United States v. Michael Davis, 845 F.3d 282

Background

In 2012 Davis loaned $300,000 to Ideal Motors (owned by R.J. and Joseph Serpico); Joseph lost much of the money gambling and payments fell into default.
Recorded communications among George Brown (an FBI cooperator), Paul Carparelli, and the Rovitos described a plan to “thorough[ly]” beat R.J. Serpico; the client in those calls was called “Mickey.”
A $5,000 down-payment for the planned assault was delivered; FBI arrested Carparelli and seized that payment before any attack occurred.
The government never recorded Davis on the calls but relied on the recorded conversations, cell‑phone records, motive evidence, and witness testimony to identify Davis as the “Mickey” who ordered the beating and paid/advanced funds.
At trial Davis was convicted of attempted extortion and using extortionate means to collect a loan (18 U.S.C. §§ 1951, 894). He appealed, challenging (inter alia) admission of co‑conspirator statements, impeachment with prior inconsistent FD‑302s, denial of immunity to Gigi Rovito, limits on cross‑examination, and portions of the government’s closing.

Issues

Issue	Plaintiff's Argument (Gov't)	Defendant's Argument (Davis)	Held
Admissibility of recorded co‑conspirator statements under Fed. R. Evid. 801(d)(2)(E)	Statements admissible because Santiago proffer plus independent circumstantial evidence showed a conspiracy and Davis’s participation	Admission improper: government failed to lay adequate foundation linking Davis to the conspiracy	Affirmed — judge did not abuse discretion; preponderance of evidence (recordings + cell records + motive + witness testimony) supported conditional admission
Impeachment of John Rovito with prior FD‑302 statements	Government can impeach its witness under Rule 607 when testimony is inconsistent and prosecution did not call him in bad faith	Improper impeachment and trial-prejudicial; judge should have given contemporaneous limiting instruction	Affirmed — prosecution acted in good faith; impeachment allowed; no abuse in declining contemporaneous limiting instruction (final instructions given)
Prosecutorial refusal to grant immunity to Gigi Rovito	Prosecutors exercised discretion appropriately to refuse immunity when perjury was likely	Failure to grant immunity deprived Davis of due process; court should have ordered immunity or other remedy	Affirmed — prosecutor has broad discretion; no evidence of intent to distort fact‑finding; dismissal not required
Scope of cross‑examination of cooperator George Brown	Cross permitted on relevant matters; government limited collateral, cumulative, or speculative inquiry	Defense needed to explore Brown’s prior extortion practices to support alternative theory that beating was unrelated to debt collection	Affirmed — district court acted within discretion; Brown’s testimony already supported defense theory on the record

Key Cases Cited

Bourjaily v. United States, 483 U.S. 171 (consideration of the statements themselves is allowed when preliminarily determining admissibility under Rule 801(d)(2)(E))
United States v. Santiago, 582 F.2d 1128 (7th Cir.) (describes the Santiago proffer procedure for conditional admission of co‑conspirator statements)
United States v. Haynie, 179 F.3d 1048 (7th Cir. 1999) (elements for admitting co‑conspirator statements under Rule 801(d)(2)(E))
United States v. Harris, 585 F.3d 394 (7th Cir. 2009) (statements themselves cannot alone satisfy independent corroboration requirement)
United States v. Webster, 734 F.2d 1191 (7th Cir. 1984) (prosecution cannot call a witness in bad faith merely to introduce hearsay via impeachment)
United States v. Kane, 944 F.2d 1406 (7th Cir. 1991) (impeachment of one’s own witness improper when used as subterfuge)
United States v. Burt, 495 F.3d 733 (7th Cir. 2007) (test for bad‑faith use of one’s own witness for impeachment)
United States v. Lake, 500 F.3d 629 (7th Cir. 2007) (prosecutorial discretion in granting immunity; courts rarely order immunity)