## In the 

# United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-2151, 04-2253

U NITED S TATES OFAMERICA

, Plaintiff-Appellee

,

v.

P ETERR. M ACARI and A LBINC. B RENKUS

, Defendants-Appellants.

____________ Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 1061— Suzanne B. Conlon

, Judge

.

____________ ARGUED A PRIL14, 2005—D ECIDED J ULY 14, 2006

____________

Before C OFFEY

, R IPPLE , and K ANNE

, Circuit Judges

. C OFFEY

, Circuit Judge . On November 6, 2003, a federal grand jury returned a fourteen-count indictment against Albin Brenkus, Peter Macari, and seven other members (or prospective members) of a Chicago projectionist union, known as Local 110, on charges of arson and, in Brenkus’s case, obstruction of justice. A jury acquitted Brenkus ofthe arson-related charges but convicted him of obstruction of justice, and he was sentenced to a term of seventyeight months. On appeal, Brenkus challenges the sufficiency of the evidence presented on his 18 U.S.C. § 1503 obstruction of justice conviction as well as the district2 Nos. 04-2151, 04-2253

1 Initially, Brenkus also challenged his sentence as violative
of Blakely v. Washington , 542 U.S. 296 (2004), and as miscalculated under the Guidelines; however, on February 7, 2005, after the Supreme Court announced its decision in United States v.
Booker , 543 U.S. 220 (2005), Brenkus withdrew his Sixth Amendment challenge to his sentence in his supplemental brief, stating: “Brenkus waives any right he may have to resentencing under the Supreme Court’s decision in Booker , and hereby waives his challenge to his sentence.” Thus, this issue is no longer before this

court. court’s jury instructions on the obstruction of justice count. 1 We affirm the judgment of the district court as it relates to
Brenkus.

Prior to trial, Macari pled guilty to one count of conspiracy to promote arson in interstate travel and one count of aiding and abetting arson and was sentenced to a term of forty-six months. Thirty-six months of Macari’s sentence were to be served concurrentlywith a ten-year Illinois state sentence he was presently serving on a related, attempted first degree murder charge, and the remaining ten months
of his federal sentence were to be served consecutive to his state sentence. Macari appeals only the ten-month portion
of his federal sentence that he was ordered to serve consecutive to his state sentence.

Because we are unable to ascertain from the record
whether the district court would have imposed the same sentence on Macari under an advisory guideline scheme, we order a limited remand, with respect only to the question of
whether his ten-month consecutive sentence is in accordance with the procedures outlined in United States v.
Paladino , 401 F.3d 471 (7th Cir. 2005).Nos. 04-2151, 04-2253 3

2 In the mid-1990’s, Local 110 had entered into a collective bargaining agreement with AMC, but sometime prior to 1998, AMC sold all of its Chicago theate rs and its contract with Local 110 expired. In 1998, AMC re-entered the Chicago theater market, and Local 110 attempted to rekindle its relationship with AMC. Unfortunately for the members of Local 110, AMC failed to respond to any advancements by Local 110, making clear that it had no intention of re-entering into any collective bargaining agreement with Local 110. AMC’s presence in the Chicago suburbs caused a problem for Local 110 not only because AMC refused to hire its members, but also because AMC’s actions inspired Sony/Loews to question whether it should renew its own
contract with Local 110. I. Background

A. Incendiary Attacks

In 1998, the Motion Picture Projectionists, Operators, and Video Technicians, Local 110 of the International Alliance of Theatrical Stage Employees of the United States andCanada, AFL-CIO (“Local 110”), was comprised of approximately 350 members. From late 1997 through 2001, Brenkus was the secretary-treasurer of Local 110 and served as Local 110’s second-in-command, and his duties included the negotiation and renegotiation of collective bargaining agreements between Local 110 and various theater companies.

In 1998, Local 110 faced two major problems. AMC Entertainment, Inc. (“AMC”), a Chicago area theater company, refused to enter into a collective bargaining agreement with Local 110. 2 Also, Local 110’s contracts with two other Chicagoland theater companies—Loews Theaters Exhibition Group (“Sony/Loews”) and Cineplex Odeon Corporation (“Cineplex”)—were about to expire, and if new contracts could not be negoti ated, the union was fearful other jobs would be lost. To induce the theater companies to renew or enter into agreements, Brenkus and other mem-4 Nos. 04-2151, 04-2253

3 The incendiary devices used by Local 110 members consisted of
a combination of chlorine tablets and brake fluid. The resulting mixture often produced smoke with a strong chlorine smell and visible flames. An important fe ature of the incendiary devices was the delay between combining the ingredients and any noticeable production of smoke and smell. The time delay allowed members of Local 110 to place a device in a darkened auditorium and exit several minutes before patrons and theater employees
realized the vandalism had occurred. bers of Local 110 began a coordinated campaign to put pressure on the theater companies. Initially, the campaign involved a public relations effort, including the advertising of the labor conflict through the picketing of theaters; however, after this proved unsuccessful, the campaign evolved into acts of vandalism on the part of the union designed to cause economic harm.

In February of 1998, Brenkus discussed the concept of the use of an incendiary device to Kent Dickinson, a Local 110 projectionist and fellow union negotiating committee
member. 3 According to Dickinson, Brenkus planned to use the apparatuses in the two Chicago area AMC theaters in hope of conveying a clear message to AMC. Dickinson asked Carl Covelli, another Local 110 member, to enlist two non-union members (referred to at trial only as “Covelli’s boys”) to assist Dickinson. On the evening of March 29, 1998, Dickinson planted two incendiary devices at an AMCtheater in Warrenville, Illinois, while Covelli’s boys conducted a simultaneous strike in Barrington, Illinois. The media uncovered the motive for this felonious conduct, and these tactics generated a large amount of negative publicity against Local 110. Thus, shortly after the publicity relating to these two incidents, Brenkus ordered Dickinson to cease incendiary operations in the Chicago area.

