                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 06-1978 & 06-2107
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                  v.

FUAT USENI and PHILLIP J. COZZO,
                                             Defendants-Appellants.
                          ____________
            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 02 CR 400—James B. Zagel, Judge.
                          ____________
  ARGUED SEPTEMBER 19, 2007—DECIDED FEBRUARY 21, 2008
                          ____________


 Before BAUER, MANION, and WOOD, Circuit Judges.
  MANION, Circuit Judge. Under Illinois law, only charita-
ble organizations are allowed to run certain gambling
games such as bingo games, pull-tab games, and raffles
as fundraisers for their organizations. In this case, the
operators of the Grand Palace Bingo Hall (the “Grand
Palace”) in Northlake, Illinois, used the Italian American
War Veterans (the “IAWV”), a charitable organization,
as a front to pocket nearly three million dollars in gam-
bling proceeds. Both Fuat “Frank” Useni and Phillip
Cozzo worked at the Grand Palace from its inception
until it was sold to a group of IAWV members. A jury
2                                  Nos. 06-1978 & 06-2107

convicted Useni and Cozzo of conspiring to commit
racketeering offenses and operating an illegal gambling
business, as well as several counts of mail fraud and tax
fraud. Following their convictions, Useni and Cozzo
appealed, challenging various aspects of their respective
convictions and sentences. On appeal, the principal
question in their challenges to their convictions and
sentences is the extent of their involvement in the illegal
gambling that occurred at the Grand Palace. We affirm.


                            I.
  Because the jury returned a verdict in favor of the
government in this case, we summarize the evidence in the
light most favorable to the government. The people
who comprised the central witnesses at trial were: Polly
Kirby, the manager of the Illinois Department of Revenue’s
office of bingo and charitable games; Patrick Marotta,
the former president and CEO of Gore & Kaye, a whole-
sale distributor of charitable gaming supplies that was
the Grand Palace’s primary supplier; Carmen Trombetta
and Steven Mariani, IAWV members who were involved
in the preparation and operation of the Grand Palace;
Carole Johnson, Useni’s former girlfriend and a worker
at the Grand Palace; Lorraine Mazzei, Cozzo’s former
girlfriend; Aaron Levitanksy, the Grand Palace’s accoun-
tant; Donna Dombrowski, the live-in girlfriend of Fred
Bingham, the Grand Palace’s bookkeeper; and Richard
Lexby, an agent for the Internal Revenue Service (the
“IRS”). We refer to those witnesses, as well as any other
of the witnesses at trial, when their testimony is relied
upon in our narrative of the evidence in this case.
Nos. 06-1978 & 06-2107                                       3

A. Illinois Gambling Laws
   Illinois has a network of laws and regulations designed
to allow charitable organizations to raise money through
limited forms of gambling while, at the same time, strictly
limiting the use of the money and facilities involved in
the gambling in order to prevent fraud and abuse. At
trial, Illinois Department of Revenue employees Polly
Kirby, Lisa Roberts, and Randi Kaplan testified about
Illinois’s regulatory scheme for charitable gambling.
According to those witnesses, only certain charitable
organizations, such as the IAWV, are permitted to run
bingo halls. A charitable organization must have a
license issued by the state to conduct bingo or pull-tab
games.1 See 230 ILCS 20/2; 230 ILCS 25/1. A license,
which must be renewed annually, allows the charitable
organization to hold bingo or pull-tab games once a
week. Illinois law also requires that a charitable organiza-
tion have a license to conduct raffles, but the licensing of
raffles is left to each individual municipality rather than
the state. In addition, Illinois law prohibits conducting
raffles and bingo games on the same premises. 230 ILCS
25/2(11).
   A company or person that is not affiliated with a charita-
ble organization may obtain a supplier’s license, which
allows that company to sell gambling supplies to the
charitable group running the games; or a provider’s
license, which allows the company to rent a facility to a


1
  A pull-tab is a card with a pattern of symbols on the front
and perforated tabs on the back. The tabs, when pulled back,
reveal colored play symbols. If the symbols on the back
match the pattern of symbols on the front of the card, then the
player wins the prize indicated on the card.
4                                     Nos. 06-1978 & 06-2107

charitable group conducting games. See 230 ILCS 20/3.1;
230 ILCS 25/1.4-.5. The provider’s license, like the bingo
and pull-tab licenses, has to be renewed yearly by the
state of Illinois. Neither the supplier nor the provider
may receive any revenue from the games other than a
reasonable sum in exchange for providing their services;
the net proceeds of the gambling must go to the charitable
organization running the games. See 230 ILCS 20/4;
230 ILCS 25/2. Furthermore, only the members of the
charitable organization are allowed to participate in
operating the games, including selling bingo cards or pull-
tabs, calling numbers, confirming and paying winners,
and handling or counting the proceeds from the sale of
cards and pull-tabs. Most importantly, only members of
the charitable organization are allowed to handle the
money earned from the games. Significantly, the members
of the charitable organization involved in operating the
games must be volunteers and are themselves prohibited
from being compensated for their work in running the
games. See 230 ILCS 20/4(3); 230 ILCS 25/2(3).
   Supplier, pull-tab, and bingo licensees have reporting
obligations to the state. Suppliers must file quarterly
reports listing such information as the manufacturer’s
serial number for each pull-tab box sold, the date of the
sale, the type of tickets sold, serial numbers for the tickets,
and what the ideal gross proceeds would be for each box
of pull-tabs. Pull-tab and bingo licensees are required to
report quarterly to pay their taxes.2 On a bingo report, a
licensee must list the date, the amount of prizes awarded,


2
  Bingo and pull-tab licensees are required to pay 5% of the
gross proceeds of the games to the Illinois Department of
Revenue. 230 ILCS 20/5; 230 ILCS 25/3.
Nos. 06-1978 & 06-2107                                   5

and the number of players participating for each bingo
session held, as well as the gross proceeds from the games
that quarter and the amount of tax owed to the state.
In contrast, a pull-tab return must report, among other
things, each pull-tab game played, the date the particular
pull-tab game was played, the manufacturer’s serial
number for that game, the gross proceeds from the
game, the gross proceeds for the sale of pull-tabs that
quarter, and the amount of tax owed.


B. Birth of the Grand Palace
  While the network of laws, rules, and regulations were
designed to prevent fraud, a gambling operation never-
theless presented a lucrative attraction to someone
willing to skirt the law. The Grand Palace was the brain-
child of William Shlifka,3 a man who had no affiliation
with the IAWV. Shlifka planned to have several IAWV
posts each apply for separate bingo and pull-tab licenses,
which would allow Shlifka to run several sessions of
gaming a week. In turn, Shlifka would have the Grand
Palace apply for provider’s and supplier’s licenses so that
it could supply the gambling equipment and host the
sessions. Shlifka would pay each veteran who worked a
nightly gaming session $50 per session and would pay
each IAWV post $100 for every gaming session they
hosted.
  From the beginning, Shlifka involved Cozzo, who was
also not a member of the IAWV, in the planning of the
Grand Palace. Prior to the opening of the Grand Palace,


3
  Shlifka died after the indictment in this case was handed
down but before trial began.
6                                 Nos. 06-1978 & 06-2107

Shlifka, together with Cozzo, met with several people
who would be key to the Grand Palace’s success: Steven
Mariani, a high-ranking IAWV member who would
recruit IAWV posts and members; Patrick Marotta, the
president of bingo-supply distributor Gore & Kay who
would be the main supplier of gambling equipment to the
Grand Palace; and Aaron Levitansky, who would do
the accounting work for the Grand Palace. According to
Mariani’s testimony, Shlifka and Cozzo approached
Mariani and asked him to recruit IAWV posts to sponsor
the games and offered Mariani $100 for each gaming
session hosted by an IAWV post recruited by Mariani.
Shlifka also introduced Mariani to “Frank” Useni, another
non-IAWV member, as someone who would help run the
kitchen and do the janitorial work for the bingo hall.
Shlifka and Cozzo next met with Marotta about providing
gaming supplies. Marotta testified that Shlifka and Cozzo
sought Marotta’s advice as to the type of games to run and
pull-tabs to use. At that meeting with Marotta, Shlifka
referred to Cozzo as his “partner.” Shlifka and Cozzo
then met with Levitansky about the hall. Levitanksy
testified that Shlifka told him that the Grand Palace
would make money by renting the hall and selling bingo
cards to the IAWV posts, as well as by selling conces-
sions to hall patrons. At that meeting no mention was
made of the Grand Palace ever profiting off of the revenue
from the games.
  After securing the aid of Mariani, Marotta, and
Levitansky, Shlifka applied for a provider’s license in
February 1994, using the names of his wife and daughter
as purported officers of the Grand Palace. Several ap-
plications for bingo and pull-tab licenses for IAWV posts
were also submitted. Donna Dombrowski, Fred Bingham’s
Nos. 06-1978 & 06-2107                                   7

