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In the
United States Court of Appeals
For the Seventh Circuit
Nos. 93-1134, 93-1135, 93-1136, 93-1604, 93-2008,
93-3434, 93-3435, 93-3513, 93-3514, 93-3515,
93-3516, 94-1831, 94-3341
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM DIDOMENICO, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 90 CR 87--Ann Claire Williams, Judge.
ARGUED OCTOBER 31, 1995--DECIDED MARCH 1, 1996
Before POSNER, Chief Judge, and CUDAHY and COFFEY,
Circuit Judges.
POSNER, Chief Judge. The Chicago Outfit (the "Outfit,"
the "Mob," the "Mafia")--the criminal enterprise whose
most notorious boss was Al Capone--operates through
"street crews." The twenty defendants in this mainly
RICO case that charges predicate acts of extortion, brib-
ery, murder, and other offenses were members of the Fer-
riola Street Crew, named after its boss from 1979 to his
death in 1989, Joseph Ferriola. Ferriola was succeeded
by defendant Infelise. The Ferriola Street Crew engaged
in the usual "Mob" activities, in particular the protection
racket (the collection of "street tax" from brothels, gam-
bling enterprises, and other illegal businesses), loan shark-
ing, and bookmaking, with bribery of police, judges, prose-
cutors, and other public officials, subornation of jurors,
and the occasional murder thrown in to protect and en-
force its reign of terror. The focus of the prosecution was
on the street crew's efforts to collect street tax from "in-
dependent" bookmakers, which is to say bookmakers not
affiliated with the "Mob," in the suburbs north of Chicago,
primarily during the 1980s. These efforts included the
murder of a bookmaker named Hal Smith. The evidence
of the defendants' participation in these activities was
overwhelming, except that the evidence of their participa-
tion in the murder depended critically on the testimony
of a turncoat member of the street crew, William Jahoda.
Smith had angrily refused a demand relayed to him from
defendant DeLaurentis to pay street tax, saying "fuck the
little guinea." Infelise directed Jahoda to lure Smith to
Jahoda's home, which he did, arriving in Smith's car.
Jahoda told Smith to enter the house through the garage,
while Jahoda pretended to pick up his mail. Shortly after-
ward, through the open door to the kitchen, Jahoda saw
Smith lying dazed but conscious on the kitchen floor.
Infelise drove Jahoda back to the tavern where he had
met Smith and told him to burn his clothes. When Jahoda
returned home later that night, he found that the kitchen
floor had recently been mopped up. Infelise called and told
him to look for Smith's cigar and glasses, which the mur-
derers thought they might have left there. Jahoda did not
find the items. Smith's body was found a few days later
in the trunk of his car. He had been tortured and then
strangled.
The defendants were tried together and found guilty of
most of the counts of the indictment and received long
prison sentences which in the case of some of the defen-
dants, given their age, are the equivalent of life in prison.
Their appeals, which we have consolidated, present six-
teen separate grounds. We shall confine our discussion to
those that have arguable merit, disregarding such frivo-
lous ones as that the judge could not sentence the defen-
dants to terms of years that were (because of the defen-
dants' age) the practical equivalent of life in prison with-
out a jury recommendation, as required by 18 U.S.C. sec. 34
as it read when they were sentenced. Section 34 applies
only to convictions for crimes punished by the chapter of
the federal criminal code in which the section appears
(mainly arson resulting in the destruction of aircraft or
motor vehicles), and none of the defendants was convicted
of any such crimes. It didn't help, though, that in response
the government, overlooking United States v. Prevatte,
66 F.3d 840, 843-44 (7th Cir. 1995), argued that a term
of years, however long, and however old the defendants
are, is not within the scope of section 34. We held the
contrary in Prevatte and in United States v. Martin, 63
F.3d 1422, 1432-34 (7th Cir. 1995).
