United States v. Anthony C. Zizzo, James J. Marcello, Richard Gervasio, Anthony N. Chiaramonti, Brett K. O'dell, and Samuel A. Carlisi

Citations: 120 F.3d 1338; 47 Fed. R. Serv. 739; 155 A.L.R. Fed. 755; 1997 U.S. App. LEXIS 19867Docket: 95-1643, 95-1886, 95-3369, 95-3434, 95-4083 and 96-1762

Court: Court of Appeals for the Seventh Circuit; July 29, 1997; Federal Appellate Court

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In December 1992, a grand jury indicted eleven members of the Chicago Outfit, a prominent crime syndicate, for illegal gambling and loansharking activities related to two street-crew subdivisions. Two members pleaded guilty, while the others proceeded to trial, resulting in convictions for all but one. Six defendants appealed their convictions, but following the death of one defendant, Samuel 'Wings' Carlisi, the former leader of the Outfit, his conviction was vacated, while the convictions and sentences of the remaining defendants were affirmed.

The defendants predominantly belonged to the Carlisi Street Crew, which operated in western Cook and DuPage Counties during the 1980s. Carlisi, known for his evasion tactics, was the crew's leader and financier. Key figures included James Marcello, Carlisi's chauffeur and right-hand man; Anthony Zizzo, who supervised the crew's gambling and loansharking operations; and Anthony Chiaramonti, who managed the loan racket. Other notable members included Brett O'Dell, who assisted in loansharking, and Richard Gervasio, who handled betting and debt collection.

The crew's illegal gambling operations were highly profitable, with one bookie reporting $75,000 to $125,000 in average weekend wagers. Another operation, costing over $500,000 to establish, maintained a weekly payroll of around $30,000 and served approximately 800 customers.

All bets were accepted on credit, leading the crew to enforce strict debt-collection practices, holding bookies accountable for overdue accounts. The crew employed intimidation tactics, such as threats and physical violence, to collect debts. For instance, gambler Anthony Pape was threatened with severe violence for failing to pay a $15,000 debt, which he eventually settled by persuading his father to cash in a retirement annuity. Similarly, Michael Huber, who owed $2,500, faced threats and physical coercion when he defaulted, culminating in his being choked and intimidated by enforcers. 

The crew also profited from delinquent gamblers by referring them to loan sharks for "juice loans." Frank Perri received a loan that he could not repay, prompting violent collection efforts, including physical assaults. Anthony LaBarbera, a cooperating FBI witness, also fell victim to the crew’s juice loan practices, receiving a $5,000 loan at a steep interest rate. After falling behind on payments, LaBarbera was threatened by Chiaramonti, who advised him on how to handle his debtors violently. This pattern of coercion and violence illustrates the crew's operational methods in collecting debts and managing loan repayments.

Carlisi, who became the head of the Outfit in 1986, gained control over the Patrick Street Crew led by mobster Lenny Patrick. This crew was involved in various criminal activities, including an attempt to coerce Willis Johnson, owner of a movie theater chain, into union membership amid a labor dispute with projectionists. Carlisi and his associates, whose sons were union members, directed Patrick to create trouble for Johnson. Patrick tasked Mario Rainone to intimidate Johnson, leading to multiple failed attempts to set fire to the Lake Theater using incendiaries. 

In late 1989, a concern arose when Anthony 'Jeep' Daddino, an Outfit tax collector, was at risk of revealing details about the crew after his conviction. To eliminate this threat, Carlisi and Marcello plotted to kill Daddino, enlisting Rainone for the job. However, Rainone suspected he was the intended target and instead cooperated with the FBI for protection.

Additionally, Carlisi financed Patrick's loan operations, lending him $200,000 with a profit-sharing agreement. To safeguard his investment, Carlisi placed 'Singing Joe' Vento in charge of the loan business, which proved profitable, increasing the investment to $500,000 within two years.