live-in girlfriend, testified that Bingham, the Grand Pal-
ace’s bookkeeper and a non-IAWV member, completed
the applications for the posts. Each application listed
the address of the Grand Palace as the address of the
IAWV post submitting the application, though no IAWV
post had its place of business at the Grand Palace. Mariani
testified that Shlifka gave the money for the license ap-
plication fees to him, who in turn had money orders
made out to be submitted with the applications.
  According to the testimony of Lorraine Mazzei, Cozzo’s
former girlfriend, Cozzo had one of the bingo license
applications signed by Mazzei and his sisters. The bingo
application required Mazzei and Cozzo’s sisters to make
several certifications, including that they were bona
fide members of the charitable organization and that
they had a copy of the rulebook for conducting charit-
able games and would “be responsible for the conduct
of the games in accordance with the provisions of the
laws of the State and the rules and regulations of the
department governing the conduct of such games.” When
the bingo and pull-tab license applications were rejected
because they were not signed by members of the
IAWV, Mariani testified that Shlifka had him obtain the
signatures of veterans on amended license applications.
After they were submitted, the amended applications
were accepted and bingo and pull-tab licenses issued.
No license to conduct raffles was ever obtained.
  While the licenses were being pursued, Shlifka held two
planning meetings. Both meetings occurred before the
operation of the games commenced, the first being held
in January 1994 and the second in May 1994. Mariani and
Carmen Trombetta—an IAWV member who, like
Mariani, became deeply involved in the Grand Palace—
8                                   Nos. 06-1978 & 06-2107

testified that Useni and Cozzo attended both meetings. At
the May meeting, Shlifka instructed the IAWV veterans
working the games to deny that they were getting paid,
if asked.


C. Operation of the Grand Palace
  Once the games commenced, each IAWV post was
ostensibly running one of the weekly gambling sessions.
In reality, though, the veterans had little control over
the games; their contribution was limited to selling pull-
tabs, bingo cards, and raffle tickets to the hall’s patrons.
According to the IAWV members who testified at trial,
the veterans did not control which games were played.
They were not allowed to count the money generated
by the games or be in the back room where the money
was kept. They had no idea how much money was gen-
erated by the business. And they did not have any con-
trol over the checking accounts where the proceeds for
the games were deposited.
  The real power over the games—and, most importantly,
over the revenue generated from the games—was exer-
cised by those who had access to the Grand Palace’s back
office, all of whom were non-veterans: Shlifka, Bingham,
and Shlifka’s daughter Laura Dostal, as well as Cozzo and
Useni. Shlifka and Cozzo would determine which games
would be played. After a veteran had completed selling
his allotment of pull-tabs, raffle tickets, or bingo cards,
someone from the back office would collect the gaming
proceeds from the veteran and take the money to the
back room. There, the money was collected and taken by
Fred Bingham, the bookkeeper for the Grand Palace and
a non-veteran, to deposit in accounts he controlled. Be-
Nos. 06-1978 & 06-2107                                    9

sides handling the money, Bingham, along with Dombrow-
ski, filled out the quarterly bingo and pull-tab returns for
the IAWV posts. On those returns, the number of pull-tab
games being played was vastly under-reported, as was
the revenue generated by the pull-tab games.
  Cozzo, along with Shlifka, appeared to be running
the hall. According to the testimony of the veterans
who worked at the Grand Palace, as well as one of the
undercover state revenue agents sent to investigate the
Grand Palace’s operations, Cozzo announced the rules of
bingo prior to the session, sold bingo cards, verified
winning bingo numbers, administered the raffles, sold
pull-tabs, announced the pull-tab numbers, took the pull-
tab proceeds to the back office, brought out new boxes
of pull-tabs to sell, paid the veterans, and controlled the
pull-tab machine on the wall, removing money from it and
fixing it when it malfunctioned. In contrast, Useni
worked primarily in the concession area of the Grand
Palace. However, witnesses testified that he also verified
winning bingo cards, sold pull-tabs and raffle tickets,
provided raffle tickets to the veterans to sell, paid the
veterans, walked around observing the workers and
players, and installed, restocked, and removed the
money from the pull-tab machine.
  Both Useni and Cozzo were involved in obtaining the
pull-tabs from Marotta. Marotta testified that Cozzo
often ordered the pull-tabs from Marotta and picked
them up at Marotta’s place of business. Marotta stated
that Useni also picked up the pull-tabs on occasion.
Marotta further testified that he sold a tremendous
volume of pull-tabs to the Grand Palace—massive in
comparison to other bingo operations. Undercover state
revenue agents sent to investigate the Grand Palace
10                                  Nos. 06-1978 & 06-2107

observed that the number of pull-tab games played at the
Grand Palace exceeded the number allowed by law,
which varied depending on the type of game played and
total payout for the session. Since pull-tabs are required
to be registered with the state, Cozzo, along with Shlifka,
approached Marotta at one point and asked him to supply
them unregistered pull-tabs. Marotta testified that he
agreed to provide them with unregistered pull-tabs but
that, unbeknownst to Cozzo and Shlifka, he continued
to sell them registered pull-tabs.


D. Useni’s Ownership of the Grand Palace
  In June 1995, Useni purchased the Grand Palace from
Shlifka. After the purchase, Useni and Cozzo were in
charge of the hall, and they informed the others of the
change in leadership. Marotta testified that Cozzo told
him that “the heat was on” and that Shlifka was stepping
down. Cozzo then told Marotta that he was in charge
and, if there were any problems, to contact him. Ac-
cording to Levitanksy’s testimony, Cozzo and Useni also
met with him and told him that he should direct any
questions about the Grand Palace to them. Additionally,
Mariani testified that Useni talked to him and told him
that he had bought out Shlifka; going forward, Mariani
was to take orders from Useni.
  Useni applied for a provider’s license shortly after
purchasing the Grand Palace. On that license, Useni signed
a certification which read: ”I . . . certify that no employee
of mine shall manage or operate the games. I also state
that I have read the applicable bingo or charitable
games rulebook.” Despite that certification, the games
continued to be operated the same as they were under
Nos. 06-1978 & 06-2107                                   11

Shlifka’s regime. Carole Johnson, Useni’s girlfriend,
testified that, when she asked Useni where the money
from the games was going, Useni told her that it was
going into a “slush fund” and that he was planning on
retiring early.
  During his ownership of the Grand Palace, Useni hired
Cesar Valera to work in the kitchen of the concession
area. The kitchen had been Useni’s primary area of respon-
sibility before he purchased the Grand Palace. Valera
testified that Useni paid him, like the veterans, in cash
and he was not given a W-2.


E. Sale of the Grand Palace to Bingo Partners
   Useni’s ownership of the Grand Palace did not last long.
Just eleven months after purchasing the hall, Useni sold
it in May 1996 to Bingo Partners, Inc. (“Bingo Partners”),
a group of veterans consisting of Mariani (the organizer),
Trombetta, James Sarno, Rosario DiMarco, Sam Lenoci, and
Michael Riccio. Mariani testified that Useni had said
that he needed to sell “right away.”4 According to John-
son, right before Useni sold the Grand Palace to Bingo
Partners Useni told Johnson not to talk to anyone who
came into the Grand Palace in a suit because Useni
thought that might be an FBI agent. Useni also told John-
son that he thought the hall was bugged. Useni and Cozzo,


4
  The record does not disclose whether Useni or Cozzo had
actual knowledge of an FBI investigation of the Grand Palace
in 1996. Coincidentally, however, the FBI obtained an order
authorizing the interception of oral communications in
May 1996, the same month that Useni sold the Grand Palace
to Bingo Partners.
12                                  Nos. 06-1978 & 06-2107

along with Johnson, began shredding the pull-tabs, both
the winning and losing tickets, placing the remains in
opaque green bags.
  The sale to Bingo Partners did not end Useni’s and
Cozzo’s involvement with the Grand Palace. In addition to
a $120,000 payment up front in exchange for the Grand
Palace, Bingo Partners promised Useni and Cozzo fur-
ther payments in a series of installments. Mariani testified
that Cozzo and Useni repeatedly called Bingo Partners
looking for those payments, which were made out of the
money collected from the pull-tab machine. Trombetta
testified that Cozzo and Useni lent Bingo Partners the
money to operate the games to help Bingo Partners get
established. Trombetta also testified that Useni promised
to let Bingo Partners use his provider’s license in ex-
change for $1000 a week. In addition, Mariani testified
that Bingo Partners received help from Bingham, from
whom Mariani sought advice on several occasions as to
how to operate the hall.
  Although Bingo Partners was now in charge, the opera-
tion of the Grand Palace did not differ significantly from
when Useni owned the hall. Bingo Partners continued to
pay the workers in cash and run the same games as the
previous regime. A big change, however, was that the
FBI began electronically monitoring the back room of the
Grand Palace. As a result, the FBI was able to uncover
evidence that the veterans comprising Bingo Partners
were diverting a substantial portion of the proceeds
from the gambling into their own pockets. At the height
of operation, Trombetta testified that each member of
Bingo Partners took $800 to $1000 per week from the
proceeds of the gambling. In order to prevent discovery
of the skimmed proceeds by the state, the number of
patrons attending the bingo sessions was significantly
Nos. 06-1978 & 06-2107                                13

under-reported. As a consequence, the amount of pro-
ceeds from the bingo games went substantially under-
reported. Bingo Partners also did not report to the state
the proceeds from the pull-tab machines or the raffles;
instead, the members of Bingo Partners pocketed those
funds.


