U.S. v. Messino

• Decision Date: 31 August 2004
• Docket Number: No. 02-3641.,No. 02-1607.,No. 02-1411.,02-1411.,02-1607.,02-3641.
• Citation: 382 F.3d 704
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher B. MESSINO, Christopher R. Messino, and Clement A. Messino, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

382 F.3d 704

UNITED STATES of America, Plaintiff-Appellee, v. Christopher B. MESSINO, Christopher R. Messino, and Clement A. Messino, Defendants-Appellants.

No. 02-1411.

No. 02-1607.

No. 02-3641.

United States Court of Appeals, Seventh Circuit.

Argued February 23, 2004.

Decided August 31, 2004.

Appeal from the United States District Court for the Northern District of Illinois, David H. Coar, J.

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Daniel S. Goodman (argued), Department of Justice Criminal Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.

John L. Sullivan (argued), Chicago, IL, Douglas P. Roller, Clayton, MO, for Defendants-Appellants.

Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.

BAUER, Circuit Judge.

Most of the facts of the trial in this case are discussed in numerous prior opinions of this court. United States v. Michelle's Lounge, 39 F.3d 684 (7th Cir.1994); United States v. Messino, 55 F.3d 1241 (7th Cir.1995); United States v. Underwood, 122 F.3d 389 (7th Cir.1997); United States v. Michelle's Lounge, 126 F.3d 1006 (7th Cir.1997); United States v. Messino, 181 F.3d 826 (7th Cir.1999). For our present purposes, we can reduce the discussion to the following:

I. Background

From 1980 to 1991, Christopher R. Messino ("Dick"), Christopher B. Messino ("Chris"), Clement Messino ("Clem"), and others were embroiled in a wide-ranging conspiracy to distribute, and possess with intent to distribute, cocaine.¹ The rough contours of the conspiracy involved purchasing kilogram-quantities of cocaine in Florida and transporting it to Chicago for distribution.

On November 18, 1993, a federal grand jury returned an indictment made up of 13 counts. At issue in this appeal, Count One charged Dick, Clem, Chris, Michael Homerding, Donald Southern, William Underwood, Blaise Messino, Paul Messino, Thomas Hauck, Gray Chrystall, Daniel Shoemaker, and Lawrence Thomas with conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Counts eight, nine and twelve charged Chris with distributing cocaine in two separate transactions, and with engaging in interstate travel in aid of the distribution conspiracy. Count eleven charged Clem with money laundering in connection with his purchase of real estate in Monee, Illinois.

After a convoluted procedural course through the courts, including three trials, the defendants in this case were convicted on many of the counts in the indictment. They now appeal various aspects of their convictions and/or sentences.

II. Discussion

A. Christopher R. Messino ("Dick")

Blakely and Booker explain that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, ___ U.S. ___, ___, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004); United States v. Booker, 375 F.3d 508, 2004 WL 1535858, at *2 (7th Cir. July 9, 2004). In this case, the jury found Dick guilty of conspiring to distribute and possession with the intent to distribute at least 500 grams but less than five kilograms of cocaine. At sentencing however, the judge found, by a preponderance of the evidence, that Dick was responsible for a conspiracy involving 95 kilograms of cocaine. The judge also made findings when he imposed enhancements for obstruction of justice and for being an organizer. That puts this case squarely in the holdings of Blakely and Booker. We therefore, vacate Dick's sentence and remand the case for resentencing which comports with this opinion.

B. Christopher B. Messino ("Chris")

Chris makes two arguments in his only brief to this court, filed on July 9, 2003; both concerning his sentencing enhancements. In reviewing these claims as presented, we review the findings of fact for clear error and application of those facts to the guidelines de novo. United States v. Irby, 240 F.3d 597, 599 (7th Cir. 2001); accord United States v. Bass, 325 F.3d 847, 850 (7th Cir.2003) ("This court reviews de novo whether the district court addressed the proper factors in imposing an obstruction of justice enhancement, and reviews for clear error the court's findings of fact"). We will find a district court's findings clearly erroneous if we are left with the firm and definite conviction that the court made a mistake. Id.

1. Obstructing or Impeding the Administration of Justice

Chris begins with an argument that the trial court erred in imposing an obstruction of justice enhancement. The first part of the argument centers on the fact that his offending statements were immaterial to his own sentence and conviction because they were made during his testimony at the trial of co-defendants Dick and Clem Messino.