According to Dickinson, in order to pressure Loews to renegotiate a contract with Local 110, Brenkus decided thatNos. 04-2151, 04-2253 5

4 First-run theaters show only newly released films. more acts of vandalism were necessary. However, to avoid the negative publicity that re sulted from the prior attacks,
Brenkus ordered new acts of intimidation and violence to occur outside of the Chicago area. On June 7, 1998, Dickinson and another Local 110 member, Peter Lipa, traveled to Indianapolis, Indiana, where Dickinson placed incendiary instruments in two Loews theaters. Then, on July 24, 1998, Local 110 members Joseph Marjan and Gregory Tortorello, Jr. set off smoke producing flares in a Loews theater in Streamwood, Illinois, and on August 2, 1998, Dickinson and Marjan discharged incendiary devices in a Loews theater in Beavercreek, Ohio.

After the Ohio incident, Brenkus expressed his dissatisfaction with the lack of success with the intimidation tactics, noting that they were not having the desired effect as Loews continued to refuse to negotiate a new contract with the Local. Despite his complaints about the lack of success of their approach, Brenkus instructed Dickinson to set off an incendiary gadget at Loews’ flagship theater in New York, New York, in August of 1998. Shortly after this episode, Loews decided to resume contract negotiations with Local 110. However, Loews delayed signing the new contract, and, as a result, Brenkus instructed Dickinson to execute another incursion against Loews. On October 3, 1998, Dickinson and Marjan discharged an incendiary device in two Loews theaters in Secaucus, New Jersey, and, shortly thereafter on October 27, 1998, Loews entered into a collective bargaining agreement with Local 110.

In late 1998, a fourth theater company, Cinemark, U.S.A., Inc. (“Cinemark”), entered Chicago’s first-run theater market, 4and Local 110 sent letters of introduction to Cinemark management in an effort to initiate contract negotiations. Despite repeatedrequests, Cinemark refused6 Nos. 04-2151, 04-2253

to negotiate with Local 110. Thus, in order to induce negotiations, and encouraged by the perceived capitulation of Loews, Local 110 members began targeting Cinemark.On November 14, 1998, Marjan planted incendiary instruments in a Cinemark theater in North Aurora, Illinois, and, on December 5, 1998, he placed incendiary devices in a Cinemark theater in Joliet, Illinois. On February 27, 1999, Dickinson and Marjan set off an incendiary invention in a Cinemark theater in North Canton, Ohio, and on April 3, 1999, they struck two other Cinemark theaters in Lexington, Kentucky. On May 15, 1999, Dickinson, Marjan, and Michael Rossi, another one of “Covelli’s boys” who did not belong to Local 110 at the time but hoped to “earn” or gain his way in, placed incendiary devices in two Cinemark theaters in Dallas, Texas, and in two theaters near Cinemark’s headquarters in Plano, Texas.

After waiting several weeks without a response from Cinemark, on June 6, 1999, Dickinson and Marjan struck a Cinemark theater in Mishawaka, Indiana, and on June 27, 1999, they struck another Cinemark theater in Kenosha, Wisconsin. On July 10, 1999, Dickinson traveled alone to Ames, Iowa, to carry out yet another strike on a Cinemark theater, and a final assault occurred on August 20, 1999, against one of their theaters in Merriam, Kansas. After the Kansas trip, Dickinson informed Brenkus that he and Marjan would no longer participate in the planting of any more incendiary apparatuses, and Brenkus agreed, instructing Dickinson to stop the offensive due to increased investigatory “heat.”

B. Assault of Theater Manager Leyland

According to the witnesses, in addition to the plan ofintimidation through the use of incendiary devices, throughout the summer of 1999, members of Local 110 picketed in front of non-union theaters, including a Cinemark theaterNos. 04-2151, 04-2253 7

5 Macari testified that “the boss” was Brenkus.

6 At sentencing, the parties stipul ated that Leyland suffered lifethreatening or permanent injuries within the meaning of Guideline § 2A2.2., and that a baseball bat was used in the assault. in Melrose Park, Illinois. Ci nemark’s corporate headquarters instructed Jeffrey Leyland, the Melrose Park Cinemark theater manager at the time, to photograph the union picketers. According to Covelli, in response to Leyland’s actions, Brenkus began taking pictures of Leyland and asked Covelli if he “could get somebody to slap [Leyland] around.” Covelli contacted his brother, Louis, and Louis contacted a Peter Macari, who, at the time, was training to become a union projectionist. In July or August of 1999, Louis and Carl Covelli met with Macari. At that meeting
Carl Covelli informed him that before he could start working as a union projectionist, “the boss” needed him to “send a message to [Leyland]” by “giving him a beating.” 5 After mulling the matter over for a week, Macari agreed to fulfill or participate in the requested assault in exchange for a promise of employment with the union.

On the morning of August 18, 1999, Macari ambushed Leyland outside of his home in Elmhurst, Illinois, and struck him “three times” with a baseball bat, including once in the head. As a result of the beating, Leyland suffered multiple skull fractures, a br oken arm, and broken fingers. 6 On August 20, 1999, Brenkus personally thanked Macari and remarked, “I think [Leyland] got the message. I’m going to recommend that you start working probably starting the following week.” Despite this assurance, Macari never did work as a union projectionist for the Illinois State Police and the FBI began investigating his participation in the Leyland assault resulting in his arrest on June 13, 2003. After his arrest, he received $5,000 from Local 110 to retain counsel. On June 16, 2003, Macari pled guilty to an Illinois8 Nos. 04-2151, 04-2253

state charge of attempted first degree murder and was sentenced to ten years’ imprisonment.

