements implicating Polchan were properly introduced under the

statement

‐ against

‐ interest exception, we need not explore this basis for

their admission.26 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

As such, Polchan’s confrontation argument is foreclosed by

our decision in Watson

, which held that “[a] statement un

‐ wittingly made to a confidential informant and recorded by

the government is not ‘testimonial’ for Confrontation Clause

purposes.” 525 F.3d at 589.

Polchan asks us to overrule Watson

. He claims that the

decision wrongly looked only to the speaker’s perspective to

determine whether a statement was testimonial. Polchan ar

‐

gues that we must also consider the subjective intentions of

the listener—here, the government informant Hay—to de

‐

termine whether a statement is made “with an eye toward

trial.” Crawford

, 541 U.S. at 56 n.7. As he notes, the Supreme

Court has said that “ both the declarant and interrogators

provide objective evidence of the primary purpose of the in

‐ terrogation.” Michigan v. Bryant

, 131 S. Ct. 1143, 1160 (2011)

(emphasis added). But Polchan selectively quotes from Bry

‐

ant

. There, the Supreme Court instructed that “the relevant

inquiry is not the subjective or actual purpose of the individ

‐

uals involved in a particular encounter, but rather the pur

‐

pose that reasonable participants would have had, as ascer

‐

tained from the individuals’ statements and actions and the

circumstances in which the encounter occurred.” Id. at 1156

(emphasis added). Thus, contrary to Polchan’s argument,

Bryant mandates that we not evaluate the purpose of Hay

and Sam Volpendesto’s recorded conversation from the sub

‐ jective point of view of Hay, who knew he was secretly col

‐ lecting evidence for the government. Instead, we evaluate

their conversation objectively. And from an objective per

‐ spective, Hay and Volpendesto’s conversation looks like a

casual, confidential discussion between co

‐ conspirators. Be

‐

cause the statements in question were not testimonial, their

admission did not implicate the Confrontation Clause.Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 27

b. The supposed Bruton violation

Polchan argues that the government committed a Bruton

error at trial that prejudiced his defense on the bombing

‐

related counts. We conclude that no Bruton error occurred.

If a co

‐ defendant makes an out

‐ of

‐ court confession that

inculpates the defendant, and the co

‐ defendant does not tes

‐ tify at their joint trial, the out

‐ of

‐ court statement cannot be

introduced as evidence at all; the risk of prejudice to the

non

‐ confessing defendant is simply too great, even with a

limiting instruction. Bruton v. United States

, 391 U.S. 123

(1968). We review the district court’s application of Bruton

de novo. United States v. Green

, 648 F.3d 569, 574 (7th Cir.

2011).

At trial, the government was examining its own witness,

ATF Agent Tina Sherrow, about Sherrow’s interview of Sam

Volpendesto on August 23, 2006. Sherrow first described

how she and another agent began the interview, and then

described how she confronted Sam Volpendesto with the

evidence implicating him in the February 2003 bombing of

C & S. Then the following exchange occurred:

GOVERNMENT: What, if anything, did Mr.

Sam Volpendesto say in response?

SHERROW: One of the things he said was that

he had been asked to get a business license for

a pawn shop. And then when it wasn’t making

any money, he had walked away from it—or

when he wasn’t getting paid—sorry—that he

walked away from it. He indicated that.

GOVERNMENT: Did he say anything else?28 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

SHERROW: He had mentioned that he had

been at Goldberg Jewelers that day to—

At this point, Agent Sherrow was cut off by a Bruton objec

‐

tion from Damon Cheronis, Polchan’s counsel.

Polchan argues that before she was interrupted, Agent

Sherrow was about to testify that Sam Volpendesto told her

that he had been at Goldberg Jewelers on the day of the

bombing. However, the government represents that Sherrow

was only going to testify that Volpendesto told her that he

had been to Goldberg Jewelers on the day of the interview

, that

is, August 26, 2006. The government was prepared to have

Agent Sherrow clarify the point—but after a lengthy sidebar,

in which several defense attorneys raised multiple objections

on various grounds, the district court decided it was simpler

to just strike Sherrow’s answer entirely and instruct the jury

to disregard it.

Polchan maintains that, given the context of Agent Sher

‐

row’s cross

‐ examination, the jury might have interpreted her

answer as he does: that Sam Volpendesto admitted that he

had been at Goldberg Jewelers on the day of the bombing.

He says that this admission directly implicated Polchan in

the C & S bombing—which would amount to a Bruton viola

‐

tion, and would mean, in turn, that the district court’s in

‐

struction could not suffice to correct the error.

