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

Nos. 02-2253, 02-2254,02-2465,02-3091 & 02-3625
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                v.

WILLIAM HANHARDT, JOSEPH BASINSKI,
GUY S. ALTOBELLO, and WILLIAM R. BROWN,
                                         Defendants-Appellants.

                         ____________
          Appeals from the United States District Court
      for the Northern District of Illinois, Eastern Division.
         No. 00 CR 853—Charles R. Norgle Sr., Judge.
                         ____________
  ARGUED SEPTEMBER 5, 2003—DECIDED MARCH 16, 2004
                   ____________



 Before BAUER, POSNER, and DIANE P. WOOD, Circuit
Judges.
  BAUER, Circuit Judge. William Hanhardt, Joseph
Basinski, Sam DeStefano, Paul Schiro, and Guy Altobello
were indicted for one count of racketeering conspiracy
in violation of 18 U.S.C. § 1962(d). In a second count,
Hanhardt, Basinski, Schiro, and William Brown were
charged with conspiracy to transport stolen property
in interstate commerce in violation of 18 U.S.C. § 371.
The indictment also contained a forfeiture allegation
seeking forfeiture of $4,845,000, miscellaneous jewelry,
2                                            Nos. 02-2253, et al.

gems and watches, and certain real estate of Hanhardt and
DeStefano. All of the defendants pleaded guilty and were
sentenced to imprisonment for periods ranging from 25
months to 188 months. There are several issues raised on
appeal relating to the sentencing decisions of the district
court.1 We affirm in part, reverse in part, and remand for
new sentencing consistent with this opinion.


                       BACKGROUND
Count One
  Between 1980 and April 1998, William Hanhardt, Joseph
Basinski, Paul Schiro, Sam DeStefano, and Guy Altobello
engaged in an organized nationwide scheme to identify and
target for theft more than 100 jewelry salespersons travel-
ing in interstate commerce with lines of jewelry valued in
excess of $40 million. Throughout this period, the conspira-
tors committed at least nine jewelry thefts totaling more
than $5 million in at least seven states, including Arizona,
California, Michigan, Ohio, Texas and Wisconsin.
  Hanhardt, the leader of the enterprise, supervised
Basinski and together they directed the activities of the
other conspirators. Hanhardt directed in the gathering of
information regarding potential jewelry theft targets and in
the surveillance of such individuals to determine the best
time and place to steal jewelry from cars and hotels. He also
used Chicago police officers to run searches on law enforce-
ment computers to find information about jewelry salesper-
sons. He also had a private investigator gather personal
information on targets. Hanhardt retired from the Chicago
Police Department in 1986. However, while he was a sworn



1
  The district court properly used the 1997 version of the Federal
Sentencing Guidelines and therefore citations in this opinion refer
to that version.
Nos. 02-2253, et al.                                      3

officer, Hanhardt committed at least one theft with
Basinski and other conspirators; an October 8, 1984 theft of
one hundred eighty Baume & Mercer watches valued at
approximately $310,000 from Paul Lachterman in Glendale,
Wisconsin.
  Basinski identified potential targets by doing physical
surveillance, making telephone calls and running database
searches. He also recruited additional members for the
organization and fenced stolen jewelry. Altobello provided
other members with information about jewelry salespersons
who conducted business with Altobello Jewelers, Inc., a
Chicago area retail jewelry store, including, information
regarding the identity of such persons, the nature and
quality of their goods, and the most opportune time to steal
from them.


Count Two
   In October 1996, Brown joined Hanhardt, Basinski, and
Schiro in a scheme to steal watches valued at $500,000 from
Illinois jewelry salesman Paul Lachterman. They planned
to steal the watches while Lachterman traveled through
Wisconsin and Indiana and then to transport the stolen
watches back to Illinois. Hanhardt and Basinski had
already stolen from Lachterman in 1984 and decided to
target him again. Between April and September of 1996,
they stalked Lachterman, gathered more information on
him and managed to make a duplicate key to the trunk of
his car. Basinski contacted Schiro in Phoenix who drove
to Chicago, bringing Brown with him, to assist in the
theft. On October 1, 1996, the four conspirators followed
Lachterman in two cars as he drove to Wisconsin and met
with customers. On October 2, 1996, they followed him
as he drove to Indiana. There, while Lachterman was in a
restaurant, Basinski and the others used the duplicate key
and stole a case of watches valued at $58,000, which had
4                                        Nos. 02-2253, et al.

been provided by the FBI. Realizing that the case contained
only a fraction of the value they expected, the conspirators
returned the case to the trunk.
  Each of the defendants pleaded guilty to the charges and
were sentenced to between 25 months and 188 months of
imprisonment. They appeal these sentences.