The most dramatic issue and the one pressed hardest
by the defendants arises from the bugging of a room in
the Metropolitan Correctional Center, the federal jail in
Chicago. The room had been set aside for the use of the
defendants, who were being detained in the jail awaiting
trial, in meeting with their lawyers. Someone made a tape
recording of a conversation between one of the defendants
and his lawyer and sent the tape to the lawyer. The de-
fendants argue that the district judge should have con-
ducted an evidentiary hearing to determine the extent of
the bugging and whether it had given the prosecution in-
formation about defense strategy that the prosecution had
used to undermine the defense at trial.
The lawyer gave the tape to the government, which
began an investigation to determine who had bugged the
room. The FBI interviewed almost 150 people, including
the defendants, their lawyers, the prosecutors, and em-
ployees of the jail. The report of the investigation, which
was submitted in camera to the district judge (and which
we have read as well), indicated that the investigation had
been totally inconclusive. Although visitors to the MCC
are supposed to be screened for tape recorders, security
was lax during 1991, when the bugging incident occurred,
as we know from the El Rukns cases. See, e.g., United
States v. Boyd, 55 F.3d 239 (7th Cir. 1995). A tape
recorder may have been smuggled in to one of the defen-
dants by a visitor, or even carried in by one of the defen-
dants' lawyers. A guard at the MCC might have been
in the pay of the defendants (there was evidence at trial
that at least one federal officer was in the pay of the Fer-
riola Street Crew) and made the tape in an effort to em-
barrass the prosecution. Or, as the defendants conjecture,
the prosecution itself may have bugged the meeting room
to find out what discreditable information the defendants
knew about Jahoda, a key prosecution witness. Of course
the prosecution would not have sent the tape of its illegal
bugging to the lawyer for one of the defendants, but may-
be an MCC guard sympathetic to the "Mob" found the
tape and mailed it to the lawyer.
The government argues that the defendants did not lay
a foundation for an evidentiary hearing on the matter be-
cause they presented no evidence that the bugging altered
the result at trial--no evidence that the prosecution was
privy to the bugging or, if it was, used the information
gleaned from it to undermine the defense or if it did
caused innocent people to be convicted of heinous crimes.
We do not consider this a sound argument. It pushes the
notion of harmless or nonprejudicial error too far. The
principle that an acquittal or a new trial is not a proper
remedy for governmental misconduct, that the defendant
must show that the misconduct may have caused the jury
to convict him, is sound but like most legal principles can-
not be maintained without qualification. Otherwise the
prosecution could send a defendant to prison without any
judicial process whatsoever and if he complained defend
by showing that had the defendant been tried with assist-
ance of counsel and all the other trimmings of modern
criminal procedure he would surely have been convicted
and sentenced to a term of years at least as long as the
prosecution proposes to hold him. The counterprinciple
that defeats this result is that denial of the right to coun-
sel (not the right to competent counsel, but the more basic
right to some counsel) or of any other fundamental rights
of criminal defendants (such as the right to an impartial
judge or to trial by jury) is reversible error even if not
shown to be prejudicial--even if shown to be completely
harmless. E.g., Satterwhite v. Texas, 486 U.S. 249, 256
(1988); United States v. Martin Linen Supply Co., 430
U.S. 564, 572-73 (1977); Tumey v. Ohio, 273 U.S. 510, 535
(1927).
