United States v. Anthony Volpendesto
746 F.3d 273
| 7th Cir. | 2014Background
- Criminal enterprise around Cicero, Illinois operated Amusements Inc. to distribute video gambling devices; devices were illegal if used for cash redemptions; the enterprise diverted profits by skimming funds through trusted venues.
- Enterprise members conducted numerous jewelry-store robberies and fenced stolen goods through Goldberg Jewelers owned by Polchan.
- Michael Sarno was the top figure controlling gambling operations and had some control over robberies; Polchan acted as a mid-level leader; Anthony Volpendesto was a major robber and participant.
- The government charged Sarno, Polchan, and Volpendesto with RICO conspiracy; Sarno and Polchan with conducting an illegal gambling business; Polchan with use of an explosive device and obstructing justice; Volpendesto with related offenses.
- Evidence included wiretaps, witness testimony, recorded conversations, and cooperation of other enterprise members; a pipe bomb targeted a rival gambling business to protect market share.
- After a six-week trial, the jury convicted all three appellants on multiple counts; they appealed challenging pretrial counsel disqualification, sufficiency of evidence, evidentiary rulings, jury instructions, and sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disqualification of counsel | Polchan argues district court erred in disqualifying Salerno. | Polchan contends conflicts were not sufficient to disqualify chosen counsel. | District court did not abuse discretion; Salerno was properly disqualified. |
| Sufficiency of evidence for RICO conspiracy | Government showed a cohesive, hierarchical enterprise with broad ongoing activities. | Defendants argue the evidence only shows parallel acts, not a shared ongoing enterprise. | Sufficient evidence to prove a RICO conspiracy beyond a reasonable doubt. |
| Conspiracy to obstruct justice sufficiency | Polchan engaged with corrupt officers to obtain information to influence the investigation. | Defense contends evidence did not prove an agreement to obstruct the grand jury. | Circumstantial evidence supported a finding of an unlawful agreement to obstruct justice. |
| Admissibility of Volpendesto statements and Confrontation Clause | Volpendesto’s out-of-court statements are admissible under Rule 804(b)(3) and non-testimonial. | Polchan challenges confrontation and Bruton implications. | Statements admitted under Rule 804(b)(3); no Confrontation Clause or Bruton violation. |
| Jury instructions on association-in-fact | Instruction 30 correctly framed that association-in-fact need not share goals; the enterprise includes collaborations. | Defense claims instruction misleads about lack of common purpose. | Instruction No. 30 properly expressed law; no reversible error. |
Key Cases Cited
- United States v. Algee, 309 F.3d 1011 (7th Cir. 2002) (conflict due to prior representation of co-defendants may justify disqualification)
- United States v. Turner, 594 F.3d 946 (7th Cir. 2010) (mere possibility of cooperation not enough to disqualify counsel)
- United States v. Useni, 516 F.3d 634 (7th Cir. 2008) (elements of RICO conspiracy require agreement to participate in enterprise and two predicate acts)
- United States v. Neapolitan, 791 F.2d 489 (7th Cir. 1986) (two-agreement framework for RICO conspiracy analysis)
- United States v. Benabe, 654 F.3d 753 (7th Cir. 2011) (conspiracy requires agreement that a member will commit two predicate acts)