                        ANALYSIS
I.   Responsibility of Hanhardt and Basinski for the 1995
     Armed Robbery of Esagh Kashimallak
  Hanhardt and Basinski challenge the court’s finding that
they were responsible for the 1995 robbery. At the sen-
tencing of both Hanhardt and Basinski, the government
presented evidence that the conspiracy charged in the first
count of the indictment had included the armed robbery
of Esagh Kashimallak in 1995. Based on the facts of that
incident, the government sought an enhancement for the
physical restraint of a victim (§ 3A1.3) (2 levels) and an up-
ward departure for use of a weapon in the commission of a
crime (§ 5K2.6) (6 levels) and bodily injury to a victim
(§ 2B3.1) (2 levels). CGV16; Tr4/29/02//60-659;5/2/02//719-
21; Tr5/6/02//12.34. After hearing sworn testimony from the
victim and FBI Special Agent Edward McNamara,
the district court judge found by a preponderance of the
evidence that Hanhardt was responsible for the armed
robbery. Tr5/1/02//667. However, the court declined to im-
pose either the upward departure or the enhancement and
sentenced Hanhardt to the high end of the guideline range
(151-188 months). Tr5/2/02//725-26. A week later, the court
found Basinski also responsible for the 1995 armed robbery
and sentenced him to the high end of the guideline range
(87-108 months), declining to impose the upward departure
or the enhancement. Tr5/6/02//37, 58-66. The court did not
Nos. 02-2253, et al.                                       5

specifically attribute the high end sentence to the finding
that Hanhardt and Basinski were responsible for the armed
robbery. Id.
  The district court’s findings that Hanhardt and Basinski
were responsible for armed robbery of Kashimallak is a
factual finding reviewed for clear error. United States v.
Ross, 905 F.2d 1050, 1054 (7th Cir. 1990). The court’s
finding that Kashimallak and the FBI agent were credible
is entitled to due deference. Id; U.S.C. § 3742(d). The court
did not increase either defendant’s offense level and there
is no indication in the record that the court’s finding of
responsibility had any bearing on its decision to sentence
them at the high end of the applicable guideline range.
  Where a defendant does not request specific findings
pursuant to 18 U.S.C § 3553(c) at the time of sentencing,
this court has held that the issue is waived. United States
v. Caicedo, 937 F.2d 1227, 1236 (7th Cir. 1991); United
States v. Burns, 128 F.3d 553, 556 (7th Cir. 1997). In this
case, the defendants had the opportunity to ask the court to
make clarifications and did not. Therefore, the district
court’s ruling on this issue will not be disturbed.


II. Increased Offense Levels Based on Obstruction of
    Justice for Hanhardt and Altobello
  The court sentenced both Hanhardt and Altobello to a
higher offense level based on a determination that both ob-
structed justice. This court reviews the district court’s ap-
plication of sentencing guidelines de novo. United States v.
Williams, 272 F.3d 845, 864 (7th Cir. 2001). The sentencing
court’s determination that a defendant has obstructed
justice is a finding of fact to be reviewed under the clearly
erroneous standard. United States v. Teta, 918 F.2d 1329,
1332 (7th Cir. 1990); United States v. Jackson, 935 F.2d
832, 849 (7th Cir. 1991). We find that the obstruction of
justice enhancements applied to both Hanhardt and
Altobello were clearly erroneous.
6                                         Nos. 02-2253, et al.

