Family Secrets convictions upheld

FILE: James "Little Jimmy" Marcello is shown in this image.

May 1, 2012 12:12:49 PM PDT
Chicago outfit bosses James ''Jimmy the Man'' Marcello and Frank ''The Breeze'' Calabrese Sr. lost their petition in the United States Court of Appeals for the Seventh Circuit by a majority vote with Circuit Judge Diane Wood dissenting from Judges Richard Posner and Diane Sykes's opinion, saying she believed the government violated their rights under the Double Jeopardy Clause.

In 2005, Marcello, Calabrese, Paul "The Indian" Schiro and mob boss Joseph "Joey the Clown" Lombardo were convicted in the conspiracy of 18 old mob slayings. Marcello, Calabrese and Lombardo were sentenced to life in prison; Schiro received 20 years. Fifth defendant, mob associate and former Chicago cop Anthony "Twan" Doyle was sentenced to 12 years for conspiracy. Marcello and Lombardo's appeals were denied. Doyle, the only winner, no longer must pay restitution.

As part of Judge Wood's dissent, she writes "conspiracy can reach back most indefinitely. If the conspiracy itself is a durable one that lasts over many years or even decades, as this one did, the indictment could (as this one did) reach back even to the year in which the distinguished U.S. Attorney for the Northern District of Illinois was born. When the government chooses to use this broad and powerful tool once, however, its choice has consequences. One of those consequences is refraining from prosecuting the defendant again, for the same conspiracy, when it obtains broader evidence of criminal culpability...I see no difference in the essential agreement that was at issue in the earlier cases and in this case. I would reverse Calabrese and Marcello's convictions on the ground that the present trial has violated their rights under the Double Jeopardy Clause."

Lombardo's appeal argued that he withdrew from the outfit in 1992 by placing an ad in local newspapers, and therefore the five-year statute of limitations had run out by the time he was indicted in 2005. Of this Posner writes "One cannot avoid liability for conspiracy simply by ceasing to participate hoping the conspiracy will continue undetected long enough to enable the statute of limitations to be pleaded successfully when one is finally prosecuted, the conspiracy having at last been detected."

All the defendants complained about the actions of Judge James Zagel and what they considered inappropriate communications with jurors. The appellate judges felt Zagel was justified in granting anonymity to the jurors "in such a high-profile trial involving a gang that though much diminished from its glory days continues to inspire fear."

During the appellate hearing in February, Judge Diane Wood, felt there was a greater concern about Zagel's communications with a female alternate juror who said she was not comfortable being on the jury calling it a "real problem". Zagel approached the juror who asked whether any threats had been made against her, but none had. Though she said she hadn't talked about her feelings with other jurors, the judge removed her from the jury. Posner wrote "The defendants argue that the judge should have told the lawyers about the situation before removing the juror"?"and that they should have been present when the judge was discussing the juror's anxieties with her. ?What more was there to ask her? Given her state of mind, the judge was justified in removing her from the jury. "

The one reversible error the appellate judges agreed upon was restitution. Four of the defendants were ordered to pay nearly $4 million in restitution except Doyle who was to pay 1% of that amount.