EFTA00013373.pdf

U.S. v. Montano, 873 F.Supp. 1177 (1995)
873 F.Supp. 1177
United States District Court,
N.D. Illinois,
Eastern Division.
UNITED STATES of America, Plaintiff,
v.
Christopher Richard MESSINO, et al., Defendants.
No. 93 CR 294.
Jan. 31, 1995.
Synopsis
Eight defendants, who were charged in connection with
alleged drug distribution and money laundering
conspiracy, and government filed pretrial motions in
limine. The District Court, Alesia, J., held that: (1)
evidence and witnesses' testimony would not be
suppressed as result of having been derived from leads
attributable to suppressed evidence; (2) testimony
regarding statutory maximum penalty faced by
government's witnesses was admissible; (3) government
would be allowed to recall witnesses during its case in
chief; (4) evidence regarding weapons possession, taxes,
and dealings involving large amounts of cash was
admissible; (5) district court would not grant additional
peremptory challenges to defendants; (6) government was
not required to put nondefendant participant in
conversation with one of defendants on stand in order to
play tape recordings of conversation; (7) court would
reserve ruling on marital communications privilege; (8)
references to one of defendants in codefendants'
conversations did not implicate confrontation clause; and
(9) government could introduce evidence of incarceration
of one of defendants.
Motions denied in part and granted in part.
West Headnotes (34)
Ill Criminal Law
-Searches, S seizures, and arrests
Criminal Law
-Search S or seizure in general
Exclusionary rule prohibits introduction of
evidence obtained as direct or indirect result of
illegal search.
Cases that cite this headnote
121 Criminal Law
-Causal S nexus; independent discovery or basis
or source
When disputed evidence is attributable to source
independent of illegally obtained primary item,
independent source doctrine renders evidence
admissible despite primary taint.
Cases that cite this headnote
131 Criminal Law
-Inevitable S discovery
When disputed evidence inevitably would have
been discovered by lawful means, inevitable
discovery doctrine renders evidence admissible
despite primary taint.
Cases that cite this headnote
19 Criminal Law
-Causal S nexus; independent discovery or basis
or source
Defendants, who were charged in connection
with alleged drug distribution and money
laundering conspiracy, were not entitled to
suppression of first defendant's lease,
identification and place of purchase of second
defendant's boat, and witnesses' testimony, even
though lease, boat information, and witnesses
were derived from leads attributable to
suppressed evidence; lease, boat information,
and identification and use of witnesses were
attributable to independent source of discovery.
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Cases that cite this headnote
Isl Criminal Law
iil lnevitable discovery
Defendant, who was charged in connection with
alleged drug distribution and money laundering
conspiracy, was not entitled to suppression of
bank and credit card records and prohibition of
use of witness, even though records and witness
were derived from leads attributable to
suppressed evidence; records and identity and
significance of witness would have been
inevitably discovered even absent utilization of
tainted leads.
Cases that cite this headnote
161 Criminal Law
-Motions S in limine
District court would deny government's motion
in limine seeking to preclude evidence and
argument, at trial on charges arising from
alleged drug distribution and money laundering
conspiracy, of lawfulness, noncorrupt conduct,
and outrageous government conduct; motion
could not be evaluated absent more specific
context provided at trial.
2 Cases that cite this headnote
ITI Criminal Law
aMotions in limine
District court would deny as moot government's
motion in limine seeking to preclude, at trial on
charges arising from alleged drug distribution
and money laundering conspiracy, evidence and
argument of entrapment; no defendant
responded to motion by asserting right to argue
entrapment in opening statements.
2 Cases that cite this headnote
Isl Criminal Law
-Relevancy S in General
Evidence as to defense counsel's prior
prosecution experience was not admissible as it
was irrelevant. Fed.Rules Evid.Rules 401, 402,
28 U.S.C.A.
Cases that cite this headnote
Witnesses
p-Competency of contradictory evidence
Draft transcript prepared by one witness could
not be used to impeach another witness.
Cases that cite this headnote
Pw Criminal Law
4SMotions in limine
District court would deny government's motion
in limine regarding allegations of witness
wrongdoing not involving dishonesty;
government sought to regulate impeachment of
its witnesses at trial and, without context, court
was required to reserve ruling.
Cases that cite this headnote
1111 Witnesses
limExplanation of Testimony on
Cross•Examination
Witnesses
fl•Interest in Event of Witness Not Party to
Record
Testimony regarding statutory maximum
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penalties faced by government's witnesses was
admissible, notwithstanding contention that such
numbers were misleading given realities of
sentencing under Sentencing Guidelines;
evidence was relevant as to issue of credibility,
and, to extent that statutory maximum did not
tell whole story, government was free to explore
that on redirect examination. U.S.S.G. § 1B1.1
et seq., 18 U.S.C.A.App.; Fed.Rules Evid.Rule
401,28 U.S.C.A.
Cases that cite this headnote
1121 Witnesses
faRecalling Witnesses
District court has discretionary authority to
allow government to recall witnesses during its
case in chief.
Cases that cite this headnote
1131 Witnesses
-Recalling 4 Witnesses
District court would allow government at trial of
eight defendants on charges arising from alleged
drug distribution and money laundering
conspiracy to recall specific witnesses during its
case in chief; such recall would be beneficial to
July's following government's case.