    A. Hanhardt
  Hanhardt’s trial was set only a few weeks after he had
undergone testicular cancer surgery, for October 16, 2001.
On that morning, his counsel asked for a continuance
because of his client’s inability to be in court. It later came
to light that the defendant had attempted suicide by drug
overdose and was in the hospital. Based on that informa-
tion, the court found that Hanhardt was responsible for his
failure to appear in court as required by his bond. The court
issued an arrest warrant, staying it until October 20, 2001,
when the defendant was due in court. If Hanhardt did not
show up on the 20th then the warrant was to have been
executed.
  On October 18, 2001, the parties returned to court on the
government’s emergency motion to inform the court that
Hanhardt had made arrangements to be admitted to an in-
patient program at another hospital. The new hospital
required him to stay five to ten days which would cause him
to miss his scheduled day in court. The government argued
that Hanhardt was intentionally arranging to violate the
court’s order to be in court on the 20th. The court ordered
the execution of the warrant and set a trial date for the
25th of October.
    At that time, the court stated:
      The court also notes that Hanhardt apparently had
      no intention of appearing in court on October 20th,
      as he was planning to be hospitalized as part of an
      inpatient mental health treatment program. This anti-
      cipated non-appearance causes the court to order im-
      mediate execution of the arrest warrant to ensure
      Hanhardt’s appearance.
R239//6.
  At sentencing, the court imposed a two-level enhancement
of Hanhardt’s offense level for obstruction of justice under
Nos. 02-2253, et al.                                              7

U.S.S.G. § 3C1.1. The court based the enhancement on its
finding that Hanhardt acted willfully and with the specific
intent not to be present in court as ordered both on October
16 and October 20 and that he had the intent to impede the
prosecution of his case. The court stated:
    He voluntarily, knowingly, and with reckless disregard
    placed controlled substances into his own body. That he
    may have taken more than prescribed was his own
    decision. He did it alone. It was a voluntary act on his
    part. He caused the result. It was his intention then not
    to be in the courtroom to enter his plea of guilty or to
    appear for trial. That he may have other reasons in
    addition to those for doing what he did is not of major
    consequence.
Tr4/29/02//50-60. The court found authority for its ruling in
the Federal Sentencing Guidelines. Section 3C1.1 of the
guideline states: “If the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the adminis-
tration of justice during the investigation, prosecution, or
sentencing of the instant offense, increase the offense level
by 2 levels.” U.S.S.G. § 3C1.1.
   We find that the court’s decision to impose an obstruction
of justice enhancement based on Hanhardt’s attempted
suicide to be clearly erroneous. “A finding of fact is clearly
erroneous only if, after reviewing the entire evidence, we
are left with the definite and firm conviction that a mistake
has been committed.” United States v. McGill, 32 F.3d 1138,
1143 (7th Cir.1994);2 quoting United States v. Beal, 960


2
   Evidence that the defendant was found in his cell standing on
top of the toilet with his head protruding through a hole in ceiling
tiles supported an enhancement of sentence for two levels for
obstruction of justice; we held the trial court’s conclusion that
defendant was attempting to escape rather than attempting sui-
                                                   (continued...)
8                                          Nos. 02-2253, et al.

F.2d 629, 632 (7th Cir.), cert. denied, 506 U.S. 880 (1992).
After reviewing all the evidence, we believe that a mistake
has been made in this case.
  We do not believe that an attempted suicide can be con-
sidered an obstruction of justice. In the United States v.
McGill, we affirmed an enhancement because the district
court had determined that the defendant had tried to
escape rather than commit suicide, a finding that was not
erroneous. 32 F.3d at 1143. Implicit in that decision is the
understanding that suicide would not be an obstruction. Id.
  The defendant argues that Hanhardt’s attempted suicide
reflects his specific intent to die, rather than his intent not
to appear in court the following day. The U.S. Probation
Officer explained that:
    If the defendant’s intention was solely to miss the court
    hearing, he could have simply failed to appear or even
    fled from this district. In this case, the defendant chose
    a more drastic and potentially fatal action. It is there-
    fore the assessment of the undersigned that the defen-
    dant’s legitimate, albeit wilfull, attempt to commit
    suicide transcends the desire to miss a court hearing. .
    ..
(HBr 31) (R362-17 at 48; R306 at 16). The nature of suicide
does not lend itself to a clear understanding of an individ-
ual’s motivation other than the obvious intent to end his
life. We agree with U.S. Probation’s characterization of the
defendant’s actions and reverse the district court’s decision
to enhance his sentence based on an obstruction of justice.




