## Facts

- Federal prosecutors charged William DiDomenico and multiple codefendants—members or associates of the Ferriola “street crew” of the Chicago Outfit—in the Northern District of Illinois with RICO, RICO conspiracy, and related crimes involving illegal gambling and extortionate “street tax” collections enforced through threats and violence.
- The government’s proof included testimony and other evidence about the crew’s collection practices and violence connected to its racketeering activities, including evidence tied to the killing of bookmaker Hal Smith.
- At trial, the government offered an out-of-court statement made by one alleged conspirator to another after major events in the enterprise. The government characterized the statement as intended to steady participants and keep the conspiracy from coming apart.
- The district court admitted the statement as nonhearsay under Fed. R. Evid. 801(d)(2)(E), treating it as a coconspirator statement made during and in furtherance of the conspiracy, and allowed the jury to consider it against other defendants.
- Defendants were convicted on numerous counts and received lengthy prison sentences.
- On appeal, defendants challenged (among other things) the admission of the “keep the conspiracy together” statement under Rule 801(d)(2)(E), raised a Sixth Amendment claim based on allegations that an attorney-client conversation at the Metropolitan Correctional Center (MCC) had been recorded, and argued that very long terms of years improperly functioned as life sentences under 18 U.S.C. § 34.

## Issues

1. Whether an out-of-court statement aimed mainly at preventing a conspiracy from “falling apart” qualifies as a coconspirator statement made “in furtherance” of the conspiracy under Fed. R. Evid. 801(d)(2)(E) when offered against other conspirators.
2. If the statement did not satisfy Rule 801(d)(2)(E), whether admitting it against codefendants required reversal.
3. Whether allegations of recorded attorney-client communications at the MCC required an evidentiary hearing or other relief on the record presented.
4. Whether 18 U.S.C. § 34 limited the district court’s ability to impose very long terms of years that, given a defendant’s age, operate as a life sentence.

## Decision

- The Seventh Circuit explained that Rule 801(d)(2)(E) does not sweep in everything conspirators say to each other; the statement must be made during the conspiracy and must actually further its objectives.
- The court held that statements whose primary function is shoring up morale or preventing the group from unraveling—without advancing the conspiracy’s operational aims—do not automatically satisfy the “in furtherance” requirement for admission against other conspirators under Rule 801(d)(2)(E).
- The court noted that such a statement might be admissible against the declarant under another evidentiary theory, but that does not make it admissible against codefendants absent satisfaction of Rule 801(d)(2)(E) (or another rule supporting that broader use).
- Considering the entire record, the court concluded that any error in admitting the statement against other defendants did not warrant reversal.
- On the MCC recording claim, the court found the record insufficient to show government responsibility or prosecutorial use of privileged information and upheld the district court’s refusal to grant relief on the showing made.
- Addressing sentencing, the court discussed 18 U.S.C. § 34 and prior circuit precedent about when a term of years can function as a life sentence, and it rejected the defendants’ challenges to the sentences imposed.
- The Seventh Circuit affirmed the judgments.

## Legal Principles

- Under Fed. R. Evid. 801(d)(2)(E), a statement is admissible against an opposing party as a coconspirator statement only if it was made during the conspiracy and “in furtherance” of it.
- “In furtherance” requires more than conversation among conspirators; the statement must advance the conspiracy’s goals (for example, by facilitating coordination, directions, collection, discipline, recruitment, or concealment tied to continued operation).
- Statements aimed chiefly at preventing a conspiracy from collapsing, without materially advancing its work, do not qualify for admission against other conspirators under Rule 801(d)(2)(E), even if they are relevant and even if they may be admissible against the speaker on another ground.
- An evidentiary mistake warrants reversal only if it affected substantial rights in light of the full trial record.
- A Sixth Amendment claim based on intrusion into attorney-client communications requires a concrete showing of government involvement and resulting prejudice; speculation or an undeveloped record is not enough to require dismissal or a new trial.
- In applying sentencing statutes such as 18 U.S.C. § 34, courts look to the statute’s requirements and circuit precedent, including how “life” sentencing limits may apply when a term of years effectively equals life for an individual defendant.

## Conclusion

United States v. DiDomenico held that Rule 801(d)(2)(E) does not automatically permit admission against codefendants of a conspirator’s out-of-court statement made largely to keep the conspiracy from falling apart, because the rule requires a statement made “in furtherance” of the conspiracy’s objectives; the Seventh Circuit nevertheless affirmed the convictions and sentences, finding no reversible prejudice from the evidentiary ruling and rejecting claims based on alleged MCC attorney-client recordings and sentencing limits under 18 U.S.C. § 34.


United States v. DiDomenico, 78 F.3d 294 (1996)