We put to the government at oral argument the follow-
ing example. The government adopts and announces a
policy of taping all conversations between criminal defen-
dants and their lawyers. It does not turn the tapes over
to the prosecutors. It merely stores them in the National
Archives. The government's lawyer took the position that
none of the defendants could complain about such conduct
because none could be harmed by it, provided the prose-
cutors never got their hands on the tapes. We are inclined
to disagree, although for a reason that will become ap-
parent shortly we need not attempt to resolve the issue
definitively. The hypothetical practice that we have des-
cribed would, because of its pervasiveness and publicity,
greatly undermine the freedom of communication between
defendants and their lawyers and with it the efficacy of
the right to counsel, because knowledge that a permanent
record was being made of the conversations between the
defendants and their lawyers would make the defendants
reluctant to make candid disclosures. (Totalitarian-style
continuous surveillance must surely be a great inhibitor
of communication.) And yet it would be impossible in any
given case to show that the outcome had been changed
by the practice. Shillinger v. Haworth, 70 F.3d 1132, 1142
(10th Cir. 1995); United States v. Perry, 857 F.2d 1346,
1349-50 (9th Cir. 1988). At the other extreme are cases
of ad hoc governmental intrusion into the relation between
a criminal defendant and his lawyer, falling far short of
continuous surveillance. In such cases harm to the defense
must be shown because the bare fact of the intrusion does
not create a high probability that communication between
lawyer and client or between client and lawyer was dis-
rupted. United States v. Morrison, 449 U.S. 361 (1981);
Weatherford v. Bursey, 429 U.S. 545, 554 n. 4, 558 (1977);
United States v. Castor, 937 F.2d 293, 297-98 (7th Cir.
1991); Clark v. Wood, 823 F.2d 1241, 1249-50 (8th Cir.
1987); Sinclair v. Schriber, 916 F.2d 1109, 1113 (6th Cir.
1990).
Our case may seem closer to the first pole than to the
second. The bugging was discovered before the trial and
from then on the defendants and their lawyers must have
wondered whether their conversations were being over-
heard, even though the district judge promptly authorized
the defendants to meet with counsel outside of the jail;
and conceivably this fear might have prevented effective
communication between client and lawyer, emptying the
right to the assistance of counsel of much of its meaning.
Cf. United States v. Cronic, 466 U.S. 648, 659-60 (1984);
United States v. Berkowitz, 927 F.2d 1376, 1381 (7th Cir.
1991). "Free two way communication between client and
attorney is essential if the professional assistance guar-
anteed by the sixth amendment is to be meaningful."
United States v. Levy, 577 F.2d 200, 209 (3d Cir. 1978);
see also Geders v. United States, 425 U.S. 80, 91 (1976).
The defendants do not argue, however, that the effect of
the natural anxiety of themselves and their lawyers con-
cerning the confidentiality of their conversations was suf-
ficient to warrant a new trial or perhaps--since it is not
obvious how a new trial would dissipate the anxiety--
even the dismissal of the indictments with prejudice. Such
an argument would be unlikely to succeed when so far
as appears the bugging incident was completely isolated
(and isolated intrusions into the attorney-client relation
are, as we have seen, not reversible error per se) and
the bug may have been planted by one of the defendants.
In any event the argument is not made. All the defen-
dants argue for is an evidentiary hearing to get to the
bottom of the matter. In light of the report of the FBI
investigation it is unlikely that such a hearing would get
us nearer to the heart of the mystery. But the defendants
are understandably reluctant to defer to a report they
have not seen compiled by an agency that they suspect
or at least affect to suspect of being responsible for the
very crime that it was investigating.
The defendants' request is a reasonable one but it comes
too late. The district judge offered them an evidentiary
hearing, directed the government to furnish them with
a list of all the employees of the MCC who had had ac-
cess to the meeting room, and gave the defendants' law-
yers subpoena power to compel the presence of witnessses
at the hearing. The hearing was scheduled for September
23, 1991, a week before the scheduled opening of the trial.
Shortly before the hearing was to take place, the defen-
dants requested more time to complete their investiga-
tion. The hearing was repeatedly postponed at the defen-
dants' request. During the delay the government sub-
mitted affidavits from all the members of the prosecution
team, attesting their lack of complicity in the bugging.