Cases that cite this headnote
Criminal Law
-Conspiracy, 4 racketeering, and money
laundering
Criminal Law
-Controlled 4 substances
Criminal Law
-Conspiracy, 4 racketeering, and money
laundering
Criminal Law
-Conspiracy, 4 racketeering, and money
laundering
Evidence of defendants' possession of weapons
was admissible, at trial on charges arising out of
alleged drug distribution and money laundering
conspiracy, on a tool-of-the-trade theory.
Cases that cite this headnote
1151 Conspiracy
-Admissibility 4 in general
Tax evidence was admissible, at trial on charges
arising from alleged drug distribution and
money laundering conspiracy, to show no
legitimate source of income.
Cases that cite this headnote
118 Criminal Law
-Evidence 4 calculated to create prejudice
against or sympathy for accused
Evidence of defendants' use of prostitutes was
not admissible at trial on charges arising from
alleged drug distribution and money laundering
conspiracy; defendants' use of prostitutes was
irrelevant and overly prejudicial, absent some
special circumstances, which government did
not forward.
I Cases that cite this headnote
I"I Criminal Law
-Evidence 4 calculated to create prejudice
against or sympathy for accused
Government could elicit, at trial on charges
arising from alleged drug distribution and
money laundering conspiracy, testimony that
some of defendants might have had sexual
relationships with same witnesses; it might be
difficult for each witness to tell her story of her
relation to those defendants without discussing
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1191
fact that she dated them, and government
intended to elicit
noninflammatory manner.
Cases that cite this headnote
Conspiracy
*admissibility in general
information in
Evidence of large cash loans made by defendant
was admissible, at trial on charges arising from
alleged drug distribution and money laundering
conspiracy, to show defendant's possession of
such cash as evidence of conspiracy.
Cases that cite this headnote
Criminal Law
*Motions in limine
District court would deny defendant's motion in
limine seeking to preclude, at trial on charges
arising from alleged drug distribution and
money laundering conspiracy, testimony
regarding aliases, carrying of briefcase
containing $10,000, and putting assets in other
persons' names; depending on context, those
incidents could be relevant, and any
foundational issues were properly addressed at
trial. Fed.Rules Evid.Rule 401, 2S U.S.C.A.
Cases that cite this headnote
1201 Criminal Law
-Motions 4 in limine
District court would deny defendant's motion in
limine seeking to preclude, at trial on charges
arising from alleged drug distribution and
money laundering conspiracy, evidence of debt
owed to defendant; government's theory was
that debt would be linked up when viewed in
context of evidence at trial and, thus, court
would reserve ruling.
Cases that cite this headnote
1211 Criminal Law
*Motions in limine
District court would deny defendant's motion in
limine seeking to preclude testimony at trial on
charges arising from alleged drug distribution
and money laundering conspiracy; government's
theory of admissibility was based on witness'
being unindicted coconspirator, and papers
submitted could not supply enough context to
rule on issue.
Cases that cite this headnote
122l Jury
4Codefendants
Decision as to whether to grant additional
peremptory challenges in multidefendant trial
lies within sound discretion of district court.
Fed.Rules Cr.Proc.Rule 24(b), 18 U.S.C.A.
I Cases that cite this headnote
1231 Jury
i*Codefendants
District court would not grant defendant's
request for additional peremptory challenges,
allotting three peremptory challenges for each of
eight defendants, but, rather, would collectively
allow defendants ten peremptory challenges
with each defendant having sole authority over
one challenge and joint authority over remaining
challenges, even though length of trial might
complicate jury selection process. Fed.Rules
Cr.Proc.Rule 24(b), IS U.S.C.A.
I Cases that cite this headnote
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demonstrative evidence
1241 Criminal Law
4—Materiality and probable effect of information
in general
Under Brady rule, prosecution is barred from
withholding evidence that is favorable to
defendant and material to issue at trial.
Cases that cite this headnote
1251 Criminal Law
-Grand 4 jury proceedings
Defendant was not entitled to disclosure, under
Brady, of witness' grand jury testimony;
prosecution did not intend to call witness at trial,
and, although witness' testimony indicated
absence of knowledge of any illegality on part
of defendant, Brady materiality determination
was not search for mere possibilities.
Cases that cite this headnote
1261 Criminal Law
-Sound 4 recordings
Criminal Law
-Sound 4 recordings
Government was not required, as foundational
matter or under Sixth Amendment, to place
nondefendant participant in conversation with
defendant on stand in order to play tapes of
conversation, which participant transmitted on
behalf of government. U.S.C.A. Const.Amend.
6.
I Cases that cite this headnote
1271 Criminal Law
faIntroduction of documentary and
District court would exclude alleged references,
in tape-recorded conversation involving
defendant, who was charged in connection with
alleged drug distribution and money laundering
conspiracy, to potential intimidation or murder
of government witness; it was not clear that
defendant was agreeing to or encouraging such
intimidation, either through inaudibility or
truncated transmission, transcripts were
incomplete, and subject matter was highly
inflammatory.
I Cases that cite this headnote
1251 Witnesses
-Incompetency 4 for or Against Each Other in
General
"Adverse spousal testimony privilege" gives
person presently married to criminal defendant
right not to testify against his spouse.
Cases that cite this headnote
Witnesses
-Objections 4 to competency in general
Only testifying spouse can assert adverse
spousal testimony privilege.
