US v. Messino
| Decision Date | 24 June 1994 |
| Docket Number | No. 93 CR 294.,93 CR 294. |
| Parties | UNITED STATES of America, Plaintiff, v. Christopher R. MESSINO, Clement A. Messino, Michael Homerding, Donald Southern, William Underwood, Christopher B. Messino, Blaise Messino, Paul Messino, Thomas Hauck, Gary Chrystall, Daniel Shoemaker, and Lawrence Thomas, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
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L. Felipe Sanchez, U.S. Attorney's Office, Chicago, IL, for plaintiff.
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, Chicago, IL, for William Underwood.
Thomas Michael Breen, Martin, Breen & Merrick and Gerardo Solon Gutierrez, Chicago, IL, for Christopher B. Messino.
John P. De Rose, John P. De Rose & Associates, Burr Ridge, IL, for Blaise Messino.
Joseph R. Lopez, Joseph R. Lopez, P.C., Chicago, IL, for Paul Messino.
Luis M. Galvan, Federal Defender Program, and Dennis P.W. Johnson, Walter Jones, Jr., and 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, Steve A. Greenberg, Ltd., Chicago, IL, for Lawrence Thomas.
Before the court are the pending pretrial motions of defendants. Many of the various motions are similar, if not identical, and so where appropriate the court will group its treatment of the motions. The court has previously described the contents of the Superseding Indictment in detail, and incorporates that discussion herein. See United States v. Messino, 852 F.Supp. 652, 653-55 (N.D.Ill.1994).
Christopher Richard Messino seeks to have suppressed certain physical evidence seized and removed from said defendant's Blue Island, Illinois, home pursuant to a warrant of seizure and monition, obtained ex parte pursuant to a civil forfeiture proceeding. Defendant's theory is that the government did not afford defendant or any other interested party an opportunity to be heard before this seizure of his home and personal property, and that under the Supreme Court's recent decision in United States v. James Daniel Good Real Property, ___ U.S. ___, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993), the seizure upon ex parte warrant was illegal and the fruits thereof must be excluded. The government has asked for a hearing on this issue.
The government takes the position that any illegalities in the civil forfeiture proceeding cannot affect these criminal proceedings. Such a per se rule would seem to conflict with the general premise of exclusion. Illegal procedures that lead to exclusion of evidence are not always directly linked, at the time of the procedure, to the case number at which exclusion occurs.
The government also raises retroactivity of James Daniel Good. This is a bit of a misnomer. The real retroactivity-type issue may be whether a good faith exception may be applied, based upon the state of the law pre-James Daniel Good and the facts surrounding the seizure at issue here. Cf. United States v. Leon, 468 U.S. 897, 918-21, 104 S.Ct. 3405, 3418-19, 82 L.Ed.2d 677 (1984). But the government is at least right that a straight line cannot be drawn from a violation of James Daniel Good to exclusion here. Therefore the motion cannot be resolved on the submitted papers, and further proceedings will be necessary.
Accordingly, Defendant Christopher Richard Messino's Motion to Suppress is referred to the magistrate judge for a hearing and report and recommendation.
Defendant Clement Messino's motion to suppress concerns evidence that was seized incident to or at an inventory after Clement Messino's arrest by the Chicago Police Department on a weapons charge. A Cook County, Illinois, judge found the arrest lacked probable cause, and now defendant seeks to suppress evidence recovered either incident to or at an inventory after Clement Messino's arrest. The evidence involved is a handgun and a notebook.
As far as the handgun is concerned, the government "does not intend" to use it. (Government's Consolidated Response to Defendants' Pretrial Motions ("Government's Consolidated Response") at 43, n. 3.) The court therefore will not explore Fourth Amendment issues regarding this piece of evidence, since no one appears interested in showing it to the trier of fact. Concerning the handgun, defendant's motion is denied as moot.