In 1989, tensions escalated within the Outfit when Patrick became the first high-ranking member to turn state's evidence after a taped conversation with Rainone. Following this, Gary Edwards, another crew member, also began cooperating with the FBI, prompting Vento to order Patrick to cease his loan operations. Despite this, Patrick facilitated a $5,000 payment to Carlisi's crew through LaValley, who confirmed a reduced debt of $26,000 to Zizzo. Zizzo agreed to allow the crew to resume loansharking activities, overruling Vento. However, LaValley later returned the payment to Patrick out of fear for his safety after learning of Edwards' cooperation, but Zizzo reassured him.

In December 1992, a grand jury indicted several members of the Outfit, including Carlisi, Marcello, and Zizzo, for various criminal activities, primarily under the federal RICO statute for conspiracy and other offenses such as illegal gambling and extortion. Two defendants pled guilty while the others were tried, resulting in eight convictions; only Joseph Braccio was acquitted.

Following Carlisi's death at 75, two key issues arose regarding his appeal: first, his conviction abated due to his death, warranting a remand to vacate his convictions and dismiss the indictment against him. Second, Carlisi had paid significant fines and fees, and his attorney argued that these payments should be refunded to his estate since his conviction is considered null and void.

The court rejected arguments that fines and assessments imposed on Carlisi should be refunded after his death, asserting that these penalties were designed to deprive him of resources gained through criminal activities. The ruling emphasized that the principle of abatement does not apply to fines paid before death, as established by various precedents, and highlighted that Carlisi's criminal forfeiture and costs of prosecution were also non-refundable. Furthermore, Carlisi's agreement specified that he would not receive a refund unless co-defendants also prevailed in their appeals, which was not the case.

Regarding witness testimony, the defendants challenged the admissibility of Lenny Patrick, citing his criminal history and a claim that he renounced his oath during cross-examination. The court determined that the decision to require a psychiatric evaluation for a witness rests with the district court's discretion and found no abuse of that discretion in Patrick's case. It concluded that despite Patrick's past perjury, he was competent to testify, and his credibility could be addressed through cross-examination rather than exclusion from the trial.

During a lengthy cross-examination, Patrick claimed that the oath to testify truthfully held no significance for him. The defendants contended that this statement rendered him an unsworn witness, arguing that Judge Plunkett should have struck his testimony sua sponte. However, the court found no error in the district judge's decision to allow Patrick's testimony, noting that he had sworn to tell the truth and acknowledged the consequences of perjury, especially considering his past experiences with the legal system. 

Additionally, the defendants argued that the district court improperly allowed the jury to hear taped conversations involving Mario Rainone and unindicted coconspirators, asserting these did not qualify under the coconspirator exception to hearsay rules. The court clarified that only the statements made by Patrick and others were admitted under that exception, while Rainone’s comments were used for context, not for their truth. The jury was instructed that Rainone's statements could not be used to establish the truth of the matters discussed, and the court ensured that only relevant statements were admitted, maintaining adherence to evidentiary rules.

Defendants claim their right to a fair trial was compromised due to the district court's failure to dismiss two potentially biased jurors, Scholtens and Huemmer. The first incident occurred on October 5, 1993, when juror Scholtens observed defendant O'Dell in the cafeteria and reported a concern about an electronic monitoring device on O'Dell's leg, mistaking it for a weapon. After questioning Scholtens, Judge Plunkett deemed him capable of remaining impartial. 

The second incident arose on October 23, 1993, when alternate juror Zichterman disclosed overhearing defendants discussing large sums of money, which he speculated related to betting on a Chicago Bears game. After Zichterman was questioned, he was excused from the jury, but Huemmer and Scholtens were allowed to stay. The defendants argue that the judge should have dismissed Huemmer and Scholtens and questioned the entire jury panel regarding these incidents.

