US v. Messino, 93 CR 294.
| Decision Date | 19 December 1994 |
| Docket Number | No. 93 CR 294.,93 CR 294. |
| Citation | 871 F. Supp. 1027 |
| Parties | UNITED STATES of America, Plaintiff, v. Christopher Richard MESSINO, Clement A. Messino, Daniel C. Shoemaker, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Marc William Martin, Genson, Steinback & Gillespie, Chicago, IL, for Christopher R. Messino.
Douglas P. Roller, Roller & Associates, Naperville, IL, for Clement A. Messino.
Linda Amdur, Chicago, IL, for Michael Homerding.
Robert A. Loeb, Chicago, IL, for Donald Southern.
Edward Marvin Genson, Genson, Steinback & Gillespie, Donna Ann Hickstein-Foley, Athas, Foley, Kowal & Bridge, Chicago, IL, for William Underwood.
Thomas Michael Breen, Martin, Breen & Merrick, Gerardo Solon Gutierrez, Chicago, IL, for Christopher B. Messino.
John P. De Rose, John P. De Rose & Associates, Burr Ridge, IL, Robert Lee Gevirtz, Gevirtz, Born & Kissel, Northfield, IL, for Blaise Messino.
Joseph R. Lopez, Chicago, IL, for Paul Messino.
Luis M. Galvan, Federal Defender Program, Dennis P.W. Johnson, Walter Jones, Jr., Jorge V. Cazares, Pugh, Jones & Johnson, P.C., Chicago, IL, for Thomas Hauck.
Edna Selan Epstein, Law Offices of Edna Selan Epstein, Chicago, IL, for Gray Chrystall.
Leland Edward Shalgos, Chicago, IL, for Daniel Shoemaker.
Steven Allen Greenberg, Steven A. Greenberg, Ltd., Chicago, IL, for Lawrence Thomas.
L. Felipe Sanchez, U.S. Atty., Matthew Schneider, Kathleen Murdock, Asst. U.S. Attys., U.S. Attorney's Office, Chicago, IL, for the U.S.
Before the court are various remaining pretrial motions. The court has previously described the Superseding Indictment in this case. See United States v. Messino, 852 F.Supp. 652, 653-54 (N.D.Ill.1994); see also 865 F.Supp. 511 (N.D.Ill. Oct. 21, 1994); 855 F.Supp. 973 (N.D.Ill.1994); 855 F.Supp. 955 (N.D.Ill.1994); 852 F.Supp. 657 (N.D.Ill. 1994); 842 F.Supp. 1107 (N.D.Ill.1994). The court therefore will proceed directly to disposition of the motions.
Defendant Christopher Richard Messino seeks to preclude introduction of evidence regarding an alleged cocaine transaction involving him, on the basis that the cocaine involved has been destroyed by the government. The court holds defendant has not provided a basis for any exclusion.
In United States v. Kelly, 14 F.3d 1169, 1174-75 (7th Cir.1994), the Seventh Circuit provided guidance on lost or destroyed evidence. The Kelly court affirmed a district court's refusal to exclude seized narcotics that were lost, even where the government provided no explanation for the loss. Id. Initially, the court noted, "a narcotics violation need not be proved by direct evidence; there is no need for a sample of the narcotics seized to be placed before the jury." Id. at 1174. Thus, the failure of the government to be able to introduce the destroyed cocaine is not a concern.
As far as any unfairness in the situation, again the Kelly court's discussion leads toward denial of the motion. The Seventh Circuit noted three factors in Kelly, warranting affirmance, that are also present here: First, "Kelly ... presented no evidence that the seized narcotics evidence, which disappeared after being analyzed, was lost in bad faith." Kelly, 14 F.3d at 1175. That holding in Kelly was despite the fact that there no explanation was offered by the government. Here the government has explained the missing evidence, and provided documentation of its explanation. The destruction was routine given the decision of the United States Attorney for the Northern District of Indiana not to prosecute. There is not an indication of bad faith based on this record. Second, in Kelly there was "no indication that the contraband was anything but what the chemical analysis indicated it to be." Id. Here, too, there is at least no contrary indication. Finally, "Kelly had the opportunity to cross-examine all government witnesses ... about the seized evidence." Id. This court, of course, will allow defendant the opportunity similarly to raise the issue.
