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United States of America v. Paul Schiro, et al

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ARGUED FEBRUARY 13, 2012–

Before POSNER, WOOD, and SYKES, Circuit Judges.

This long-running criminal case is before us for the second time. In the first appeal, de- cided in United States v. Calabrese, 490 F.3d 575 (7th Cir. 2007), two defendants, Frank J. Calabrese, Sr., and James Marcello, charged with violating RICO by conspiring to conduct an enterprise’s affairs through a pattern of racke- teering activity, 18 U.S.C. § 1962(d), appealed from the denial of their motions to dismiss the indictment. The indictment charged them, along with other members of the “Chicago Outfit”–the long-running lineal descendant of Al Capone’s gang–with having conducted the Outfit’s affairs through a pattern of racketeering activity that extended from the 1960s to 2005 and included a number of murders, along with extortion, obstruction of justice, and other crimes. Calabrese and Marcello contended that the trial, which was scheduled to begin on June 19, 2007, would place them in double jeopardy, and so they moved the district court to dismiss the charges. We affirmed the denial of their motions, holding that they had failed to show a sufficient overlap between the current indictment and previous indictments to establish that the new prosecution was placing them in double jeopardy, though we noted that, depending on the approach taken by the government in the forth- coming trial, the trial might vindicate their claim. United States v. Calabrese, supra, 490 F.3d at 580-81.

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