United States of America v. Mario Giannini

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-3139
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARIO GIANNINI ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cr-00551-3 — Matthew F. Kennelly, Judge.
____________________
A RGUED F EBRUARY 21, 2024 — DECIDED J UNE 18, 2024
____________________
Before EASTERBROOK, BRENNAN , and K IRSCH , Circuit
Judges.
K IRSCH , Circuit Judge. After a five-day trial, a jury found
Mario Giannini guilty of wire fraud and honest services
fraud. Giannini appeals the denial of his motion for a mistrial
based on the government’s belated disclosure of investigating
agents’ notes regarding an inculpatory statement he made to
Robert Czernek, a co-defendant. He also asserts that the court
erred in allowing the prosecutors, in closing arguments, to

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raise the conduct of another co-defendant, Debra Fazio, who
was dismissed from the case following the government’s
case-in-chief after the court granted her motion for acquittal.
Because the district court neither abused its discretion in
denying the motion for a mistrial nor plainly erred in allow-
ing the prosecutors to discuss Fazio’s conduct, we affirm.
I
Mario Giannini and Robert Czernek engaged in a nearly-
decade long series of schemes in Bloomingdale Township, Il-
linois involving fraudulent invoices and kickbacks. Czernek,
the Highway Commissioner for the Township, was responsi-
ble for reviewing and approving invoices that the Township’s
contractors submitted for payment. Giannini worked for one
of the contractors, Bulldog Earth Movers, which was solely
owned by his longtime girlfriend, Debra Fazio.
In the first scheme, beginning in 2012, Giannini and Czer-
nek agreed that Bulldog would artificially inflate its invoices
for delivering stone and split the inflated amount between
Czernek and Bulldog. In the second, around 2016, Giannini
requested that Czernek assign to Bulldog work moving and
leveling dirt at a dump site. Czernek would leave notes de-
scribing what work Bulldog should bill, and Giannini would
give those notes to Fazio to prepare invoices that falsely in-
creased the number of work hours Bulldog performed. Czer-
nek approved the invoices, and Giannini kicked back some of
the proceeds to Czernek. Finally, around 2019, Czernek and
Giannini arranged for Bulldog to bill the Township for work
repairing storm sewers that Bulldog never performed. Gian-
nini kicked back some of the profits to Czernek, again using
invoices prepared by Fazio based on Czernek’s notes. Gian-
nini paid Czernerk via checks made out to Tri-State Express,

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No. 22-3139 3
a trucking company owned by Czernek that had been dis-
solved in 1998 and had not done any work after the mid-
2000s.
Giannini, Czernek, and Fazio were indicted on fourteen
counts of wire and honest services fraud in violation of 18
U.S.C. §§ 1343 and 1346, and Fazio was additionally charged
with six counts of money laundering in violation of 18 U.S.C.
§ 1957(a). Czernek chose to cooperate with the government
and pleaded guilty to wire and honest services fraud pursu-
ant to a cooperation plea agreement. Giannini and Fazio pro-
ceeded to trial, but, following the government’s case-in-chief,
the district court granted Fazio’s motion for acquittal on all
counts under Federal Rule of Criminal Procedure 29.
In his trial testimony, Czernek described an inculpatory
conversation he and Giannini had in November 2019: Gian-
nini, in response to Czernek’s noting that Giannini’s toy truck
collection appeared “expensive,” stated, “[a]s long as we keep
doing what we’re doing, it will be okay.” On cross-examina-
tion, among numerous other attempts at impugning Czer-
nek’s credibility, Giannini’s counsel sought to show that Czer-
nek had fabricated this statement for trial by asking him
whether he had told any government agents about the con-
versation. Czernek replied that he had done so in a meeting
with the government the day before his testimony.
The next day, the FBI agent present at that meeting, Mat-
thew Blankenship, testified that Czernek had first made the
statement in a meeting with an IRS agent over a week before
his testimony. He also noted that he had erroneously failed to
include the statement in the reports produced to Giannini,
which described Czernek’s meetings with the government.
The district court ordered the government to produce the

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notes of the meetings. The government complied, producing
both agents’ notes.
Giannini’s counsel moved for a mistrial, arguing that the
government’s delayed disclosure violated Federal Rule of
Criminal Procedure 16 and the Jencks Act, 18 U.S.C. § 3500.
The district court denied the motion. It concluded that the
notes should have been produced under Rule 16 and the
Jencks Act but that a mistrial was not needed because the de-
layed production did not sufficiently prejudice Giannini. As a
remedy, it barred the government from introducing the notes
at trial to bolster Czernek’s and Agent Blankenship’s testi-
mony and allowed Giannini to recall Blankenship to ask
about the notes, but Giannini did not do so. Moreover, during
his testimony, Giannini denied making the statement to Czer-
nek, and the court believed his denial substantially dimin-
ished the prejudice from the delay.
The trial proceeded to closing arguments, during which
the prosecutors made numerous references to Fazio and her
conduct. Giannini did not object to those remarks. Some of the
comments emphasized the greed of Fazio, Giannini, and
Czernek as motivating the schemes. Others described Fazio’s
role as the sole owner of Bulldog, Bulldog’s role in the
schemes, and Fazio’s involvement in the schemes through her
creation of fraudulent invoices. After closing arguments,
Giannini was found guilty on all counts.
II
A
On appeal, Giannini first argues that the district court
erred in denying his motion for a mistrial. Giannini contends
that the belated production of the agents’ notes, which the