F. Indicted
  More than a year after Cozzo and Useni relinquished
control of the Grand Palace to Bingo Partners, Cozzo
became aware of an FBI investigation and took steps to
head off prosecution. Cozzo attempted to ensure that
Marotta kept quiet. (Recall that Marotta had been the
Grand Palace’s biggest supplier and therefore knew the
extent of the Grand Palace’s operation.) In October 1997,
Cozzo met with Marotta at Finkel’s Deli. Cozzo told
Marotta that the heat was on and that they were being
investigated by the FBI. Cozzo warned Marotta to keep
his mouth shut and to say nothing or else he would be a
“dead man.” Cozzo later repeated his threat to Marotta,
this time over the phone after Marotta had met with the
FBI, again telling Marotta that he was a “dead man.”
  Cozzo’s efforts to stave off a federal prosecution were
unsuccessful, though he was not formally charged until
April 2002, when the government indicted him, Useni,
Shlifka, Mariani, Trombetta, Sarno, DiMarco, Lenoci,
Riccio, and James Prebis, who had replaced Bingham as
the Grand Palace’s bookkeeper during the tenure of
Bingo Partners.5 In count one of the indictment, Cozzo
and Useni were charged with conspiring to conduct an


5
  Bingham died before the grand jury handed down the
indictment.
14                                    Nos. 06-1978 & 06-2107

enterprise’s affairs through a pattern of racketeering
activity in violation of 18 U.S.C. § 1962(d). The government
alleged that Useni and Cozzo agreed to conduct and
participate in the conducting of the affairs of an
association-in-fact enterprise consisting of the Grand
Palace, Cozzo, Useni, Shlifka, Mariani, Bingo Partners,
and the members of Bingo Partners, through a pattern
of racketeering activity that included operating an
illegal gambling business and mail fraud. Count two of
the indictment alleged that Cozzo and Useni conducted
an illegal gambling business in violation of 18 U.S.C.
§ 1955. Counts three through nine alleged that Cozzo and
Useni committed mail fraud in violation of 18 U.S.C.
§§ 1341 and 2 because the bingo and pull-tab license
applications Bingo Partners had submitted to the state on
behalf of the IAWV posts in 1997 were part of a scheme to
defraud. Count twenty-five alleged that Cozzo and
Useni had conspired to commit tax fraud in violation of
18 U.S.C. § 371 by concealing income from the gambling
at the Grand Palace. Counts twenty-six and twenty-
seven alleged that Useni wilfully understated the Grand
Palace’s corporate income on the two corporate tax re-
turns he signed as the Grand Palace’s owner in violation
of 26 U.S.C. § 7206(1).


G. Trial
  Shlifka died after the indictment was handed down.
Mariani, Trombetta, and DiMarco all pleaded guilty and
agreed to testify against Useni and Cozzo.6 In return, the


6
  Sarno, Lenoci, and Prebis all entered guilty pleas but did not
testify at Cozzo’s and Useni’s trial. As for Riccio, the record
                                                  (continued...)
Nos. 06-1978 & 06-2107                                        15

government agreed to recommend that Trombetta receive
a one-third reduction in his sentence and that DiMarco
receive a two-thirds reduction. In Mariani’s case, the
government agreed that Mariani could ask the district
court for a sentencing departure based on his cooperation.
  Useni and Cozzo proceeded to trial. The witnesses at
the six-day trial included Mariani, Trombetta, and
DiMarco, as well as Marotta, the Grand Palace’s supplier
who testified under a grant of immunity; Johnson, Useni’s
girlfriend who had previously testified before the grand
jury under a grant of immunity7; and Agent Richard
Lexby of the IRS, who testified as the government’s sum-
mary witness. Lexby noted that during the period Useni
owned the Grand Palace, pull-tab returns submitted to the
state showed that 654 pull-tab games were played during
the 259 sessions at the Grand Palace. However, Illinois
revenue agents conducting surveillance at the Grand Palace
observed 742 pull-tab games played over the 54 sessions
the agents attended in the same time period. From that
information, as well as testimony from the IAWV members
who worked at the Grand Palace and the bingo and pull-
tab returns filed with the state, Lexby estimated the total
amount of money that had been diverted from the IAWV



6
  (...continued)
does not indicate whether he ever pleaded guilty or went to trial
after his counsel filed an unopposed motion to sever his trial
from the other defendants on account of his deteriorating
medical condition.
7
  At trial, Johnson testified that she has been married for over
thirty years and that she was married at the time she was hav-
ing a relationship with Useni.
16                                    Nos. 06-1978 & 06-2107

from 1994 to 1997 at $ 2,986,365.8 According to Lexby, that
figure was a conservative estimate because he did not
attempt to include any calculation of the diverted proceeds
from the pull-tab machines or the raffles held during the
time period before the sale of the Grand Palace to Bingo
Partners.


8
   Lexby arrived at that figure by adding up his estimate of the
unreported pull-tab profits and bingo proceeds. Lexby based the
figure for the bingo proceeds on the taped back-room conver-
sations obtained while Bingo Partners operated the Grand
Palace. On the other hand, Lexby based the figure for the
unreported pull-tab profits on what went unreported during
Cozzo’s and Useni’s tenure at the Grand Palace, since the last
time there was a discrepancy between the actual number of pull-
tab boxes sold and the number of pull-tab boxes reported was
the first quarter of 1996, the last quarter Useni and Cozzo were
actively involved in the operation of the Grand Palace before
its sale to Bingo Partners. To calculate the unreported pull-
tab profits from 1994 to 1996, Lexby multiplied $5745 times
the number of sessions to get a figure representing total pull-
tab revenue. Lexby used the $5745 amount because that repre-
sented 10 boxes of pull-tabs sold, which, based on the evid-
ence, was the average number of boxes that were sold each
session. Lexby then subtracted the pull-tab proceeds reported
to the state from his calculation of the total pull-tab revenue
to arrive at the total amount of unreported proceeds. From
there, Lexby multiplied the unreported proceeds by .30, a
profit multiplier that Lexby had calculated by dividing the
reported pull-tab proceeds by the reported pull-tab profits,
and obtained $959,426, a number representing the estimated
unreported pull-tab profits; in other words, the amount that
the operators of the Grand Palace kept and did not give to
the IAWV posts from the sale of pull-tabs between 1994 and
1996.
Nos. 06-1978 & 06-2107                                    17

  A jury found Useni and Cozzo guilty on all counts in
which they were charged: the racketeering conspiracy
count, the § 1955 illegal gambling business count, the mail
fraud counts, and the tax counts. The district court sen-
tenced Cozzo to ninety-six months of imprisonment and
Useni to sixty months. Both Useni and Cozzo appeal.


                             II.
A. Sufficiency of the Evidence
  We begin with the appellants’ challenges to the suffi-
ciency of the evidence supporting their convictions. In
challenging their convictions this way, both Useni and
Cozzo bear “a heavy burden,” since we must examine
“[t]he evidence and all reasonable inferences that can be
drawn from it . . . in the light most favorable to the gov-
ernment.” United States v. Gardner, 238 F.3d 878, 879
(7th Cir. 2001); see also United States v. England, 507 F.3d
581, 588 (7th Cir. 2007) (“[A]n appeal does not deputize
this Court as the ultimate trier of fact.”). We will find
the evidence insufficient “only if no rational trier of fact
could have found guilt beyond a reasonable doubt.” United
States v. Hendrix, 482 F.3d 962, 966 (7th Cir. 2007) (quoting
United States v. Leahy, 464 F.3d 773, 794 (7th Cir. 2006)).