Finally on July 16, 1992, almost ten months after the
original date set for the hearing and four months after
the jury had returned its verdict, the defendants moved
for an evidentiary hearing. After reviewing the FBI re-
port, and noting that despite a lengthy investigation the
defendants had come up with no evidence to suggest that
the government was implicated in the bugging, the judge
denied the motion. At no time during this entire period--
which did not end until May 23, 1994, when the judge
denied the defendants' last request for access to the FBI
report--did the defendants submit the tape to the judge.
In these circumstances we cannot say that the judge
abused her discretion in declining to order an evidentiary
hearing. A critical consideration is the government's affi-
davits. Although evidentiary hearings in criminal cases are
not governed by the Federal Rules of Civil Procedure,
the provisions of those rules relating to summary judg-
ment are applicable by analogy. United States v. Ritter,
752 F.2d 435, 439 (9th Cir. 1985); cf. United States v. Ran-
dle, 966 F.2d 1209, 1212 (7th Cir. 1992); Castillo v. United
States, 34 F.3d 443, 445-46 (7th Cir. 1994). In opposing
the evidentiary hearing sought by the defendants the gov-
ernment was in a position analogous to that of a movant
for summary judgment who argues that no genuine issue
of material fact exists and therefore that summary judg-
ment should be granted. A fundamental principle of sum-
mary judgment that we think ought to be applied in cases
such as this in which the issue is whether to hold an
evidentiary hearing is that if the proponent supports his
motion with affidavits, the opponent must counter the
motion with his own affidavits (or equivalent materials,
which is to say materials having the quality of evidence).
By submitting affidavits the government shifted to the
defendants the burden of submitting counteraffidavits that
would show there was an issue that only an evidentiary
hearing could resolve. The defendants did not take up the
burden although they had many months to do so.
Against this it can be argued, in accordance with our
earlier discussion, that even if the prosecution team was
not complicit in the bugging, the defendants' right to coun-
sel may have been infringed. It is one federal government
after all. If the director of the MCC ordered the bugging,
there would be a serious issue of the infringement of that
right even if the fruits of the bugging were not turned
over to the prosecutors. And on that issue the affidavits
did not bear at all. But throughout these proceedings, up
to and including the appeal, the defendants have accepted
that they must show, if not prejudice to their defense,
if not likelihood of acquittal had the bugging not taken
place, at least potential prejudice and for that they would
have to show that the prosecution received, directly or
indirectly, valuable information from the bugging. This the
prosecution denied by affidavit--denied that it had re-
ceived any information from the bugging--and the inabil-
ity of the defendants, though granted ample time and re-
sources, to come up with counteraffidavits dooms their
challenge to the denial of an evidentiary hearing. Had the
defendants not sought to postpone the hearing first offered
them by the district judge, they would have had their
hearing. They gambled on having a better hearing if given
more time to investigate, but the gamble failed when the
investigation turned up nothing, and they must be held
to their tactical decision.
In short, the defense could have (1) argued that no
showing of prejudice was required or (2) presented some
evidence of prejudice. By doing neither, the defense for-
feited their claim to an evidentiary hearing. We do not
think that we are being overtechnical in so concluding,
especially since, given the inconclusiveness of the FBI's
investigation, the likelihood that an evidentiary hearing
would get to the bottom of the bugging incident is remote.
The defendants raise two issues concerning the jury.
The first is whether the judge abused her discretion in
empaneling an anonymous jury, that is, in refusing to
reveal the names and addresses of the jurors to the par-
ties. A juror's name and address are information poten-
tially valuable to a party in deciding whether to challenge
a juror either for cause or by the use of a peremptory
challenge. The juror might turn out to be related to a
party or a witness (yet not disclose this on voir dire) or
to live in a neighborhood whose residents have demo-
graphic characteristics predictive of their likely response
to the issues in the case. There is skepticism in some
quarters about the ability of lawyers, even when aided
by pricey consultants, to pick favorable jurors; but so long
as we have challenges for cause and peremptory chal-
lenges the objection to anonymous jurors that it deprives
the lawyers of information essential to their exercise of
a valued procedural right cannot be rated as negligible.