The district court's decisions regarding allegations of prejudicial juror contact are reviewed for abuse of discretion, with reversals occurring only in cases of manifest error. The court found that jurors Huemmer and Scholtens could fulfill their duties without bias. Huemmer's statement regarding the prosecution building a case was not seen as evidence of bias, as he maintained his presumption of innocence and expressed confidence in his impartiality. Contextually, Huemmer suggested that discussions among the defendants were irrelevant to the trial. Scholtens similarly indicated he could base his decision solely on trial evidence, with no signs of bias. The court also did not err in declining to question each juror about the defendants' lunchtime conversation, as the request was withdrawn, indicating a waiver of the issue. Even if considered, questioning could have exacerbated the situation, and any claims of prejudice are weakened by the jury's acquittal of one defendant involved in the conversation. Lastly, the defendants challenge the constitutionality of 18 U.S.C. 1955, arguing that it exceeds Congress's Commerce Clause authority, asserting it is unconstitutional as applied to their local gambling operation.

Congress has the authority under the Commerce Clause to regulate activities involving interstate commerce, which includes the use of its channels, protection of its instrumentalities, and activities that substantially affect it. In Lopez, the Supreme Court ruled that the Gun-Free School Zones Act exceeded Congress's Commerce Clause power because it did not relate to commerce or economic activity and lacked jurisdictional elements linking it to interstate commerce. In contrast, Section 1955, which prohibits illegal gambling businesses, has a clear commercial aspect, requiring operations to involve five or more persons and either be in continuous operation for over 30 days or generate significant daily revenue. Although Section 1955 lacks an explicit jurisdictional element, Congress provided substantial findings demonstrating the considerable impact of illegal gambling on interstate commerce, including its ties to organized crime. Previous rulings upheld these findings, affirming the rational connection between illegal gambling and its effects on interstate commerce, which remains unchallenged by the Lopez decision. Evidence of organized crime's involvement in substantial gambling operations, with significant financial implications and extensive networks, supports Congress's conclusion that such activities significantly affect interstate commerce.

The court dismisses the defendants' argument that the statute (1955) cannot apply to their 'purely local' operations, emphasizing Congress's authority to regulate intrastate activities that significantly affect interstate commerce. Citing precedents, the court asserts that even localized illegal gambling, linked to organized crime, falls under federal jurisdiction. The court acknowledges various conviction-related arguments from the defendants but chooses to focus only on the more substantial issues, dismissing less meritorious claims.

Marcello, as the highest-ranking defendant, challenges the district court's exclusion of statements from other cases that labeled witnesses Rainone and Patrick as liars. These statements were made in different contexts and aimed to impeach Rainone's credibility. The district court's discretion to exclude these statements is upheld, as the judge found them potentially misleading and irrelevant to the current trial. Even if the statements could be considered nonhearsay under Rule 801(d)(2)(D), the court had valid reasons for their exclusion, including concerns about juror confusion and the irrelevance of prosecutors' opinions on witness credibility. Furthermore, the court noted that the necessity to introduce such evidence was diminished given that the government's key witnesses had already testified about Rainone's dishonesty.

Patrick's potential perjury was deemed unhelpful for the jury and cumulative to his own testimony, as he acknowledged having testified falsely in a previous California case. The court noted that the defendants could not circumvent Rule 608(b), which prohibits extrinsic evidence of a witness's dishonest behavior. 

Zizzo contended that the district court incorrectly admitted Vince Falzone's statements under the coconspirator hearsay exception (Fed. R. Evid. 801(d)(2)(E)). He referenced an affidavit asserting that he was not involved with the Carlisi crew and that his conversations with LaBarbera were merely gossip. For admission under Rule 801(d)(2)(E), the district court needed to establish the existence of a conspiracy involving Zizzo and Falzone, and that Falzone's statements advanced the conspiracy's goals. 