Chris was properly sentenced under the 2000 guidelines. This court has noted that "[a]n enhancement under § 3C1.1 [Obstructing or Impeding the Administration of Justice] may be imposed only if the court finds that the defendant willfully obstructed or impeded the investigation, prosecution, or sentencing by way of conduct related to the defendant's offense or a closely related offense." United States v. King, 338 F.3d 794, 799 (7th Cir.2003). This language tracks the guideline itself. U.S.S.G. § 3C1.1. We have construed "closely related" offenses to include a co-defendant's trial. United States v. Gonzalez, 319 F.3d 291, 299 (7th Cir.2003). Therefore, it matters not that the offending statements may have been immaterial to his own guilt or sentencing. So, this application of the judge's findings to the guidelines was proper.

The next question is whether the district court's findings of fact were clearly erroneous. In imposing the obstruction enhancement at Chris's sentencing, the district court judge said, "I cannot square [Chris's] trial testimony at Dick and Clem's trial with either his statements at the plea hearing or with his statements in the tape recorded conversations or with the testimony of the other witnesses, many of the other witnesses in this case." A review of the record supports this finding.

After a fairly lengthy argument on this enhancement, the district court judge found, "I don't believe that [Chris] testified truthfully at trial with respect to Clem's or his father's involvement.... I think that this defendant has intentionally and methodically attempted to not [implicate] them in these matters." We agree.

The record clearly supports the factual predicate for a finding of perjury, and therefore, an enhancement under the guidelines. The enhancement was proper.

2. Acceptance of Responsibility

Chris's next argument is based on our reversal of his enhancement for obstruction of justice. He claims that since the district court erred in imposing the obstruction of justice enhancement, he qualified for a reduction of his sentence for acceptance of responsibility. We review for clear error. United States v. Partee, 301 F.3d 576, 580 (7th Cir.2002).

Application note four to section 3E1.1 of the sentencing guidelines instructs, "[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct." As we discussed above, Chris properly received an enhancement for obstruction of justice.

Application note one, subsection (h), to section 3E1.1 of the sentencing guidelines says, "the timeliness of the defendant's conduct in manifesting the acceptance of responsibility" is an appropriate factor in determining whether the defendant qualifies for the reduction. While it is true that Chris ultimately pleaded guilty to the charges, he did so only after he was convicted in a jury trial. That conviction was reversed "due to an impairment of the defendants' rights of peremptory challenges." Underwood, 122 F.3d at 391. Based on his obstruction of justice, and his not-so-timely plea of guilty, we find that the district court did not err in denying Chris a reduction for acceptance of responsibility.

C. Clement A. Messino ("Clem")

1. Fatal Variance

Clem's first argument is that the evidence showed multiple conspiracies as opposed to the one charged in the indictment. Claims of fatal variance, such as this one, are treated as an attack on the sufficiency of the evidence. United States v. Williams, 272 F.3d 845, 863 (7th Cir. 2001). Even if the evidence at trial shows the existence of multiple conspiracies, a fatal variance will not be found if a reasonable juror could have found beyond a reasonable doubt that the defendant was part of the single, charged conspiracy. Id. We view the evidence in the light most favorable to the government. Id. Furthermore, reversal is required only if the defendant can show that the variance worked to prejudice his defense. Id.

When a defendant joins a conspiracy, he joins an agreement, rather than a group. United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991). An agreement need not be explicit; a tacit agreement is sufficient to support a conviction for conspiracy. United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994). There is no bar to using circumstantial evidence in proving the conspiracy's agreement. Id. A conspiracy may be shown by evidence which shows that the co-conspirators embraced the criminal objective of the conspiracy, United States v. Severson, 3 F.3d 1005, 1010 (7th Cir.1993), that the conspiracy continued towards its common goal, United States v. Mojica, 185 F.3d 780, 787 (7th Cir.1999), and that there were cooperative relationships, United States v. Collins, 966 F.2d 1214, 1221-24 (7th Cir.1992).

Clem makes too much of the statement, in a previous appeal, that this case presented close questions on whether there was one conspiracy or multiple conspiracies. Underwood, 122 F.3d at 391. A close call it may be, but properly left to the jury and the jury ruled against him. Townsend, 924...