(...continued)
cide was not clearly erroneous. United States v. McGill, 32 F.3d
1138 (7th Cir. 1994).
Nos. 02-2253, et al.                                        9

B. Altobello
  At sentencing, the court applied a two-level increase to
Altobello’s sentence based on an obstruction of justice en-
hancement provided for in U.S.S.G § 3C1.1. The obstruction
of justice sentencing guideline at issue provides:
    If the defendant willfully obstructed justice or impeded,
    or attempted to obstruct or impede, the administration
    of justice during the course of an investigation, prosecu-
    tion, or sentencing of the instant offense, increase the
    offense level by 2 levels.
U.S.S.G. § 3C1.1 (1997). The government sought this en-
hancement based on unsworn false statements Altobello
made to law enforcement officers in 1998.
  On March 10, 1998, Altobello was confronted by FBI
agents. After hearing a tape-recording of an intercepted
conversation, Altobello admitted that his voice was on the
tape, that he had done a “bad thing.” FBI 3.02, GSSS, Ex.C.
(report summarizing FBI interview with Altobello). How-
ever, at that time, Altobello did not admit committing any
other crime and denied criminal associations with certain
individuals.
  Because information regarding the extent of Altobello’s
involvement later contradicted his unsworn statements, the
district court determined that Altobello had impeded the
investigation and therefore obstructed justice. We disagree
and vacate the enhancement.
  The district court judge believed that “there must be some
consequence to what Altobello said or failed to say” when
confronted by the FBI agents in 1998. Tr. 62; App. 18. This
court has held that “the obstruction of justice enhancement
does not apply to any and all obstructive conduct that a
defendant may have attempted or committed.” United
States v. Polland, 994 F.2d 1262, 1269 (7th Cir. 1993).
There is not a presumption in favor of an obstruction
10                                           Nos. 02-2253, et al.

enhancement when a defendant makes unsworn, out-of-
court false statements to law enforcement officers. In fact,
Note 4(b)3 states that “making false statements, not under
oath, to law enforcement officers” is included in the “list of
examples of the types of conduct that, absent a separate
count of conviction for such conduct, do not warrant applica-
tion of this enhancement, but ordinarily can appropriately
be sanctioned by the determination of the particular
sentence within the otherwise applicable guideline range.”
U.S.S.G. § 3C1.1, Application Note 4(b) (emphasis added).
However, if the defendant’s false statement “significantly
obstructed or impeded the official investigation or prosecu-
tion,” the obstruction enhancement may be imposed.
U.S.S.G. § 3C1.1, Application Note 3 (1997).4
  Significant and actual obstruction or impediment must be
shown by the government. See United States v. Shriver, 967
F.2d 572, 575 (11th Cir. 1992). The government failed to
establish that Altobello’s unsworn statements significantly
impeded its investigation. The government only offered the
conclusory claim that Altobello’s statements “significantly
obstructed or impeded the official investigation of Basinski,
Hanhardt and the co-conspirators.” (Government’s Consoli-
dated Version of Offense (CGV) 36-37). This was an insuffi-
cient basis for an obstruction increase. See United States v.
Jackson, 935 F.2d 832, 850 (7th Cir. 1991) (“the govern-
ment’s brief statement that it ‘expended resources . . . only
to find out that Gines’ information was misleading’ does not
itself suffice to establish that Gines hampered the investi-
gation in any significant way”).




3
  Application note (4)(b) in the 1997 version of § 3B1.1 of the
Federal Guidelines is identical to note (5)(b) in the 2003 version.
4
  Application Note 3 is identical to Application Note 4 in the 2003
version of the guidelines.
Nos. 02-2253, et al.                                        11

  In the government’s supplemental sentencing submission,
it essentially relies on the potential for Altobello’s state-
ments to have impeded the investigation, rather than
evidence of actual impediment or hindrance. No government
agents testified at Altobello’s sentencing or otherwise say
that his statements resulted in significant and actual
investigative impediment. Consequently, we vacate the ob-
struction of justice enhancement from Altobello’s sentence.


