prior to the statutory period. See United States v. Giovanetti, 919 F.2d 1223, 1229 (7th Cir.
1990) (illegal gambling conspiracy operated from 1978 through 1987 and thus continued into
statutory period). Here, the government alleges that the illegal gambling operation began in 1992
and continued through at least 1999 and that defendants were architects of the operation. This
illegal gambling enterprise allegation certainly qualifies as a continuous offense for the purposes
of the statute of limitations, and therefore the statute of limitations does not bar prosecution.

Finally, I reject defendants’ argument against the mail fraud counts because, as the
government alleges and as defendant Cozzo’s own motion acknowledges, all the charged.
mailings occurred within five years of the indictment.

For the foregoing reasons, Defendant Cozzo’s Motion to Dismiss the Indictment is
DENIED.

ENTER:

Q — (5 Gayl

James }B. Zagel
United States District je

DATE: Ss 203


Here, the government claims that it will be able to establish that each of the defendants
was a member of the conspiracies and that the conspiracies continued well into the limitations
period. The government has alleged that the defendants were the architects of these conspiracies
from or near their beginning. If this is true, then they become criminally responsible not only for
the acts of the conspiracy in which they personally participated, but also for the all the acts of
their co-conspirators undertaken in furtherance of the conspiracy and reasonably foreseeable to
them. Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Doyle, 121 F.3d 1078,
1091 (7th Cir. 1997). Finally, the burden is on each defendant to show that he had withdrawn
from the conspiracy, and none has met this burden.’ See United States v. Hall, 212 F.3d 1016,
1022-23 (7th Cir. 2002); United States v. Pandiello, 184 F.3d 682, 687 (7th Cir. 1999) (“In
addition to the termination of the defendant’s active role in the conspiracy . . . withdrawal
requires an affirmative act to defeat or disavow the purpose of the conspiracy . . .”).

Count Two alleges that defendants violated 18 U.S.C. § 1955 by engaging in an illegal
gambling enterprise. Conducting an illegal gambling enterprise necessarily includes conspiring
to conduct an illegal gambling enterprise, and thus a § 1955 violation is also a continuing
offense. See United States v. Jeffers, 532 F.2d 1101, 1108-09 (7th Cir. 1976) (“[i]f it is proven
that a person managed, supervised or directed, along with five other people an illegal gambling
business, certainly, it has also been proven that he conspired to run an illegal gambling
business”). Accordingly, when a conspiracy to operate an illegal gambling business continues

into a statutory period, the statute of limitations does not bar prosecution of offenses committed

' Cozzo has not done so to the extent that he claims that his “role changed” in May 1996
and that his alleged activities in the day-to-day operation of the bingo hall ended almost six years
before the return of the indictment.


Mindte Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge James B. Zagel Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 02 CR 400 - 1 DATE 1/2/2003
CASE UNITED STATES vs. PHILLIP J. COZZO
TITLE
[In the following box (a) indicate the patty filing the motion, e.g. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. ]
DOCKET ENTRY:
(1) oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due _
@) oO Answer brief to motion due, . Reply to answer brief due. :
(4) Oo Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) oO Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CLERCP4(m) ClLocal Rule 41.1 CFRCP4i(a)(1) C1 FRCP41(a)(2).
ao [Other docket entry] | Motion (49-1) to dismiss is denied. Enter Memorandum Opinion and
Order.
(1) | | {For further detail see order attached to the original minute order. ]

No notices required, advised in open court

No notices required ec ot
number of notices

Notices mailed by judge’s staff.

Notified counsel by telephone

Y | Docketing to mail notices,

Mail AO 450 form.

EW Gepy initials

Copy to judge/magistrate judge.

courtroom G= NUP EL ate mailed notice
Dw deputy’s
initials

Date/tin{eréceiyed in! |
central Clerk’s Office

naling deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
v. No. 02 CR 400 — |
Judge James B. Zagel
PEULLIP J. COZZO et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Defendant Cozzo has moved to dismiss the indictment on the ground that all of the
offenses for which he is charged were completed outside the limitations period thus requiring
dismissal. Defendants Shlifka, Useni, and Trombetta adopt his motion but offer no additional
briefing. The government maintains that defendants’ legal responsibility continued well into the
statutory period from their own direct conduct, their receipt of illegal proceeds provided to them
by other defendants, their involvement in the conspiracy or scheme from which they did not
withdraw, and/or from conduct of others attributable to them because it was done in furtherance
of the conspiracy of which they were a member and from which they did not withdraw.

Under 18 U.S.C. § 3282, an indictment for a non-capital offense must be brought within
five years “after such offense shall have been committed.” An offense is “committed” for
purposes of § 3283 when it is “completed . . . , that is, when each element of that offense has
occurred.” United States v. Yashar, 166 F.3d 873, 875 (7th Cir. 1999). Defendants claim that
this statute and United States v. Anderson, 188 F.3d 886 (7th Cir. 1999), necessitate dismissal of
the indictment because the offenses for which they have been charged were all completed outside

the limitations period. Defendants fail to acknowledge the exception for “continuing offenses.”

Go


Toussie v. United States, 397 U.S. 112, 114 (1970). Under the “continuing offense doctrine,” if
the offense is continuous, then the practical effect of its on-going nature is to extend the statute
“beyond its stated term.” Jd.

Unlike the indictment in Anderson, the one here specifically charges the defendants with
multiple conspiracies that lasted several years. Count One alleges RICO conspiracy; Count Ten
alleges money laundering conspiracy; and Count Twenty-Five alleges a “Klein conspiracy.” It is
well-established that a conspiracy is a continuing offense. Yashar, 166 F.3d at 875 (“[t}he classic
example of a continuing offense is a conspiracy”). As such an offense, a conspiracy continues
for statute-of-limitation purposes so long as any action is taken in furtherance of the conspiracy.
See United States v. Vivit, 214 F.3d 908, 918 (7th Cir. 2000). The duration of a conspiracy
depends on the scope of the agreement between its members, and the government is not required
to prove any overt acts with regard to a particular defendant within the limitations period, but
only that the conspiracy existed into the limitations period and that the defendants did not
withdraw before that period. Grunewald v. United States, 353 U.S. 391, 396-97 (1957); United
States v. Curry, 977 F.2d 1042, 1058 (7th Cir. 1992). In extensive conspiracies such as those
charged in this case, it is immaterial that each co-conspirator did not participate in all the
activities or even know all the details of each conspiracy so long as “the results fall within the
common purposes of the conspiracy,” and the conspirators “knowingly contributed towards its
furtherance.” United States v. Fitzgerald, 579 F.2d 1014, 1018-19 (7th Cir. 1978) (prosecution
of defendants not barred by statute of limitations even though they ceased active participation in

the conspiracy in the seven years before the indictment).