This is a stretch. Unlike Bruton and its progeny—

Richardson v. Marsh

, 481 U.S. 200 (1987) and Gray v. Mary

‐

land

, 523 U.S. 185 (1998)—the statement relayed by Sherrow

did not amount to a “confession” by Volpendesto that he

committed the bombing. If the jury interpreted the statement

the way that Polchan does (a rather big “if”), all that Vol

‐Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 29

pendesto admitted to was having visited Polchan’s store on

the day in question. This is not “powerfully incriminating”

either to Volpendesto or to his co

‐ defendant. Richardson

, 481

U.S. at 208. Bruton itself instructed that “[n]ot every admis

‐

sion of inadmissible hearsay or other evidence can be con

‐

sidered to be reversible error unavoidable through limiting

instructions”; its special rule applies only when “the power

‐ fully incriminating extrajudicial statements of a co

‐

defendant, who stands accused side

‐ by

‐ side with the de

‐

fendant, are deliberately spread before the jury in a joint tri

‐

al.” 391 U.S. at 136. The government did nothing of the sort

here.

c. Limitation on Sarno’s cross

‐ examination of Dublino

Sarno also argues that the district court’s decision to cur

‐

tail his cross

‐ examination of Dublino violated Sarno’s Sixth

Amendment rights. We review de novo whether the court’s

limitation offends the Confrontation Clause. United States v.

Reese

, 666 F.3d 1007, 1018 (7th Cir. 2012).

Sarno first complains that the court cut him off when he

was trying to impeach Dublino’s credibility. He refers to a

portion of cross where his counsel asked Dublino whether

he would describe his video gambling business as “lucra

‐

tive,” and then asked Dublino about “his Lamborghini.”

Counsel aggressively questioned Dublino about how many

Lamborghinis he had, when he got them, and what color

they were. Dublino refused to play, and insisted repeatedly

that “the Lamborghini” was not his. After letting this go on

for some time, the district court sustained the government’s

objection on relevance grounds. In a sidebar, the court told

Sarno’s counsel that if he wanted to ask Dublino how much

money he made from his gambling

‐ machine business and30 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

whether Dublino underreported this illegal income on his

taxes, that was fine, but not to waste more time on cars Dub

‐

lino may or may not have had. The court also pointed out

that Dublino had already admitted to underreporting his

gambling

‐ machine income. Sarno’s counsel then theorized

that Dublino’s purchase of the Lamborghinis rose to the lev

‐

el of money laundering. The court responded that Dublino

had already admitted that his behavior amounted to crimi

‐

nal conduct, and that Sarno’s strategy of asking about fancy

cars to get at the possibility of money laundering was too

“far afield” for the court to let him continue.

Sarno contends that Dublino’s credibility was crucial to

the government’s case, and that the court impermissibly lim

‐

ited Sarno’s impeachment strategy at a critical juncture. We

disagree. “So long as cross

‐ examination elicits adequate in

‐

formation to allow a jury to assess a witness’s credibility,

motives, or possible bias, the Sixth Amendment is not com

‐ promised.” United States v. Martin

, 287 F.3d 609, 620 (7th Cir.

2002). The ultimate point of the Lamborghini digression was

that Dublino made illicit gains through his gambling

‐

machine business. But Dublino had already admitted that he

lied about his gambling business to the authorities and that

he failed to report his illegal income on his taxes. Moreover,

the court allowed Sarno and the other defendants to contin

‐

ue to interrogate Dublino about his tax underreporting.

Thus, Sarno had adequate opportunity to elicit the damag

‐ ing information—i.e., the fact that Dublino made money

through an illegal business and lied about it—necessary for

the jury to assess his credibility. Given that “trial courts have

wide latitude” to limit a cross

‐ examination strategy that

amounts to “interrogation that is repetitive or only marginal

‐ ly relevant,” United States v. McGee

, 408 F.3d 966, 975 (7thNos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 31

Cir. 2005), the court did not stymie Sarno’s defense by cut

‐ ting off a line of inquiry that promised a very limited payoff,

at best.

Sarno’s second contention is that the district court im

‐ properly prevented him from impeaching Dublino with an

allegedly inconsistent statement that Dublino made to feder

‐

al agents. This too requires some context. During direct,

Dublino testified that Sarno approached him twice in the

summer of 2002: once to ask if Dublino wanted to go into

business together, and the second time to tell Dublino “to

stay the fuck away from the 47th Street Grill stop.” Dublino

also testified that two other men, who he did not know,

threatened him in person a few weeks after Sarno’s second

visit. After their visit, Dublino received several unidentified

threatening phone calls; he testified that those calls occurred

before the February 2003 bombing of C & S Amusements.