III. District Court’s Denial of Downward Adjustments for
     Acceptance of Responsibility for Hanhardt and Altobello
  At sentencing the court denied downward adjustments for
acceptance of responsibility for both Hanhardt and
Altobello. We review the district court’s finding as to
whether a defendant has accepted responsibility for his
criminal activity for clear error. United States v. Taliaferro,
211 F.3d 412, 414 (7th Cir. 2000). Whether a defendant has
accepted responsibility is a “context-specific” inquiry.
United States v. Frykholm, 267 F.3d 604, 610 (7th Cir.
2001); quoting United States v. Branch, 195 F.3d 928, 937
(7th Cir. 1999). Upon review, the determination of the
sentencing judge is entitled to great deference. U.S.S.G. §
3E1.1, Application Note 5. Absent an abuse of discretion, we
will not disturb a sentencing judge’s decision. United States
v. Lange, 312 F.3d 263 (7th Cir. 2002). We find the district
court did not abuse its discretion in this instance and affirm
the denial of acceptance of responsibility points.


  A. Hanhardt
  Hanhardt entered a blind plea to the indictment on
October 25, 2001, nine days after the case was scheduled to
begin trial. He was the last of the five defendants then
before the court to enter a guilty plea. His lawyer read a
one and a half page statement to the court that admitted to
12                                       Nos. 02-2253, et al.

the elements of the offense. After the government detailed
the evidence that would have been presented against him,
Hanhardt responded, “I don’t agree with everything he
(Assistant United States Attorney Scully) said.”
Tr10/25/01//41. When the court asked Hanhardt whether he
was pleading guilty to Count One as alleged in the indict-
ment, Hanhardt responded, “In its entirety, no, sir.” Id.
  Section 3E1.1 of the sentencing guidelines is designed to
award a defendant who demonstrates contrition through an
honest and full account of his offense conduct. United States
v. Larkin, 171 F.3d 556, 559 n. 4 (7th Cir. 1999). The
sentencing court can require that the defendant provide a
candid and full explanation of the circumstances surround-
ing the offense of conviction. United States v. Hammick, 36
F.3d 594, 600-01 (7th Cir. 1994).
  In addition, the act of pleading guilty does not automati-
cally entitle a defendant to the reduction. Id.; U.S.S.G.
§ 3E1.1, Application Note 3. The sentencing judge is also
required to look beyond “formalistic expressions of cul-
pability and to determine whether the defendant has
manifested an acceptance of personal responsibility for his
offense in a moral sense.” Id. at 601; see also United States
v. Beserra, 967 F.2d 254, 256 (7th Cir. 1992). Based on the
foregoing, we affirm the district court’s decision to deny
Hanhardt’s downward departure for acceptance of responsi-
bility.


  B. Altobello
  Altobello was denied a downward adjustment for accep-
tance of responsibility because he falsely denied the extent
of his involvement in the theft conspiracy. Tr5/28/02//60-68.
On September 26, 2001, Altobello pleaded guilty, admitting
that his role in the enterprise was to provide information
Nos. 02-2253, et al.                                        13

about traveling jewelry salespersons who came to his son’s
retail jewelry store, Altobello’s Jewelers, Inc. Tr9/26/01//14-
17. He admitted that the information he provided to
Basinski included salespersons’ names, the kind of mer-
chandise they were carrying, the types of vehicles they were
driving and the license plate for those vehicles, and how
often they came to the store. Id. He also claimed that he
had provided such information only on three salespersons
in 1996, a period in which the government had substantial
evidence including a recorded telephone conversation
between Altobello and Basinski and telephone records
showing substantial contact with Basinski. In other words,
Altobello admitted only to that which was impossible to
deny. The court believed the government’s argument that
Altobello had been in contact with the conspirators since
1993, offering information for the first Kashimallak rob-
bery.
  The district court judge denied Altobello’s downward
departure for acceptance of responsibility because he did
not believe that he was truthful about the extent of his
involvement in the conspiracy. There is no indication of an
abuse of discretion, so we affirm the district court’s denial
of acceptance of responsibility.