But we think the district judge acted within her discre-
tion (see United States v. Crockett, 979 F.2d 1204, 1215
(7th Cir. 1992); United States v. Paccione, 949 F.2d 1183,
1192 (2d Cir. 1991)) in deeming the right overridden in
this case by the fear of jurors to be identified to the
Chicago Outfit and by the danger that they might be bribed.
Intimidation in general, and bribery of public officers con-
nected with the criminal justice system (and jurors of
course are ad hoc public officers of that system--are in
fact lay judges) in particular, are specialties of the Out-
fit. This is not a case, like United States v. Vario, 943
F.2d 236, 241 (2d Cir. 1991), in which the defendants are
rumored to have "Mob" connections. The defendants are
the "Mob." We add that the anonymity of the jury hurt
the prosecution as well as the defense, since the prosecu-
tion too has and frequently exercises the right to chal-
lenge jurors for cause or to exercise peremptory chal-
lenges. The judge's ruling may not have altered the bal-
ance of advantages between prosecution and defense.
The other jury issue relates to an inconsistency in the
verdict regarding defendant DeLaurentis. He was accused
of participation in the conspiracy to murder the book-
maker Hal Smith in two different counts of the indict-
ment. The jury found him not guilty of that participation
in one of the counts (Count One) but guilty in the other
(Count Eight). The poll of the jury did not illuminate the
discrepancy, as each juror indicated that the verdict was
correct. On the day after the verdict was rendered, how-
ever, one of the jurors stated on a local news program
that the jury had not voted DeLaurentis guilty of con-
spiracy to murder in Count Eight. This led the judge to
interview the jurors, a week later, in the presence of
counsel. The judge ascertained that the jury had indeed
intended to acquit DeLaurentis of both counts of conspir-
acy to commit murder. But she refused the defendants'
request that she ask the jurors whether they had made
any other mistakes in filling in the verdict form.
Again we think the judge acted within the scope of her
discretionary authority. There was no indication of any
other mistake in the verdict. The interviews took place
a week after the verdict and the jurors no longer had
their notes of what had gone on in the jury room. It is
not clear what line of questioning might have identified
another error on the verdict form. Although not permitted
to inquire into the deliberative process itself--the discus-
sion or thoughts or votes of the jurors, Fed. R. Evid.
606(b)--the judge is permitted to inquire whether the ver-
dict represents the actual decision of the jury. Continen-
tal Casualty Co. v. Howard, 775 F.2d 876, 885 (7th Cir.
1985); Plummer v. Springfield Terminal Ry., 5 F.3d 1
(1st Cir. 1993). But this right of inquiry must be conducted
with due regard for the policy that underlies Rule 606(b).
Jurors are conscripts, taken away from their jobs or other
activities sometimes for months at a time (the trial in this
case lasted four and a half months) and enlisted in the
justice system for meager pay, here to try dangerous men
who are members of a gang capable of retaliation against
jurors. To embarrass or harass these jurors by protracted
questioning about their deliberations would be a disser-
vice to the jury system, which can hardly thrive if jurors
are sullen and resentful as a result of being abused by
judges and lawyers. The line is drawn between determin-
ing whether the verdict is true in the sense of awzaccurate
statement of the jury's decision and rational in the sense
of intelligent and deliberated. Id. at 4; Continental Cas-
ualty Co. v. Howard, supra, 775 F.2d at 885-86; Karl v.
Burlington Northern R.R., 880 F.2d 68, 74 (8th Cir. 1989).
The defendants ask us to cross the line. There was no
reason to believe that the verdict contained other clerical
errors. A march through the verdict in search of them
would inevitably have become an inquest on the character
of their deliberations.
The two jury issues raised by the defendants thus turn
out to be linked by their common potential for imperil-
ing the jury system by undermining the protection of
jurors from threats to their safety and dignity.
There is an issue relating to the instructions. After the
trial in this case the Supreme Court, in United States v.
