371 (7th Cir. 1987); (5) to conceal the criminal objectives of the conspiracy, United States v.
Kaden, 819 F.2d 813, 820 (7th Cir. 1987); United States v. Xheka, 704 F.2d 974, 985-86 (7th Cir.
1983); (6) to plan or to review a coconspirator’s exploits, United States v. Molt, 772 F.2d 366,
368-69 (7th Cir. 1985); or (7) as an assurance that a coconspirator can be trusted to perform his
role, United States v. Buishas, 791 F.2d 1310, 1315 (7th Cir. 1986). On the other hand,
statements that consist of “idle chatter, narrative declarations and superfluous casual remarks” do
not satisfy the “in furtherance” requirement and are inadmissible hearsay. United States v.
Johnson, 927 F.2d 999, 1002 (7th Cir. 1991) (quotations and citation omitted).

The most difficult questions regarding admissibility of coconspirator statements involve
statements in which one conspirator says that “X” defendant perpetrated some bad act or played
some role in the conspiracy. The argument against admissibility in such situations is that
recitations of past history arguably do not further the cause of the conspiracy and fall within the
category of idle chatter.

Sometimes relating past crimes and current roles do “further” the conspiracy. One
situation is when such information keeps the conspiracy intact. For example, in United States v.
Westmoreland, 312 F.3d 302 (7th Cir. 2002), cert. den., 538 U.S. 1042 (2003), a witness testified
that her husband had come home covered in blood and told her that he had helped the defendant
on trial bury someone who had owed the defendant money and who had “talk[ed] too much.” Jd.
at 309. The Seventh Circuit held that this statement did further the conspiracy because the
statement, which the witness perceived as a threat, was intended to preserve the conspiracy by
frightening the witness and dissuading her from informing the authorities about the defendant’s

drug scheme. Jd at 309-10.


regarding Shlifka and Cozzo is admissible because it is not clear that the statement was made “in
furtherance” of the alleged conspiracy.

In determining whether a statement was made “in furtherance” of a conspiracy, courts
look for a reasonable basis upon which to conclude that the statement furthered the conspiracy’s
objectives. United States v. Shoffner, 826 F.2d 619, 628 (7th Cir. 1987). Under the reasonable
basis standard, a statement may be susceptible to alternative interpretations and still be “in
furtherance” of the conspiracy, and the statement need not have been exclusively, or even
primarily, made to further the conspiracy. Jd. Also, the statement need not be important or
essential to the conspiracy; it need only be just important enough to serve some purpose to
promote the conspiracy’s objectives in order to be admissible. United States v. Gajo, 290 F.3d
922, 929 (7th Cir.), cert. den., 537 U.S. 938 (2002). In general, a statement which is “part of the
information flow between conspirators intended to help each perform a role” is admissible under
Rule 801(d)(2)(E). United States v. Santos, 20 F.3d 280, 286 (7th Cir. 1994) (quoting United
States v. Johnson, 927 F.2d 999, 1001 (7th Cir. 1991)).

Courts have found a wide range of statements to satisfy the “in furtherance” requirement.
See, e.g., United States v. Herrero, 893 F.2d 1512, 1527-28 (7th Cir. 1990); Garlington v.
O'Leary, 879 F.2d 277, 283-84 (7th Cir. 1989). These include statements made: (1) to identify
other members of the conspiracy and their roles, United States v. Magee, 821 F.2d 234, 244 (Sth
Cir. 1987); United States v. Roldan-Zaoata, 916 F.2d 795, 803 (2d Cir. 1990); (2) to recruit
potential coconspirators, Shofjner, 826 F.2d at 628; (3) to control damage to an ongoing
conspiracy, United States v. Van Daal Wyk, 840 F.2d 494, 499 (7th Cir. 1988); (4) to keep

coconspirators advised as to the progress of the conspiracy, United States v. Potts, 840 F.2d 368,


There is also a line of cases involving long-lived criminal organizations in which
information about participants in a conspiracy and their respective roles furthers the conspiracy.
For example, in United States v. Russo, 302 F.3d 37 (2d Cir. 2002), cert. den., Hickey v. United
States, 537 U.S. 1112 (2003), a witness testified that he was told that the defendant on trial had
become a captain within an organized crime family and that the defendant’s son told him and
another individual that the codefendant was “with” the family. Jd. at 46. The Second Circuit
held that these statements were in furtherance of the conspiracy because they furthered.
maintenance of the syndicate by giving associated persons information about its membership. Jd.
at 47.

Concerning the present statement, I am inclined to prohibit its use as to Cozzo and
Shlifka. While it might be important for Dombrowski to know that Bigham, Cozzo and Shlifka
are key players in the conspiracy’s organization, such as in Russo, and while Bigham might have
intended to frighten Dombrowski and dissuade her from informing the authorities about the
scheme, such as in Westmoreland, neither of these classic scenarios seems to be the likely
explanation. Rather, the more likely explanation is that because Dombrowski was helping
Bigham recount the money he brought home each night before depositing a predetermined
amount in the various checking accounts of posts of the veterans groups, she needed to know that
there would be extra money left over after her counting. It appears that this extra money would
go straight to Bigham, and hence, that is why Dombrowski’s statement would be admissible
against him. But the statement as it pertains to Cozzo and Shlifka is nothing more than idle
chatter or past declarations. If Dombrowski was handling the skim for Cozzo and Shlifka as well

as for Bigham this conclusion would be different, but it appears she was only doing so for