C. Investigation

James Grady, a special agent with the Bureau of Alcohol, Tobacco, and Firearms (“ATF”), began investigating Local 110 in 1998 for an unrelated incendiary gadget incident but the initial investigation went stale shortly after the case was opened. He did not pursue Local 110 again until early 2003 when he interviewed GregoryTortorello about the incendiary attacks against the theaters. Although he noted that he was not personallyinvolved with the theater probe until 2003, Grady testified during Brenkus’s trial that “other federal agencies” had been conducting investigatio ns into the incidents between
“2001 and 2003.”

Special agent John Mallul of the Federal Bureau of Investigation (“FBI”) began looking into Local 110 in 2001. He was involved in a proffer session with Dickinson in September of 2002, and on November 19, 2002, he acquired evidence from the Warrenville Police Department regarding property vandalism to the AMC theater in Warrenville, Illinois, that occurred in March of 1998. By 2003, there was a grand jury investigation into Local 110’s role in the theater attacks that had been “ongoing” and that the FBI’s investigation resulted inthe grand jury’s indictment of Local 110 members on arson and obstruction of justice charges. Special agent John Malooly of the ATF likewise testified that the FBI had been investigating the use of incendiary devices as far back as 2001. He noted that on October 9, 2001, FBI chemist Ronald Kelly prepared a report concerning the chemical properties of the incendiarydevices used by Local 110 members for use in the investigation.

Jody Colangelo, Local 110’s office manager from 1995 through June of 2000, verified that in August of 1999, LocalNos. 04-2151, 04-2253 9

7 The “grand jury” that Marjan referred to in his testimony was the Special February 2002-2 Grand Jury, convened in February of 2002, that indicted Brenkus and other Local 110
members.

8 According to Marjan, his tape recorded conversation with Dickinson gave the government “a lot of evidence about what Kent (continued...) 110 received a subpoena from the FBI requesting Local 110’s “records, lists of names, phone numbers, rosters, [and] things of that nature.” The subpoena was issued under the name of the SPECIAL JANUARY 1999-1 Grand Jury (“1999 Special Grand Jury subpoena”). Colangelo stated that when she received the 1999 Special Grand Jury subpoena, she made two copies and provided one copy to Steve Spano, the president of Local 110, and the other copy to Brenkus. According to Colangelo, after she gave copies to Spano and Brenkus, she met with them to discuss the items ordered to be turned over in compliance with the subpoena.

Joseph Marjan disclosed that in March of 2001, FBI agents contacted him and requested his cooperation with the investigation into Local 110’s acts of vandalism on theaters. Marjan agreed to assist and cooperate with the FBI and he proceeded to meet with FBI agents more than twenty times from March 2001 until “about the grand jury.” 7He also revealed that, around the same time he began cooperating with the FBI, he met with assistant United States attorneys from the Northern District of
Illinois to discuss Local 110’s activities in 1998 and 1999.

At the request of FBI agents, Marjan agreed to record his
conversations with union members believed to be involved in the incendiary scheme, including Dickinson and Brenkus. On June 5, 2001, Marjan recorded a conversation withDickinson, at which time Dickinson admitted his involvement in several of the crimes. 8Then, on October 22, 2001,10 Nos. 04-2151, 04-2253

8 (...continued) Dickinson did and said and knew” regarding the scope of Local 110’s incendiary activities.

9 The exact transcription of the audiotape is disputed by the parties. The parties provided se parate transcripts of the recorded conversation at trial. However, due to the inconsistencies found in the submitted transcripts, only the actual audiotape of
the recorded conversation was adm itted into evidence and not the transcripts. According to Marj an and the government, during their conversation Brenkus said, “I think you should say you don’t know nothing,” and “just play stupid.” Brenkus argues that in the recording you only hear Brenkus state to Marjan, “[Y]ou don’t know nothing,” and that Brenkus never preceded this phrase with “I think you should say,” nor did he tell Marjan to “just play stupid.” According to Marjan, th e difficulty in deciphering the audiotape is due to the fact that the utility room in which he and Brenkus talked contained equipment that exuded “a loud exhaust
sound.” Marjan recorded a conversation between he and Brenkus after a Local 110 meeting at the union’s headquarters in Chicago. According to Marjan, after the meeting they retreated to a utility room in the building to discuss the incendiary attacks. During this conversation, Marjan told Brenkus that Scott Fagan, another union projectionist, had revealed to him that “Covelli was involved in the grand jury and . . . you know, he’s the second person this month.” Marjan then asked Brenkus, “[S]hould I be scared?” Marjan understood Brenkus’s response and direction to be “if anyone came to me [Marjan] , any law enforcement comes to me tell them that I don’t know nothing” and to deny any knowledge of any illegal activities conducted by Local 110. 9 Marjan and Brenkus also discussed Rossi’s training as a projectionist. Marjan testified that Brenkus told him that
if “law enforcement” ever aske d him whether he had trained Rossi, he was to deny it.Nos. 04-2151, 04-2253 11

10 It is unclear from the trial testimony to whom Dickinson was referring when he said that he met with “the government.” However, it is clear from the following exchange that he was not referring to the FBI:

Q: Now, this wasn’t the first time that you sat and met with the government and [FBI] agents and told them about these activities, was it? You met with them earlier, isn’t
that true?

A: I’m going to say yes because you said earlier that [that] was my second [meeting.]

Q: In fact, you met with them November 21st of 2001.