On cross, Sarno’s counsel asked Dublino whether he had

“received a number of telephone threats” before Sarno ever

approached him. Dublino said no, he received the telephone

threats later. Sarno’s counsel then sought to impeach Dub

‐

lino with the following out

‐ of

‐ court statement from a Febru

‐

ary 2006 FBI report, apparently written by the interviewing

agent: “In addition to the visits with Mr. Sarno, Dublino also

received several threatening phone calls on his cell phone

prior to the bombing. Dublino recalled he received a call

when he first opened C & S and the unidentified caller

wanted to invest in the business.” The district court sus

‐

tained the government’s objection, noting that the statement

in the FBI report did not contradict Dublino’s testimony.

True, Dublino’s statement in the FBI report is not crystal

clear. But it certainly can be read the way that the court read32 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

it: that Dublino received the threatening phone calls he de

‐

scribed in the period after Sarno’s visits but before the

bombing, but that Dublino also received a call from someone

asking to invest in the business shortly after he started C & S

Amusements. The court did not abuse its discretion in con

‐ cluding that the statement was consistent with Dublino’s tes

‐ timony.

In any event, Sarno tells us that the reason the court’s ex

‐

clusion of Dublino’s statement was significant—that is, the

reason the exclusion supposedly rose to the level of a con

‐

frontation violation—is that Sarno wanted to establish an

alternate source of the threats Dublino claimed to have re

‐

ceived. But Sarno could not have used the evidence for that

purpose. While it would have been proper for Sarno to offer

the contradictory statement to show that Dublino was not

credible, Sarno could not offer the out

‐ of

‐ court, unsworn

statement to prove that Dublino did in fact receive threaten

‐ ing phone calls before Sarno’s visits. If used for the latter

purpose, the statement would be hearsay. And Sarno cannot

establish a Sixth Amendment violation based on the district

court’s denying him the opportunity to violate the rules of

evidence, at least under these circumstances. See United

States v. Lewis

, 641 F.3d 773, 785 (7th Cir. 2011). Accordingly,

we find Sarno’s confrontation arguments without merit.

d. Witness testimony about fear of Sarno

Next, Sarno argues that the government elicited imper

‐

missible character evidence against him. However, the tes

‐ timony Sarno identifies was not propensity evidence within

the meaning of Federal Rule of Evidence 404(a)(1). Nor did

this testimony—or any other evidence offered in the gov

‐

ernment’s case—violate the district court’s pretrial rulingNos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 33

prohibiting the government from linking Sarno to the Chica

‐

go Outfit or organized crime. We find that the district court

was fully within its discretion in allowing this testimony to

come in.

The first exchange Sarno complains of concerned gov

‐

ernment witness Henry Rendon. On direct, Rendon testified

that he borrowed $15,000 from Sarno, to be repaid through

the money generated by the video gambling machines that

the enterprise had installed in Rendon’s store. Rendon then

decided to switch to Dublino’s services—Dublino offered

Rendon a bigger take—and he called one of Sarno’s associ

‐

ates to tell him. The associate told Rendon that “the big guy”

was going to be “pissed.”

On cross

‐ examination, defense counsel brought out the

fact that Sarno himself never explicitly threatened Rendon.

The district court, in keeping with its pretrial order that

“witnesses could testify to their fear of Sarno without linking

him to organized crime,” allowed the government to elicit

the following testimony on redirect:

GOVERNMENT: And you were asked [on

cross] whether or not Michael Sarno ever told

you he was going to hurt you as a result of not

paying back that loan. Do you recall that ques

‐

tion?

RENDON: Yes.

GOVERNMENT: Did Michael Sarno have to

threaten you face

‐ to

‐ face?

RENDON: No.

GOVERNMENT: Why not?34 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

RENDON: Because of who he is.

A similar exchange occurred during Dublino’s testimony

about the time that Sarno told him to stay away from the

47th Street Grill. Dublino testified as to Sarno’s demeanor

during this confrontation and the fact that Dublino felt

threatened by him. On cross, defense counsel brought out

the fact that Sarno never touched Dublino during their en

‐

counter. In response, on redirect, the government brought

up the defense’s questions and asked, “Did he need to touch

you?” Dublino answered no.

The third instance occurred during the government’s di

‐

rect examination of Hay. Hay testified that he was thinking

about robbing a dice game, but that he consulted with Pol

‐

chan first. Polchan told Hay to stay away from the dice

game, because Polchan’s “guy” said so. Hay testified that he

obeyed: “I knew if I robbed that dice game my life would be

in jeopardy.”

