In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 04-2151, 04-2253

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PETER R. MACARI and ALBIN C. BRENKUS,

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 APRIL 14, 2005—DECIDED JULY 14, 2006

____________

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

COFFEY, 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 of

the 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 district
2 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 concurrently with 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 theaters 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 and

Canada, 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 negotiated, 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 feature 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 AMC

theater 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 that
Nos. 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 resulted 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,4

 and Local 110 sent letters of introduction to

Cinemark management in an effort to initiate contract

negotiations. Despite repeated requests, Cinemark refused
6 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 of

intimidation 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 theater
Nos. 04-2151, 04-2253 7

5 Macari testified that “the boss” was Brenkus.

6 At sentencing, the parties stipulated 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. Cinemark’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 broken 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 Illinois
8 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 Gregory

Tortorello about the incendiary attacks against the theaters. Although he noted that he was not personally

involved with the theater probe until 2003, Grady testified during Brenkus’s trial that “other federal agencies” had

been conducting investigations 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 in the 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 incendiary

devices 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, Local
Nos. 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.”7

 He 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 with

Dickinson, at which time Dickinson admitted his involvement in several of the crimes.8

 Then, 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 separate 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 admitted into evidence and not the

transcripts. According to Marjan 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, the 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 asked 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 days 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 also

received 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 participated
12 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 charge—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 endeavored 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 the

jury 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 re
Nos. 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 wrongfully impeding the due administration of justice.

12 The term “catch-all” is referenced in the Seventh Circuit’s form

jury instructions. “This instruction is for use when the omnibus,

or catch-all, provision of Section 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 justice

by 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 evidence

that 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) (Counts
Nos. 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 dismissed 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 that 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” to

influence 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 to
16 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, 332
Nos. 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 that

the 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 of

Brenkus’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.”14 Colangelo testified that after

receiving the subpoena, she provided 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 evidence

from which the jury could find that a grand jury investigation into Local 110’s theater attacks existed as early as

1999 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 FBI
Nos. 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 report concerning the chemical

properties of the incendiary instruments used by Local 110

members. The jury could very well 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 of

employment 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 investigation. He stated that from

November 2001 until he testified before the February 2002

Special Grand Jury that indicted 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 the

vandalism 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 extended to up to thirty-six months

if the district court determines that 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 judicial

proceeding 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 Dickinson

and 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 to

establish 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 FBI

to 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’s

intentional 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 not
22 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 courts

have 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 and

probable 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 the

grand 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 Aguilar defendant. In

essence, 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 potential grand jury witness), Brenkus could not have

intended to interfere with the grand jury’s proceedings

when 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 not

draw 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 to
Nos. 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, were

free to accept or reject Brenkus’s proposed version of the conversation, and, in our review, we consider 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 Aguilar had 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 recorded 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 you 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.”16 A 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 to
24 Nos. 04-2151, 04-2253

17 The fact that Marjan was already cooperating 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 require 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

110.17 Because 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 know

nothin,’ . . . 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 supra pp. 12-13 (full text of instruction). Brenkus

contends that the district court 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 supra p. 11 n. 10.

A defendant is entitled to an instruction on his theory

of the case if the proposed instruction meets the following criteria: (1) it is an accurate 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 Brenkus 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 stupid”—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 not
Nos. 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 court 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 that 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 consecutive 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 Booker issue before the

district court, our review is for plain error only. See United
28 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 proceedings consistent with this

court’s decision in Paladino. 401 F.3d at 483-84.

III. Conclusion

We AFFIRM Brenkus’s conviction and sentence but order

a LIMITED REMAND 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