  1. RICO Conspiracy
  Both Useni and Cozzo challenge the sufficiency of the
evidence supporting their conviction under 18 U.S.C.
§ 1962(d). They argue that the evidence, even taken in
the light most favorable to the government, does not
show that they knew of the illegal gambling operation
18                                    Nos. 06-1978 & 06-2107

being conducted at the Grand Palace, nor that they
agreed to join in the conspiracy.9
  To be convicted of conspiracy under § 1962(d), one
must knowingly agree to facilitate the activities of those
who are operating an enterprise. United States v. Swan, 250
F.3d 495, 499 (7th Cir. 2001); see also Brouwer v.
Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7th Cir.
2000). While the government must show that there was
an agreement between the members of the conspiracy,
direct evidence need not be shown since “an agreement
can be inferred from the circumstances.” United States v.
Campione, 942 F.2d 429, 438 (7th Cir. 1991). However,
“mere association with conspirators, knowledge of a
conspiracy, and presence during conspiratorial discus-
sions is not sufficient to convict a person of conspiracy.”
United States v. Percival, 756 F.2d 600, 610 (7th Cir. 1985).
The government has to show that the defendant was
aware of the essential nature and scope of the enterprise
and intended to participate in it. United States v. Stephens,
46 F.3d 587, 592 (7th Cir. 1995).


9
  To the extent that Useni and Cozzo also challenge their
convictions for engaging in an illegal gambling operation under
18 U.S.C. § 1955 on the same grounds, such an argument is
foreclosed by this court’s opinion in United States v. Cyprian,
23 F.3d 1189, 1199 (7th Cir. 1994). In Cyprian, we stated that
knowledge that an activity is illegal is not a necessary element
of a § 1955 offense. Furthermore, even if knowledge were
necessary, our analysis of their challenges to the sufficiency
of the evidence to support their convictions under § 1955
would be essentially the same as the analysis we employ for
their challenges to their convictions for conspiring to commit
racketeering offenses; thus, there is no need to address those
challenges separately.
Nos. 06-1978 & 06-2107                                   19

  The government has presented sufficient evidence to
show that both Useni and Cozzo were aware of the scope
of the enterprise and intended to participate in it. The
evidence the government presented of the planning
before the Grand Palace even commenced operation
supported the jury’s finding that Cozzo was aware of the
scope of the enterprise and the illegalities that the enter-
prise was prepared to perpetrate. These illegalities in-
cluded the submission of false and misleading license
applications to the state and the routine, systematic viola-
tion of Illinois gambling laws. The evidence clearly showed
that Cozzo intended to actively participate in
their perpetration. Cozzo was present at the initial meet-
ing with Marotta and was represented to Marotta as
Shlifka’s “partner.” He was also present when Shlifka
offered Mariani $100 for each gaming session hosted by
an IAWV post recruited by Mariani. And he was present
at the two initial planning meetings in 1994, including
the meeting where the IAWV veterans were instructed
to deny that they were getting paid for working the games.
From Cozzo’s presence at those meetings, a jury could
rationally conclude that Cozzo could not possibly have
been unaware of how the Grand Palace was going to be
doing business. Moreover, Cozzo had his sisters and
girlfriend sign the application representing that they
were IAWV members, even though they obviously
were not. A reasonable jury could have interpreted
Cozzo’s falsification of that bingo license application as
a sign of Cozzo’s willingness to participate in the illegal
enterprise.
  The jury also had before it further evidence of Cozzo’s
active participation in the enterprise once the gambling
commenced. After the Grand Palace opened its doors,
Cozzo played a leading role; he was no bit player. Acting
20                                   Nos. 06-1978 & 06-2107

as a de facto manager of the hall, Cozzo had access to the
back room, the control center of the gambling operation. He
determined which games would be played, participated in
the operation of the games, handled the gambling pro-
ceeds, and paid the veterans for their work—all in violation
of Illinois law as well as § 1955. See Cyprian, 23 F.3d at 1199
n.14 (to establish a violation of § 1955, the government
must show that the defendant conducted, financed,
managed, supervised, directed, or owned a gambling
business that: (1) violated state law; (2) involved five or
more persons; and (3) was either in substantial continuous
operation for more than 30 days or had gross revenue of
$2,000 or more in a single day).
   And Cozzo remained a prominent figure in the enter-
prise even after the ownership of the Grand Palace was
transferred to Useni. After the sale, Useni and Cozzo told
Mariani, Levitansky, and Marotta that they would take
orders from Cozzo and Useni. Additionally, Useni’s
girlfriend Johnson testified that Cozzo and Useni were
in charge of the hall. A rational jury easily could con-
clude from all this that Cozzo agreed to facilitate the
illegal enterprise.
  But even if that were not enough, the jury had further
evidence of Cozzo’s guilty intent in the form of the shred-
ding of the winning and losing pull-tab tickets prior to
the sale of the hall to Bingo Partners and the placing of
the shredded remains in opaque bags. Furthermore,
Marotta testified that Cozzo had attempted to get unregis-
tered pull-tabs from him. Finally, the jury had before it
Cozzo’s threats to Marotta as well. Cozzo told Marotta
he was a “dead man” if he talked to the FBI, and reit-
erated that threat to Marotta after Marotta had been in
contact with the FBI. Those threats were made more
Nos. 06-1978 & 06-2107                                  21

than a year after Cozzo had ceased active involvement
in the Grand Palace. When viewed in conjunction with
the other evidence, they allowed the jury to find that
Cozzo was aware of the scope of the enterprise and in-
tended to participate in it.
   The evidence supporting the jury’s finding that Useni
agreed to participate in the illegal gambling enterprise
is similar to the evidence presented against Cozzo. While
Useni’s participation in the preparations for the opening
of the Grand Palace was not as extensive as Cozzo’s, there
was evidence before the jury that Useni was also in on the
illegal plan from the start. Shlifka introduced Useni to
Mariani shortly after the plan for the Grand Palace
was presented to Mariani. Useni also attended the two
planning meetings in 1994 and therefore was present
when Shlifka discussed concealing the fact that the veter-
ans were getting paid. Moreover, like Cozzo, Useni was
heavily involved in the illegal gambling occurring at the
Grand Palace. Useni had access to the back room. By
assisting in the operation of the games and the paying
of the veterans, he directly participated in the systematic
violation of the Illinois gambling laws occurring at the
Grand Palace.
  While Useni’s claim of ignorance of the criminal enter-
prise he was supporting is very weak, after he purchased
the Grand Palace the claim is totally without merit. The
undisputed testimony at trial was that Useni, along
with Cozzo, was in charge of the hall after the sale.
Despite Useni’s certification on his provider application
that he had read the charitable gambling rules and that
none of his employees would manage or operate the
games, the games continued to be run illegally. The
evidence clearly showed that Useni both knew and in-
22                                  Nos. 06-1978 & 06-2107

tended to further the illegal gambling occurring at the
Grand Palace on his watch.
   Other substantial evidence of Useni’s guilty knowl-
edge buttresses that conclusion. Useni, like Cozzo, partici-
pated in shredding the used pull-tabs and placing them
in opaque bags. Useni told Johnson that the money from
the games was going into a “slush fund” that would allow
him to retire early. Right before he sold the Grand Palace,
Useni also told Johnson that he thought the Grand Palace
was bugged and that she should not talk to anyone
who appeared to be an FBI agent. From this evidence
(that Useni was trying to cover his tracks), a rational jury
could conclude that Useni knew he was implicated in the
illegality underpinning the whole Grand Palace operation.
  Given the volume of evidence against Useni and Cozzo
on the racketeering conspiracy count, it is not surprising
that Useni and Cozzo try to shift the focus away from the
evidence on the record and concentrate their argument on
what evidence was not presented at trial. They point to
the absence of evidence that they ever skimmed any of
the proceeds from the gambling and argue that the gov-
ernment has therefore failed in its evidentiary burden. That
argument is a red herring. The government did not have to
show that Cozzo and Useni purloined even one penny to
convict them on the racketeering count. Instead, all
the government needed to show was that they were
aware of an enterprise involved in, among other things,
gambling that was purposely and continuously in viola-
tion of the Illinois gambling laws, and that they intended to
participate in it. As the preceding discussion shows,
the government met that burden.
Nos. 06-1978 & 06-2107                                  23