Sarno argues that all of this was impermissible character

evidence in that it tended to show that Sarno is a bad, scary

guy. He claims that the admission of this testimony violated

Federal Rule of Evidence 404(a)(1). Yet Rule 404(a)(1) only

prohibits the introduction of evidence about a defendant’s

character when that evidence is offered “to prove that on a

particular occasion the person acted in accordance with the

character or trait.” That is not what the government offered

this testimony for. All three witnesses described Sarno’s

reputation in order to establish their own subjective state of

mind—that is, to explain why the witness felt threatened by

Sarno even in the absence of an explicit threat from Sarno

himself. The government never elicited testimony that Sarno

actually was a bad person, or violent, or a member of the ma

‐Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 35

fia. And the government certainly never argued that any of

these qualities made it more likely that Sarno committed the

crimes he was accused of. Thus, the district court properly

admitted this testimony.

Further, this testimony did not run afoul of the district

court’s pretrial order forbidding references to the Chicago

Outfit or to the mafia more generally. The district court was

clear that if the defendants tried to insinuate that a witness

was not justified in feeling threatened by Sarno, the court

would allow the witness to try to explain why he legitimate

‐ ly felt fearful. This sensible approach to handling potentially

prejudicial evidence was wholly within the district court’s

discretion. And true to its word, the government (and its

witnesses) never mentioned the Chicago Outfit or organized

crime at any point during the trial.

Sarno protests that the government subtly defied the

court’s order by “contaminating” the case with “numerous

images and references to nefarious people.” But all he can

invoke in support of this assertion is the fact that various in

‐

dividuals came up in passing, or appeared in a photograph,

who Sarno claims have an association with the Chicago Out

‐

fit. Sarno did not object to the majority of the references he

now complains of. And in any event, he does not establish

that it was likely the jury would have known who any of

these individuals were. The district court, which was in a

much better position to assess the prejudicial effect of these

references, wholly rejected the claim that the government

had injected the mafia into the case. 6 We see no reason to

6 Responding to an objection by Sarno’s attorney that “the government

has brought in organized crime and the mob into this case,” the court

stated that “the record is exactly the opposite. The phrase hasn’t been36 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

come to a different conclusion, and we similarly reject Sar

‐

no’s claim of error.

3. Jury instructions

In our last trial

‐ related issue, the appellants object to the

district court’s jury instructions on the RICO conspiracy

count. We review the legal accuracy of a jury instruction de

novo, and particular phrasing for an abuse of discretion.

United States v. Dickerson

, 705 F.3d 683, 688 (7th Cir. 2013).

We recognize, however, that “[a] trial judge has considerable

discretion in choosing the language of an instruction so long

as the substance of the relevant point is adequately ex

‐ pressed.” Boyle v. United States

, 556 U.S. 938, 946 (2009).

The challenged instruction, Instruction No. 30, came from

the Federal Criminal Jury Instructions of the Seventh Circuit

322 (1999). It read:

To be associated with an enterprise, a person

must be involved with the enterprise in a way

that is related to its affairs or common pur

‐ pose[, although the person need not have a

stake in the goals of the enterprise and may

even act in a way that subverts those goals]. A

person may be associated with an enterprise

without being so throughout its existence.

The bracketed language, which the government requested, is

optional; it echoes our opinion in United States v. Yonan

, 800

F.2d 164 (7th Cir. 1986), where we declared that “the defend

‐

ant need not have a stake in the enterprise’s ‘goals,’ but can

mentioned. It hasn’t been used. There’s been no direct reference to it.

There’s not even been an indirect reference to it.”Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 37

associate with the enterprise by conducting business with it,

even if in doing so the defendant is subverting the enter

‐ prise’s goals.” Id. at 167.

Anthony Volpendesto opposed the inclusion of the op

‐

tional language. He argued that it was only appropriate

where the indictment concerned a “lawful” enterprise—as in

Yonan

, where the defendant argued that he could not be “as

‐

sociated” with the Cook County State’s Attorney’s Office be

‐

cause he had committed crimes against it. The district court

demurred, declining to rule on the objection immediately,

but noting that the jury was “entitled to know that just be

‐

cause one of the enterprise members is sneaking some of the

booty off for himself doesn’t mean he can’t be a member of

the enterprise.” On the first day of closing arguments, the

court told the parties that it was still considering the lan

‐

guage of the instruction. The following day, the court reject

‐

ed Volpendesto’s proposed alternative and settled on In

‐

struction No. 30, including the bracketed language. 7

7 The appellants argue that the district court violated Federal Rule of

Criminal Procedure 30, which requires the district court to inform the

parties before closing arguments how the court intends to rule on re

‐ quested instructions. See Fed. R. Crim. P. 30(b). However, no one asked

for a final ruling when the court informed the parties that the proposed

instructions were under consideration, and we see no plain error. The

purpose of Rule 30(b) is “to allow counsel a meaningful opportunity to

tailor their closing arguments to the court’s pronouncement of the law

governing the case.” United States v. Algee

, 599 F.3d 506, 515 (6th Cir.