A: Okay, that would be the first visit, okay.

Q: Maybe I can help you. The FBI visited with you in
October of 2001?

A: Right. Correct.

Q: And then the next month you met with the government,
correct?

A: Correct.

Q: And you had a lengthy discussion with them on that date, correct?

A: Yes. On October 27, 2001, a few da ys after Marjan’s recorded conversation with Brenkus, FBI agents served Dickinson with a subpoena to appear before the grand jury then sitting. The following day, Dickinson met with Brenkus to discuss his subpoena and visit from the FBI. According to Dickinson’s trial testimony, Brenkus said that he alsoreceived a grand jury subpoena. The next month, in November of 2001, Dickinson met with government representatives to discuss his involvement in the incendiary attacks. 10 From November of 2001 until May 23, 2002—the date Dickinson testified before the February 2002-2 Special Grand Jury that indicted Brenkus— Dickinson participated12 Nos. 04-2151, 04-2253

11 Brenkus’s proposed instruction was modeled after a Seventh Circuit Pattern Criminal Federal Jury Instruction for a § 1503 obstruction of justice charg e—Influencing or Injuring a Witness—which states, in relevant part:

To sustain the charge of obstruction of justice, the government must prove the following propositions:

First, that (name) was a witness;

Second, that the defendant ende avored to [influence, intimidate, impede] (name) by (here insert act as described in the (continued...)in “several” meetings with both the FBI and other unidentified government officials, providing them with detailed information about the incendiary attacks.

D. Brenkus’s Trial and Sentencing

On November 6, 2003, a federal grand jury returned a fourteen-count indictment against Brenkus, charging him with thirteen counts of arson-related offenses (Counts 1 through 13), stemming from the use of incendiary devices in theaters, and one count of obstruction of justice in violation of 18 U.S.C. § 1503 (Count 14), based on Brenkus’s recorded statements to Marjan. Brenkus pled not guilty to all charges, and his case was tried before a jury beginning on March 1, 2004.

At the close of the evidence offered at trial, Brenkus proffered a set of proposed jury instructions to the district court on Count 14. Specifically, Brenkus requested that thejury be instructed that in order to find him guilty of obstruction of justice based on his statements to Marjan, they had to find that Marjan “was a [grand jury] witness” and that Brenkus “endeavored to influence, intimidate, and impede Joseph Marjan by advising him to lie on account of his being a witness.” 11 The district court reNos. 04-2151, 04-2253 13

11 (...continued) indictment) on account of his being a witness;

Third, that the defendant acted knowingly; and

Fourth, that the defendant’s acts were done corruptly, that is, with the purpose of wrongfullyimpeding the due administration of justice.

12 The term “catch-all” is referenced in the Seventh Circuit’s form jury instructions. “This instruct ion is for use when the omnibus, or catch-all, provision of Sectio n 1503 is used.” 2A Kevin O’Malley, et al., Federal Jury Practice & Instructions § 48.03 (5th ed. 2000), notes, Seventh Circuit, committee comment. See also United States v. Aguilar , 515 U.S. 593, 598 (1995). jected Brenkus’s proposed instruction on Count 14, noting that influencing an actual witness is but one way to prove obstruction of justice. Instead, the district court followed the general, “catch-all” 12 Seventh Circuit Pattern Criminal Jury Instruction for obstruction of justice and instructed the jury as follows:

To sustain the charge of obstruction of justice, the government must prove the following propositions:

First, that the defendant endeavored to influence, obstruct, and impede the due administration of justiceby directing and advising Joseph Marjan that in response to any inquiries in a federal grand jury investigation

(a) Marjan should state that he “don’t know nobody,” and that he “don’t know nothin,”

(b) Marjan should further respond to any such inquiries by stating, “I don’t know what you’re talking about,”

(c) In response to any inquiries regarding the projectionist training provided by Marjan and others to Michael Rossi, Marjan should state that he “didn’t try to train nobody.”14 Nos. 04-2151, 04-2253

Second, that the defendant acted knowingly; and

Third, that the defendant’s acts were done corruptly, that is, with the purpose of wrongfully impeding the due administration of justice.

If you find from your consideration of all the evidencethat each of these propositions has been proven beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you must find the defendant not guilty.

The jury acquitted Brenkus of the arson-related charges (Counts 1 through 13) but found him guilty of obstruction of justice.

On May 1, 2004, the district court conducted Brenkus’s sentencing hearing. Based on the testimony of Leyland, Covelli, and Macari, the trial judge enhanced Brenkus’s base offense level for obstruction of justice from twelve to twenty-six and sentenced him to a prison term of seventy-eight months, the maximum term allowed under the Guidelines for a person without a criminal history and consisted of an offense level of twenty-six.

E. Macari’s Sentence

The grand jury indictment of November 6, 2003, also charged Macari with three counts of arson, including one count of conspiracy to travel interstate to promote arson in violation of 18 U.S.C. § 371 (Count 2) and two counts of aiding and abetting travel in interstate commerce to promote arson in violation of 18 U.S.C. § 1952(a)(3) (CountsNos. 04-2151, 04-2253 15

13 Covelli, Dickinson, Lipa, Marjan, Rossi and Tortorello were also named in the November 6, 2003, indictment and were charged
with various arson-related crimes. Covelli, Dickinson, Marjan and Rossi all either pled guilty to their respective charges or the government voluntarily dism issed their charges. Lipa and Tortorello pled not guilty, were tried in the same trial as Brenkus, and were eventually acquitted of all charges against
them. 10 and 13). 13 On February 9, 2004, Macari pled guilty, without entering into a plea agreement, to Counts 2 and 13,and the district court, on the government’s motion, dismissed Count 10. The district court sentenced Macari to a prison term of thirty-six months on Count 2, to be served concurrently with his ten-year Illinois state prison sentence for the attempted first degree murder of Leyland, and a term of ten months imprisonment on Count 13, to be served consecutive to his Illinois state prison sentence. Macari appeals only the ten-month consecutive prison sentence.