  2. Mail Fraud Counts
   Next, both Cozzo and Useni challenge their convic-
tions on the seven mail-fraud counts. The mail-fraud
counts involve bingo and pull-tab license applications that
Bingo Partners submitted via the mails to the state of
Illinois in 1997. Cozzo and Useni argue that they cannot
be held liable for any mail fraud based on actions taken
by Bingo Partners in 1997 because their involvement
with the Grand Palace ceased in May 1996 when Useni
sold the hall to Bingo Partners. Furthermore, they argue
that there was no evidence that they knew of the mailing
of any of the applications in 1997.
  A conviction for mail fraud must be supported by
evidence that a defendant participated in a scheme to
defraud and caused the mails to be used in furtherance
of that scheme. United States v. Barger, 178 F.3d 844, 847
(7th Cir. 1999). A defendant need not actually have used
the mails himself to be liable for mail fraud. Instead,
the evidence is sufficient to support a conviction for
mail fraud if the defendant acted “with the knowledge
that [the use of the mails] would ‘follow in the ordinary
course of business, or where such use [could] reasonably
[have been] foreseen.’ ” Am. Auto. Accessories, Inc. v.
Fishman, 175 F.3d 534, 542 (7th Cir. 1999) (quoting United
States v. Alexander, 135 F.3d 470, 474-75 (7th Cir. 1998))
(second alteration in original).
  The jury in this case had sufficient evidence before it
to convict Useni and Cozzo on the mail-fraud counts. As
was outlined in the discussion of the racketeering con-
spiracy count, the jury could have reasonably found
that Useni and Cozzo were willing participants in the
scheme to defraud both the IAWV posts of gambling
proceeds raised in their name and the state of Illinois of
24                                 Nos. 06-1978 & 06-2107

tax revenue. There was also evidence from which a rea-
sonable jury could conclude that the mailing of the license
applications by Bingo Partners was in furtherance of the
same fraudulent scheme, and that Useni’s and Cozzo’s
participation in the scheme continued on into the time
period in which Bingo Partners mailed the applications.
The Grand Palace continued to be operated in the same
manner after it was sold to Bingo Partners as when Useni
and Cozzo were in charge. Indeed, Useni and Cozzo
ensured that Bingo Partners would be able to continue
operation of the hall. They left the money to operate
the games for Bingo Partners to use until Bingo Partners
got on its feet. Useni agreed to lend Bingo Partners the
use of his provider’s license in exchange for $1000 a
week. And Bingham, a stalwart in the previous regime,
helped explain to the veterans comprising Bingo Partners
how to run the Grand Palace.
  Moreover, Useni and Cozzo had a financial incentive
to make sure the Grand Palace did not fold under
Bingo Partners’s watch. The terms of the sale of the Grand
Palace to Bingo Partners required Bingo Partners to make
monthly payments to both Cozzo and Useni. Those
monthly payments were made from the proceeds of the
gambling; they were taken directly from the pull-tab
machine. Both Cozzo and Useni demonstrated their interest
in those payments, as they called Bingo Partners on
different occasions inquiring about the money owed
them. In short, because of the aid they provided to Bingo
Partners and the money they continued to receive from the
gambling, both Cozzo and Useni continued to participate
in the illegal scheme even after the Grand Palace was
sold to Bingo Partners.
  Finally, the jury had sufficient evidence to conclude
that Useni and Cozzo reasonably could have foreseen
Nos. 06-1978 & 06-2107                                     25

the mailing of the bingo and pull-tab applications by
Bingo Partners. The jury could reasonably have con-
cluded that Cozzo was well aware that the continuing
viability of the gambling at the Grand Palace depended on
the annual renewal of the licenses, since he had attempted
to have a bingo license application submitted using the
names of his sisters and girlfriend. Similarly, Useni had
submitted a provider application when he was owner of
the Grand Palace and could therefore have anticipated
that the bingo and pull-tab licenses had to be renewed
annually as well. Accordingly, the jury’s convictions on
the mail fraud counts were supported by the evidence.


     3. Tax Conspiracy
  Useni and Cozzo also challenge their conviction for
conspiring to commit tax fraud in violation of 18 U.S.C.
§ 371 by concealing income from the gambling at the
Grand Palace.10 They argue that the evidence was not
sufficient to show that they participated in the tax con-
spiracy.
  To prove a violation of § 371, the government must
establish: (1) an agreement to commit an offense against


10
  Useni also challenges his two convictions under 26 U.S.C.
§ 7206(1) for wilfully understating the Grand Palace’s corpo-
rate income on the July 12, 1995, return and the May 20,
1998, amended return for the Grand Palace. (Useni was
charged with those offenses because he signed those returns.)
Because the analysis is essentially the same for those two
counts as for the § 371 offense, Useni’s sufficiency challenge
to his convictions on those counts does not merit separate
discussion.
26                                    Nos. 06-1978 & 06-2107

the United States, in this case to defraud the United
States by wilfully concealing assets resulting in a failure
to report income in violation of 26 U.S.C. § 7206(4);
(2) an overt act in furtherance of the conspiracy; and
(3) knowledge of the conspiratorial purpose. United States
v. Soy, 454 F.3d 766, 768 (7th Cir. 2006). The evidence
presented at trial, viewed in the light most favorable to
the government, was sufficient to allow a reasonable jury
to conclude that each of those three elements was met.
Specifically, the government satisfied its burden with
respect to two overt acts alleged in the indictment: the
filing of a fraudulent Employer’s Quarterly Federal Tax
Return (“Form 941”)11 for the Grand Palace on October 31,
1995, and the filing of a false Corporation Income Tax
Return (“Form 1120”) on behalf of the Grand Palace on
July 12, 1995.
  Cozzo and Useni were in charge of the Grand Palace
during the time period in which those two documents
were filed. The Grand Palace’s accountant, Levitansky,
testified that Cozzo and Useni told him that he was to
direct any questions to them. Cozzo and Useni knew that
the veterans were being paid, since they attended the
planning meeting where the payment of the veterans
was discussed and even paid the veterans themselves
on occasion. It is also undisputed that while Useni and
Cozzo were in charge of the hall, the number of pull-tab
games being played—and thus the revenue generated
from the games—was massively under-reported on the
quarterly pull-tab returns for the IAWV. Given that non-


11
  A Form 941 is the document on which an employer reports
to the Internal Revenue Service the wages it has paid to employ-
ees. See 26 C.F.R. § 31.6011(a)-1.
Nos. 06-1978 & 06-2107                                   27

veterans like Bingham controlled the reporting on the
bingo and pull-tab returns submitted on behalf of the
IAWV posts, a reasonable jury could conclude that any-
thing not reported as revenue for the IAWV posts was
going into the Grand Palace’s coffers. And, as outlined
in the first section, the jury could have reasonably con-
cluded from the ample evidence of guilty intent that
Cozzo and Useni were aware of the unreported pro-
ceeds, even if they did not personally profit from the
purloined proceeds themselves. Finally, it is undisputed
that neither Cozzo nor Useni reported to Levitansky the
money being paid to the veterans or the unreported
revenue from the pull-tab games. A reasonable jury
could therefore conclude that Useni and Cozzo were
participants in the conspiracy to defraud the United States
of tax revenue by under-reporting both the amount of
wages paid to employees of the Grand Palace, as well
as the earnings of the Grand Palace from unreported pull-
tab games.


B. Useni’s Trial Challenges
  Besides his challenges to the sufficiency of the evidence,
Useni makes several objections to the manner in which
the trial was conducted. First, Useni argues that he
should have been granted a new trial because statements
made by the prosecutor at closing improperly shifted the
burden of proof. A district court’s decision not to grant a
new trial is reviewed for an abuse of discretion. United
States v. Emerson, 501 F.3d 804, 812 (7th Cir. 2007). When
Useni’s lawyer raised this issue at trial, he did not direct
the trial court to any specific comment by the prosecutor.
In his brief on appeal, Useni directs this court to a span
of five pages of the trial transcript, although he still
28                                  Nos. 06-1978 & 06-2107

does not specify the exact comments that he finds prejudi-
cial.
  After reviewing those pages of the trial transcript, we
do not find anything improper. Some of the comments
made by the prosecutor were about the defense’s failure to
ask questions of government witnesses.12 In United States v.
Kelly, 991 F.2d 1308, 1314 (7th Cir. 1993), we held that a
prosecutor may comment on a defendant’s failure to call
or ask particular questions of a witness so long as he does
not tax the defendant’s right not to testify. Useni did not
testify at trial. However, the prosecutor’s comments, like
the comments by the government lawyer in Kelly, were
confined to responding to specific arguments defense
lawyers had made about the credibility of two of the
government’s witnesses. Cf. id. at 1313-14. The com-
ments did not come close to “invit[ing] the jury to infer
guilt from the defendant’s decision not to testify,” and
therefore did not tax Useni’s right not to testify. United
States v. Sblendorio, 830 F.2d 1382, 1391 (7th Cir. 1987).
Useni’s challenge to those comments is without merit.
   Useni’s second objection suffers a similar fate. Useni
argues that he was deprived of a fair trial by a state-
ment Cozzo’s attorney made at closing about Cozzo’s
decision to testify. Unlike Useni, Cozzo testified during
trial, and Cozzo’s attorney sought to highlight that fact
during closing. The statement by Cozzo’s attorney to
which Useni objects is the following: “Now, a defendant