The court found no clear error in determining that Falzone's statements met the criteria established in *Bourjaily v. United States*. Evidence indicated that Falzone, Zizzo, and Chiaramonti were coconspirators, supported by Falzone's admissions of past collaboration in loan activities with Zizzo's family. Independent evidence corroborated Falzone's claims, including a meeting where Chiaramonti indicated Falzone's knowledge of the loan business and Falzone's assertion that Zizzo would influence loan approvals. 

Additionally, the district court was correct in concluding that Falzone's statements furthered the conspiracy. The statements did not need to be exclusively aimed at advancing the conspiracy, but must have had a reasonable basis for contributing to its objectives. Falzone facilitated a loan for LaBarbera by emphasizing his connections with Chiaramonti and Zizzo, setting up a meeting, and advising LaBarbera on loan amounts and repayment to avoid issues with the conspirators.

Falzone's remarks were determined by the district court to serve the dual purpose of informing a potential borrower about juice loan procedures and encouraging larger loans to increase conspiracy profits. Chiaramonti challenged the admission of evidence regarding his past violent acts and reputation, arguing it was prejudicial. The trial court permitted LaBarbera to testify about warnings from acquaintances about Chiaramonti's dangerousness, as well as to recount conversations illustrating Chiaramonti's violent tendencies. The jury heard taped statements from Falzone, one admitting Chiaramonti's supervisory role in the juice loan operation and another illustrating Chiaramonti's violent behavior. Chiaramonti's own statements included threats of violence towards his son and LaBarbera, contributing to LaBarbera's fear of Chiaramonti, leading him to seek protection from FBI agents. The district court did not abuse its discretion in admitting this evidence to demonstrate LaBarbera’s understanding of the threats associated with the loan. Chiaramonti faced charges of extortionate credit extension under 18 U.S.C. § 892, requiring the government to show that both parties were aware that failure to repay the loan could result in violence. The definition of "understanding" did not necessitate a mutual agreement; it simply required comprehension of the implied threat. The district judge correctly applied Rule 403 and provided appropriate jury instructions, justifying the admission of evidence relating to LaBarbera's perception of the juice loan.

Evidence of a defendant's "state of mind" can be admitted even if not directly linked to the charged offense, as illustrated in various cases. For instance, a juice loan borrower was permitted to testify about a defendant's violent past, which, while unrelated to loansharking, was relevant to the borrower's perception of the potential consequences of failing to repay a loan. Testimony regarding a defendant's prior convictions for armed robbery and murder was also deemed admissible to demonstrate the debtor's state of mind, particularly regarding fear of violence from the defendant, who had a reputation for aggression and ties to organized crime.

The admission of such evidence does not require the unavailability of the loan debtor, as clarified in relevant case law. Section 892(c) allows for reputation evidence regarding collection practices when a debtor's testimony cannot be obtained, but it also permits the introduction of prior bad acts under Rule 404(b) when relevant to a victim's fear. An example provided indicates that if a debtor could not testify, the government could use testimony from co-conspirators about the defendant's extortionate practices.

Chiaramonti's arguments against the admission of evidence under the Confrontation Clause were found to be without merit, as his own statements did not violate this right, nor did those of his co-defendant when taken under the applicable rules. The jury was instructed to disregard certain statements for their truth, maintaining the integrity of the trial process.

O'Dell's objections to the admission of evidence regarding his prior bad acts were similarly addressed. Most of the contested evidence was not introduced under Rule 404(b) but was relevant to the RICO conspiracy charge, with only one exception among the listed acts being questioned. The court's rationale for admitting such evidence underscores its relevance to the overarching conspiracy, rather than merely attempting to tarnish O'Dell's character.

Evidence regarding the barbershop vandalism and jewelry store burglary was either not offered or excluded during the government's case, with testimony permitted only after O'Dell claimed no criminal ties to Chiaramonti. The court found no abuse of discretion in this ruling. Testimony about stolen tires was introduced during cross-examination, which O'Dell did not object to; thus, the court did not err in admitting it as it was relevant to his credibility. Additionally, evidence of O'Dell's prior failure to file tax returns was admitted without objection and was deemed relevant to his intent regarding the charges of willful failure to file under I.R.C. 7203.