II. Analysis

On appeal, Brenkus contends th at the district court erred in denying his motion for judgment of acquittal arguing that the government failed to establish either that there was a “pending judicial proceeding” at the time of Brenkus’s alleged obstruction or that Brenkus “corruptly intended” toinfluence that judicial proceeding as required for a conviction under 18 U.S.C. § 1503. He also claims that the district court erred when it refused to accept his proposed jury instruction on his theory of the obstruction count and failed

to sua sponte provide limiting instructions to the jury regarding Marjan’s recorded statements to Brenkus. Brenkus did not request these limiting instructions at trial.

The only issue raised by Macari on appeal is whether the trial judge abused her discretion when she sentenced him to16 Nos. 04-2151, 04-2253

a ten-month federal prison sentence to be served consecutive to his ten-year Illinois state prison sentence.

A. Defendant Brenkus

1. Sufficiency of the Evidence

We review de novo the district court’s decision to deny a motion for judgment of acquittal. United States v. Jones

, 222 F.3d 349, 351-52 (7th Cir. 2000). In reviewing a jury conviction for sufficiency of the evidence, we consider the evidence in the light most favorable to the prosecution, drawing all reasonable inferences in the government’s
favor. United States v. Paneras , 222 F.3d 406, 410 (7th Cir. 2000). Reversal is appropriate only when, after viewing the evidence in such a manner, no rational jury “could have
found the defendant to have committed the essential
elements of the crime.” Id. (quoting United States v. Masten

, 170 F.3d 790, 794 (7th Cir. 1999)). Thus, we will overturn the jury’s verdict “ ‘only if the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.’ ” United States v.
Fassnacht , 332 F.3d 440, 447 (7th Cir. 2003) (quoting
United States v. Granados , 142 F.3d 1016, 1019 (7th Cir. 1998)).

Brenkus was convicted of obstruction of justice for violating the “Omnibus Clause,” or “catch-all provision,” of 18 U.S.C. § 1503 charging that he directed and advised Joseph Marjan to lie in response to inquiries in the grand jury investigation of Local 110’s criminal activities. The“Omnibus Clause” of § 1503 makes it a crime to “corruptly . . . endeavor[ ] to influence, obstruct, or impede, the due administration of justice.” 18 U.S.C. § 1503. “[T]he due administration of justice,” as that phrase is used in the statute, includes pending judicial proceedings. United States v. Aguilar , 515 U.S. 593, 599 (1995); Fassnacht , 332Nos. 04-2151, 04-2253 17

F.3d at 447. Accordingly, to prove an obstruction of justice charge under § 1503, the government must demonstrate “that there was a pending judicial proceeding, that the defendant was aware of that proceeding, and thatthe defendant corruptly intended to impede the administration of that judicial proceeding.” Fassnacht , 332 F.3d at 447. Brenkus asserts that the government failed to establish there was a pending judicial proceeding because it failed to prove that a grand jury had been impaneled at the time ofBrenkus’s alleged act of obstruction of justice, and, furthermore, that even if the government had produced sufficient evidence to establish that a grand jury was sitting at the time of Brenkus’s obstruction, it failed to establish that Brenkus corruptly intended to influence the grand jury.

It is well established that a grand jury investigation constitutes a pending judicial proceeding for purposes of § 1503. Id. at 448. However, a government agency’s investigation—such as the FBI’s—that is separate and apart from the court’s or the grand jury’s authority does not constitute a “judicial proceeding.” Id. (citing Aguilar , 515 U.S. at 599). In order to establish that an FBI investigation constituted a “judicial proceeding” for purposes of § 1503, the government must establish that the FBI, at the time in question, was acting as an aid to and as an “arm of the grand jury” when it conducted its investigation , i.e ., that it undertook the investigation to supply information to the grand jury on this issue in direct support of a grand jury investigation. Id. at 449. To establish that the FBI was acting as an arm of the grand jury, the government must demonstrate that the FBI agents were “integrally involved” in the grand jury investigation, Fassnacht , 332 F.3d at 449 (quoting United States v. Furkin , 119 F.3d 1276, 1282-83 (7th Cir. 1997)), and that the FBI’s investigation of Local
110’s activities was “undertaken with the intention of presenting evidence before [the] grand jury,” United States v. Maloney , 71 F.3d 645, 657 (7th Cir. 1995) (citing United
States v. McComb , 744 F.2d 555, 561 (7th Cir. 1984)).18 Nos. 04-2151, 04-2253

14 Although the FBI delivered the subpoena, it was issued under the name of the SPECIAL JANUARY 1999-1 Grand Jury. The testimony of a number of witnesses at trial supports the finding that between August of 1999 and November of 2003 (when the indictment was returned against Brenkus and other members of Local 110), the FBI was gathering and presenting evidence sporadically to a grand jury investigating Local 110’s criminal activities. Based upon the testimony of Jody Colangelo, Local 110’s office manager from 1995 through June of 2000, the jury could very well have reasoned that a grand jury investigation into Local 110 began as early as August of 1999, when the FBI served Local 110 with a grand jury subpoena requesting its “records, lists of names, phone numbers, rosters, [and] things of that nature.” 14Colangelo testified that after receiving the subpoena, she prov ided copies of it to Spano
and Brenkus and then met with the two of them to discuss how to respond. Additionally, Dickinson testified that in September of 1999, he informed Brenkus that he and Marjan would not participate in any future attacks because they “were just worn out.” In response, Brenkus agreed that the attacks should cease due to increased investigatory “heat” and that they should “just stop everything.” The testimony of Colangelo and Dickinson coupled with the grand jury subpoena from August of 1999 provide evidencefrom which the jury could find that a grand jury investigation into Local 110’s theater attacks existed as early as1999 and continued for some period of time and, additionally, that Brenkus had knowledge of the inquiry.

