Case: 1:10-cr-00196 Document #: 85 Filed: 09/19/12 Page 1 of 8 PageID #:335
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
UNITED STATES OF AMERICA )
) No. 10 CR 196-1
vs. )
) Judge Harry D. Leinenweber
RUDOLPH CARMEN FRATTO )
GOVERNMENT’S SENTENCING MEMORANDUM
The UNITED STATES OF AMERICA, by GARY S. SHAPIRO, Acting United States Attorney for the Northern District of Illinois, submits this memorandum in support of its sentencing recommendation for defendant Rudolph Carmen Fratto (“Fratto). For the reasons set forth below, the government asks the Court to sentence Fratto to a term of imprisonment substantially in excess of the Advisory Guidelines range plus two offense levels.
I. BACKGROUND
On March 11, 2010, defendant Fratto was charged by indictment with mail fraud in violation of Title 18, United States Code, Sections 1341 and 2 (Count One). On October 27, 2011, Fratto entered a plea of guilty pursuant to a plea agreement to Count One of the indictment. Sentencing is set for September 26, 2012, at 9:45 a.m.
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II. APPLICABLE GUIDELINES RANGE
A. PSR’s Calculation of Total Offense Level
The government agrees with the PRS’s calculation of a Total Offense Level of 14.
PSR 5-6 //lines 87, 89.1 That offense level includes a ten level increase for an intended loss amount greater than $120,000 and less than $200,000. PSR 5 //72-74.
B. PSR’s Calculation of Criminal History Category
The government agrees with the PSR’s calculation of total criminal history points of 2 and Criminal History Category II. PSR 6 //104-105.
C. Advisory Guidelines Range
The government agrees with the PSR’s calculation of the advisory guideline range for imprisonment of 18-24 months. PSR 13 //303-304.
III. A SENTENCE ABOVE THE GUIDELINES RANGE IS APPROPRIATE.
A. Section 3553(a) factors
Section 3553(a) requires the Court to impose a sentence that is “sufficient, but not greater than necessary,” to comply with the purposes of sentencing.2 In order to determine
1 Abbreviations in this filing are as follows:
// - Precedes citation to numbered lines on cited page Tr. - Transcript of recorded conversations
2Those purposes are the need for the sentence “(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” § 3553(a)(2)(A)-(D).
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the “particular” sentence to impose, the Court must consider the familiar statutory factors listed in § 3553(a)(1)-(7). The advisory range set by the Sentencing Guidelines and the Commission’s policy statements are factors to be considered. §3553(a)(4), (a)(5). The Advisory Sentencing Guidelines “should be the starting point and the initial benchmark” in determining the appropriate sentence. See Gall v. United States, 522 U.S. 38, 128 S. Ct. 586, 596 (2007).
Where membership in or association with organized crime is used to further the criminal activity for which a defendant is convicted, a sentence above the Advisory Guidelines sentencing range is appropriate. See United States v. Hanhardt, 361 F.3d 382, 392-93 (7th Cir. 2004) (upward departure equivalent to two Guidelines offense levels imposed); United States v. Zizzo, 120 F.3d 1338, 1361 (7th Cir. 1997) (upward departure equivalent to two Guidelines offense levels imposed); United States v. Damico; 99 F.3d 1431, 1439 (7th Cir. 1996) (upward departure equivalent to two Guidelines offense levels imposed); United States v. Schweihs, 971 F.2d 1302, 1316-17 (7th Cir. 1992) (upward departure equivalent to seven Guidelines offense levels imposed, analogizing the use of organized crime to the discharge of a firearm (a seven-level increase under §2B3.2(b)(3)(A)(i))).
As explained below, a sentence above the advisory range is appropriate in this case because the § 3553(a) factors weigh in favor of such a sentence.
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B. Nature of Offense and History and Characteristics of Defendant – § 3553(a)(1)
During the commission of the offense, Fratto was a “made” member of the Chicago Outfit. Nicholas Calabrese (“Calabrese”) testified under oath in the Family Secrets trial that Fratto became a made member of the Outfit in 1988. United States v. Calabrese, et al., 02 CR 1050 (NDIL 2007), aff’d sub nom. United States v. Schiro, 679 F.3d 521 (7th Cir. 2012), (Family Secrets Transcript at 2709-10 attached as Exhibit A and 2855 // 17-18 attached as Exhibit B). Calabrese’ testimony is highly credible. In 2002, Calabrese began cooperating with the government. United States v. Ambrose, 668 F.3d 943, 948 (7th Cir. 2012). He was a “made” member of the Chicago Outfit. Id. A made member is someone who has gained a heightened role in the Outfit by proving himself based upon his trustworthiness and performance. Id. A person would not even be considered for that status until he had committed a homicide on behalf of the Outfit. Id. Because he was a made member, Calabrese was privy to a great deal of information and access. Id. Calabrese was the most important organized crime witness who ever testified in the Northern District of Illinois. Id. He was a key witness in the Family Secrets prosecution which brought RICO charges against the Outfit and which resulted in the conviction of all five defendants by a jury. Id.; Schiro, 679 F.3d at 524. See also Hanhardt, 361 F.3d at 393 (proper to consider out-of-court statements of informants corroborated by other evidence).