IV. Two-Level Enhancement as to Hanhardt, Basinski, and
    Altobello for Theft from the Person of Another
  Under 18 U.S.C § 3742(e), a court of appeals reviewing a
sentence imposed under the sentencing guidelines shall
accept the findings of fact of the district court unless they
are clearly erroneous and shall give due deference to the
district court’s application of the guidelines to the facts.
United States v. Mallon, 345 F.3d 943, 945 (7th Cir. 2003).
  The district court enhanced the defendants’ sentences
pursuant to § 2B1.1(b)(2) based on evidence of the circum-
stances surrounding two separate thefts. On June 30, 1992,
14                                       Nos. 02-2253, et al.

Melvin Draftz, a traveling jewelry salesman was distracted
by a bump from behind. Shortly after, he realized his
briefcase, containing his $1.3 million jewelry line, was gone
from the floor by his side. On May 7, 1994, Roland Naftule
was similarly victimized when he was bumped from behind
causing his bag of jewelry to slip from his grasp and
disappear.


A. Factual Finding Regarding Theft from a Person.
  The district court judge determined the facts warranted
the theft of person enhancement provided for in § 2B1.1 of
the sentencing guidelines. Theft from the person of another
“means theft, without the use of force, of property that was
being held by another person or was within arms’ reach.
Examples include pick-pocketing and non-forcible purse-
snatching, such as the theft of a purse from a shopping
cart.” U.S.S.G. § 2B1.1, Application Note 1 (emphasis
added).
   Whether or not the victims’ bags were within arms’ reach
is a factual determination and is reviewed for clear error.
See United States v. Mijangos, 240 F.3d 601, 604 (7th Cir.
2001). We believe it is a reasonable determination, based on
these facts, that the victims’ bags were within their reach
and so affirm the district court’s finding.
B. Application of the Enhancement to Altobello
  In addition, Altobello challenges the court’s application of
this enhancement to him because he claims he was not part
of these specific thefts. He argues that the court misapplied
the principles of conspiracy law. At sentencing, the court
stated:
     [It] was foreseeable that there would be theft from
     the person, and it was, therefore, foreseeable by Mr.
     Altobello that someone would take from the person of
     Naftule the jewelry that was contained in the bag that
     he had at arm’s reach. He need not have known spe-
Nos. 02-2253, et al.                                       15

    cifically the name of Mr. Naftule, but that other con-
    spirators were personally robbing from the persons of
    others was clearly foreseeable to Mr. Altobello. And in
    fundamental Pinkerton conspiracy law, he is account-
    able.
Tr4/29/02//78.
  Altobello persists that there was no evidence that he
agreed to a theft from Naftule’s person and therefore that
theft was beyond the scope of his conspiratorial agreement.
Altobello is incorrect. A defendant need not know of a co-
conspirator’s actions for those actions to be reasonably
foreseeable to the defendant. United States v. Hernandez,
325 F.3d 811, 817 (7th Cir. 2003). The court’s finding that
the circumstances of the Naftule theft were foreseeable to
Altobello was not clearly erroneous and so to apply the en-
hancement to Altobello was not an abuse of discretion.


V. Organized Crime Upward Departure for Basinski,
Altobello, and Brown
  We review the district court’s application of sentencing
departures de novo, but factual findings are reviewed for
clear error. 18 U.S.C. § 3742(e); Mallon, 345 F.3d at 946.
A. Background
  It has long been understood that organized crime derives
much of its power through illegal endeavors, including the
theft and fencing of property. United States v. Turkette, 452
U.S. 576, 588 (1981). The Chicago Outfit (hereinafter the
“Outfit”) is one of the organized criminal enterprises in the
United States. United States v. Rainmone, 32 F.3d 1203,
1209 (7th Cir. 1994). The Outfit “is the clearest example of
a gang operating on such a scale, with such success, over
such a long period of time that the danger it poses to society
is not adequately reflected in the guideline range.” Id.
16                                       Nos. 02-2253, et al.