Additional evidence was presented that the 1999 investigation continued into 2001 and beyond. In March of 2001, FBI agents contacted Marjan and asked him to cooperate in the investigation into Local 110’s incendiary attacks on theaters. Marjan testified at trial that from March 2001 until “about the grand jury,” he participated in several FBINos. 04-2151, 04-2253 19

interviews and recorded conversations he had with both Dickinson and Brenkus for the purpose of gathering information related to Local 110’s incendiary attacks at selected theaters. Additionally, special agent James Grady of the ATF testified that although he was not personally involved in the Local 110 investigation until 2003, other federal agencies had been conducting investigations into the incidents between 2001 and 2003. Another ATF agent, John Malooly, testified that on October 9, 2001, FBI chemist Ronald Kelly prepared a repo rt concerning the chemical properties of the incendiary instruments used by Local 110 members. The jury could verywell have reasonably inferred that one purpose for the preparation of Kelly’s report was to present it to the grand jury.

Then, on October 27, 2001, just five days after Marjan’s recorded conversation with Brenkus, FBI agents approached Dickinson at a gas station near his place ofemployment and played a tape of the incriminating conversation between he and Marjan that occurred on June 5, 2001. After the agents played the tape, they served Dickinson with a subpoena to appear before a grand jury. The next day, Brenkus informed Dickinson that he also had received a grand jury subpoena. The following month, in November of 2001, Dickinson was asked to and began cooperating in the federal invest igation. He stated that from November 2001 until he testified before the February 2002 Special Grand Jury that indict ed Brenkus, he participated in several meetings with counsel for the government and the FBI and provided them with detailed information on Local 110’s involvement in criminal activity including thevandalism of property and obstruction of justice. Of particular significance is the fact that FBI agents served Dickinson with a grand jury subpoena immediately after they played him the tape of the conversation with Marjan and that Brenkus was served with a grand jury subpoena that same day (or, at the latest, the next morning). This evidence,20 Nos. 04-2151, 04-2253

15 Although a special grand jury’s term is ordinarily eighteen months, the term may be extendedto up to thirty-six months
if the district court determines th at the sitting grand jury had not completed its business during the original term. taken in the light most favorable to the prosecution, sufficiently demonstrates that the FBI’s investigation had been undertaken with the intention of providing evidence to the grand jury. Maloney , 71 F.3d at 657.

Brenkus argues, relying on United States v. Vaghela , 169 F.3d 729 (11th Cir. 1999), that the subpoenas issued to Dickinson and Brenkus do not establish that a judicialproceeding was pending at the time of Brenkus’s obstruction because they were served five days after the obstruction date and they had not yet appeared before the grand jury. However, in Vaghela , there was no evidence to
establish that any grand jury had been impaneled prior to the date the defendants allegedly obstructed justice. Vaghela , 169 F.3d at 735. Conversely, in this case, the government presented evidence that in January of 1999, a grand jury had been impaneled to investigate into Local 110’s activities. The jury could have rationally concluded, given the aforementioned evidence, that the original grand jury’s term had been extended or that a subsequent grand jury had been impaneled to continue the ongoing investigation of Local 110. See, e.g. , 18 U.S.C. § 3331(a). 15 As we have previously stated, “[t]he practice of transferring records and cases to subsequent grand juries
is common.” McComb , 744 F.2d at 561 n. 5, 558.

Contrary to Brenkus’s argument, the temporal proximity between Marjan’s recorded conversation with Brenkus and the issuance of grand jury subpoenas to Dickinsonand Brenkus actually adds further support to the government’s position that Marjan ’s wired conversation with Brenkus was part and parcel of the investigation under-Nos. 04-2151, 04-2253 21

taken with the intention of presenting evidence before an ongoing grand jury proceeding. See McComb , 744 F.2d at 560-61 (“Rather than establish a rigid rule denominating some act of the grand jury that would be required toestablish pendency, courts have asked ‘whether the subpoena is issued in furtherance of an actual grand jury investigation, i.e., to secure a presently contemplated presentation of evidence before the grand jury.’ ”); United
States v. Simmons , 591 F.2d 206, 208 (3d Cir. 1979) (government need not demonstrate that the grand jury “has actually heard testimony or has in some way taken a role in the decision to issue the subpoena”). The existence of the 1999 grand jury as well as the issuance of grand jury subpoenas so closely on the heels of Brenkus’s conversation with Marjan sufficiently demonstrates an effort by the FBIto secure a “presently contemplated presentation of evidence before the grand jury.” This is particularly true since Brenkus challenges the sufficiency of the evidence, and reversal is only appropriate if there is no evidence in the
record on this issue. See Fassnacht , 332 F.3d at 447. Considering the standard of review to view the evidence in the light most favorable to the prosecution and the evidence presented at trial, we reject Brenkus’s contention that the government failed to present sufficient evidence that a “pending judicial proceeding” existed on October 22, 2001.