Cases that cite this headnote
1 " Criminal Law
-Motions 4 in limine
District court would deny defendant's motion in
limine seeking to preclude his spouse's
testimony based on confidential marital
communications privilege; defense counsel's
information indicated that spouse would assert
adverse spousal testimony privilege, government
claimed that marriage was sham and would be
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required to prove that claim at trial, and adverse
spousal testimony privilege was threshold
matter.
Cases that cite this headnote
1311 Criminal Law
4-Presence of jury during inquiry as to
admissibility
1321
1331
District court would require government, before
presenting attorney-client communications, to
establish out of hearing of jury that exception to
attorney-client privilege operated.
Cases that cite this headnote
Criminal Law
4-Confessions or declarations of codefendants
Admission of references to defendant in
codefendants' conversations which took place
after alleged drug distribution and money
laundering conspiracy ended did not implicate
confrontation clause; references required
"linkage" to defendant before they implicated
him. U.S.C.A. Const.Amend. 6.
Cases that cite this headnote
Conspiracy
4-Admissibility in general
Government could introduce evidence of
defendant's incarceration at trial on charges
arising out of alleged drug distribution and
money laundering conspiracy; superseding
indictment specifically charged that defendant
directed coconspirators while incarcerated.
Cases that cite this headnote
Wl Criminal Law
4-Motions in limine
District court would deny defendant's motion in
limine to preclude, at trial on charges arising
from alleged drug distribution and money
laundering conspiracy, evidence regarding
isolated incidents of small controlled substance
deliveries; government intended to prove that
defendant sold small amounts of cocaine during
course of and in furtherance of conspiracy, and,
furthermore, defendant's motion was too vague
to warrant ruling that all incidents fitting into his
description should be excluded.
I Cases that cite this headnote
Attorneys and Law Firms
*1180 L. Felipe Sanchez, Matthew Schneider, Kathleen
Murdock, Asst. U.S. Attys., Chicago, IL, for U.S.
Marc William Martin, Chicago, IL, for Christopher
Richard Messina.
Douglas P. Roller, Naperville, IL, E.E. Edwards, III,
Nashville, TN, for Clement A. Messino.
Linda Amdur, Chicago, IL, for Michael Homerding.
Robert A. Loeb, Chicago, IL, for Donald Southern.
Donna Hickstein—Foley, Chicago, IL, for William
Underwood.
Gerardo Gutierrez, Chicago, IL, for Christopher B.
Messino.
Robert L. Gevirtz, Gevirtz, Born & Kissel, Northfield, IL,
for Blaise Messino.
Joseph R. Lopez, Chicago, IL, for Paul Messino.
Walter Jones, Jr., Chicago, IL, for Thomas Hauck.
Edna Selan Epstein, Chicago, IL, for Gray Chrystall.
Leland Shalgos, Chicago, IL, for Daniel C. Shoemaker.
Steven A. Greenberg, Chicago, IL, Richard Friedman,
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U.S. v. Messino, 873 F.Supp. 1177 (1995)
Chicago, IL, for Lawrence Thomas.
MEMORANDUM OPINION AND ORDER
ALESIA, District Judge.
Before the court are pretrial motions in limine as well as a
few remaining pretrial motions and matters. For
background on this case see United States v. Messino, 871
F.Supp. 1035 (N.D.I11.1995), and other cases cited at 871
F.Supp. at 1037-38 of that opinion.
I. TAINT ISSUES RELATED TO PREVIOUSLY
SUPPRESSED EVIDENCE
On January 18, 1995, the court conducted a taint hearing
to determine what, if any, items would be suppressed as
evidence because of their having been derived from leads
attributable to already suppressed evidence. The hearings
were on the motions of defendants Christopher Richard
Messino and Clement A. Messino. Based upon the
credible evidence of record the court makes the following
findings of fact and conclusions of law. The court
considers now only those items challenged in defendants'
post-hearing submissions.
*1181 A. Findings of Fact
Credibility Finding
1. Special Agent Michael Priess, the sole witness at the
hearing, was a credible witness in all respects. His
testimony demonstrated detailed recall of facts
surrounding the instant investigation.
Challenges from Christopher Richard Messina
2. The lease between Nick Sula and Christopher Richard
Messino is attributable to an independent source of
discovery.
3. The government's identification and use of Jerry Haas
and Lisa Batts as witnesses are attributable to an
independent source of discovery.
Challenges from Clement A. Messino
4. The government's identification of Clement A.
Messino's boat and place of purchase are attributable to
an independent source of discovery.
5. The government's identification and use of George
Thorpe, John Richard, Phillip Webb, Ed Cozzi, and Frank
Fuscone as witnesses are attributable to an independent
source of discovery.
6. The identity and significance of Chris Smith as a
witness would have inevitably been discovered even
absent utilization of tainted leads.
6. Bank records from Interstate Bank of Oak Forest,
Chesterfield Bank, Beverly Bank, Thomridge State Bank,
Evergreen Plaza Bank, Heritage Bank of Crestwood, First
National Bank of Harvey, and First National Bank of Blue
Island, as well as any credit card records would, at the
very least, have been inevitably discovered even absent
utilization of tainted leads.
B. Conclusions of Law
I. The exclusionary rule prohibits "the introduction of
evidence obtained as the direct or indirect result of an
illegal search." United States v. Markling, 7 F.3d 1309,
1315 (7th Cir.1993) (citing Murray v. United States, 487
U.S. 533, 536, 108 S.Ct. 2529, 2532, 101 L.Ed.2d 472
(1988)).