2010). The appellants already knew that the court felt the jury should be

informed that the defendants could be convicted even if they were ulti

‐ mately acting in their own self

‐ interest. And the appellants do not tell us

how their argument would have been different if the court had ruled

definitively ahead of time.38 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

The appellants renew this argument on appeal, maintain

‐ ing that the instruction made no sense in the context of an

unlawful enterprise. However, RICO draws no distinction

between “lawful” and “unlawful” enterprises, s ee 18 U.S.C. §

1961(4) (definition of “enterprise”), and we have never

drawn such a distinction in our cases. Nor do we see a rea

‐

son to do so here. It makes little sense to construe RICO so

that it is more difficult for the statute to reach individuals

who associate with illegal enterprises than legal ones. Cf.

United States v. Masters

, 924 F.2d 1362, 1367 (7th Cir. 1991)

(“It would be ironic if the RICO statute, aimed primarily at

criminal enterprises such as the Mafia and its many petty

imitators, was more effective against legal enterprises.”). Yet

that is precisely what Volpendesto’s construction would do.

The appellants also suggest that the instruction was mis

‐ leading because the indictment charged the defendants with

participating in an “association

‐ in

‐ fact” enterprise, defined

as “a group of persons associated together for a common

purpose of engaging in a course of conduct.” Boyle

, 556 U.S.

at 946. At trial, the appellants—Volpendesto in particular—

argued that they could not have agreed to join the enterprise

because they did not share a common purpose with the oth

‐

er members. By telling the jury that a defendant could still

associate with an enterprise even if he did not have “a stake

in the goals of the enterprise,” the appellants maintain, In

‐

In three sentences, the appellants also argue that the district court

violated their Sixth Amendment and due process rights by prohibiting

any party from referring to the instructions during closing argument. We

treat such a perfunctory argument as waived. See United States v. Warner

,

498 F.3d 666, 702 (7th Cir. 2007).Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 39

struction No. 30 wrongly implied to the jury that arguments

about a lack of a common purpose were irrelevant.

But the instructions suggested no such thing. The very

first sentence of Instruction No. 30 stated, “To be associated

with an enterprise a person must be involved with the en

‐ terprise in a way that is related to its affairs or common pur

‐ pose.” And the court separately instructed the jury that

“[t]he term ‘enterprise’ can include a group of people associ

‐

ated together for a common purpose of engaging in a course

of conduct.” The appellants were thus completely free to ar

‐

gue that they never shared a common purpose with their

confederates.

Nor is it contradictory to say that someone shares in a

common purpose even though that person’s ultimate inter

‐

ests diverge from his confederates. A person who agrees to

commit multiple robberies with an association

‐ in

‐ fact cer

‐ tainly shares in the enterprise’s common purpose—to enrich

himself and the enterprise through illegal means. He cannot

escape liability just because, at the end of the day, he prizes

his own self

‐ interest above the group’s. Instruction No. 30

adequately expressed this point, and it was not an abuse of

discretion to give it.

Even if we were to find that Instruction No. 30 should

not have been phrased as it was, we would reverse “only if it

appears both that the jury was misled and that the instruc

‐

tions prejudiced the defendant.” Dickerson

, 705 F.3d at 688.

We do not believe that is the case here. As just discussed,

other portions of the instructions clearly stated that an asso

‐

ciation

‐ in

‐ fact required a common purpose and that a de

‐

fendant associated with an enterprise by involving himself

in a way that related to that common purpose. Indeed, An

‐40 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

thony Volpendesto’s lawyer repeatedly emphasized this

point during her closing argument. (“How can Tony be in

‐

volved in the enterprise

... that’s supposed to include all

these people, that’s supposed to include all this activity,

that’s supposed to cover this timeframe, when he’s not in

‐

volved in it and he doesn’t get what the common purpose is,

he doesn’t get any money from it.”) Viewed in context, that

the jury convicted Volpendesto anyway does not show that

it was misled, merely that it did not believe his story.

C. Sentencing

Finally, we address Sarno’s and Polchan’s challenges to

their sentences. We review the district court’s interpretation

and application of the U.S. Sentencing Guidelines de novo

and its findings of fact for clear error. United States v. White

,

737 F.3d 1121, 1139 (7th Cir. 2013). We review the sentences’

substantive reasonableness for abuse of discretion. Id.

