US v. Messino, 93 CR 294.

• Decision Date: 28 January 1994
• Docket Number: No. 93 CR 294.,93 CR 294.
• Citation: 842 F. Supp. 1107
• Parties: UNITED STATES of America, Plaintiff, v. Christopher R. MESSINO, Blaise Messino and Paul Messino, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

842 F. Supp. 1107

UNITED STATES of America, Plaintiff, v. Christopher R. MESSINO, Blaise Messino and Paul Messino, et al., Defendants.

No. 93 CR 294.

United States District Court, N.D. Illinois, E.D.

January 28, 1994.

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.

Robert A. Loeb, Chicago, IL, for Donald Southern.

Edward Marvin Genson, Genson, Steinback & Gillespie, Chicago, IL, for William Underwood.

Thomas Michael Breen, 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, Chicago, IL, 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, Steve A. Greenberg, Ltd., Chicago, IL, for Lawrence Thomas.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Before the court are the government's emergency motion to seek review of Magistrate Judge Rosemond's orders that defendants Blaise Messino and Paul Messino be conditionally released on bond, and the government's motion to revoke said orders. For reasons discussed below, the government's motions are granted, the magistrate judge's orders are revoked, and said defendants are ordered detained pending trial.

I. THE ORDERS BELOW

On December 9, 1993, Magistrate Judge Rosemond, after a hearing, issued a written order (following a December 3 oral order) that defendant Paul Messino be released on $200,000 bond secured by his signature and those of Mr. Berton E. Travis and Paul Messino's mother, Ms. Gayle Messino. The magistrate judge imposed the following conditions on Paul Messino's release: that defendant not commit any violation of law while on release; that he make all required court appearances; that he refrain from alcohol abuse or narcotics use, and submit to drug evaluations and aftercare; that he obtain no passports and that he surrender any passports; that he refrain from possessing weapons; that he only communicate with co-defendants in the presence of counsel and that such communication be limited to the preparation of his defense (with an exception for the Messino family annual Christmas dinner); that he waive the Fourth Amendment, and as such be subject to electronic monitoring, and that he not possess or use a cellular telephone; that he be confined to his residence, with limited exceptions; that he have no contact with any confidential informant or potential government witness (although the magistrate judge allowed Paul Messino to contact Ms. Kathy Soosh, the mother of his children, only to the extent necessary to effectuate his visitations with his children).

Magistrate Judge Rosemond also ordered that defendant Blaise Messino be released on a $200,000 bond secured by his signature, and that of his wife and one other individual, with the same conditions imposed on his release as were imposed on the release of Paul Messino. The magistrate judge added that Blaise Messino may be released from home confinement to attend courses necessary to obtain his G.E.D. and to maintain his present visitation rights with his son.

The government now moves to revoke the above pretrial release orders.

II. BACKGROUND LAW

A. Standard of Review of the Magistrate Judge's Order

18 U.S.C. § 3145(a)(1) provides that the government may move for this court's review of a magistrate judge's release order. In reviewing the magistrate judge's order, this court is to employ a de novo standard. United States v. Shaker, 665 F.Supp. 698, 701 (N.D.Ind.1987) (citing cases); see United States v. Portes, 786 F.2d 758, 761 (7th Cir. 1985).

Concerning the evidentiary basis for the district court's ruling, it is within the district court's discretion to hear evidence additional to that heard by the magistrate judge. United States v. Levine, 770 F.Supp. 460, 464 n. 7 (N.D.Ind.1991). Alternatively, the district court may rely on the transcript of the hearing below as its source of evidence, a procedure that serves the interests of "judicial economy and speedy determination." United States v. Allen, 605 F.Supp. 864, 867 (W.D.Pa.1985). See generally United States v. Torres, 929 F.2d 291 (7th Cir. 1991) (prescribing district court's duties regarding the consideration of evidence when reviewing a magistrate judge's release order). Here, neither the government nor the defendants have pointed to any need to hear additional evidence outside the transcript of the hearing before the magistrate judge. The parties have, however, included documents as exhibits to their briefs before this court, and no party has challenged the authenticity of any of those documents. Accordingly, the court will rely on the transcript of the hearing before the magistrate judge and the exhibits attached to the parties' briefs as its evidentiary basis for its factual findings.

B. Burdens and Factors in Determining Whether to Revoke the Magistrate Judge's Release Order

18 U.S.C. § 3142(a)(4) authorizes a district court to order that, pending trial, a person charged with an offense be detained under 18 U.S.C. § 3142(e). 18 U.S.C. § 3142(e) in turn provides that the court may order detention pending trial if the following finding is made: "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." A finding of either flight risk or dangerousness will justify detention. United States v. Portes, 786 F.2d at 765. 18 U.S.C. § 3142(e) also establishes a presumption rebuttable by the defendant "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in among other statutes the Controlled Substances Act (21 U.S.C. § 801 et seq.)...."

Here, Paul and Blaise Messino are indicted on charges of conspiring to transport and possess with intent to distribute in excess of 100 kilograms of cocaine over a period that extended from 1980 through the end of 1991 in violation of 21 U.S.C. § 846. Paul Messino is also indicted on charges of three narcotics distributions in violation of 21 U.S.C. § 841(a)(1). Therefore, the statutory rebuttable presumption in favor of detention is in place.¹

It is thus each defendant's burden in this case initially to produce some evidence to rebut the presumption. Where a defendant meets this burden, however, the presumption "doesn't disappear completely; it remains as a factor weighing against bail, though a factor that can be ... outweighed by other factors." United States v. Diaz, 777 F.2d 1236, 1239 (7th Cir.1985). To be clear, the defendant's burden is one of production, not persuasion, and so where the defendant has rebutted the presumption by presenting some evidence, the government then carries the burden of establishing that detention pending trial is appropriate. However, the court is to incorporate "the fact that Congress has found that offenders, as a general rule, pose special risks of flight ... among the other special factors that Congress has told him to weigh when making his bail decision." United States v. Jessup, 757 F.2d 378, 384 (1st Cir.1985) (cited with approval and relied upon in United States v. Diaz, 777 F.2d at 1237).

In addition to the statutory presumption operating here, the factors to be considered in determining whether to order release or detention of a defendant pending trial are also dictated by statute. Those factors are:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including —

(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and;

(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

18 U.S.C. § 3142(g).

The government must establish flight risk by the preponderance of the evidence or dangerousness by clear and convincing evidence. 18 U.S.C. § 3142(f); United States v. Portes, 786 F.2d at 764-65.

III. DETENTION OF PAUL MESSINO

A. Nature and Circumstances of the Offense Charged

The nature of the offense charged militates in favor of detention of Paul Messino. This is so at the very least because of the statutory directive of Congress. See 18 U.S.C. § 3142(e).

B. Weight of the Evidence

Magistrate Judge Rosemond concluded that the weight of the evidence against Paul Messino was so heavy that this factor favored detention. (Release Order at 5) Paul Messino explicitly conceded this point, stating that "the weight of the evidence against the defendant is strong." (Paul Messino's Motion for Pretrial Release, at 3, ¶ 9) The court finds nothing in the record to contradict this consensus, and so finds this factor weighs in favor of the pretrial detention of Paul...