2. Various doctrines define whether evidence not
primarily tainted was obtained as a result of the primary
illegality. See generally 4 WAYNE R. LAFAVE,
SEARCH & SEIZURE § 11.4(a) (2d ed. 1987).
121 3. When the disputed evidence is attributable to a
source independent of the illegally obtained primary item,
the independent source doctrine renders the evidence
admissible despite the primary taint. Markling, 7 F.3d at
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1314-18, 1318 n. 1.
PI 4. When the disputed evidence inevitably would have
been discovered by lawful means, the inevitably
discovery doctrine renders the evidence admissible
despite the primary taint. See United States v. Jackson,
901 F.2d 83, 84-85 (7th Cir.I 990); Markling, 7 F.3d at
1318 n. 1.
C. Holding
141 151 No further items are suppressed as evidence because
of tainted leads.
II. GOVERNMENT'S CONSOLIDATED
PRE—TRIAL MOTION IN LIMINE
The government's motion raises eight separate
evidentiary issues.
A. Impeachment of Joseph Granata
For reasons discussed under Clement Messino's motion in
!amine, the government's motion in this regard is granted.
B. Evidence and Argument of Lawfulness and
Non-corrupt Conduct
161 The government's motion in this respect cannot be
evaluated absent the more specific context provided at
trial. Accordingly, in this respect said motion is denied.
C. Evidence and Argument of Outrageous
Government Conduct
The government's motion in this respect cannot be
evaluated absent the more specific context provided at
trial. Accordingly, in this respect said motion is denied.
*1182 D. Evidence and Argument of Entrapment
I'll No defendant has responded to this part of the motion
by asserting a right to argue entrapment in opening
statements. Accordingly, in this regard the government's
motion is denied as moot.'
E. Mention of Prior Prosecution Experience by
Defense Counsel
181 Clement Messino's attorney, as far as the court is
aware, is the only person to whom this argument is
directed. Counsel represents he has no intention to
mention his prosecution experience. On the off chance
another attorney or a witness might introduce the fact of
counsel's prosecution experience, the court holds that the
subject is irrelevant, and accordingly grants the motion in
this regard. FED.R.EVID. 401, 402.
F. Evidence and Argument About Draft Transcripts
191 The government does not appear to dispute that a draft
transcript prepared by a witness may be used to impeach
that witness. Rather the government objects to using the
draft against another witness, which would not be proper
impeachment. Accordingly, in this regard the
government's motion is granted.'
G. Allegations of Witness Wrongdoing Not Involving
Dishonesty
1101 The government here seeks to regulate impeachment
of its witnesses at trial. Without context, the court must
reserve ruling, and accordingly in this respect the
government's motion is denied.
H. Maximum Penalties Faced by Witnesses
1111 The government wants to exclude introduction of the
statutory maximum penalty, arguing that such a number is
misleading given the realities of sentencing under the
United States Sentencing Guidelines. Such evidence is
Rule 401 relevant to the issue of credibility. To the extent
the statutory maximum does not tell the whole story, the
government is free to explore that on re-direct
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examination. Accordingly, in this regard the
government's motion is denied.
In conclusion, the Government's Motion in Limine is
granted in part, denied in part, and denied as moot in part.
III. GOVERNMENT'S MOTION FOR LEAVE TO
RECALL CERTAIN WITNESSES DURING ITS
CASE IN CHIEF
1121 " 31 In order to present its case in a "chronological,
coherent manner," the government asks to be able to
recall certain witnesses during its case in chief. The court
has the discretionary authority to allow the case in chief to
proceed as the government suggests. See United States v.
Dent, 984 F.2d 1453, 1463 (7th Cir.) (citing cases), cert.
denied, 510 U.S. 858, 114 S.Ct. 169, 126 L.Ed.2d 129,
and 510 U.S. 875, 114 S.Ct. 209, 126 L.Ed.2d 165 (1993);
FED.R.EVID. 611(a). The court agrees with the
government that, properly executed, its proposal would be
beneficial to the jury's following the government's case.
Accordingly, the Government's Motion for Leave to
Recall Certain Witnesses During Its Case in Chief is
granted.
IV. DEFENDANT CHRISTOPHER RICHARD
MESSINO'S MOTION IN LIMINE TO PRECLUDE
INCOMPETENT LAW OPINION EVIDENCE,
EVIDENCE BASED UPON LACK OF PERSONAL
KNOWLEDGE AND EVIDENCE BASED UPON
HEARSAY
Defendant Christopher Richard Messino's motion,
phrased as it is, seeks merely to enforce Rules 602, 701
and 802. As long as the court is careful to note that
defendant's examples of enforcement of these rules are
not necessarily valid, the motion may be granted.
*1183 Defendant Christopher Richard Messino's Motion
in Limine to Preclude Incompetent Law Opinion
Evidence, Evidence Based upon Lack of Personal
Knowledge and Evidence Based upon Hearsay is granted.
FED.R.EVID. 602, 701 and 802.
V. DEFENDANT CHRISTOPHER RICHARD
MESSINO'S MOTION IN LIMINE TO PRECLUDE
EVIDENCE REGARDING CHRISTOPHER
RICHARD MESSINO'S EMPLOYMENT AS A
POLICE OFFICER
Defendant Christopher Richard Messino's Motion in
Limine to Preclude Evidence Regarding Christopher
Richard Messino's Employment as a Police officer is
denied. FED.R.EVID. 401, 402, 403.