Gaudin, 115 S. Ct. 2310 (1995), held that the issue of
materiality, in a prosecution under 18 U.S.C. sec. 1001 for
making false statements to federal agencies, is one of fact,
not law, and is therefore for the jury to determine. In
our case the judge said to the jury, with respect to the
charges of violations of the Internal Revenue Code made
in the indictment against several of the defendants, "I
instruct you as a matter of law that understatement of
'total income' is a material matter." The provisions of
the Internal Revenue Code under which these defen-
dants were charged, however, 26 U.S.C. secs. 7206(1) and (2),
punish false or fraudulent statements with respect to
material facts, thus bringing the principle of Gaudin into
play. These defendants would therefore be entitled to a
new trial on the tax counts had they raised the issue in
the district court. Since they did not, they can prevail
only if the error in the instructions was a plain error, and
for the reasons stated in the concurring opinion in Gaudin,
115 S. Ct. at 2322, and in our recent opinion in United
States v. Ross, No. 92-1449, slip op. at 12-17 (7th Cir. Feb.
2, 1996), we believe that it was not.
Jahoda testified to a number of conversations that he
had had with defendant Bellavia in 1989, concerning the
murder of Smith five years earlier. For example, in a
plain allusion to the murder, Bellavia told Jahoda, "You
know, when them things happen, I just, when they're
done, they're done. . . . I blank 'em out. . . . Sometimes
you got to get it out in the open and you feel better, and
you can put it to bed once and for all. You know, it's
done and gone, forget about it." In the same vein he told
Jahoda, "Forget about it. You know, it's gone. . . . [Y]ou
never do something with . . . anybody you're going to
worry about in the future. Forget about it. You know,
it's gone. The day it was over, it was over. It's forgot-
ten. That was the end of it." These statements, though
hearsay, were admitted into evidence against the other
defendants as having been made in furtherance of the con-
spiracy. Fed. R. Evid. 801(d)(2)(E). Against Bellavia him-
self, they were uncontroversially admissible as the admis-
sions of a party. Fed. R. Evid. 801(d)(2)(A). But the prin-
ciple that allows the admission of conspirator X to be
treated as the admission of defendant conspirator Y,
usable against Y as the admission of a party provided that
the statement is made in furtherance of the conspiracy,
disquiets those who believe that the concept of conspiracy
gives prosecutors too much power. The rationalization for
the principle is that conspirators are each others' agents
(and therefore principals), and the principal is bound by
the agent's words and deeds, provided they are within
the scope of the agency, so that an admission by one is
an admission by all and can be used against all as "their"
admission.
This translation of commercial principles of agency in-
to the law of evidence is one of the less impressive ex-
amples of what Coke called the "artificial reason" of the
law. The concern behind the hearsay principle is with the
reliability of evidence rather than with the facilitation of
enterprise--and anyway the law of conspiracy is designed
to discourage rather than to facilitate enterprise. Because
a statement to be admissible as the statement of a party
need not have been against interest when made (or at
any time for that matter), Huff v. White Motor Corp., 609
F.2d 286, 292 and n. 7 (7th Cir. 1979); 2 McCormick on
Evidence sec. 254, p. 143 (4th ed., John William Strong gen'l
editor, 1992), the admissibility of such a statement can-
not convincingly be grounded in the presumed trustwor-
thiness of a statement that is against the utterer's self-
interest to give. E.g., 2 id., p. 141; United States v.
Pallais, 921 F.2d 684, 687-88 (7th Cir. 1990). The stand-
ard justification of its admissibility is a kind of estoppel
or waiver theory, that a party should be entitled to rely
on his opponent's statements. E.g., United States v. Chap-
pell, 698 F.2d 308, 312 (7th Cir. 1983); 2 McCormick on
Evidence, supra, p. 141. It has, it seems to us, rather
little force as applied to the admissibility of coconspirator's
statement. United States v. Gil, 604 F.2d 546, 549 (7th
Cir. 1979); Comment, "Reason and the Rules: Personal
Knowledge and Coconspirator Hearsay," 135 U. Pa. L.