12
  For example, Useni’s lawyer at closing had suggested that
Carole Johnson, Useni’s ex-girlfriend, was biased against him
because they had broken up. In response, the prosecutor
pointed out that Johnson had never been asked about her
current feelings for Useni while she was on the stand.
Nos. 06-1978 & 06-2107                                             29

has a right not to testify. If Phil [Cozzo] didn’t testify,
you couldn’t hold it against him. But he took the stand.
He opened himself up to any of their questions and any
of their rebuttal witnesses.”
  There is nothing improper about that statement. See
United States v. Petullo, 709 F.2d 1178, 1182 (7th Cir. 1983).
In Petullo, we held that a similar statement by counsel,
asking the jury only to draw favorable inferences from
his client’s willingness to testify, was not unfairly prejudi-
cial to a nontestifying codefendant because the state-
ment was limited and counsel concurrently stressed the
right not to testify. Id. Petullo controls here, and Useni is not
entitled to a new trial because of the comments by Cozzo’s
lawyer.
  Next, Useni argues that the district court improperly
prevented his counsel from impeaching Mariani, a high-
ranking IAWV member and the organizer of Bingo Part-
ners, by omission13 when the court excluded the testi-
mony of Agent Michael Cole of the FBI and Agent Mark
Lischka of the IRS. The district court’s evidentiary deci-
sions are reviewed for an abuse of discretion. United States
v. Cunningham, 462 F.3d 708, 712 (7th Cir. 2006). Further-
more, “when reviewing evidentiary errors, we will only
reverse and order a new trial provided that the improper


13
  “The theory of impeachment by omission is that ‘if [a] former
statement fails to mention a material circumstance presently
testified to, which it would have been natural to mention in the
prior statement, [then] the prior statement is [considered]
sufficiently inconsistent’ to be admitted to impeach the pre-
sent testimony.” Moylan v. Meadow Club, Inc., 979 F.2d 1246,
1249 (7th Cir. 1992) (quoting 1 John W. Strong, McCormick on
Evidence § 34 at 114-15 (4th ed. 1992)) (first alteration in original).
30                                  Nos. 06-1978 & 06-2107

admission was not harmless, which is to say ‘only if
the error had a substantial influence over the jury, and
the result reached was inconsistent with substantial
justice.’ ” United States v. Owens, 424 F.3d 649, 653 (7th
Cir. 2005) (quoting United States v. Hernandez, 330 F.3d 964,
969 (7th Cir. 2003)).
  Mariani testified that Useni at first demanded Bingo
Partners pay cash for the Grand Palace. On cross-examina-
tion, Useni’s lawyer asked Mariani if he told Agent Cole
of the FBI about the cash demand at their June 9, 2003,
proffer meeting, to which Mariani responded, “I probably
was never asked.” Useni’s lawyer also asked Mariani if
he told Agent Lischka about the cash demand at their
March 10, 2004, proffer meeting. This time Mariani re-
sponded, “I would have to say ‘yes.’ ” After the conclusion
of the government’s case, Useni’s lawyer made an offer
of proof outside the presence of the jury and elicited
testimony from Cole and Lischka in an attempt to impeach
Mariani by omission. Cole testified, consistent with
Mariani, that Mariani did not mention the cash demand
when they discussed the purchase of the Grand Palace
at their June 9, 2003, meeting. Lischka, on the other
hand, contradicted Mariani’s testimony and testified that
the subject of the cash demand did not come up at their
March 20, 2004, meeting. The district court excluded the
testimony of both agents; Useni challenges that decision.
   The district court acted well within its discretion when
it excluded Cole’s proffered testimony. That testimony
just reiterated what Mariani had already implicitly
admitted—that he did not mention the cash demand at
his June 9, 2003, meeting with Cole. It did not aid in
establishing the point, crucial for impeachment by omis-
sion, that the cash demand ought to have come up at that
Nos. 06-1978 & 06-2107                                           31

meeting and therefore its omission was suspect. In fact,
Cole’s testimony suggested just the opposite: that it
would not have been natural for the cash demand to have
come up during the proffer meeting.14 Thus, while Useni
was free to argue to the jury that the cash demand was
the type of information that should naturally have come
up during the proffer meeting with Cole, and thereby
impeach Mariani by omission, Cole’s testimony was not
helpful for establishing impeachment by omission and
the district court did not abuse its discretion by ex-
cluding it.
  The exclusion of Lischka’s testimony is more problem-
atic. Mariani’s testimony that he told Lischka of the cash
demand was directly contradicted by Lischka himself,
who said that the cash demand was not mentioned. The
government argues that Lischka’s testimony was not


14
  As to why he did not ask Mariani about the form of payment
for the Grand Palace, Cole testified:
     We had the contracts and everything and we saw that they
     were paid by check. I didn’t—I guess at the time none of us
     really thought to ask him. You know, if you are drawing
     up a legal contract it is probably going to be fairly difficult
     to be paid in cash and not have that.
The district judge appeared to reach the same conclusion:
     Now, I don’t want to leap to anybody’s defense here, but
     if Useni is, in fact, paid by check, there is a contract
     which looks like it is payment by check, why would some-
     body ask the question—why would it necessarily be, or
     even likely to be the question asked[?] . . . Why would
     anybody say—did he ask for another form of payment[?]
     Somebody might ask that question, but why is it so incredi-
     ble that no one would?
32                                   Nos. 06-1978 & 06-2107

necessary because the district court perfected Mariani’s
impeachment by permitting Useni’s lawyer to argue at
closing, without contradiction from the government, that
Mariani did not tell Lischka about the cash demand. But
Lischka’s impeaching evidence was not before the jury,
and—as the court instructed the jury—lawyer’s arguments
are not evidence. Mariani’s testimony that he thought
he did tell Lischka thus stood unrebutted on the record.
Nevertheless, any error that occurred from the exclusion of
Lischka’s testimony was harmless. That Useni wanted to
be paid in cash for the bingo hall, though relevant to
show Useni’s guilty intent, was hardly the centerpiece
of the government’s evidence on that point. As was
outlined in the discussion of the sufficiency of the evid-
ence on the racketeering conspiracy count, the govern-
ment had overwhelming evidence to prove Useni’s guilty
intent without the evidence of the cash demand even
being considered.
   Besides his challenge to the exclusion of Lischka’s and
Cole’s testimony, Useni also challenges the admission of
certain testimony from several other witnesses. Those
challenges do not merit extended discussion. Rather, it
suffices to say that those objections relate to arguments
we have already rejected, such as Useni’s contention that
he did not participate in either the racketeering or tax-fraud
conspiracies, or his contention that he had no part in the
illegal scheme after Bingo Partners bought the
Grand Palace.15 Because the evidence supported the


15
  Useni also argues that evidence as to whether a particular
witness was a veteran was not relevant and should not have
been elicited by the government’s attorney. But that evidence
                                                (continued...)
Nos. 06-1978 & 06-2107                                            33

contrary of what Useni is contending, the district court
did not abuse its discretion in admitting the evidence
to which Useni now objects.
  Moving on, Useni argues that the district court erred by
failing to give his proffered theory of defense instruction.16



15
   (...continued)
was very relevant, considering that the jury had to know
who was or was not a veteran in order to determine if the
Illinois gambling laws were being violated. Consequently,
we see no error in the district court having admitted such
testimony.
16
     Useni proposed the following instruction:
         It is defendant Frank Useni’s theory of defense that he
       began working at the Grand Palace Bingo Hall in May 1994
       as the kitchen manger [sic] and the janitor in effect, which
       were his main and almost exclusive duties continually
       during the entire time he was there; that he was later offered
       the opportunity to buy the Hall which appeared to offer a
       purchaser the opportunity to earn additional money by
       selling bingo supplies, which were then being sold to the
       veterans at the Grand Palace and by keeping the profits
       generated by the kitchen;
         That, while present at the Grand Palace Bingo Hall, he
       never knowingly directly or indirectly joined any con-
       spiracy, scheme to defraud or criminal enterprise to com-
       mit any illegal acts of any kind;
         In that regard, at no time was he aware that volunteering
       to help veterans in any way with the Bingo or related games
       on occasion violated any federal or state laws or that the
       mere existence of any of these games at the Hall violated
       any such laws;
                                                     (continued...)
34                                        Nos. 06-1978 & 06-2107