VI. DEFENDANT CHRISTOPHER RICHARD
MESSINO'S OMNIBUS MOTION IN LIMINE
Defendant Christopher Richard Messino seeks to preclude
introduction of sixteen categories of evidence.
A. Certain Et ents Pe g to Clement Messino
I. Escape
The government does not intend to introduce such
evidence, and so the motion in this regard is denied as
moot.
2. Granata Dealings
The court has previously ruled on the Granata transactions, and in this regard the motion is denied.
3. Gun
NI Such evidence is admissible on a tool-of-the-trade
theory. See United States v. Ramirez, Nos. 93-4056 &
93-4059, 1995 WL 17808, at •7 (7th Cir. Jan. 19, 1995).
In this regard, the motion is denied.
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*1184 E. Possession of Weapons
The government is right. The severance issue has been
given its due. In this regard the motion is denied.
4. Severance
This evidence is admissible on a tool-of-the-trade theory,
as discussed above. In this regard the motion is denied.
B. Tax Evidence for Years Other than 1986 and 1987
115) This evidence may be admissible to show no
legitimate source of income. See United States v. Briscoe,
896 F.2d 1476, 1500 (7th Cir.) ("It is well settled that in
narcotics prosecutions, a defendant's possession and
expenditure of large sums of money, as well as his or her
failure to file tax returns, are relevant to establish that, in
all probability, the reason for the failure to report this
income is due to the defendant's participation in illegal
activities."), cert. denied, 498 U.S. 863, III S.Ct. 173,
112 L.Ed.2d 137 (1990). Accordingly, in this regard the
motion is denied.
C. Rumors Regarding Murders
The government has no intention of introducing any
murder issue, so in this regard the motion is denied as
moot.
D. Sex Evidence/Use of Prostitutes
1161 1171 The motion and the government's response raise a
few issues here. First, any defendant's use of prostitutes is
irrelevant and overly prejudicial, absent some special
circumstances, which the government does not forward.
Second, defendant wants to avoid reference to the fact
that some defendants may have had sexual relationships
with the same women. The government is right, though,
to note that it may be difficult for a witness to tell her
story of her relation to those defendants without
discussing the fact that she dated them. The government
intends to elicit the information in a "non-inflammatory"
manner, a representation under which the introduction of
the evidence will not be unduly prejudicial.
In this regard the motion is granted in part and denied in
part.
F. Loan Sharking
I'M All the government intends to do here is introduce
evidence of large cash loans to show defendant's
possession of such cash as evidence of the conspiracy.
This introduction is admissible. See United States v.
James, 40 F.3d 850, 861 (7th Cir.1994), cert. denied, No.
94-7225, 1995 WL 21671 (U.S. Jan. 23, 1995); see also
Briscoe, 896 F.2d at 1500. In this regard the motion is
denied.
G. Car Theft Activity
On this issue the court has previously reserved ruling. In
this regard the motion is denied.
H. Kim Forbes
Defendant seeks to bar introduction of confidential
marital communications. The government agrees with this
theory. In this regard the motion is granted, although fact
issues related to the privilege may arise at trial.
I. Yvette Gifford
1191 Defendant raises three objections to predicted
testimony by Yvette Gifford regarding aliases, the
carrying of a briefcase full of $10,000, and putting assets
in other persons' names. Depending on context, these
incidents could be Rule 401 relevant. Also, any
foundational issues are properly addressed at trial. In this
regard the motion is denied.
J. Michael Homerding
Defendant seeks to bar evidence of Homerding being shot
at, which the government does not seek to introduce. In
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this regard the motion is denied as moot.
K. Timothy Larkin
Two concerns are here. First is evidence of an accusation
by Christopher Richard Messina that Larkin stole money.
The government does not seek to introduce such
evidence. Second is evidence of large amounts of cash,
which the government is entitled to introduce. In this
regard the motion is denied as moot in part and denied in
part.
L. Mary Beth Maroulis
Here the motion raises foundational issues, reserved for
trial. In this regard the motion is denied.
M. Dawn Peco
Here the motion addresses a gun shot incident, which the
government says it will not introduce. In this regard the
motion is denied as moot.
N. Pete Peco, Jr.
12.1 Here defendant raises an issue of evidence of a debt
owed by Gray Chrystall to Christopher Richard Messina.
The government's theory is that the debt will be linked up
when viewed in the context of the evidence at trial.
Accordingly, the court reserves ruling by denying the
motion in this regard.
0. Pete Peco, Sr.
The government has agreed not to introduce the disputed
evidence that Christopher Richard Messina asked this
witness to beat up a certain "kid." Accordingly, in this
regard the motion is denied as moot.
P. Terry Saberhagen
PH The government's theory of the admissibility of
challenged testimony by Saberhagen is based on
Saberhagen's being an unindicted coconspirator. The
court reserves ruling until trial, as the papers cannot
supply enough context presently to rule. In this regard the
motion is denied.
In conclusion, Defendant Christopher Richard Messino's
Omnibus Motion in Limine is granted in part, denied in
part, and denied as moot in part.