1. Sarno’s sentence

Sarno makes three challenges to his sentence: that the

district court erred in calculating his guidelines range; that

the court failed to consider the 18 U.S.C. § 3553(a) factors,

and that the sentence itself was substantively unreasonable.

We consider each in turn. 8

8 In his reply brief, Sarno adds a new argument: that any facts that in

‐

creased his advisory guidelines range beyond the statutory maximums

for his offenses should have been found by a jury. He suggests that this

is a natural extension of the Supreme Court’s decision in Alleyne v. United

States

, 133 S. Ct. 2151 (2013), in which the Court held that a fact which

increases the statutory mandatory minimum sentence must be found by

a jury. Sarno’s extension of Alleyne is foreclosed by the opinion itself,

which emphasized that its holding “does not mean that any fact that in

‐

fluences judicial discretion must be found by a jury. We have long rec

‐Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 41

a. The guidelines calculation

At sentencing, the district court concluded that Sarno’s

adjusted offense level was 42. The court further concluded

that Sarno’s criminal history category was VI. His recom

‐

mended guidelines range was therefore 360 months to life. 9

See U.S.S.G. Ch. 5, Pt. A (sentencing table). Sarno argues that

ognized that broad sentencing discretion, informed by judicial factfind

‐ ing, does not violate the Sixth Amendment.” Id. at 2163; see also United

States v. Hernandez

, 731 F.3d 666, 672 (7th Cir. 2013) (judicial determina

‐

tion of a fact that triggers a higher advisory guidelines range does not

offend the Fifth or Sixth Amendments).

9 Because we find that the district court properly calculated Sarno’s of

‐

fense level, we need not address Sarno’s separate argument, based on

Peugh v. United States

, 133 S. Ct. 2072 (2013), that the court impermissibly

applied the career offender rules from the 2010 guidelines when it

should have applied the rules from the guidelines in effect during the

offense of conviction. Sarno argues that under the pre

‐ 2007 guidelines

(namely, the rule in U.S.S.G. § 4A1.2(a)(2) instructing that “[p]rior sen

‐

tences imposed in related cases are to be treated as one sentence” for the

purposes of the criminal history category), his criminal history category

would have been III. The government responds that Sarno’s two prior

convictions would not have been considered “related” even under the

version of the guidelines that Sarno uses. See U.S.S.G. § 4A1.2(a)(2)

(1995), cmt. n. 3. But even if the government were wrong and Sarno

right, any error was harmless. That is because an offense level of 42 re

‐

sults in a recommended range of 360 months to life regardless of the of

‐

fender’s criminal history category—and no matter what guidelines are

used. See U.S.S.G. Ch. 5, Pt. A (2011) (the guidelines in effect at the time

of Sarno’s February 2012 sentencing); U.S.S.G. Ch. 5, Pt. A (2010) (the

guidelines used in the presentence investigation report calculations);

U.S.S.G. Ch. 5, Pt. A (1995) (the guidelines Sarno wants to apply). As we

ultimately conclude that the district court properly calculated Sarno’s

offense level, his recommended guidelines range would have been the

same either way.42 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

the court erred in calculating his offense level in two re

‐

spects.

Sarno’s first argument is that the court should not have

found Sarno accountable for the C & S bombing and the

robbery activity. Under the guidelines, when a defendant is

convicted of a “jointly undertaken criminal activity,” the

sentencing court should take into account as relevant con

‐

duct “all reasonably foreseeable acts and omissions of others

in furtherance of the jointly undertaken criminal activity that

occurred” during, in preparation for, or to avoid detection of

the offense of conviction. U.S.S.G. § 1B1.3(a)(1)(B). So to as

‐

cribe another enterprise member’s relevant conduct to Sarno,

the court had to determine that the member’s act or omission

was both (1) within the scope of the criminal activity that

Sarno agreed to undertake, and (2) reasonably foreseeable to

him. See United States v. Salem

, 597 F.3d 877, 886 (7th Cir.

2010).

The court found that Sarno ordered the C & S bombing. It

also found that Sarno exercised control over the robberies, at

least to the extent that he could put certain people or places

off

‐ limits. The court further noted that Sarno seemingly had

the ability to confer a degree of protection on his underlings,

Polchan in particular. More generally, the court explained

that “after you look at all of the evidence in the aggregate

... the testimony, the actions of the defendant in going in secre

‐

cy to see co

‐ defendant Polchan when news media events

... begin to show there’s a leak in the organization

... the rea

‐

sonable inference is that he would only care about those

things if he was involved in the organization.” This evi

‐

dence, the court concluded, gave a “convincing accountNos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 43

which has Mr. Sarno as a person who is in control of much

of the action and certainly accountable for virtually all of it.”