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The Outfit conducts its operations in Chicago through “street crews.” Schiro, 679 F.3d at 525. Calabrese testified that Fratto was a member of the Elmwood Park Crew. Family Secrets Transcript at 2855 // 17-18 attached as Exhibit B). Fratto represented himself to be a “boss” of the Chicago Outfit and a member of the Elmwood Park crew.3
Fratto used his membership in and association with organized crime to further the scheme in the present case. Fratto encouraged Individual A to participate in the bid rigging scheme by telling Individual A that if they made money from the scheme, he, Fratto, would help Individual A with Individual A’s debt to Cleveland organized crime figures. Tr. 7/22/05 at 23-24 //15-23, 25-31. See attached Exhibit D. Fratto assured Individual A that he, Fratto, had influence with the Cleveland organized crime figures to whom Individual A owed money; that he, Fratto, would make sure that the Cleveland organized crime figures knew that Individual A was working with Fratto; and that, as a result, the Cleveland organized crime figures would be patient in demanding Individual A pay them what he owed them.4
3Fratto to Individual A: “I’m the fuckin’ boss of this area around here. No one else.” Tr. 9/1/05 at 19 //25-27. Later, Fratto told Individual A the government wanted to get Fratto because Fratto was part of the Elmwood Park crew. ( “ (UI) get me because I’m a part of (UI) Park and they’re trying to get one of us.”) Tr. 9/1/05 at 26 //6-15. See attached Exhibit C.
4On June 6, 2007, Fratto told Individual A that, “Them guys [Cleveland OC figures] know who I am. ... [Cleveland OC Figure A] and me are equals. [Cleveland OC Figure A] will respect us because we have more authority in Chicago than they have in (UI).” ... “I wanna get it back to ‘em that you’re my friend and I’m doin’ stuff with you [Individual A], so this way they don’t fuckin’ say, ‘Fuck that [Individual A].’ They’ll say, ‘Wait a second, you know, you better watch out, talk to Rudy, ‘cause he [Individual A] really does business with Rudy, ....’” Tr. 6/6/07 at 18 //18-22; 20-21 //30-32, 1-5. See attached Exhibit E.
On July 6, 2007, Fratto agreed with Individual A that Individual A should “call Cleveland”, “leave a message for [Cleveland OC Figure A]”, and tell Cleveland OC Figure A, “Let me
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In short, in return for a share of the profits from the forklift contracts, Fratto was promising to provide protection. That is precisely the corrupting influence of organized crime that must be kept out of legitimate business activity everywhere. That this corrupting influence was interjected into business at McCormick Place, a vital component of the economic viability of the community, makes Fratto’s conduct all the more aggravating.
In affirming enhanced sentences for committing an offense through association with organized crime, one of the factors that the Seventh Circuit has recognized is organized crime’s penchant to use violence to achieve is goals. See Zizzo, 120 F.3d at 1360-61; Schweihs, 971 F.2d at 1312, 316-17. Fratto admitted his knowledge and acceptance of organized crime’s penchant for violence and intimidation and his involvement in acts of violence and intimidation by organized crime.5 Fratto asserted that he would have liked to have used violence against their competitors for the forklift contracts but he did not do so only because he concluded that under the circumstances it would have been unwise to do so.6
[Individual A] know when you’re gonna here. There’s a good friend of mine here [Fratto] that met you at the golf outing. ... He knows everybody here. ... I’m sure you know who he is.” Fratto warned Individual A, “I don’t know how bad the phones are there” and agreed that Individual A use “no names.” Tr. 7/6/07 at 18-19 //21-29, 1-13. See attached Exhibit F.
his
5 Fratto: I remember when I was a young guy ... the thing wound up in my lap. [T]his guy humiliated Tony [Accardo] in a traffic thing. ... [T]he guy [was] cutting grass one day and he got beat up so bad ... I don’t think he could push a lawn mower anymore.
Tr. 2/25/06 at 69-70 //18-39, 1-11. See attached Exhibit G.
6 Fratto: And I would love to, like next week, get that [competitor’s employee] ... and break his legs and put him in the hospital. ... But, that’ll make things even worse... .
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C. Need for the Sentence Imposed – § 3553(a)(2)
Fratto’s offense is serious and the government asks that the sentence imposed provide just punishment and promote respect for the law. § 3553(a)(2)(A). The government asks that Fratto’s sentence address the need for both specific and general deterrence, and be sufficient to protect the public from future criminal conduct by Fratto himself and by others who would emulate his conduct. § 3553(a)(2)(B)-(C). Though Fratto’s own capacity for physical violence may diminish with age, Fratto’s willingness to use his organize crime status, and the justified fear of others of that status, is a continuing threat. Indeed, even Fratto’s willingness to act without explicit Outfit sanction, as may have been the case here, carries with it the danger of violence by other factions of organized crime. See Family Secrets Transcript at 2854-2856 attached as Exhibit B.
These factors all weigh in favor of a sentence in this case substantially in excess of the Advisory Guidelines range plus two offense levels.
Degironemo: [F]irst of all, out of respect, I would expect these two should have backed off ... number one, but they didn’t. Number two, we should’ve sat ‘em down in the beginning ... and said don’t f--k with this show. ... Instead, we wanted to be nice guys, straight guys, be nice to him. ...
Fratto: I think that would’ve ... made it worse.
Tr. 4/8/06 at 20 //10-15; 30-31 //20-34. See attached Exhibit H. 7

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IV. CONCLUSION
For all the foregoing reasons, the government asks this Court to sentence defendant Rudolph Carmen Fratto to a term of imprisonment substantially in excess of the Advisory Guidelines range plus two offense levels.
By:
Respectfully submitted,
GARY S. SHAPIRO
Acting United States Attorney
/s/ John F. Podliska
John F. Podliska
Amarjeet S. Bhachu
Assistant United States Attorneys
219 South Dearborn Street, Room 500 Chicago, Illinois 60604
(312) 353-5300