We review de novo a district court’s refusal to give a theory
of defense instruction.17 United States v. Eberhart, 467 F.3d
659, 666 (7th Cir. 2006).
       A defendant is entitled to a jury instruction as to his or
       her particular theory of defense provided: (1) the
       instruction represents an accurate statement of the
       law; (2) the instruction reflects a theory that is sup-
       ported by the evidence; (3) the instruction reflects a
       theory which is not already part of the charge; and
       (4) the failure to include the instruction would deny
       the appellant a fair trial.
United States v. Prude, 489 F.3d 873, 882 (7th Cir. 2007). The
district court refused to give the proffered instruction “as
drafted” because it believed that the instruction was
“basically the defendant testifying without being subject


16
     (...continued)
           Further, that, he neither was involved in nor aware of the
        preparation and/or filing of any of the Bingo Applications
        and/or Tax returns and Pull-tab Returns that were filed on
        behalf of the Grand Palace, Inc. were materially false.
         Finally, that the only payments he received from his
       employment with the Grand Palace Bingo Hall—his wages
       and his payments for the sale of the Hall—were lawful
       under state, and thus, federal law, and that he never
       knowingly participated in any scheme, conspiracy or
       criminal enterprise to receive or allow others to receive any
       unlawful monies.
17
   Although the government argues that this issue should be
reviewed for plain error due to Useni’s failure to object, we
find that Useni did properly preserve the issue for the same
reasons given in United States v. James, 464 F.3d 699, 707 n.1 (7th
Cir. 2006).
Nos. 06-1978 & 06-2107                                       35

to cross-examination.” In addition, the district court
believed that the proffered instruction was more akin to
argument than to a presentation of the defense’s theory.
  We find no error in the exclusion of Useni’s proffered
instruction. The proffered instruction was not a typical
theory of defense instruction. Cf. United States v. Paters,
16 F.3d 188, 190 (7th Cir. 1994); see also United States v.
Josleyn, 99 F.3d 1182, 1194 (1st Cir. 1996). The district court
was correct when it observed that a good portion of Useni’s
proposed instruction was better suited for closing argu-
ment than a theory of defense instruction. Argument is not
the purpose of a theory of defense instruction, see United
States v. Scott, 19 F.3d 1238, 1245 (7th Cir. 1994), yet Useni’s
proposed instruction contained a string of arguments,
couched as factual statements about Useni’s state of mind.
The statements were argumentative because they were
more about the evidence the government had failed to
produce than what evidence was actually before the
jury. Furthermore, one of those statements—that Useni
was not aware that helping run the games violated
state law—was completely unsupported by the evidence.
   To the extent that Useni’s proposed instruction did
convey his theory of defense, that theory was already
adequately covered in the charge to the jury. United States
v. Irorere, 228 F.3d 816, 826 (7th Cir. 2000) (“[A] defendant
is only entitled to such an instruction when his theory of
defense is not already adequately captured by the prof-
fered instructions.”). Useni’s theory at trial was that he
was just a grunt worker at the Grand Palace, a janitor
and kitchen manager who had no idea what was really
going on there. The instructions read to the jury empha-
sized in several places that the jury had to find that
Useni knew about the illegal activity occurring at the
36                                   Nos. 06-1978 & 06-2107

Grand Palace and willingly participated in it before the
jury could convict him. The jury was instructed that Useni
had to “knowingly” join the racketeering conspiracy,
as well as “knowingly” participate in the scheme to
defraud. The jury was also instructed that “knowingly”
meant “the defendant realized what he was doing and
was aware of the nature of his conduct, and did not act
through ignorance, mistake or accident.” The jury was
further instructed that “the Government must prove
beyond a reasonable doubt that the defendant was aware
of the common purpose and was a willing participant
in the charged conspiracy.” Finally, the jury was in-
structed that
     [a] defendant’s presence at the scene of a crime and
     knowledge that a crime is being committed [are] not
     alone sufficient to establish the defendant’s guilt.
     A defendant’s association with conspirators or per-
     sons involved in a criminal enterprise or a scheme
     to defraud is not by itself sufficient to prove his par-
     ticipation or membership in a conspiracy, scheme to
     defraud and/or a criminal enterprise.
     If a defendant performed acts that advanced a crim-
     inal activity, but had no knowledge that a crime
     was being committed or was about to be committed,
     those acts alone are not sufficient to establish the
     defendant’s guilt.
Those instructions, along with the closing argument of
Useni’s counsel, clearly conveyed Useni’s theory of de-
fense to the jury. Cf. United States v. Hendricks, 319 F.3d
993, 1006 (7th Cir. 2003) (finding that the charge given,
which included an instruction that the jury had to find
that the defendant knowingly and intentionally possessed
Nos. 06-1978 & 06-2107                                       37

the firearm in order to convict, coupled with the defen-
dant’s ability to argue his theory in front of the jury,
fully presented the defense’s theory in a prosecution for
illegal possession of a firearm). Consequently, Useni
was not deprived of a fair trial by the exclusion of his
theory of defense instruction.
  Finally, Useni asserts that the cumulative effect of all
the errors he alleges occurred at trial amounts to reversible
error. Although an error by itself may be harmless
and insufficient to taint a jury, the combined effect of
multiple erroneous rulings may result in significant harm
necessitating another trial. United States v. Smith, 502 F.3d
680, 690 (7th Cir. 2007). However, in this case we have
discerned, at most, one trial error—and that error was
harmless. See Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir.
2000). Useni’s cumulative effect argument therefore fails.


C. Dismissal of the Indictment
  In addition to his challenges to the sufficiency of the
evidence, Cozzo also asserts that the district court erred in
refusing to dismiss the indictment.18 On appeal, Cozzo
focuses on three grounds upon which he believes the
district court ought to have dismissed the indictment. First,
Cozzo claims that the district court erred in denying
his motion to dismiss the indictment on the ground that
the five-year statute of limitations, prescribed in 18
U.S.C. § 3282(a), had run when Cozzo was indicted on
April 25, 2002. “We review de novo whether the limita-
tions period has run, giving deference to necessary


18
  In his brief, Useni adopts all of Cozzo’s arguments concerning
the dismissal of the indictment.
38                                    Nos. 06-1978 & 06-2107

factual determinations by the district court.” United
States v. Are, 498 F.3d 460, 464 (7th Cir. 2007).
   At the outset, we note that Cozzo’s argument that the
statute of limitations had run when he was indicted
requires this court to conclude that Cozzo’s involvement in
the illegal activity occurring at the Grand Palace ceased
when Bingo Partners took over the hall. The indictment
charged Cozzo with multiple conspiracies, as well as
conducting an illegal gambling business. Although
the indictment alleged that the conspiracies and the
operation of the illegal gambling business began in 1994,
well outside of the statute of limitations period, it also
alleged that they continued on until 1999, well inside the
statute of limitations period. To stay within the statute
of limitations period, Cozzo would have to have con-
tinued his involvement in the conspiracies and the illegal
gambling business after Useni sold the hall to Bingo
Partners, or at least the government would have to show
that Cozzo did not withdraw from participating in any
of them after the sale of the Grand Palace. United States
v. Curry, 977 F.2d 1042, 1058 (7th Cir. 1992). If either of
those were the case, the statute of limitations posed no
barrier to Cozzo’s prosecution since Bingo Partners con-
tinued to engage in illegal activity—including operating
the illegal gambling business and committing the con-
duct underlying the substantive mail-fraud counts—into
the statute of limitations period. See United States v. Yashar,
166 F.3d 873, 875 (7th Cir. 1999) (noting that conspiracies,
such as the RICO and tax conspiracy charged here, are
“continuing offenses” that continue for purposes of the
statute of limitations so long as any action is taken in
furtherance of the conspiracy); see also United States v.
Jeffers, 532 F.2d 1101, 1108-09 (7th Cir. 1976), vacated in
Nos. 06-1978 & 06-2107                                    39