As to the bombing, Sarno claims that the court’s conclu

‐

sions were based on trial testimony that was incredible as a

matter of law. For example, with respect to Sarno’s role in

the bombing, the court relied on Dublino’s testimony that

Sarno threatened him. Sarno argues that Dublino contradict

‐

ed himself on the stand and had ample motive to fabricate

evidence. But the district court observed Dublino’s testimo

‐

ny firsthand and, with knowledge of these possible deficien

‐

cies, chose to credit it. That was not clear error.

As to the robberies, Sarno argues that there was no evi

‐

dence showing his responsibility. But as discussed above,

Sarno was connected to the robberies in multiple ways: Pol

‐

chan felt the need to check with Sarno before robbing a dice

game; Sarno called “his store,” Goldberg, and spoke to Pol

‐

chan hoping to locate some stolen property; Polchan was

worried that Sarno would become angry if he knew that Sam

Volpendesto was participating in petty thefts; and Sarno

stepped in to “take care” of a jewelry store owner who was

upset at Polchan for a prior robbery. This evidence showed

not only that Sarno exercised a degree of control over the

robberies, but also that the activity was reasonably foreseea

‐

ble to him. Again, the court did not clearly err in concluding

that these facts supported attributing the conduct to Sarno

under § 1B1.3.

Sarno’s second challenge to his offense level calculation

relates to the four

‐ level sentencing enhancement the district

court imposed for Sarno’s role as the “organizer or leader”

of the criminal activity. See U.S.S.G. § 3B1.1(a). Sarno argues

that the government’s only evidence that he was a “lead

‐44 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

er”—as opposed to a “manager or supervisor,” which trig

‐

gers a lesser enhancement—were his nicknames: “my guy,”

“big guy,” and so forth. If that were true, Sarno would have

a point. However, the district court did not just look at Sar

‐

no’s nicknames. Rather, the court incorporated its extensive

analysis with regard to the jointly undertaken criminal activ

‐ ity determination, and additionally noted the “words of ap

‐ proval” that Sarno uttered to Polchan when discussing the

distribution of video gambling machines—words that “clear

‐ ly indicat[ed] a supervisory position over what was taking

place.” The guidelines specify that the “exercise of decision

making authority” and the “degree of control and authority

exercised over others” are factors that a court should consid

‐

er to distinguish a leadership role from a lesser supervisory

one. U.S.S.G. § 3B1.1 cmt. n. 4. On these facts, the court’s

conclusion that Sarno filled a leadership role was not clearly

erroneous.

b. Consideration of the § 3553(a) factors

Sarno next argues that the district court failed to give ad

‐

equate consideration to the factors listed in 18 U.S.C.

§ 3553(a). See Gall v. United States

, 552 U.S. 38, 51 (2007)

.

First, Sarno claims that the court ignored his particular

“history and characteristics” in contravention of § 3553(a)(1).

Specifically, he says that the court overlooked mitigating ev

‐

idence of Sarno’s good works in his community and his

support from family and friends. However, the sentencing

transcript belies Sarno’s assertion that the court ignored this

evidence. The court made a point of noting that “the hard

‐ ship to the defendant’s family, his children, the people

around him, the Court has no doubt is real and is—the word

unfortunate seems insufficient.” The court simply chose toNos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 45

give this aspect of Sarno’s background little weight in light

of the fact that he engaged in criminal activity shortly after

serving his previous sentences for similar offenses, his evi

‐

dent lack of respect for the law, the danger his crimes posed

to the community, and the need to provide deterrence to

whoever replaced Sarno in his criminal organization. Sarno

may take issue with how the district court weighed the good

against the bad, but that is not a claim of procedural error.

And in any event, “the sentencing judge was in a superior

position to balance these sentencing considerations, and we

will not second guess his determinations.” United States v.

Farris

, 532 F.3d 615, 620 (7th Cir. 2008) (citation omitted).

Sarno also contends that the court failed to give adequate

attention to his arguments that he posed a lesser risk of re

‐

cidivism based on his age and health, his family and com

‐ munity ties, and his remorse for his actions. The hearing

transcript does not bear out this assertion, either. Sarno’s in

‐

vocation of remorse is puzzling, as aside from a vague

statement that he had “some deep regrets” but would “leave

the rest to [his] lawyers,” Sarno exhibited nothing of the sort

at sentencing. Furthermore, the district court considered

Sarno’s argument that he no longer posed a risk and wholly

rejected it. The court found that Sarno had engaged in “a

lifetime of crime,” and determined that, based on Sarno’s

criminal history and the evidence presented at trial, “the

likelihood that the defendant will continue to engage in this

dangerous conduct appears

... to be very great.” Thus, Sarno

has failed to establish procedural error on this basis.

c. Reasonableness of Sarno’s de facto life sentence

Finally, Sarno argues that his sentence was substantively

unreasonable because it amounted to an effective life sen

‐46 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

tence. Sarno was age fifty

‐ four at sentencing, and he re

‐

ceived twenty

‐ five years’ imprisonment. Though his release

is technically within his life expectancy, see Social Security

Administration, Actuarial Life Table

, http://www.ssa.gov/OACT/STATS/table4c6.html (last visited

Mar. 14, 2014)

, Sarno maintains that his poor health means

that he will likely die in prison.