O'Dell also challenged the exclusion of statements made by Carlisi post-arrest, arguing they could demonstrate his lack of involvement with the Carlisi crew. However, the court determined that Carlisi's statement was not against his penal interest, as it did not imply liability. Furthermore, O'Dell's claim for admission under the excited utterance exception was rejected because he could not prove Carlisi was still under the stress of a startling event at the time of the statement; agents described him as calm. Lastly, Gervasio contested the admission of testimony from Michael Huber regarding Joe Cumbo's debt collection attempts, arguing it lacked a direct link to him and was more prejudicial than probative, under Rule 403.

Gervasio contends that an error was exacerbated by the jury's exposure to photographs of Huber's wife's car, which had been burned shortly after Cumbo suggested Huber sell it to settle debts. The district judge acknowledged a tenuous connection between Cumbo and Gervasio, allowing Huber to testify about Cumbo's debt collection efforts, which was deemed not an abuse of discretion. Cumbo indicated he was pursuing a debt linked to Briscoe, who had previously testified that Gervasio handled his debt collections. Although the jury later dismissed some of Briscoe's testimony, there was adequate basis for connecting Cumbo to Gervasio at the time of Huber's testimony. Regarding the car photos, Judge Plunkett dismissed objections, stating they were merely images of a seat and not inflammatory or misleading, thus justifying their admission. The court found no reason to question the district court's evidentiary decisions and proceeded to evaluate the defendants' arguments regarding the sufficiency of evidence, applying a standard that favors the government’s perspective. 

Marcello's appeal focuses on his Rule 29 motions for acquittal, specifically challenging the jury's findings on two racketeering acts: conspiracy to intimidate Willis Johnson and a plot to murder "Jeep" Daddino, despite the jury affirming his involvement in six other acts. His argument suggests that the district court’s refusal to acquit him on these acts improperly exposed the jury to prejudicial allegations, potentially tainting the overall verdict. However, the court considers this argument weak and ultimately dismisses his claims regarding sufficiency on the merits. For the Lake Theater incident, the district court had dismissed the arson claim due to insufficient evidence of property damage, leading Marcello to argue that his actions did not meet the intimidation statute's requirements since the theater owner received no threat.

Marcello argues that the government's evidence constitutes only an incomplete attempt to intimidate, which he claims does not amount to a racketeering offense under 18 U.S.C. 1961(1)(A). He misunderstands conspiracy law, as he was indicted for conspiracy to commit intimidation, not for misdemeanor attempted intimidation. The government needed to show that Marcello and at least one other person intended to commit the elements of the substantive offense, specifically to exert improper influence on the Lake Theater's owner to comply with union demands. Evidence indicated that Marcello and his associate Carlisi had a motive for intimidation due to conflicts with the owner's son’s union. Testimony revealed that Marcello instructed a subordinate to create trouble for the theater owner, which demonstrated an agreement to intimidate. 

Further, regarding a plot to murder Daddino, Marcello contends the government did not prove any co-conspirators acted to further this plot. However, evidence showed that co-conspirator Joe Vento solicited assistance from Marcello, who facilitated the hit by providing a walkie-talkie for the attack. This evidence allowed the jury to find sufficient actions taken in furtherance of the conspiracy.

Zizzo challenges the sufficiency of evidence regarding his involvement in the LaBarbera loan, claiming it was a personal arrangement between Chiaramonti and LaBarbera, emphasizing he never met LaBarbera and that the loan was processed via check. However, evidence indicated that Zizzo supervised the loan operation and was involved in the transaction, including instructing LaBarbera on payment methods and settling delinquent interest. The jury could reasonably conclude that Zizzo was implicated in the loan dealings.

