UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RANDALL RE and ANTHONY CALABRESE, Defendants-Appellants.
Nos. 03-2089 & 03-2129
United States Court of Appeals For the Seventh Circuit
March 22, 2005
Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 CR 448—Charles P. Kocoras, Chief Judge. ARGUED APRIL 8, 2004
Re and his wife, who lived near Chicago, Illinois, jointly owned a warehouse in Englewood, Florida. The tenancy of the warehouse was sporadic. In fact, the warehouse was vacant more than it was occupied. Next to the Re property was a warehouse owned by Gregory Leach. Because of their neighboring properties, Leach and Re have known each other since the early 1990s. However, various disputes over the years, including one that escalated to the point of a lawsuit, strained their relationship.
In the spring of 1997, Re listed his warehouse for sale at $279,000. After the list price was reduced to $259,000, a potential buyer, Jimmy Daughtry, surfaced. Daughtry offered Re $200,000, which Re rejected, countering with a $240,000 offer.
Daughtry ultimately decided to lease warehouse space from Leach. Daughtry‘s decision to lease from Leach, instead of buying from Re, hinged upon representations Leach made to Daughtry. According to Daughtry‘s real estate agent, Leach told Daughtry that a sewer line connecting Re‘s property with a local service station had been installed across Leach‘s property without Leach‘s permission, without appropriate permits, and without any inspections. On the same day the lease agreement was signed, April 17, 1997, Daughtry‘s real estate agent informed Re via facsimile that Leach‘s statements to Daughtry about the sewer line killed the sale. The agent even went so far as to advise Re to sue Leach if what Leach had said was untrue.
A. The Assault
On May 3, 1997, Leach was contacted by another “potential lessee,” a person who identified himself as Sammy Bender. Leach agreed to meet “Bender” at the warehouse so that Bender could inspect the warehouse space. When
As Leach was falling to the floor, he reached for a small gun he had brought with him, which he was licensed to carry. The man with the bat warned Leach that he would be killed if he was “going for” a gun. One of the men then took the gun from Leach‘s pocket. The beating continued for a minute or so, and Leach was hit in the ribs, arms, legs, and feet.
As he was being beaten, one of his assailants told Leach to “tell Jimmy [Daughtry] to move out” and repeatedly asked Leach if he was “getting the message.” Leach stated numerous times that he “got the message.” Eventually, the two men fled. Leach then called 911 and his wife, gave a description of the two men to the responding police officer, and drove himself to the hospital.
B. Telephone Calls Closing the Matter
Two days after the attack, Leach called Re in Illinois and told Re that he did not want any more problems with their warehouse properties. Re agreed. During their conversation, Leach also explained that he told Daughtry that he would tear up the lease at any time if Daughtry wanted to move out, but that Leach had no legal reason to break the lease. Re responded that Leach could get Daughtry out if Leach wanted to.
C. Evidence Linking Re to Calabrese
Between April 22 and April 30, 1997, telephone records show thirteen communications between Re and Calabrese, his co-defendant. No communications occurred between May 1 and May 4.
Re and Calabrese both resided near Chicago, Illinois. However, on the day of Leach‘s beating, both had traveled to Florida. Re had flown to Florida to attend his father-in-law‘s funeral on the morning of May 3. Calabrese was visiting Florida with a friend. He rented a car on May 2 in an area near Leach‘s warehouse. On May 3, Calabrese, accompanied by Robert Buckley, visited Dennis Kowalski. Approximately one hour after their arrival, Calabrese and Buckley exited Kowalski‘s home through a door next to which Kowalski kept a silver aluminum baseball bat, stating that they would return. The two returned one to two hours later. The next day, Calabrese gave Kowalski a gun and told Kowalski to “keep it or get rid of it.”
Kowalski kept the gun until September 1999, when he gave it to Jeff Cox. Cox stored the gun in his attic. In April 2000, Cox sold his home to Randy Bergman. Shortly after moving in, Bergman discovered the gun in the attic and took it to a Florida Sheriff‘s office. It was turned over to the Federal Bureau of Investigation. A search of the National Crime Information Database revealed that the serial num
D. Leach‘s Identification of Calabrese
Immediately following the assault, Leach described Bender to a Sarasota, Florida, sheriff‘s deputy as a white male, 5‘11” tall, approximately 240 pounds, having dark hair and a dark complexion, appearing to be Italian with a square jaw, and wearing gold chains.
Nine months after the incident, Leach described Bender to a Naperville, Illinois, police detective as a white male, 5‘10” tall, approximately 35 years of age, 190 pounds, with short curly hair and a beard and mustache.