As far as the notebook is concerned, it is apparent from the briefing on the motion that resolution of the notebook's admissibility (as well as any implications of their being any tainted fruit from the notebook) revolves in part around determining the true nature of the seizure. The government's primary defense as regards the notebook is that regardless of the legality of the arrest, the notebook was seized pursuant to an inventory that had independent legality because the car was parked in a tow zone. A full airing of the facts here will require a hearing, since the court does not find defendant in explicit agreement with the government's version based on the pleadings. Concerning the notebook and related tainted evidence issues, defendant's motion is referred to the magistrate judge for a hearing and report and recommendation.
Defendants Christopher Richard Messino, William Underwood and Michael Homerding have moved to dismiss the indictment and requested discovery and a hearing.
Defendants' theory concerns a taint on the Special October 1992-I Grand Jury, the grand jury that indicted them, stemming from facts underlying the conviction of grand juror Robert Girardi, a member of the grand jury. See United States v. Coffey, 854 F.Supp. 520, (1994). Mr. Girardi breached the secrecy of grand jury proceedings by leaking information to a defendant up for indictment before the grand jury. In Coffey, Judge Plunkett analyzed the propriety of dismissing the indictment as against codefendants of the recipient of leaks and concluded that those codefendants could not secure dismissal of their indictments based on the tainting.
A district court generally "may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants." Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S.Ct. 2369, 2373, 101 L.Ed.2d 228 (1988) (applying FED. R.CRIM.P. 52(a)); cf. Ortiz-Salas v. I.N.S., 992 F.2d 105, 107 (7th Cir.1993). An exception will apply where "the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair." Bank of Nova Scotia, 487 U.S. at 257, 108 S.Ct. at 2374.
Here, the prejudice theory does not apply to defendants because there is no allegation that the grand jury improprieties affected the moving defendants or any of their codefendants. Defendants have no theory as to how the improprieties affected them. In Coffey, Judge Plunkett concluded that "there is no indication that Girardi's conduct affected the grand jury's decision to indict in any way." Coffey, 854 F.Supp. at 523. That conclusion is easier to reach here where the defendants at issue were farther away from Girardi's improprieties.
Two other judges of this district facing situations similar to that which this court faces — whether some general taint of the grand jury will disqualify indictments other than the Coffey indictment — have refused to dismiss the indictments before them. Those judges have followed a line of reasoning similar to this court's and Judge Plunkett's. See United States v. Li, 856 F.Supp. 411, 415-16 (N.D.Ill.1994) (Hart, J.); United States v. Mebust, 857 F.Supp. 609, 617 (N.D.Ill.1994) (Williams, J.). In Li, Judge Hart found there was "no evidence that the indictment returned in the present case has been subjected to outside influence or that the secrecy of the proceedings in this case were ever violated." Li, 856 F.Supp. at 415. The court's in camera inspection of documents related to the grand jury investigation persuades the court no prejudice can be established here. There are indications that secrecy was breached in this case, but not that prejudice was suffered or, turning to the other avenue for dismissal, that a structural defect permeated the grand jury. See Coffey, 854 F.Supp. at 522-23.
Recently, another judge of this district has taken a different tack regarding another indictment from this grand jury. See United States v. Lamantia, 856 F.Supp. 424 (N.D.Ill. 1994) (Duff, J.) (). In Lamantia, Judge Duff concluded that the structural defects so tainted the grand jury process as to require dismissal of the indictment on due process grounds. Judge Duff's in camera examination of materials lead him to conclude that actual prejudice may have been suffered by the defendants before him, id. at 429, a conclusion this court does not reach here based on its in camera inspection. Therefore, while the thrust of Judge Duff's opinion concerned structural harms, there may also be factual distinctions between the Lamantia case and this one.
Accordingly, Defendants Christopher Richard Messino and William Underwood's Motion to Dismiss and Request for Discovery and Hearing is denied as regards the tainted grand jury issue. Defendant Michael Homerding's Motion to Dismiss and Request for Discovery and Hearing is denied.
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