Rev. 1265, 1272-73 (1987). About all that can be said in
favor of the rule is that since the statements of agents
of legitimate enterprises are imputed to the enterprise
through the operation of the law of agency on the party-
admission rule, illegitimate enterprises, such as criminal
conspiracies, should not receive more favorable treatment.
Whatever the justification for the rule--and there may
be none--its dependence on agency principles makes the
scope of the conspiracy critical. And a conspiracy, and a
conspiracy to conceal an earlier, completed conspiracy, are
two different conspiracies, like two different firms, and
statements made in furtherance of the second, the cover-
up conspiracy, are therefore not admissible in evidence
to demonstrate participation in or the acts of the first con-
spiracy. Krulewitch v. United States, 336 U.S. 440, 443-44
(1949); United States v. Masters, 924 F.2d 1362, 1368 (7th
Cir. 1991); United States v. Xheka, 704 F.2d 974, 985 (7th
Cir. 1983). But this is not such a case. Hal Smith was
killed as part of the overall conspiracy to extract street
tax from the independent bookmakers in the area worked
by the street crew. The conspiracy was still going on
when Bellavia, in an effort to prevent its unraveling, made
his reassuring statements to Jahoda. Statements designed
to prevent a conspiracy from collapsing are not to be
equated to statements designed to cover up a finished con-
spiracy. In the first case unlike the second there is only
one conspiracy; the statements are made in an effort to
shore it up and keep it going; they are therefore admissi-
ble against the conspirators. United States v. Marin, 7
F.3d 679, 690 (7th Cir. 1993); Garlington v. O'Leary, 879
F.2d 277, 284 (7th Cir. 1989); United States v. Mason, 658
F.2d 1263, 1270 (9th Cir. 1981).
The remaining issues that require discussion all relate
to sentencing. Defendants Bellavia, Infelise, and Marino
object vigorously to the fact that the judge in determin-
ing their sentences found that their conduct had included
a conspiracy (nested within the overall RICO conspiracy)
to murder Hal Smith, even though the jury either acquit-
ted or hung on the counts that charged these defendants
with participation in that conspiracy. The issue of their
participation was before the jury, they argue, and in find-
ing guilt where the jury did not the judge usurped the
jury's function. This is wrong. The jury was asked to
decide whether there was proof of the defendants' guilt
beyond a reasonable doubt, whereas the issue in senten-
cing is whether the defendants' guilt is shown by a pre-
ponderance of the evidence, a lower standard, so that the
failure of the proof to satisfy the first standard doesn't
show that it fails to satisfy the second. United States v.
Jones, 54 F.3d 1285, 1294 (7th Cir. 1995); United States
v. Chandler, 12 F.3d 1427, 1434-35 (7th Cir. 1994). Other-
wise you couldn't have a tort suit for wrongful death as
the sequel of the defendant's acquittal, which of course
you can.
We acknowledge the growing concern that defendants
in the federal courts are being sentenced for crimes that
they were adjudged guilty of only under the civil stan-
dard. United States v. Ebbole, 917 F.2d 1495, 1496 (7th
Cir. 1990). The government could not persuade the jury
to convict these three defendants of conspiracy to murder
Hal Smith but they were sentenced for the crime anyway.
The principle exploits the traditional indifference of re-
viewing courts to the length of a sentence within the
bounds fixed by the statute under which the defendant
was convicted. Although two members of this court have
recently expressed tentative support for requiring, as a
matter of the federal common law of criminal procedure,
proof by clear and convincing evidence of facts presented
at the sentencing hearing in justification of a markedly
higher sentence than the facts found at trial, United
States v. Rodriguez, No. 94-2080, slip op. at 3 (7th Cir.