In addition to establishing a pending judicial proceeding, § 1503 requires the prosecution to demonstrate that Brenkus “corruptly intended” to impede the administration of the judicial proceeding in question. In United States v. Aguilar , the Supreme Court fashioned this requirement as a “nexus” between the accused’s actions and the judicial proceeding. 515 U.S. at 599. The “nexus” limitation is best
understood as a connection between the defendant’sintentional acts and the likelihood of potentially affecting the administration of justice:

The action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not22 Nos. 04-2151, 04-2253

enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the court’s or grand jury’s authority. Some courtshave phrased this showing as a “nexus” requirement—that the act must have a relationship in time, causation, or logic with the judicial proceedings. In other words, the endeavor must have the “natural andprobable effect” of interfering with the due administration of justice. This is not to say that the defendant’s actions need be successful; an “endeavor” suffices.

Aguilar, 515 U.S. at 599 (citations and quotations omitted); see also United States v. Quattrone , 441 F.3d 153, 170-71 (2d Cir. 2006). Applying this standard, the Court in Aguilar struck down the obstruction of justice conviction of a United States District Court judge who provided false statements to an investigating agent where the agent had “not been subpoenaed or otherwise directed to appear before thegrand jury.” 515 U.S. at 601. The Court vacated the conviction because the false statements could not “be said to have the ‘natural and probable effect’ of interfering with the due administration of justice.” Id.

Brenkus compares his statements to Marjan—who, at the time of his recorded conversation with Brenkus, had not yet been subpoenaed to testify before the grand jury—to those made to the FBI agents by the Aguilardefendant. Inessence, Brenkus argues that because there was no evidence presented that Marjan had been subpoenaed at the time of the recorded conversation (and therefore was only

a potentialgrand jury witness), Brenkus could not have intended to interfere with the grand jury’s proceedingswhen he instructed Marjan to lie to the grand jury. However, this argument mischaracterizes Aguilar ’s holding. Contrary to Brenkus’s assertion, the Aguilar court did notdraw a line between subpoenaed or “actual” and nonsubpoenaed or “potential” witnesses. See id. at 600-01. Rather, the Court focused on the defendant’s intent toNos. 04-2151, 04-2253 23

16 Although the parties contest the precise wording of Brenkus’s responses to Marjan, the jurors, having listened to the tape, werefree to accept or reject Brenkus’s proposed version of the conversation, and, in our review, we consid er the evidence in the light most favorable to the prosecution. obstruct the administration of justice when he performed the alleged act of lying to investigating FBI agents forming the basis for the obstruction of justice charge. See id. at 598-601. Because the FBI agents in Aguilarhad not been subpoenaed when the defendant lied to them, the Court held that it was speculative at best as to whether the
defendant knew that his false statements would ever reach the grand jury and therefore his actions—lying to the FBI agents—would not have had the “natural and probable effect” of impeding the grand jury investigation. Id. at 601.

In contrast, during their reco rded conversation on October 22, 2001, Brenkus instructed Marjan to lie to the grand jury concerning the contents of the criminal activities of Local 110. In the recording, Marjan can be heard telling Brenkus that “Covelli was involved in the grand jury and Covelli got, you know, he’s the second person this month,” and then asking Brenkus, “[S]hould I be scared?” In response, Brenkus stated, “I think yo u should say you don’t know nothing,” and to “just play stupid.” Then, in discussing possible inquiries into the training of union members such as Michael Rossi, Brenkus instructed Marjan to say that he “didn’t try to train nobody.” 16A rational trier of fact could conclude beyond a reasonable doubt that Brenkus made the statements with the intention of obstructing the grand jury’s investigation because there was a logical relationship between his knowing conduct—directing Marjan to fabricate—and the effect it was likely to have—keeping information from reaching the grand jury.

Obviously, Brenkus’s recorded statements to Marjan
are more than sufficient to establish that he intended to24 Nos. 04-2151, 04-2253

17 The fact that Marjan was alreadycooperating with law enforcement at the time Brenkus instructed him to lie, and thus he never actually lied to the grand jury, does not relieve Brenkus of liability under § 1503. The statute makes it a crime to “endeavor” to obstruct justice; it does not re quire that the defendant actually obstructed justice. See Aguilar , 515 U.S. at 601-02 (“[§ 1503] makes conduct punishable where the defendant acts with an intent to obstruct justice, and in a manner that is likely to obstruct justice, but is foiled in some way.”). affect the outcome of the grand jury investigation into Local

110. 17Because the government presented evidence that Brenkus was aware of the pending grand jury investigation,

see supra pp. 17-21, and because Brenkus’s own words demonstrate that he intended to impede that investigation, we conclude that the government sufficiently established that Brenkus “corruptly intended” to impede the due administration of justice under § 1503 of the U.S. Federal
Code.

2. Jury Instructions

The district court, following the general, “catch-all” Seventh Circuit Pattern Criminal Jury Instruction for obstruction of justice, instructed the jury, in relevant part, that in order to find Brenkus guilty of obstruction of justice under § 1503, they had to find that Brenkus

endeavored to influence, obstruct, and impede the due administration of justice by directing and advising Marjan that in response to any inquiries in a federal grand jury investigation . . . Marjan should state that he ‘don’t know nobody,’ and that he ‘don’t knownothin,’ . . . should further respond to any such inquiries by stating, ‘I don’t know what you’re talking about,’ [and] should state that he ‘didn’t try to train nobody.’ ”Nos. 04-2151, 04-2253 25

See suprapp. 12-13 (full text of instruction). Brenkus
contends that the district cour t erred in giving this instruction and in refusing his proffered jury instruction on § 1503,which stated that in order to find Brenkus guilty of obstruction of justice the jury had to find that Marjan “was a witness” and that Brenkus “endeavored to influence, intimidate, and impede Joseph Marjan by advising him to lie on account of his being a witness.” See suprap. 11 n. 10.