*1185 VII. DEFENDANT CHRISTOPHER
RICHARD MESSINO'S MOTION FOR
ADDITIONAL PEREMPTORY CHALLENGES
MI Under Rule 24(b) of the Federal Rules of Criminal
Procedure, in this non•capital case in which "the offense
charged is punishable by more than one year, the
government is entitled to 6 peremptory challenges and the
defendant or defendants jointly to 10 peremptory
challenges." FED.R.CRIM.P. 24(b). However, where, as
here, "there is more than one defendant, the court may
allow the defendants additional peremptory challenges
and permit them to be exercised separately or jointly." Id.
Both the language of Rule 24(b) and Seventh Circuit
cases make clear that "[t]he decision whether to grant
additional peremptory challenges in multi-defendant trials
... lies within the sound discretion of the district court."
United States v. Cochran, 955 F.2d 1116, 1121 (7th Cir.)
(citing United States v. Farmer, 924 F.2d 647, 653 (7th
Cir.I99 I)), cert. denied, — U.S. 113 S.Ct. 460,
121 L.Ed.2d 368 (1992).
P1 Defendant Christopher Richard Messino argues that
because potential jurors in this case face a lengthy trial,
additional peremptory challenges are necessary. At the
time of the motion, eleven defendants were going to trial,
and defendant argued that each of the eleven defendants
going to trial should be allotted three peremptory
challenges. While the court is aware that the length of a
trial may complicate the jury selection process,' the
peremptory challenge plan defendant proposes is not one
the court in its discretion will employ.
With eight defendants going to trial as the court writes,
the court collectively will allow the defendants ten
peremptory challenges.s Each defendant will have sole
authority over one challenge. The defendants should come
to agreement on exercising the remaining challenges.
Accordingly, Defendant Christopher Richard Messino's
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Motion for Additional Peremptory Challenges is denied.
VIII. DEFENDANT CHRISTOPHER RICHARD
MESSINO'S MOTION FOR PRODUCTION OF
EXCULPATORY OR IMPEACHING MATERIAL
Defendant seeks material pursuant to Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972). Specifically, defendant seeks
information regarding three individuals: Fred Maleki,
Cindy Delapena and Patrick Tobin. Regarding Tobin, the
government represents that it has no written statements.
Regarding Maleki and Delapena, the government asserts
that (1) it does not intend to call those witnesses; and (2)
none of the material on them is exculpatory.
1241 1251 The court has verified through in camera
inspection that the government's files on Malcki and
Delapena do not contain Brady material. Brady bars the
prosecution from withholding "evidence that is favorable
to the defendant and material to an issue at trial." United
States v. Carson, 9 F.3d 576, 582 (7th Cir.1993), cert.
denied, 513 U.S. 844, 115 S.Ct. 135, 130 L.Ed.2d 77
(1994). The Delapena Grand Jury testimony does not
meet this test. Stretching materiality to its limits, one
could argue that on some theory Delapena's absence of
knowledge of any illegality on the part of Christopher
Richard Messino makes her testimony material. But a
Brady materiality determination is not a search for mere
possibilities. Id., 9 F.3d at 583. Under this analysis the
court will not order production of the Delapena testimony.
Similarly, Maleki's testimony need not be produced by
the government. The court's inspection of the testimony
reveals no Brady material.
*1186 Accordingly, Defendant Christopher Richard
Messina's Motion to Produce Exculpatory or Impeaching
Information is denied.
IX. DEFENDANT CLEMENT A. MESSINO'S
MOHON IN LIMINE TO PRECLUDE CERTAIN
EVIDENCE
Defendant Clement Messina raises five issues.
A. Granata Transactions
1261 The government apparently has defendant Clement
Messino on tape with Joseph Granata, who was
transmitting the conversation on behalf of the
government. The government wants to play the tapes
without putting Granata himself on the witness stand.
Clement Messino's motion in this regard seeks to prevent
the government from playing the tapes unless Granata
testifies.
The court finds the Seventh Circuit's decision in United
States v. McClain, 934 F.2d 822 (7th Cir.1991),
instructive. In McClain, the Seventh Circuit approved
admission of tapes even where the government did not put
the non-defendant participant in the conversation on the
stand. Id. at 832. The district court also in that case
properly denied the opportunity of the defendant to
impeach the non-defendant should the defendant call him.
Id. The foundational and Sixth Amendment issues here
are no different than in McClain.'
This is not a ruling on foundation issues or any other
aspect of any Granata tapes. This is merely a ruling on
whether some per se requirement prevents the
government from introducing the Granata tapes without
Granata. The court finds no such requirement, and so in
this regard denies defendant's motion.
In Defendant has, however, noted transcript portions that
the court agrees are objectionable and will exclude.
Specifically, defendant objects to September 15 and 16,
1991, references potentially to intimidating or even
murdering a government witness. Both instances have two
problematic aspects. First, it is not entirely clear that
Clement Messino in either instance is agreeing to or
encouraging such intimidation. Second, either through
inaudibility or truncated transmission the transcripts are
incomplete. When the subject matter is so potentially
inflammatory, the better course is to exclude those
portions of the transcripts. In this regard, therefore,
defendant's motion is granted.
B. Pamela Messino
There is no question that Pamela Messino and defendant
Clement Messino have been legally married since 1968.
They are apparently married now and were married at all
times relevant to this case. Defendant's motion raises the
implications of that fact for the evidence in this case,
based on the confidential marital communications
privilege. United States v. Keck, 773 F.2d 759, 767 (7th
Cir. 1985).