A rational juror could determine that Zizzo was involved in the LaBarbera loan. Chiaramonti argues that the jury's verdicts on racketeering, gambling, and tax counts should be overturned, particularly focusing on Counts One and Two, which are subject to a 5-year limitations period. He contends that the jury could not have rationally concluded his involvement in the RICO conspiracy or illegal gambling after 1987, claiming he exited both activities in the early 1980s. However, the LaBarbera loan occurred in 1988, with payments extending into 1990, contradicting his timeline. Testimony from coconspirator James Palaggi indicated ongoing connections between Chiaramonti and the RICO conspiracy, including money-sharing with Carlisi, which the jury could rationally accept despite Chiaramonti's claims regarding Palaggi's credibility. 

Regarding the illegal gambling charge, Chiaramonti admits to running a betting crew in the early 1980s but argues there is no connection to conspiratorial activities post-1983, despite acknowledging he took horse racing bets in 1988. The indictment explicitly included horse racing in the crew's operations. Testimony indicated Chiaramonti remained active in the business, as he was involved in a 1989 crackdown on non-Outfit betting offices, thus providing sufficient grounds for his conviction. Additionally, crew bookies directed losing bettors to Chiaramonti's juice loan operation, which continued to operate after 1987.

Chiaramonti's juice loan operation significantly supported the crew's illegal gambling business, leading the jury to conclude his involvement. He contested the jury's verdict regarding the 1955 count, claiming improper jury instructions regarding the need for unanimous agreement on the identities of the five participants and their participation periods. Since he did not object to the instructions, his claim was reviewed for plain error. In contrast to the Ninth Circuit's ruling in *United States v. Gilley*, where a specific unanimity instruction was deemed necessary due to fluctuating participation levels, the current case involved consistent participation by multiple individuals throughout the gambling operation's duration, negating the need for such an instruction. Even if an error had occurred, it was not plain, as the general unanimity instruction sufficed, and there was no evidence that a specific instruction would have led to a different outcome. Additionally, Gervasio argued regarding his identification as a bookie by Michael Huber in front of a grand jury; Huber referred to him as "Richie," suggesting some ambiguity in the identification process.

Gervasio argues that Huber's inconsistent statements about his gambling history render him a chronic liar, claiming that without Huber's testimony, no rational jury could convict him. During the trial, Gervasio attempted to impeach Huber's credibility with his previous grand jury testimony, yet the court found Huber's testimony not inherently unreliable, as it did not meet the threshold for being incredible as a matter of law. Huber's testimony included details of over $60,000 in gambling debts to Gervasio, threats made by Gervasio, and instances of assault, which were corroborated by other witnesses. This evidence was sufficient to support Gervasio's convictions for conspiracy to conduct racketeering activities, aiding illegal gambling, and collecting debts through extortion.

The document then transitions to address sentencing challenges raised by defendants Marcello, Zizzo, and Chiaramonti, who contested a 2-level upward departure in their sentences due to their involvement in organized crime. They argued this was improper since the Sentencing Commission had already considered organized crime in the guidelines. The court reviewed this issue de novo, noting that the district court's decision to depart was based on precedents, specifically referencing the Rainone case, where a similar argument about double counting in relation to organized crime and racketeering was made.

The court upheld a departure in sentencing, distinguishing between standard RICO cases and those involving organized crime, specifically the Chicago Outfit. It noted that the motivations and scope of statutes can differ significantly and emphasized that if the RICO guideline range were tailored to the Outfit, it would unjustly escalate penalties for typical criminal activities. Defendants Marcello, Zizzo, and Chiaramonti argued their sentencing was justified under a different subsection of the guidelines, citing U.S.S.G. 2E1.1(a), which bases offense levels on either a set level or the level for the underlying racketeering activity. They contended that the Sentencing Commission accounted for organized crime in setting base levels for extortionate credit offenses, referencing commentary on U.S.S.G. 2E2.1 that associates loan-sharking with organized crime. However, the court referenced a precedent in United States v. Damico, which denied similar arguments, affirming that organized crime involvement is not inherently reflected in the base offense levels under RICO guidelines. The court concluded that membership in an organized crime group like the Chicago Outfit justifies a departure in sentencing, even when the predicate acts involve extortionate credit transactions. The defendants' individual sentencing challenges, including Marcello's concerning a conspiracy charge, were also unsuccessful.