Minute Order Formn (0697)

United States District Court, Northern District of Illinois

si Jud ‘9 Sitting Judge if Oth
singe Magistrate Judge James B. Zagel than Assigned Judge
CASE NUMBER 02 CR 400-1, 5 DATE 4/16/2004
CASE UNITED STATES vs. COZZO, ET AL
TITLE

[In the following box (2) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

() ao Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

@) o Answer brief to motion due___. Reply to answer brief due___

(4) a Ruling/Hearingon ss setfor_— at

(5) a Status hearing[held/continued to] [set for/re-set for]on__——ssetfor_— at

(6) a Pretrial conference[held/continued to] [set for/re-set for]on__—_—setfor_-at__

(7) imi Trial[set for/re-set for]on at

(8) oO [Bench/Jury trial] [Hearing] held/continued to at

(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) CLocal Rule 41.1 CFRCP41(a)(1) 0 FRCP41(a)(2).

(10) +4 [Other docket entry} Enter memorandum opinion and order motions in limine.

(11) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

ox | No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices

Mail AO 450 form,

Copy to judge/magistrate judge.

courtroom date mailed notice

DW deputy’s
initials

Date/time received in
central Clerk’s Office ailing deputy initials



Bigham. Accordingly, I prohibit the use of any statement by Dombrowski regarding Bigham
telling her that Cozzo and Shlifka were taking a piece of the proceeds absent any evidence that

Dombrowski was handling part of the skim for Cozzo and Shlifka.

Confrontation Clause Issues

Finally, Defendants have made a general objection to the use of surveillance tapes on the
grounds that their use violates the Confrontation Clause, citing Crawford v. Washington, 124
S.Ct. 1354 (2004). In Crawford, the Supreme Court held that the Sixth Amendment prevents the
admission of any “testimonial” out of court statements by an unavailable witness unless there
was a prior opportunity for cross-examination. However, Crawford does not alter the law
relative to “nontestimonial” out of court statements, such as coconspirator statements. Such
statements are not subject to the Confrontation Clause. Jd. at 1374. Accordingly, Crawford does
not provide a basis for excluding the surveillance tapes. See, e.g., United States v. Reyes, 2004

WL 613071, * 2 n. 4 (8th Cir. Mar 30, 2004).

ENTER:

— 0 Cy

Jamgs B. an
United States DistriétJudge

DATE: b Oph og


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v. No. 02 CR 400
Judge James B. Zagel
PHILLIP J. COZZO et al., &
Defendants.

MEMORANDUM OPINION AND ORDER

Defendants Phillip Cozzo and Frank Useni have made several evidentiary motions in
limine pertaining to the Government’s intended use of alleged coconspirator statements pursuant
to Federal Rule of Evidence 801(d)(2)(E). Rule 801(d)(2)(E) provides that a “statement” is not
hearsay if it is “offered against a party” and is a “statement by a coconspirator of a party during
the course and in furtherance of the conspiracy.” The admission of a coconspirator statement
against a defendant is proper where the government establishes by a preponderance of the
evidence that: (1) a conspiracy existed; (2) the defendant and the declarant were members of that
particular conspiracy; and (3) the statement was made during the course and in furtherance of the
conspiracy. See Bourjaily v. United States, 483 U.S. 171, 175 (1987); United States v. Haynie,
179 F.3d 1048, 1050 (7th Cir. 1999). I now address the Defendants’ objections to the use of
coconspirator statements. In doing so, I assume, arguendo, that all participants in these

conversations are coconspirators.

SO


Surveillance Tape No. 80

Defendants object to the use of a portion of a surveillance tape involving a conversation.
between testifying codefendant Rosario DiMarco and Cozzo on July 2, 1996.' Specifically,
Defendants object to the portion of the tape corresponding to the tape transcript from line 47,
page 1 to line 18, page 2. Defendants argue that even if the participants are discussing some
conspiracy, it is not clear that they are discussing the alleged conspiracy at issue here. See, e.g.,
United States v. Piper, 298 F.3d 47, 54-55 (1st Cir. 2002) (holding that district court erred in
admitting tape-recorded conversation between an alleged coconspirator and a third party because
the conversation was most accurately characterized as an attempt to persuade a third party to
purchase drugs from a source other than the defendant and, thus, the conversation was not in
furtherance of the charged conspiracy involving the coconspirator’s agreement to distribute drugs
supplied by defendant). Whether this is true depends on what DiMarco testifies to regarding the
conversation in court. If he testifies that they were discussing the present conspiracy, then the
portion is admissible. On the other hand, if he testifies that they were discussing a separate issue,

then the portion is not admissible. Accordingly, I reserve judgment on this objection until then.

Testimony of Donna Dombrowski

Defendants object to witness Donna Dombrowski testifying that unindicted and deceased
coconspirator Fred Bigham told her than he, codefendant William Shlifka, and Cozzo were
taking a piece of the proceeds from the operation of the Grand Palace Bingo Hall. While the

testimony regarding Bigham himself is admissible, it is questionable whether the testimony

' My presumption is that DiMarco will testify that Cozzo is the other person on the tape.

2