  The Outfit operates through “street crews,” United States
v. Salerno, 108 F.3d 730, 733 (7th Cir. 1997); United States
v. DiDomenico, 78 F.3d 294, 297-98 (7th Cir. 1996), and
several of the conspirators in this case, including all three
of the defendants who challenge the organized crime
upward departure on appeal, were members of the Ogden/
Grand Avenue crew controlled by Joseph Lombardo.
   Information from confidential informants identified
Basinski and Brown, along with Schiro and D’Antonio, as
members of Joseph Lombardo’s Grand Avenue Crew of
the Chicago Outfit and described that group as an orga-
nized crime jewelry theft crew that worked closely with
Hanhardt. CGV 45-52. A witness and an informant iden-
tified Altobello as a jewelry fence for organized crime.
CGV39, 53.
  Hanhardt stipulated at sentencing that as to the RICO
conspiracy and the jewelry theft conspiracy, the conspira-
tors used organized crime connections in the commission of
the crimes. DeStefano agreed in his written plea agreement
to a two-level enhancement because organized crime
connections were used in the commission of the RICO
offenses. Tr55/1/02//640-46. Schiro is not appealing that
finding. The court found an organized crime connection for
which Basinski, Altobello, and Brown received a two-level
upward departure. Tr/5/6/02//21, 26; 5/28/02//166-67;
7/31/02//41-42.
  Where membership in or association with the Outfit is
used to further the criminal activity for which a defendant
is convicted, an upward departure under the guidelines is
appropriate. United States v. Zizzo, 120 F.3d 1338, 1361
(7th Cir. 1997); United States v. Scheihs, 971 F.2d 1302,
1316-17 (7th Cir. 1992).
 The defendants dispute their connection or membership
with organized crime and argue that the unsworn state-
ments of informants, the identity of whom has not been
Nos. 02-2253, et al.                                     17

disclosed by the government, cannot provide a sustainable
basis for an upward departure. We disagree. Due Process
does not prohibit the use at sentencing of out-of-court
declarations by unidentified informants where those state-
ments are supported by sufficient corroboration. United
States v. Fatico, 579 F.2d 707, 713 (7th Cir. 1978). The
Hanhardt stipulation, DeStefano’s agreement, the crimes,
and the participants in them, all corroborated the infor-
mants. Id. By all this evidence, it is more likely than not
that the conspirators are participants in organized crime.
Id. Therefore, we affirm the upward departure for connec-
tion to organized crime as to Basinski, Altobello, and
Brown.


VI. Basinski’s Role as a Leader and an Organizer
  At sentencing the district court judge added a four-level
adjustment to Basinski’s sentence based on his role in the
conspiracy. Guideline § 3B1.1(a) permits this adjustment if
the defendant was an organizer or leader of criminal
activity that involved five or more participants or was
otherwise extensive. U.S.S.G § 3B1.1. Whether Basinski
was a leader in the conspiracy for purposes of § 3B1.1 is
a question of fact which we review for clear error. United
States v. Vivit, 214 F.3d 908, 922 (7th Cir. 2000).
   To be classified as an organizer or leader, a defendant
“may simply have organized or in some way directed”
another member of the conspiracy. United States v.
Mustread, 42 F.3d 1097, 1104 (7th Cir. 1994). The upward
adjustment is applicable to each leader in a conspiracy and
more than one conspirator may qualify as an organizer or
a leader. United States v. McClinton, 135 F.3d 1178, 1191
(7th Cir. 1998). See U.S.S.G § 3B1.1(a), Application Note 4.
  The wiretap that intercepted the conversations of
Hanhardt and Basinski showed that both exercised deci-
sion-making authority. The two organized and planned the
18                                        Nos. 02-2253, et al.

identification and stalking of jewelry salespersons and the
theft and sale of jewelry. Basinski recruited and supervised
knowing accomplices and unknowing participants to assist
in the theft of jewelry and the sale of stolen jewelry. In
dozens of recorded conversations, Hanhardt and Basinski
decided whom to target in addition to planning and organiz-
ing the commission of the thefts.
  Basinski insists that the district court rejected the three-
level enhancement determined by the probation officer,
made no findings to support its conclusion, and reached its
conclusion based upon only a brief statement by the
government at sentencing. We disagree. The record is clear
that the court relied on the entire record in reaching its
decision. The court stated:
     It may well be that Mr. Hanhardt was the ultimate
     leader, but clearly he and Mr. Basinski were simulta-
     neously the leader[s] and organizers of the conspiracy.
     And in making this determination the Court has
     considered the 165-page Santiago proffer, as well as the
     information in support of the Title III tapes. And the
     Court has considered the plea agreements of certain
     defendants, as well as, indeed, the blind plea of Mr.
     Hanhardt to Count 1 and Count 2. As the Court has
     examined all these submissions, including the sub-
     missions of Mr. Basinski himself, it is clear that both he
     and Hanhardt were leaders and organizers of the
     conspiracy.
Tr5/06/02//12-13. It is clear that the district court consid-
ered the entire record before deciding. The district court’s
conclusion that Basinski was a leader and an organizer is
supported by the record and therefore not clearly erroneous.
Nos. 02-2253, et al.                                       19