Marcello contests the district judge's assignment of a base offense level of 18 for extortion under U.S.S.G. § 2B3.2, arguing it should have been level 12 for making a threatening communication under § 2A6.1. The judge determined the most analogous federal offense for Marcello's conspiracy to intimidate Willis Johnson, a felony under Illinois law, and appropriately selected § 2B3.2, which encompasses threats that could reasonably suggest injury to a person or property. The case involved threats of property damage and personal injury, exemplified by the use of gasoline, a Molotov cocktail, and grenades. 

Marcello also contends that the district court improperly grouped the racketeering acts under § 3D1.2, asserting only three offense groups were appropriate, rather than the nine identified by the court. Despite this, his argument lacks merit, as both interpretations would lead to a 5-level increase under § 3D1.4. 

Zizzo raises two points regarding his sentence, arguing that debts collected by others should not count against him and contesting a 3-point increase for his supervisory role under § 3B1.1(b). Zizzo concedes he was a supervisor but claims fewer than five people were involved in some predicate acts. However, the jury established Zizzo's participation in extortionate debt collections, including debts owed by specific individuals. The district court found sufficient evidence of Zizzo's supervisory role over the crew's activities, justifying his sentencing accountability for those offenses.

Zizzo's challenge to the 3-level enhancement under § 3B1.1(b) is unsuccessful. His argument centers on the number of individuals involved in two predicate offenses of the RICO conspiracy, which is deemed irrelevant. Rather than focusing on individual acts, the overall conspiracy's participant count is considered, confirming that at least five individuals were involved. The indictment named significantly more than five defendants, supporting the application of the enhancement.

Gervasio's request for a 2-point reduction for a minor role under § 3B1.2(b) is also denied. Despite claiming to be a minor participant, evidence indicates he was an active bookmaking agent, handling substantial amounts of money and exerting control over betting privileges. His actions in managing delinquent debts and coordinating with enforcers contradict his assertion of being a "penny-ante phone man."

O'Dell contests a 2-point offense level increase for obstruction of justice under § 3C1.1. The district court found he obstructed justice by not fully complying with a grand jury subpoena and by committing perjury during his defense. O'Dell failed to provide complete financial records, including missing IRS 1099 forms, and his testimony was deemed implausible by the judge. The court's findings support the enhancement, as O'Dell's actions were interpreted as efforts to evade justice and tax evasion charges.

O'Dell's defense against charges of willfully failing to file tax returns was undermined by his testimony that financial hardship prevented him from filing taxes. This claim was contradicted by evidence showing he engaged in significant expenditures, including a $450,000 home purchase, extensive home improvements, and luxury vehicle acquisitions totaling over $100,000, while also reporting substantial income in unfiled tax documents. The district judge found O'Dell's testimony to lack credibility.

Marcello's motion for a new trial, based on allegations that prosecutors suborned perjury by allowing witness LaValley to testify untruthfully, was denied by the district court. Since Marcello did not appeal this denial, the court lacked jurisdiction to consider the claim.

The case of Sam Carlisi has been remanded to the district court with instructions to vacate his conviction and dismiss the indictment against him, although any fines and costs he paid will not be refunded. The judgments against other defendants, including Zizzo, Marcello, Gervasio, Chiaramonti, and O'Dell, were affirmed.

Additional notes included the rejection of constitutional challenges to gambling laws and the applicability of hearsay rules concerning government employees' statements in criminal cases. The court highlighted that testimony from other witnesses was admitted as direct evidence of racketeering activities, not under hearsay exceptions. Lastly, to avoid ex post facto issues, defendants were sentenced under the 1989 sentencing guidelines.