In the spring of 1998, Leach viewed two photo line-ups. From the first line-up, he picked out a man who was later identified as Calabrese. At trial, Leach identified Calabrese as the man who had assaulted him and who was known to him as “Bender.” From the next photo line-up, Leach identified a man who he thought was his second attacker. However, it was later determined that the individual Leach selected from that line-up was not, in fact, present at the May 3 assault. As a result, this person was never charged with any crime resulting from these events.
II. Procedural Posture
On November 1, 2002, the defendants were found guilty of conspiring to commit extortion,
III. Analysis
A. Convictions
The defendants mount three challenges to their convictions. First, they assert that the district court erred when it limited defendants’ inquiry into Leach‘s misidentification of his assailant in the second photo line-up. Second, they generally question the sufficiency of the evidence to support their convictions. Third, they specifically assert that the government‘s evidence was insufficient as to the interstate commerce element required under
1. Misidentification
The defendants claim that their convictions must be reversed because of an incorrect evidentiary ruling by the district court. During the cross-examination of Leach, defense counsel attempted to discredit Leach‘s identification of “Bender” by highlighting Leach‘s indisputably incorrect identification of his second attacker. At one point, counsel asked Leach, “You don‘t see [the person you identified in the second photo line-up] in the courtroom today?” The government objected, and the district court sustained the objection, further instructing the defense to avoid any similar questions. In so ruling, the court differentiated between Leach‘s ability to identify his attackers, a proper subject for cross-examination, and the government‘s exercise of
We review the trial court‘s limitation of the scope of Leach‘s cross-examination for abuse of discretion. United States v. Lane, 323 F.3d 568, 579 (7th Cir.), cert. denied, 540 U.S. 818 (2003); United States v. Jackson, 51 F.3d 646, 652 (7th Cir. 1995). Under this deferential standard, an abuse of discretion occurs only when no reasonable person could take the view of the district court. Lane, 323 F.3d at 579 (quotation omitted). And even if the trial court did abuse its discretion, we will not reverse a jury verdict if the erroneous ruling is harmless. Id. (citing
With respect to its aforementioned limitation of Leach‘s cross-examination, the district court reasoned that any inquiry into why the person identified by Leach in the second photo array was not prosecuted, assuming the relevance of such testimony, could not be permitted under
Later, during the defense‘s cross-examination of one of the investigating detectives from the Naperville Police
We fail to see how the district court‘s limitation of Leach‘s cross-examination was in error, particularly given its later evidentiary rulings allowing extensive inquiry into the quality of Leach‘s identifications and the admission of the second photo line-up. On appeal, the defendants claim that the ruling was in error because the particular question counsel attempted to ask Leach during his cross-examination was posed only to illustrate Leach‘s inability to correctly identify his assailant, which was an unquestionably relevant topic of inquiry. However, this ignores the specific phrasing of the question—“You don‘t see [the person you identified in the second photo line-up] in the courtroom today?“—which indeed implicated (or, at the very least, raised the specter of) the government‘s exercise of prosecutorial discretion.
We agree with the district court that the fact of the government‘s decision not to prosecute the individual Leach misidentified as his unknown assailant in the second photo line-up was distinct from and irrelevant to Leach‘s ability to identify his assailants. As the record demonstrates, the court in no way prohibited inquiry into the quality of Leach‘s identifications.
In fact, the district court allowed the defense to question Leach and other witnesses at great length about the ac
2. Sufficiency of the Evidence
The defendants also contend that the evidence was insufficient to support their convictions as to both counts. Viewing all evidence and drawing all reasonable inferences in the light most favorable to the government as we must, United States v. Hicks, 368 F.3d 801, 804-05 (7th Cir. 2004), their challenge fails. It is impossible for us to say that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See id.
“To sustain a conspiracy conviction, the government must prove that ‘two or more persons joined together for the purpose of committing a criminal act and that the charged party knew of and intended to join the agreement.’ ” United States v. Macedo, 371 F.3d 957, 965 (7th Cir. 2004) (quoting United States v. Adkins, 274 F.3d 444, 450 (7th Cir. 2001)). But direct evidence of the conspiratorial agreement is not necessary. A jury may “find an agreement to conspire based upon circumstantial evidence and reasonable inferences drawn [from] the relationship of the parties, their overt acts, and the totality of their conduct.” Id. (quotation omitted). Moreover,
We summarize briefly the key evidence the government introduced at trial which permitted the jury to infer that Re and Calabrese conspired to extort Leach: (1) Re and Calabrese knew each other and both lived near Chicago, Illinois; (2) Re and Calabrese contacted each other frequently in the days leading up to Leach‘s attack; (3) both were in Florida on the day Leach was attacked; (4) Re had tried unsuccessfully to sell his warehouse (which was vacant a majority of the time) to Daughtry; (5) Re had a strong financial motive to extort Leach because Leach‘s lease of his warehouse to Daughtry cost Re his sale; (6) Leach and Re had an acrimonious history; (7) Leach‘s assailants, after confirming that Leach owned the warehouse and knew Daughtry, indicated during the attack that their purpose was to induce Leach to convince Daughtry to break his lease; (8) Re indicated to Leach after the assault that he believed Leach could “get Daughtry out” if Leach wanted to do so; (9) Leach positively identified Calabrese (also known as “Bender“) as one of his attackers; and (10) the gun taken from Leach during his attack was linked to Calabrese. This circumstantial evidence was sufficient to support the defendants’ convictions as to both counts.