VII. Denial of a Downward Adjustment for Minor Role for
     Altobello
  Altobello was denied a two-level downward adjustment
for minor participation pursuant to § 3B1.2(b) of the
guidelines. A district court’s decision to deny a defendant a
downward adjustment for mitigating role in criminal
activity under § 3B1.2 is a factual determination that is
reviewed for clear error. E.g., Schetz v. United States, 901
F.2d 85, 87 (7th Cir. 1990).
  According to § 3B1.2(b), if the sentencing court finds that
the defendant was a “minor participant” in the offense, his
sentence may be decreased by two levels. United States v.
Corral, 324 F.3d 866, 874 (7th Cir. 2003). We have often
held that a minor participant is “one who is substantially
less culpable than the other participants.” Id.; United States
v. Jones, 55 F.3d 289, 293 (7th Cir. 1995). However, we
make this determination by examining “whether the
defendant was a minor participant in the crime for which he
was convicted, not whether he was a minor participant in
some broader conspiracy that may have surrounded it.” Id.;
quoting United States v. Brown, 136 F.3d 1176, 1185-86
(7th Cir. 1998). Though we apply this reduction infre-
quently, a defendant who seeks it must establish by a
preponderance of the evidence that he is entitled to it.
United States v. Soto, 48 F.3d 1415, 1423 (7th Cir. 1995);
Corral, 324 F.3d at 874.
  In this case, the district court found that Altobello played
an instrumental role in the offense by providing information
to the other conspirators that enabled them to target the
victims he identified. The principle means by which the
conspirators identified their victims was by gaining access
to industry trade shows and surveilling the traveling
wholesale jewelers who attended those shows. Altobello was
a significant source of information about salespersons who
came to Altobello Jewelers, Inc. He provided information
20                                        Nos. 02-2253, et al.

about at least five salespersons who carried with them in
excess of $2 million in jewelry and precious stones. In
addition to identifying salespersons, Altobello provided
information about the type and quality of merchandise they
carried and how it was transported, their schedules, the
vehicle license plates, and the type of vehicles they drove.
The district court found that Altobello identified victims
and provided crucial information about them to the other
conspirators, making him an important and a significant
contributor to the conspiracy.
  Altobello’s argument that he is significantly less culpable
than the others because he did not participate in all of the
conspiratorial activity is not enough to meet his burden.
The district court’s finding as to Altobello’s role in the con-
spiracy is reasonable and not clearly erroneous. Therefore,
we affirm the denial of a downward adjustment for a minor
role for Altobello.
  The district court’s determination that Altobello joined
the conspiracy at least as early as the 1993 robbery of
Kashimallak and that all thefts from that point were
reasonably foreseeable to him is reviewed for clear error.
United States v. Zarnes, 33 F.3d 1454, 1474-75 (7th Cir.
1995). Based on all the evidence that was before the district
court, including circumstantial evidence of his involvement
in the 1995 Kashimallak theft and robbery, the district
court correctly determined that the evidence of Altobello’s
words and actions showed that he was a member of the
conspiracy from at least 1993 and that he demonstrated a
degree of commitment to the objectives of the conspiracy
that made all thefts from 1993 reasonably foreseeable to
him. Tr5/28/02//77-81, 86-87. The finding is not clearly
erroneous and is affirmed.
  Based on the foregoing reasons, we AFFIRM in part,
REVERSE in part, and REMAND for new sentencing consis-
tent with this opinion.
Nos. 02-2253, et al.                                    21

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—3-16-04