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No. 22-3139 5
district court found violated Rule 16 and the Jencks Act,
caused him sufficient prejudice to merit a mistrial because it
impeded his ability to effectively cross-examine Czernek. He
also contends that it bolstered Czernek’s credibility and di-
minished both his and his counsel’s credibility.
We review denial of a motion for mistrial for abuse of dis-
cretion and will affirm unless the error was not harmless—the
prejudice from the violation must have deprived Giannini of
a fair trial. United States v. Lawrence, 788 F.3d 234, 243–44 (7th
Cir. 2015). We conduct this review “with an extra helping of
deference” in consideration of the district court being best po-
sitioned “to determine the seriousness of the incident in ques-
tion, particularly as it relates to what has transpired in the
course of the trial.” Id. at 243 (quotation omitted).
The district court found that the prejudice to Giannini
from the belated disclosure (his pursuit of a fruitless line of
cross-examination) was minimal, if not nonexistent, and thus
could not justify granting a mistrial. It also noted that Gian-
nini’s denial that he made the statement further limited the
prejudice from the delayed production. And it sought to cure
any prejudice by barring the government from introducing
the agents’ notes.
We first address the Rule 16 issue, which the district court
handled well. Rule 16 requires the government to disclose
documents and papers within its “possession, custody, or
control” that are material to preparing the defense or that the
government intends to use in its case-in-chief at trial. If the
government fails to comply with Rule 16, the court can order
discovery or “enter any other order that is just under the cir-
cumstances.” Fed R. Crim. P. 16(d)(2). This includes ordering
a mistrial, but such a remedy is “appropriate only when all

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6 No. 22-3139
other, less drastic remedies are inadequate.” United States v.
Tomkins, 782 F.3d 338, 348 (7th Cir. 2015) (cleaned up). At
base, a mistrial is warranted “only if the alleged Rule 16 vio-
lation deprived [the defendant] of a fair trial.” Lawrence, 788
F.3d at 244.
Assuming the government’s delayed disclosure violated
Rule 16, the district court did not abuse its discretion by deny-
ing Giannini’s motion for a mistrial. The late disclosure re-
sulted in little to no prejudice to Giannini, and the court’s
remedies were adequate to address any such prejudice.
Giannini may have been surprised by the late revelation
of the notes, but he still had sufficient opportunity to prepare
and present his defense. His strategy was to impeach Czernek
by showing that he was not credible and that he fabricated the
inculpatory statement for trial in order to earn his coopera-
tion. This late disclosure had little impact on that strategy.
Czernek admitted that he first revealed the statement to in-
vestigators only shortly before trial, so it still could have been
fabricated, and insinuated that he made the statement to en-
sure he got cooperation credit. So while the late disclosure
may have made this line of impeachment somewhat weaker,
it did so only marginally because Giannini was able to lever-
age this statement, as well as a bevy of other examples, to sug-
gest that Czernek was not credible. Simply, the belated dis-
closure did not prevent Giannini from impeaching Czernek
and thus did not prejudice him. Cf. United States v. Warren,
454 F.3d 752, 760–61 (7th Cir. 2006) (finding no prejudice
where the belated production of evidence did not prevent the
defendant from using it in his defense).
The only other possible prejudice to Giannini was from
Agent Blankenship’s testimony that Czernek made the

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No. 22-3139 7
statement to investigators over a week before his testimony,
but this too was insufficient for a mistrial for two reasons.
First, Giannini was still able to effectively cross-examine
Agent Blankenship. Even after being confronted with the re-
mark that Czernek made the statement at least a week before
testifying, he was still able to suggest that: (1) there was no
record of such a statement; and (2) Czernek was lying and had
devised the statement for trial. He adduced testimony from
Agent Blankenship that he had seen no reports containing
Czernek’s statement, that Czernek told agents of the state-
ment only over a week before trial, and that Czernek had lied
to investigators in the past. Second, the court’s remedy of bar-
ring the government from introducing the notes to corrobo-
rate Agent Blankenship’s testimony effectively limited any
prejudice. While Giannini could imply there was no record of
the statement, the government could not refute that position
with evidence of such a record. And Giannini used this to his
advantage in closing, asserting that the agents thought Czer-
nek’s statement was so insignificant that they did not even in-
clude it in a report.
Giannini also urges that a mistrial was required under the
Jencks Act. If the papers or documents in the government’s
possession contain statements of a witness called by the gov-
ernment (so called Jencks material), the Jencks Act requires
the government to produce those statements after the witness
has testified on direct examination on motion of the defend-
ant. 18 U.S.C. § 3500(b). If the government “elects not to com-
ply” with an order mandating production of Jencks material
the court “shall strike from the record the testimony of the
witness” and can declare a mistrial if “the interests of justice
require.” Id. § 3500(d). But if the government has no “motive
to suppress evidence,” and “any prejudice resulting from the