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1281 1291 The court does not reach issues of the confidential
marital communications privilege, because there is a
threshold issue of whether the adverse spousal testimony
privilege will apply. See Keck, 773 F.2d at 767. By the
government's own description, this privilege gives a
person presently married to a criminal defendant the right
not to testify against his or her spouse. See United States
v. Fulk, 816 F.2d 1202, 1205 (7th Cir.1987). The
government has two reasons why the adverse spousal
testimony privilege will not apply: first, Pamela Messino
is not asserting the privilege (as only she can assert it);
and second, the marriage is a sham.
1101 As far as the first point, Clement Messino's counsel's
information is that Pamela Messino will assert the
privilege. (See Defendant Clement Messino's Reply
Memorandum in Support of Motion in Limine to Exclude
Certain Evidence at 9 n. 5.) Therefore, questions under
this privilege may arise. As far as the second point, as the
strength of the marriage is contested by defendant, the
government would have to •1187 prove up any exception,
or at least present uncontested facts on which the
exception would be based. See generally United States v.
Clark, 712 F.2d 299 (7th Cir.1983). Such a prove up
would undoubtedly resolve many of the issues as to the
confidential marital communications privilege, which
Clement Messino himself can invoke. Nonetheless, the
adverse spousal testimony privilege is a threshold matter.
The court reserves the factual determinations necessary to
rule on the privileges until trial, and accordingly denies
defendant's motion in this regard.
C. Michael Gubbins
1311 As the briefing came to a close, all defendant wants
here is to obligate the government, before presenting
attorney-client communications, to establish out of
hearing of the jury that an exception to the privilege
operates. This is a safe and reasonable request, so the
motion in this regard is granted.'
D. "Post-conspiracy" Evidence
Defendant here challenges transcript portions from five
dates: January 7, 1992; January 28, 1992; March 3, 1992;
March 15, 1993; and April 7, 1993.
1. January 7 and 28, 1992
The court agrees that the January 7 and 28, 1992,
statements are, as a preliminary matter, admissible under
Rule 801(dX2)(E).
2. April 7, 1993
The government concedes that the April 7, 1993,
conversation should be redacted as in Exhibit E-5 to
defendant's motion.
3. March 3 and IS, 1993
As to the March 3 and IS, 1992, conversations, the
government's position is that while those conversations
admittedly took place after the end of the charged
conspiracy (and therefore Rule 801(dX2)(E) does not
apply), the proposed redactions are too broad.
1~~1 Since this is not an 801(dX2)(E) admission, issues
arise under Bruton v. United States, 391 U.S. 123, 88
S.Ct. 1620, 20 L.Ed.2d 476 (1968). "[A] defendant is
deprived of his rights under the Confrontation Clause
when his nontestifying codefendant's confession naming
him as a participant in the crime is introduced at their
joint trial, even if the jury is instructed to consider that
confession only against the codefendant." Richardson v.
Marsh, 481 U.S. 200, 201-02, 107 S.Ct. 1702, 1704, 95
L.Ed.2d 176 (1987). The Richardson court makes clear
that the references to Clement Messino that he notes do
not present a Bruton problem because those references
require "linkage" to Clement Messino before they
implicate him. Id. at 208, 107 S.Ct. at 1708. The
government is right here, and therefore the redactions
should be as the government proposes. Accordingly, in
this regard defendant's motion is granted in part and
denied in part.
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E. Other Issues
1. Incarceration
33] Defendant wishes to avoid introduction of any
evidence of his incarceration. The government's most
important response, with which defendant never comes to
grips, is that paragraph eleven of Count I of the
Superseding Indictment specifically charges that Clement
Messino directed coconspirators while incarcerated.
Introduction of evidence of incarceration is therefore hard
to avoid.
In this regard defendant's motion is denied.
2. Escape
The government does not intend to introduce specific
evidence of defendant's escape, so the motion in this
regard is denied as moot.
3. Employment as Police Officer
The motion in this regard is denied. FED.R.EVID. 401,
402.
4. Organized Crime References
The government does not intend to introduce references to
organized crime, except perhaps for a statement by
Clement Messina that he is a good gangster because he
used to be a police officer. The court has been provided a
paraphrased snippet of testimony from a witness about
whom it has heard little *1188 or nothing in the context of
this case. The court must therefore reserve ruling, and the
motion is accordingly denied.
In conclusion Defendant Clement Messino's Motion in
Limine to Exclude Certain Evidence is granted in part,
denied in part, and denied as moot in part.
X. DEFENDANT DONALD SOUTHERN'S
MOTION IN LIMINE TO PRECLUDE VARIOUS
INADMISSIBLE STATEMENTS
Defendant Donald Southern raises two evidentiary issues
regarding (1) statements of presumption, guesses or
conclusions by lay witnesses, and (2) testimony of
Southern's role without personal knowledge, unless
foundation is laid or Rule 80 1(dX2)(E) applies. This is in
the category of motions to have the Federal Rules of
Evidence apply to the trial.
Accordingly, Defendant Donald Southern's Motion in
Limine to Preclude Various Inadmissible Statements is
granted.
XI. DEFENDANT CHRISTOPHER B. MESSINO'S
MOTION IN LIMINE WITH REGARD TO
CERTAIN EVIDENCE
Christopher B. Messino raises two evidentiary issues.