In short, the Kelly court's admonition that "in future cases ... prosecutors are well advised to provide an explanation if similar losses occur," Kelly, 14 F.3d at 1175, has been followed here. The court is satisfied with the government's explanation based on its brief and supporting documentation. Accordingly, Defendant Christopher Richard Messino's Motion to Preclude Testimony About Destroyed Evidence is denied.
The court is told that pursuant to a parallel civil forfeiture proceeding (United States v. Michelle's Lounge, et al., No. 93 C 5783), the government executed warrants of seizure and monition related to real property at 15240-44 South Broadway, Harvey, Illinois, and 10630 South Seeley, Chicago, Illinois. Defendant Clement Messino moves to suppress the fruit of those seizures, raising two issues: (1) whether a government violation of Rule 16 of the Federal Rules of Criminal Procedure compels exclusion; and (2) whether a violation of the Fourth Amendment compels exclusion. The government opposes both bases for exclusion, as well as arguing that the motion should be disregarded as untimely.
Defendant argues that when the court granted him leave to file his additional pretrial motions it ruled in his favor on the timeliness issue. Defendant is right. If the government had argued that the motion was outside the scope of the leave granted defendant, that would be a different story; but the government in essence only seeks to revisit the issue of whether defendant should have been allowed to file his motions. The government's timeliness argument fails.
The court will not exclude the disputed evidence based on the claimed Rule 16 violation by the government. Defendant's theory is that since the government only on November 17, 1994, listed intended evidence from the seizures, the evidence should be disqualified because the notification was less than sixty days before trial.
First, defendant provides no authority for a hard sixty-day rule. Second, the difference between the notice defendant received (about fifty-three days before trial) and the notice defendant wants (sixty days) is not so great as to warrant exclusion under Rule 16(d)(2) or any other authority for exclusion. Third, it is not as if defendant has been blindsided. He received seizure inventories as exhibits to the March 4, 1994, Government's Consolidated Response to Defendants' Pretrial Motions. Defendant argues that this is different than notice of intended introduction at trial, which no doubt is true, but defendant at least since March 1994 had notice of the list from which the government would choose. Finally, along the same vein, there is no prejudice. Defendant had the opportunity to prepare based on the inventory lists, and the court has allowed him the opportunity pretrial to challenge the evidence on Fourth Amendment grounds.
The court finds no Rule 16 violation on the part of the government. Furthermore, if the two-week difference in notice between what defendant requests and what he received were to be construed as a Rule 16 violation, exclusion would not be the court's discretionary remedy under Rule 16(d)(2) or any other authority.
Defendant's other argument for exclusion is a violation of the Fourth Amendment. The court orders a hearing with the following guidance:
The court has not been provided the warrants executed for the items at issue, but the language of the warrants has been quoted by the government. (See Government's Consolidated Response to Defendant Clement Messino's Additional Pretrial Motions at 6-7.) As described, there are warrants for the real property itself and warrants for personalty.
The realty warrants were apparently procured in violation of the principle of United States v. James Daniel Good Real Property, ___ U.S. ___, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993), wherein the Supreme Court held that seizure of real property, pursuant to civil forfeiture, after merely an ex parte hearing violates due process. The government appears to be taking the same stance here as it took regarding Defendant Christopher Richard Messino's Motion to Suppress and in the parallel civil forfeiture proceeding — the government does not suggest that the realty warrants, despite Good, are legal. Rather the government argues that the seizure of all of the listed items was consistent with the Fourth Amendment either under one of the warrants unaffected by Good or under the plain view doctrine, see Horton v. California, 496 U.S. 128, 134-36, 110 S.Ct. 2301, 2306-07, 110 L.Ed.2d 112 (1990); United States v. Wilson, 2 F.3d 226, 232 (7th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1615, 128 L.Ed.2d 341 (1994).1
Invocation of the plain view doctrine requires an airing of the facts of the seizure. The court accordingly will hold a hearing. As it ordered for the previously held hearing on defendant Christopher Richard Messino's Motion to Suppress, the court orders further submissions to clarify the parties' positions prehearing. The government is ordered before 4:00 p.m., December 20, 1994, to file with the court and personally serve on Clement Messino's counsel a list of proffered items with an indication as to each item whether (1) the government relies on a warrant for the legality of the item's seizure and, if so, which warrant, or (2) the government relies on the plain view doctrine. Defendant is ordered by 4:00 p.m., December 21, 1994, to file with the court and personally serve the government...
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