3. Interstate Commerce Element of § 1951
The defendants also claim that the evidence presented by the government did not demonstrate that the alleged
As with the defendants’ sufficiency challenge discussed above, they face an uphill battle here. See United States v. Sanchez, 251 F.3d 598, 601 (7th Cir. 2001). We again view all the evidence and draw all reasonable inferences in the light most favorable to the prosecution and uphold the verdict so long as any rational trier of fact could have found the interstate commerce element beyond a reasonable doubt. Hicks, 368 F.3d at 804-05.
In this case, the government relied upon a “depletion of assets theory” to meet the interstate commerce requirement of the Hobbs Act. Under this theory, commerce is affected when an enterprise which customarily purchases items in interstate commerce has its assets depleted through extortion, which in turn limits the victim-enterprise‘s potential as a purchaser of goods. See United States v. Elders, 569
The evidence relied upon by the government indeed pushed the jury‘s inferential powers to the outermost limits. As we explained above, under the depletion of assets theory, the victim-enterprise must customarily purchase goods in interstate commerce. We find it particularly troubling that the government never affirmatively established when and with what funds Leach acquired the weed-eater, gas, paint, and tools.3 Nor did the government present any direct evidence to establish that the gas, paint, and tools used by Leach to maintain the warehouse had traveled in interstate commerce.4 Hence, the jury could have inferred, for example, that Leach purchased only one weed-eater twenty years ago. If so, such would not amount to the customary purchase of interstate goods, as required. Likewise, if Leach simply used gasoline, paint, and tools he had purchased for his personal consumption, then no victim-enterprise (i.e., warehouse) funds would have been used to purchase those interstate goods, as required. Had the jury inferred that
However, we conclude that the above evidence, taken as a whole and construed in the light most favorable to the government, is sufficient to sustain the defendants’
B. Sentences
Sentencing in federal courts has been altered in several important ways by the Supreme Court‘s recent decision in
Re and Calabrese were convicted of one count of conspiring to commit extortion and one count of conspiring to travel to commit extortion. Under the Guidelines, the base level for these offenses is 18, which corresponds to a sentence of 27-33 months. The sentencing court, however, sentenced the defendants to 87 months after making several findings under a preponderance of the evidence standard. The court enhanced the sentences two levels after finding that the offenses involved an express or implied threat of death or bodily injury, four levels because a dangerous weapon was used, and three levels based on a finding that the victim sustained a bodily injury between the defined categories of “Bodily Injury” and “Serious Bodily Injury.”
Re and Calabrese now claim that their sentences were imposed in violation of the Sixth Amendment as clarified by Booker, and that the sentences should be vacated. The defendants did not argue that the Guidelines were unconstitutional in the district court; therefore, we must now review their sentences under the plain error standard. See Booker, 125 S. Ct. at 769; United States v. Cotton, 535 U.S. 625 (2002). A four-part test was set forth by the Supreme Court to determine plain error. Cotton, 535 U.S. at 631-32; Johnson v. United States, 520 U.S. 461, 466-67 (1997). “[B]e-
So, the first inquiry is whether there was an error that was plain. The Supreme Court held that error is plain when “the law at the time of trial was settled and clearly contrary to the law at the time of appeal. . . .” Id. at 468. This “criterion is satisfied in cases such as these after Booker.” United States v. Paladino, No. 03-2296, 2005 WL 435430, at *7 (7th Cir. Feb. 25, 2005).
Although the sentences were unconstitutionally imposed, we do not know whether the defendants’ rights were substantially affected because we do not know if the district judge would have imposed the same sentences even with the increased discretion permitted by Booker. Therefore, we will retain jurisdiction of the appeal and “order a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence.” Id. at *10. If the district court determines that it would have imposed the same sentence, there is no prejudice and thus no plain error, but the sentence will still be reviewed for reasonableness. Id. If the sentencing judge determines that he would have imposed different sentences under the Booker standard, we will vacate the original sentences and remand the cases for resentencing. Id.
IV. Conclusion
For the foregoing reasons, we AFFIRM the convictions of Re and Calabrese. While retaining jurisdiction, we order a
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Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—3-22-05