A defendant is entitled to an instruction on his theoryof the case if the proposed instruction meets the following criteria: (1) it is an accura te statement of the law; (2) it is supported by the evidence; (3 ) it reflects a theory of the defendant’s case which is not already part of the charge; and (4) the failure to include the instruction would deny the
defendant a fair trial. United States v. Boykins , 9 F.3d 1278, 1285 (7th Cir. 1993). Brenkus’s proposed instruction fails the first criteria, that it be an accurate statement of law. The proffered instruction was based on Brenkus’s contrived reading of Aguilar that draws a line between actual and potential grand jury witnesses. See Aguilar , 515 U.S. at
600-01. In Brenkus’s view and mischaracterization of the relevant statute and case law, he could not have intended to obstruct justice if Marjan had not been subpoenaed and was not an actual grand jury witness. As previously discussed, that is not the holding of Aguilar

. See id . Rather, to prove that Brenkus obstructed justice, the government was required to show that Br enkus intended to engage in conduct that would have had the “natural and probable” effect of impeding the administration of the grand jury proceeding. Id. at 599. Directing even a potential witness to lie directly to the grand jury could very easily have had the “natural and probable effect” of intending to impede the grand jury’s proceedings, and the government was only required to show Brenkus’s intention. Thus, Brenkus’s proposed instruction was not a correct statement of law as applied to this case.26 Nos. 04-2151, 04-2253

Brenkus next claims that the trial judge erred when she
failed sua sponte to provide a limiting instruction when she admitted into evidence Marjan’s statement to Brenkus that he heard that “Covelli was involved in the grand jury and Covelli got, you know, he’s the second person this month.” According to Brenkus, this statement was inadmissible hearsay and thus could not be considered for the truth of the matters asserted (that Covelli was the second person involved in a grand jury investigation in October of 2001). Since Brenkus neither requested a limiting instruction at trial nor timely and properly objected in any way to the admission of Marjan’s statement, he has waived any argument on this issue absent a showing of plain error. See
United States v. Martinez , 939 F.2d 412, 414 (1991). Plain error exists only when there has been (1) an error, (2) that is plain, and (3) that affects substantial rights. Johnson v.
United States , 520 U.S. 461, 466-67 (1997). “If all three conditions are met, [this court] may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id . at 467 (citations and quotations omitted).

It is well-settled that statements that are offered for context, and not for the truth of the matter asserted, are not hearsay as defined in Rule 801 of the Federal Rules
of Evidence. See United States v. Gajo , 290 F.3d 922, 930 (7th Cir. 2002). Marjan’s statement to Brenkus that “Covelli was involved in the grand jury and . . . you know, he’s the second person this month” was offered to provide the context for Brenkus’s instructions to Marjan that he should
lie to law enforcement. See Gajo , 290 F.3d at 930. Without Marjan’s statement, Brenkus’s response— “you don’t know nothing,” and “just play stup id”—would not have made any sense. Moreover, we have previously held that “[t]he failure of the trial court to give limiting instructions on the use of hearsay statements at the time of their admission does notNos. 04-2151, 04-2253 27

constitute plain error mandating reversal.” U.S. v. Fleming

, 594 F.2d 598, 606 (7th Cir. 1979). We find nothing in this record to cause us to depart from this rationale and thus we
conclude that the district co urt did not err when it failed

sua sponte to provide limiting instructions.

Moreover, even if we were to assume arguendo that the district court’s failure to give limiting instructions was in error, the error still would not have affected Brenkus’s substantial rights. As previously discussed, there is more than sufficient evidence in the record, apart from Marjan’s statement, to support the jury’s conclusion that a grand jury investigation was underway at the time Brenkus made his incriminating statements to Marjan. Accordingly, we reject Brenkus’s contention th at the district court committed plain error when it failed to provide a limiting instruction.

B. Defendant Macari

On February 9, 2004, Macari pled guilty to one count of conspiracy to travel interstate to promote arson in violation of 18 U.S.C. § 371 (Count 2) and one count of aiding and abetting travel in interstate commerce to promote arson in violation of 18 U.S.C. § 1952(a)(3) (Count 13). On April 23, 2004, the district court sentenced Macari to a prison term of thirty-six months on Count 2, to be served concurrently with his ten-year Illinois state prison sentence for the attempted murder of Leyland, and a term of ten months on Count 13, to be served consec utive to the state sentence. Macari challenges his ten-month consecutive sentence, arguing that the district court abused its discretion by failing to make clear the rationale under which it imposed the consecutive sentence, and thus that portion of his
sentence should be reversed.

Since Macari failed to raise a Bookerissue before the district court, our review is for plain error only. See United28 Nos. 04-2151, 04-2253

States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005). As this court has held in numerous cases, the pre- Booker mandatory application of the Sentencing Guidelines ipso facto constitutes plain error. See United States v. White, 406 F.3d 827, 835 (7th Cir. 2005); United States v. Castillo, 406 F.3d 806, 823-24 (7th Cir. 2005). On this record, we cannot ascertain or say with any exacting degree of certainty whether the sentencing judge would have imposed the same
term of incarceration for Macari had she known that the Sentencing Guidelines were not mandatory at the time. Accordingly, we order a limited remand in this case, while retaining jurisdiction, for proc eedings consistent with this
court’s decision in Paladino. 401 F.3d at 483-84.

III. Conclusion

We A FFIRMBrenkus’s conviction and sentence but order

a L IMITED R EMAND of Macari’s sentence in accordance with the procedures set forth in Paladino

.Nos. 04-2151, 04-2253 29

A true Copy:

Teste:

________________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-14-06