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8 No. 22-3139
tardy production of statements is curable at trial,” the govern-
ment has not “elect[ed] not to comply.” United States v. Wables,
731 F.2d 440, 447 (7th Cir. 1984). Thus, a court can “use its dis-
cretion to fashion appropriate remedies.” Id.
There was no election not to comply with any court order,
so the court acted soundly in refusing to grant a mistrial. The
record does not suggest that the government intentionally
withheld these notes or otherwise had any motive to suppress
them. It indicates, at most, that the government’s conduct was
a negligent oversight and an instance of poor record keeping.
And the government’s prompt disclosure of the materials
upon discovering they were in its possession dispels any in-
dication of bad faith. Id. (“[T]he government’s diligence in
gathering and producing all pretrial statements within
twenty-four hours” of discovering a Jencks Act issue signified
good faith.). Thus, there was no need to strike any testimony,
let alone impose the drastic remedy of a mistrial. Addition-
ally, as discussed, there was limited prejudice to Giannini
from the belated disclosure, so any violation of the Jencks Act
was harmless.
B
Giannini’s second challenge on appeal is that the prosecu-
tors’ references to Fazio’s acquitted conduct in closing argu-
ments deprived him of a fair trial. Because he failed to object
to these comments at trial, we review for plain error. United
States v. Chavez, 12 F.4th 716, 728 (7th Cir. 2021). Even assum-
ing error, we will not reverse unless Giannini “probably
would have been acquitted if the prosecutor had not made”
the challenged comments. Id. In other words, Giannini must
“show that the outcome of the proceedings would have been
different had the statements not been made.” United States v.

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No. 22-3139 9
Guzman-Cordoba, 988 F.3d 391, 406 (7th Cir. 2021) (quotation
omitted). For these reasons, we have cautioned that “im-
proper comments during closing arguments rarely constitute
reversible error.” United States v. Klemis, 859 F.3d 436, 442 (7th
Cir. 2017) (quotation omitted).
We evaluate a claim of prosecutorial misconduct through
improper statements at closing arguments in two steps. First,
we determine if the comments were “improper standing
alone.” United States v. Kelerchian, 937 F.3d 895, 916 (7th Cir.
2019) (quotation omitted). Second, if they were improper, we
then inquire “whether the remarks in the context of the whole
record denied the defendants the right to a fair trial.” Id.
We can resolve Giannini’s claim at step one: the remarks
regarding Fazio’s acquitted conduct, even if they implied her
guilt, were proper. This is a straightforward application of
United States v. Briseno, 843 F.3d 264 (7th Cir. 2016). There, we
focused on the relevance of the acquitted conduct described
in the allegedly improper statements and noted that any ar-
gument that the statements were improper was erroneously
premised on the idea that the acquitted conduct was irrele-
vant to the charge submitted to the jury. Id. at 269. Accord-
ingly, we held that the references to a defendant’s acquitted
conduct in closing arguments were proper because the evi-
dence was directly relevant to the charge the jury would con-
sider. Id. at 270.
As in Briseno, the prosecutors’ comments pertaining to
Fazio’s acquitted conduct were highly relevant to the charges
against Giannini and thus were proper. Descriptions of what
exactly Fazio did, her knowledge, her and Giannini’s motiva-
tions, and the role she (and Bulldog) generally played in the
schemes were key to establishing a full story. For example, in

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10 No. 22-3139
describing how the schemes operated, the government artic-
ulated how Fazio wrote fraudulent invoices and, because of
her greed, failed to question their propriety. If the govern-
ment could not discuss this evidence, it would leave a concep-
tual void in its case. Given Briseno, where it was proper to
comment on a defendant’s acquitted conduct, it cannot be im-
proper for the prosecutors to remark on this highly relevant
evidence merely because it might have implied the guilt of
Fazio—a former, acquitted defendant. 843 F.3d at 269–70.
Even if it was error to allow the comments, it was harmless
because, had the prosecutors not referenced Fazio, Giannini
would not have been acquitted in light of the overwhelming
evidence against him, as well as the weakness of his defense.
The government presented extensive testimonial and docu-
mentary evidence demonstrating Giannini’s guilt. This in-
cluded testimony from numerous persons such as Czernek
and FBI agents, and documentary evidence—for instance, the
invoices from Bulldog that over-billed for the work per-
formed and photographs showing that storm sewer work
Bulldog billed for had not been done. Giannini’s defense was
that the payments to Czernek were for work done by and
equipment rentals to Tri-State, Czernek’s trucking company.
That defense was fruitless: Tri-State had not operated for
nearly a decade by the time the first scheme began. Moreover,
his testimony in support of the defense was not credible. For
example, he stated that he had a business card from Tri-State
but could not produce it, and he was unable to identify any
equipment rented out or any records of such rentals. In sum,
allowing the prosecutors to reference Fazio in closing argu-
ments did not constitute error, much less reversible error.
A FFIRMED

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