Although we have acknowledged the “worthy tradition

that death in prison is not to be ordered lightly,” and sug

‐ gested that “the probability that a convict will not live out

his sentence should certainly give pause to a sentencing

court,” United States v. Wurzinger

, 467 F.3d 649, 652 (7th Cir.

2006), we have never held that a sentencing court must

check certain boxes in order to justify an effective life sen

‐

tence. And we have previously found de facto life sentences

reasonable where the district court determined, as the court

did here, that the defendant’s criminal history showed a risk

of recidivism and lack of respect for the law. See United States

v. Kincannon

, 567 F.3d 893, 901 (7th Cir. 2009) (upholding a

sentence of thirty years for a seventy

‐ seven

‐ year

‐ old defend

‐

ant where the district court noted that his “advanced age

... had not deterred or slowed his criminal activity to date”);

Wurzinger

, 467 F.3d at 653 (“Wurzinger argues that older of

‐

fenders are generally less likely to commit crime, but

... what matters is whether the court reasonably concluded that

Wurzinger in particular is a risk for further crimes.”). In ad

‐

dition, the court expressed its conviction that “[i]t would be

detrimental to the public interest for this Court or any other

to leave the impression that one can engage in a lifetime of

crime in the hope of avoiding capture and conviction until

the very end and then retire to some sort of peaceful exist

‐

ence after having wreaked havoc and chaos among others.”Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656 47

We find that Sarno’s twenty

‐ five

‐ year sentence was within

the court’s discretion.

2. Polchan’s sentence

Polchan was convicted of RICO conspiracy, conducting

an illegal gambling business, conspiracy to commit arson,

arson, use of a destructive device in relation to a crime of vi

‐

olence, conspiracy to obstruct justice, possession of stolen

goods from interstate shipments, and various tax offenses.

His resulting guidelines range was 360 months to life. The

district court sentenced him to 720 months, or sixty years.

He was age forty

‐ four at sentencing.

Polchan makes no procedural challenges to the district

court’s guidelines calculation. Instead, he too challenges the

substantive reasonableness of his de facto life sentence and

argues that the district court did not sufficiently justify its

choice.

We find that the court properly exercised its sentencing

discretion in Polchan’s case as well. The district court ex

‐ plained that it chose a sixty

‐ year sentence because it wanted

the length of imprisonment to “reflect[] the seriousness of

[Polchan’s] ongoing criminal offense and provide[] a pun

‐

ishment that is just for all that he has done.” The judge em

‐ phasized how “organized criminal activity performed over a

long period of time, deliberate and purposeful, poses a

greater threat to the very fiber of our community.” And the

judge described his conviction that a serious sentence was

necessary because “the public needs to be protected both

from Mr. Polchan and from the idea that organized criminal

activity might well be worth something, might well be worth

doing.” Through this explanation, the court adequately tied48 Nos. 11

‐ 3022, 12

‐ 1180 & 12

‐ 1656

its sixty

‐ year sentence to the factors listed in 18 U.S.C.

§ 3553(a). We cannot say that its ultimate decision—which

was within Polchan’s guidelines range—was unreasonable.

Polchan also argues that the district court failed to con

‐

sider the social and economic costs of a sixty

‐ year sentence.

Drawing on a concurring opinion in United States v. Craig

,

703 F.3d 1001 (7th Cir. 2012) (per curiam), Polchan argues

that the court should have explicitly weighed the expense of

imprisonment to the government, which “rises steeply with

the prisoner’s age,” against the “incremental deterrent effect

of extremely long sentences” and the fact that in general, re

‐

cidivism declines with age. Id. at 1003–04 (Posner, J., concur

‐ ring) (emphasis omitted). But of course, Judge Posner was

(in his own words) “merely suggesting” that a sentencing

judge ought to undertake this form of societal cost

‐ benefit

analysis. Id. at 1004. We have never held that a district court

must explicitly weigh these factors.

Accordingly, we affirm Polchan’s sentence.

III. Conclusion

The judgment of the district court is

A FFIRMED

.