part on other grounds, 432 U.S. 137 (1977) (noting that the
offense of conducting an illegal gambling business under
18 U.S.C. § 1955 necessarily entails conspiring to conduct
an illegal gambling enterprise, thus making a § 1955
violation a continuing offense). Because we have already
found in the context of discussing Useni’s and Cozzo’s
liability for the substantive mail-fraud counts that there
was sufficient evidence from which a jury could con-
clude that Useni and Cozzo continued to participate in the
illegal activity occurring at the Grand Palace even after
it was sold to Bingo Partners, Cozzo’s statute of limita-
tions argument fails. Thus, the district court properly
ruled that § 3282(a) was not an obstacle to Cozzo’s prosecu-
tion.
  Next, Cozzo takes issue with the district court’s denial of
his motion to dismiss the indictment based on prosecuto-
rial misconduct in front of the grand jury. Cozzo argues
that the government improperly elicited testimony from
witnesses who testified that Cozzo was an owner of the
Grand Palace. Cozzo asserts that those references to him
as the owner of the Grand Palace were untrue and improp-
erly influenced the grand jury’s decision to indict him.
We review a district court’s denial of a motion to dismiss
an indictment based on prosecutorial misconduct for
abuse of discretion. United States v. Burke, 425 F.3d 400,
412 (7th Cir. 2005).
  The government’s knowing use of false testimony
violates due process. Id. at 412. For an indictment to be
dismissed on account of false testimony presented to
the grand jury, the defendant must show prejudice
amounting to either “proof that the grand jury’s decision
to indict was substantially influenced, or that there is
‘grave doubt’ that the decision to indict was substan-
40                                   Nos. 06-1978 & 06-2107

tially influenced, by testimony which was inappropri-
ately before it.” United States v. Feurtado, 191 F.3d 420, 424
(4th Cir. 1999) (citing Bank of Nova Scotia v. United States,
487 U.S. 250, 256 (1988)). Cozzo has failed to make that
showing. He offers no evidence or argument that counters
the district court’s finding that whether or not Cozzo
owned the Grand Palace was irrelevant to the grand jury’s
decision to indict him because ownership was not an
element of any of the charged offenses. Thus, the district
court did not abuse its discretion by denying Cozzo’s
motion.
   Lastly, Cozzo argues that the district court erred in deny-
ing his motion to dismiss count two of the indictment.
Count two charged the defendants with operating an illegal
gambling business in violation of 18 U.S.C. § 1955. Cozzo
argues that § 1955 was meant to combat large-scale illegal
gambling used to fund organized crime, not the type of
“technical” violations of Illinois gambling law involved
in this case. Cozzo cites United States v. Zizzo, 120 F.3d
1338 (7th Cir. 1997), as an example of the factual scenario
to which § 1955 was meant to apply. Zizzo involved an
illegal sports-betting organization, the proceeds from
which were used to fund the Chicago Outfit, a notorious
crime syndicate. 120 F.3d at 1343-44. In contrast to the
gambling operation in Zizzo, Cozzo argues that, by ap-
plying § 1955 to this case, the government is allowed to
bring racketeering charges against people whom Congress
never intended the racketeering laws to prosecute.
  Cozzo’s argument is without merit. Nothing in the text
of § 1955 prevents its application to misdemeanor viola-
tions of state gambling law. Section 1955 makes it a crime
to “conduct[ ], finance[ ], manage[ ], supervise[ ], direct[ ]
or own[ ] all or part of an illegal gambling business.”
Nos. 06-1978 & 06-2107                                       41

18 U.S.C. § 1955(a). To prove the existence of an illegal
gambling business, the government must demonstrate that
the business violated “the law of [the] State or political
subdivision in which it is conducted.” 18 U.S.C.
§ 1955(b)(1)(i). The text of § 1955 does not distinguish
between state misdemeanor and felony law. Rather, all
it requires is that the gambling violate state law, re-
gardless of whether the violation amounted to a felony
or simply a misdemeanor.
   Cozzo fails to point to any case law that undermines
our reading of § 1955. Indeed, case law appears contrary
to his position. The Eighth Circuit rejected a similar
challenge to § 1955 in United States v. Matya, 541 F.2d 741
(1976). The defendants in Matya argued that Congress did
not intend for § 1955 to be used to elevate a state law
misdemeanor into a federal felony. In rejecting that argu-
ment, the Eighth Circuit noted that violation of state law
is not the sole element of a § 1955 offense, which also
requires the involvement of five or more persons in a
gambling business either in substantial continuous opera-
tion for a period of thirty or more days, or involving
gross revenues of $2,000 in any single day. Id. at 748. Thus,
it was inaccurate to characterize § 1955 as simply “elevat-
ing” a state misdemeanor into a federal felony.19 Id. Fur-
thermore, the Eighth Circuit found it significant that the


19
   The Eighth Circuit agreed with the Ninth Circuit’s conclusion
that it was constitutionally permissible for Congress to define
a federal felony partially in terms of a state misdemeanor. See
id. at 749 n.16 (“Congress’s power to proscribe conduct carries
with it the power to impose appropriate penalties without
attempting to match them to varying state punishments
for similar conduct.” (quoting United States v. Kerrigan, 514
F.2d 35, 37 n.1 (9th Cir. 1975))).
42                                   Nos. 06-1978 & 06-2107

House Report which accompanied the Organized Crime
Control Act of 1970, of which § 1955 is a part, made no
mention of any distinction between state felonies and
state misdemeanors in the application of § 1955. Id.
Finally, because “[m]ajor gambling activities were a
principal focus of congressional concern,” the Eighth
Circuit found that it could not conclude that Congress
had ruled out the use of state misdemeanors as a predicate
to a § 1955 violation. Id. (quoting Iannelli v. United States,
420 U.S. 770, 787 (1975)) (alteration in original).
  We agree with the Eighth Circuit. This case, in fact, offers
a perfect example of why Congress did not distinguish
between misdemeanor and felony violations of state
gambling laws for purposes of § 1955. To operate the
Grand Palace in the manner that Cozzo and his cohorts did,
the Illinois gambling laws had to be systematically flouted.
Though each violation of the Illinois gambling laws in this
case, considered individually, may have been a mere
“technical” or “minor” violation, in the aggregate they
allowed the operators of the Grand Palace to divert from
the games almost $3 million in illegal proceeds, a figure
which represented the government’s conservative estimate
of the illegal proceeds.
  Cozzo has presented nothing to persuade us, in contra-
vention of the case law and clear text of § 1955, that § 1955
was meant to apply only to felony violations of state
gambling law with an organized crime nexus. We therefore
do not find any error in the district court’s failure to
dismiss the § 1955 count because it was predicated on
misdemeanor violations of the Illinois gambling laws.
Nos. 06-1978 & 06-2107                                    43

D. Sentencing
  While both Useni and Cozzo mention their sentencing
in their briefs, neither provides argument substantial
enough to warrant appellate review. “We have repeatedly
warned that perfunctory and undeveloped arguments,
and arguments that are unsupported by pertinent author-
ity, are waived . . . .” United States v. Holm, 326 F.3d 872,
877 (7th Cir. 2003) (internal quotation omitted); see also
330 W. Hubbard Restaurant Corp. v. United States, 203
F.3d 990, 997 (7th Cir. 2000) (“In order to develop a legal
argument effectively, the facts at issue must be bolstered
by relevant legal authority; a perfunctory and undevel-
oped assertion is inadequate to raise a separate basis for
appeal.”). Cozzo’s opening brief does not contain any
argument concerning his sentencing. It simply states,
“Cozzo seeks leave to supplement the record with the
sentencing transcript and to supplement this brief with
an argument concerning sentencing should it be appropri-
ate.” Consequently, he has waived any appellate review
of his sentence. United States v. Hook, 195 F.3d 299, 310
(7th Cir. 1999) (“A party’s failure to address or develop
a claim in its opening brief constitutes a waiver of that
claim . . . .”).
  Useni’s discussion is hardly better. Useni only devotes
a page and a half to his sentence in his opening brief.
In that space, Useni does no more than provide the stan-
dard of review for sentencing decisions, list three unsup-
ported factual assertions, and claim that his sentence was
per se unreasonable. Cf. Hook, 195 F.3d at 310 (broad
language and unsupported assertions insufficient to
merit review). Useni does not cite to relevant authority
to support his argument. See Sanchez v. Miller, 792 F.2d
694, 703 (7th Cir. 1986) (failure to cite relevant authority
44                                    Nos. 06-1978 & 06-2107

constitutes a waiver). Because Useni has failed to develop
his reasonableness argument in any meaningful way, he
has waived appellate review of his sentence. See Sere v. Bd.
of Trs. of Univ. of Ill., 852 F.2d 285, 287 (7th Cir. 1988) (“It
is not the obligation of this court to research and con-
struct the legal arguments open to parties, especially
when they are represented by counsel.”) (quoting Sanchez,
792 F.2d at 703).


                              III.
  The evidence was sufficient to support Useni’s and
Cozzo’s convictions for racketeering conspiracy, mail
fraud, and tax fraud. The district court did not commit any
error that deprived Useni of a fair trial, nor did it err in
refusing to dismiss the indictment. Finally, because both
Useni and Cozzo failed to develop any arguments as to
why their sentences were unreasonable, they have
waived any appellate review of the same. We AFFIRM.




                    USCA-02-C-0072—2-21-08