Jan. 4, 1996) (dissent from denial of rehearing en banc),
that is neither the present view of a majority of the
judges nor a position urged by the defendants in this case.
DeLaurentis was sentenced to 222 months in prison,
although his base offense level after various adjustments
other than the one in issue was only 33, for which the
guidelines range is 135 to 168 months. The judge raised
the sentence far above that range by making an upward
departure on the basis of the large number of crimes com-
mitted by DeLaurentis that had been counted neither in
the base offense level nor in his criminal history (he had,
in fact, no significant criminal history). The reason for the
departure was that the base offense level is "topped off"
at five "units" (which in this case equates to crimes).
U.S.S.G. sec. 3D1.4; United States v. Dawson, 1 F.3d 457,
459 n. 2 (7th Cir. 1993). DeLaurentis had actually com-
mitted at least 22 crimes, of which 6 would get him to
the 5-unit top. Since all 22 crimes were committed in fur-
therance of the RICO conspiracy, they were conduct re-
lated to the offense of conviction rather than (as in United
States v. Dawson) being a part of the defendant's criminal
history. Judge Williams divided the number of uncounted
crimes by 5 in order to yield additional base levels, result-
ing in the punishment bonus of which the defendant com-
plains. We do not understand the defendant to be argu-
ing that the divisor was too small. The choice of the
divisor is an exercise of judgment that an appellate court
will not disturb unless it exceeds the bounds of reason.
United States v. Chase, 894 F.2d 488, 491-92 (1st Cir.
1990); but cf. United States v. Pearson, 911 F.2d 186,
190-91 (9th Cir. 1990).
The argument, rather, is that the grouping provision
(section 3D1.4) is limited to convicted crimes (or to stipula-
tions of crimes). U.S.S.G. ch. 3, pt. D, introductory com-
ment; United States v. Dawson, supra, 1 F.3d at 463;
United States v. White, 888 F.2d 490, 496 (7th Cir. 1989);
United States v. Paccione, 949 F.2d 1183, 1205 (2d Cir.
1991); United States v. Blanco, 888 F.2d 907, 909-10 (1st
Cir. 1989). Unconvicted, unstipulated crimes may not be
used for a departure based on that section. United States
v. Dawson, supra, 1 F.3d at 463. Only 13 of DeLaurentis's
22 crimes were ones of which he had been convicted. So
his punishment bonus under section 3D1.4 should have
been only 2 at most (13 minus 6 equals 7, 7 divided
by 4 approximately equals 2), rather than
the 3 that the judge gave him. There may be other grounds
for an upward departure, see U.S.S.G. sec. 5K2.0; United
States v. Dawson, supra, 1 F.3d at 465; United States v.
Uccio, 940 F.2d 753, 759 (2d Cir. 1991), but that is some-
thing for Judge Williams to consider when resentencing
DeLaurentis.
The last issue we need discuss concerns the denial of
defendant Sarno's motion to vacate his plea agreement
on the ground that the district judge gave him a much
heavier sentence than the agreement contemplated. The
agreement specified a guidelines range of 46 to 57 months
and in fact he was sentenced to 78 months. But there was
no violation of the agreement, which stated that the guide-
line calculations in it "are preliminary in nature and sub-
ject to revision by the Court." The calculations turned
out to be in error and were corrected by the judge. Sarno
explicitly assumed the risk of such an error, and has only
himself or possibly his lawyer to blame. He could have
refused to sign the plea agreement unless it specified that
it could be rescinded if the judge went outside the guide-
lines range set forth in it. Fed. R. Crim. P. 11(e)(1)(C),
(e)(4); Carnine v. United States, 974 F.2d 924, 930-31 and
n. 8 (7th Cir. 1992); United States v. Ellison, 798 F.2d
1102, 1105 (7th Cir. 1986).
DeLaurentis is entitled to be resentenced. With this ex-
ception, the judgments are affirmed.
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