A. Evidence of Violence of Christopher B. Messino
The government rightly points out that the court has
reserved ruling here. Accordingly, in this respect the
motion is denied.
B. Evidence Regarding Isolated Incidents of Small
Controlled Substance Deliveries
lit The government will attempt to prove that defendant
sold small amounts of cocaine during the course of and in
furtherance of the conspiracy. Furthermore, defendant's
motion is too vague to warrant a ruling that all incidents
fitting into defendant's description should be excluded.
Accordingly, in this respect the motion is denied.
Defendant Christopher B. Messino's Motion in Limine
with Regard to Certain Evidence is denied.
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XII. DEFENDANT BLAISE MESSINO'S MOTION
IN LIMINE REGARDING THE INTRODUCHON
OF CERTAIN EVIDENCE
Defendant Blaise Messino raises two issues.
A. Possession of Firearms
At least as a preliminary matter, evidence of possession of
firearms is admissible on a tool-of-the-trade theory.
B. Violence
Issues regarding evidence of violence have been reserved
for trial.
Defendant Blaise Messino's Motion in Limine Regarding
the Introduction of Certain Evidence is denied.
XIII. DEFENDANT PAUL MESSINO'S MOTION
IN LIMINE REGARDING INTRODUCHON OF
CERTAIN EVIDENCE
Paul Messino's motion in conclusory fashion raises seven
evidentiary issues.
A. Evidence of Robberies or a Fight
The government either does not intend to introduce such
evidence or correctly notes the motion is not specific
enough to support a ruling. In this respect the motion is
denied.
B. Evidence Regarding His Possession of Weapons
In this respect defendant's motion is denied. The evidence
may be admissible on a tool-of-the-trade theory.
C. Evidence of Violence
In this respect defendant's motion is denied. the court
reserving ruling.
D. Evidence of Drug Deliveries Outside of Charged
Conspiracy
Defendant's cursory request here is too vague and
overbroad to support a ruling. *1189 Accordingly, the
motion in this respect is denied.
E. Evidence of Involvement with Stolen Vehicles
The government correctly notes that the court has
previously reserved ruling on this issue. In this respect the
motion is denied.
F. Evidence that Paul Messino Traveled to Florida to
Pick Up Cocaine for Clement Messino or Others
Among other things, this conduct would seem to be part
of the heart of the case against Paul Messino. The motion
in this regard is without basis and is denied.
G. Evidence that Defendant Sold Cocaine to
Confidential Informant Unless Informant is Produced
for Cross-examination
The government argues that there is no such requirement.
However, any legal issue here is mooted because the
government intends to produce informants in that
category. In this regard the motion is denied as moot.
In conclusion, Defendant Paul Messino's Motion in
Limine Regarding Introduction of Certain Evidence is
denied in part and denied as moot in part.
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U.S. v. MossIno, 873 F.Supp. 1177 (1995)
CONCLUSION
No further items are suppressed as evidence because of
tainted leads. Government's Motion in Limine is granted
in part, denied in part, and denied as moot in part.
Government's Motion for Leave to Recall Certain
Witnesses During Its Case in Chief is granted. Defendant
Christopher Richard Messino's Motion in Limine to
Preclude Incompetent Law Opinion Evidence, Evidence
Based upon Lack of Personal Knowledge and Evidence
Based upon Hearsay is granted. Defendant Christopher
Richard Messino's Motion in Limine to Preclude
Evidence Regarding Christopher Richard Messino's
Employment as a Police Officer is denied. Defendant
Christopher Richard Messino's Omnibus Motion in
Limine is granted in part, denied in part, and denied as
moot in part. Defendant Christopher Richard Messino's
Motion for Additional Peremptory Challenges is denied.
Defendant Christopher Richard Messino's Motion to
Footnotes
Produce Exculpatory or Impeaching Information is
denied. Defendant Clement Messino's Motion in Limine
to Exclude Certain Evidence is granted in part, denied in
part, and denied as moot in part. Defendant Donald
Southern's Motion in Limine to Preclude Various
Inadmissible Statements is granted. Defendant
Christopher B. Messino's Motion in Limine with Regard
to Certain Evidence is denied. Defendant Blaise
Messino's Motion in Limine Regarding the Introduction
of Certain Evidence is denied. Defendant Paul Messino's
Motion in Limine Regarding Introduction of Certain
Evidence is denied in part and denied as moot in part.
All Citations
873 F.Supp. 1177
The course of trial may raise other entrapment issues. For now, the court considers only opening statements.
2 Any attempt by defendants to use the drafts for other purposes would be evaluated at trial.
3 The government wants to preclude evidence that any of its witnesses once worked as prostitutes, but presents no motion. The
defendants therefore have not properly been afforded an opportunity to present a theory of relevance.
4 Length of trial is the only reason defendant offers for his jury selection plan. Ile does not raise the issue of conflicting trial strategy.
The court nonetheless has taken that danger into consideration and concludes that no conflicting trial strategy problem warrants the
plan defendant proposes. See Oxtan, 955 F.2d at 1121.
5 Of course the government will have six challenges, as prescribed by Rule 24(b).
6 In McClain the Seventh Circuit discussed limiting instructions for this situation, 934 F.2d at 832, which the government should
proffer.
7 The court finds no waiver of the privilege on the record it now has.
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