(1993). Ihave found that less drastic measures than severance suffice to cure any risk of

prejudice. Moreover, I have found that defendants claiming to be the least culpable or culpable

to a lesser degree than their co-defendants often fare better in joint, rather than separate trials.
For the aforementioned reasons, Cozzo, Shlifka, and Useni’s Joint Motion to Sever is

DENIED.

ENTER:

\ Ba

James B. Zagel ¢ 5
United States District Fidge
DATE: _0 2 Ne 2003


out a valid claim for severance. Fed.R.Crim.P. 8(b) permits the government to charge two or
more defendants in the same indictment “if they are alleged to have participated in the same acts
or transactions or in the same series of acts or transactions constituting an offense or offenses,”
and in determining whether there is misjoinder, a court must look to the face of the indictment.
United States v. Velasquez, 772 F.2d 1348, 1354 (7th Cir. 1985). Here, even if Cozzo, Shlifka
and Useni show that their conduct constituted a separate illegal gambling, money laundering, tax
fraud, and RICO conspiracy than the one involving the remaining defendants, both conspiracies
stem from all of the defendants’ involvement with the Grand Palace Bingo Hall, the Italian
American War Veterans of the United States, the Grand Palace, Inc., and Bingo Partners, Inc.
Therefore, both conspiracies would still be part of the same series of acts or transactions and thus
properly joined.

Regarding the other purported reasons for severance, I find them equally unpersuasive.
Fed.R.Crim.P. 14 permits severance, even where joinder is proper, if prejudice would result from
joinder. Demonstrating prejudice is difficult for defendants to do because they “must overcome
the dual presumptions that a jury will capably sort through the evidence and will follow limiting
instructions from the court to consider each count separately.” United States v. Turner, 93 F.3d
276, 284 (7th Cir. 1996). Here, the defendants have failed to show that they will be unable to
obtain a fair trial without severance. They have failed to support their assumption that the jury
will be unable to compartmentalize the evidence or to follow limiting instructions such that
joinder would “compromise a specific trial right” or would “prevent the jury from making a

reliable judgment about guilt or innocence.” See Zafiro v. United States, 506 U.S. 534, 539

to receive money from the enterprise well into 1997.

3



Minute Order Form (05/97)

United States District Court, Northern District of Iinois

Name of Assigned Judge James B. Zagel Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 CR 400 - 1, 2,5 DATE 1/2/2003
CASE UNITED STATES vs. PHILLIP J. COZZO.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.¢., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented. ]

MOTION:

DOCKET ENTRY:

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

(2) a Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer briefdue__

(4) Oo Ruling/Hearing on set for at

(5) go Status hearing[held/continued to] [set for/re-set for] on setfor at.

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__set for at_

(o) dg Trial[set for/re-set for]on at

3) O [Bench/Jury trial] [Hearing] held/contined to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) (Local Rule 41.1 OO FRCP41(a)(1) 0 FRCP41(a)(2).

ao 4 [Other docket entry} Motion (63-1) to sever is denied. Enter Memorandum Opinion and
Order.

a1) ff [For further detail see order attached to the original minute order. ]

No notices required, advised in open court.
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
deputy’s
initials

DW

number of notices

Dateffimé'receivedin |! ah

cehtat Clerk's Office

JAN 7 - 2

dave mtiled notice

railing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
v. No. 02 CR 400 +1, 2, $7
Judge James B. Zagel
PHILLIP J. COZZO et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

The United States has charged ten defendants with violating 18 U.S.C. § 371, 1341, 1955,
1956(a)(1)(B)(h), 1956(d) and 2, and 26 U.S.C. § 7206(1). The forty-count indictment alleges
that beginning about January 1992 and continuing to at least November 1999, an enterprise
consisting of all the named defendants existed primarily to “generate income for its members
through illegal activities” and to “cover up and conceal evidence of the enterprise’s involvement
in illegal activities.” The alleged activities included; “(1) operating an illegal gambling business;
(2) devising a scheme to defraud and to obtain money and property by means of false and
fraudulent representations through the use of the mails; (3) conducting financial transactions to
launder money; (4) using threats, violence and intimidation to discourage witnesses; and (5)
tampering witnesses to the enterprise’s illegal activities.”

Defendants Cozzo, Shlifka, and Useni have jointly moved to sever pursuant to
Fed.R.Crim.P. 14 for the following reasons: (1) Shlifka had no relationship with the remaining
seven defendants and was not part of any conspiracy whatsoever; (2) Cozzo and Useni had only a
buyer-seller relationship with the remaining defendants and therefore, as a matter of law, were

not members of the same continuing criminal conspiracy; (3) assuming that Cozzo, Shlifka and


Useni were members of an alleged conspiracy it was distinct and separate from any conspiracy
involving the remaining defendants; (4) further, assuming that Cozzo, Shlifka and Useni were
members of a conspiracy with the remaining defendants, the video surveillance recordings the
government will introduce at trial contain numerous potential admissions by those remaining
defendants, which are both highly prejudicial and inadmissible as to Cozzo, Shlifka and Useni
because they do not satisfy the “in furtherance” requirement of the Fed.R.Evid. 801(d)(2)(E)
coconspirator exception to hearsay evidence; and (5) the evidence the government will introduce
at a joint trial is overwhelmingly against the remaining defendants and not against Cozzo, Shlifka
and Useni.

I reject severance on the purported factual reasons that Shlifka had no relationship with
the remaining seven defendants and was not part of any conspiracy whatsoever, that Cozzo and
Useni had only a buyer-seller relationship with the remaining defendants, or alternatively that
Cozzo, Shlifka and Useni were members of their own distinct and separate conspiracy from that
involving the remaining defendants. Obviously, the government disagrees with these assertions.
Even if it failed to address these assertions in its response to the motion, this failure is
inconsequential because the complaint clearly outlines the defendants’ respective roles in the

alleged enterprise.’ Moreover, even if these assertions are true, defendants have still not made

' Cozzo is alleged to have served as the day-to-day manager of the Bingo Hall and to
have continued to have received money from the enterprise well into 1997. Shlifka is alleged to
have established the enterprise’s plan to use the Italian American War Veterans of the United
States, Inc. posts as fronts for and the main victims of the criminal activity of the enterprise’s
conspiracy, a concept which continued throughout the conspiracy, and to have functioned as a
supervisor of the workers in the day-to-day operations of the enterprise at the Bingo Hall. Useni
is alleged to have assisted with the running of the gambling games at the Bingo Hall, to have
received stock in The Grand Palace, Inc., to have participated in the day-to-day operations by
directing the activities of the workers of the enterprise at the Bingo Hall, and to have continued

2