US v. Messino, 93 CR 294.

• Decision Date: 09 May 1994
• Docket Number: No. 93 CR 294.,93 CR 294.
• Citation: 852 F. Supp. 652
• Parties: UNITED STATES of America, Plaintiff, v. Christopher Richard MESSINO, Blaise Messino, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

852 F. Supp. 652

UNITED STATES of America, Plaintiff, v. Christopher Richard MESSINO, Blaise Messino, et al., Defendants.

No. 93 CR 294.

United States District Court, N.D. Illinois, Eastern Division.

May 9, 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, defendant.

Douglas P. Roller, Roller & Associates, Naperville, IL, for Clement A. Messino, defendant.

Linda Amdur, Chicago, IL, for Michael Homerding, defendant.

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

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

Thomas Michael Breen, Martin, Breen & Merrick and Gerardo Solon Gutierrez, Chicago, IL, for Christopher B. Messino, defendant.

John P. De Rose, John P. De Rose & Associates, Burr Ridge, IL, for Blaise Messino, defendant.

Joseph R. Lopez, Joseph R. Lopez, P.C., Chicago, IL, for Paul Messino, defendant.

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, defendant.

Edna Selan Epstein, Law Offices of Edna Selan Epstein, Chicago, IL, for Gray Chrystall, defendant.

Leland Edward Shalgos, Chicago, IL, for Daniel Shoemaker, defendant.

Steven Allen Greenberg, Steve A. Greenberg, Ltd., Chicago, IL, for Lawrence Thomas, defendant.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Before the court is the Government's Motion to Disqualify Counsel of defendant Blaise Messino ("Government's Motion").

I. BACKGROUND

This case involves a thirteen-count superseding indictment against twelve defendants. The indictment, returned November 18, 1993, alleges violations of 21 U.S.C. §§ 841(a)(1) (knowingly and intentionally distributing and possessing with intent to distribute cocaine, a Schedule II Narcotic Controlled Substance) and 846 (conspiring to do same)); 18 U.S.C. §§ 2 (punishment as principal), 1503 (influencing or injuring an officer or juror), 1952 (engaging in interstate and foreign travel or transportation in aid of racketeering enterprises), and 1956(a)(1)(B)(i) (money laundering); and 26 U.S.C. § 7206(1) (wilfully submitting false declaration under penalty of perjury to the Internal Revenue Service).

All defendants are charged in Count I with conspiring to knowingly and intentionally distribute and possess with intent to distribute cocaine. The distribution business is alleged to have procured and distributed at least 100 kilograms of cocaine in the Chicago area. The indictment alleges that the brothers Christopher Richard Messino and Clement A. Messino were organizers, supervisors and managers of the distribution business, and that they caused their codefendants to transport kilograms of cocaine from Florida into the Northern District of Illinois, and transport currency for purchases in the opposite direction. Defendants Michael Homerding and Donald Southern are alleged to have acquired multi-kilogram quantities of cocaine for redistribution to Christopher Richard Messino, Clement Messino and others. Clement Messino further allegedly falsely titled cars for cocaine transportation. Quantities of the cocaine were allegedly stored at an automobile shop in Harvey, Illinois, at Clement Messino's house in Oak Forest, Illinois, and at Christopher Richard Messino's residences in Stuart, Florida, and Blue Island, Illinois.

Defendants Christopher B. Messino, Blaise Messino and Paul Messino (all three sons of Christopher Richard Messino), as well as defendants William Underwood, Thomas Hauck, Gray Chrystall, Daniel Shoemaker, and Lawrence Thomas are alleged to have been multi-ounce sub-distributors of cocaine. William Underwood and Christopher Richard Messino allegedly collected on cocaine-related debts. Christopher Richard Messino, Clement Messino, Blaise Messino, and Thomas Hauck allegedly utilized violence and threats of violence in their distribution of cocaine. Christopher Richard Messino, Clement Messino, Blaise Messino, Paul Messino, and Christopher B. Messino allegedly possessed and carried firearms to facilitate the distribution.

In Counts II and IV, Christopher Richard Messino is charged with submitting a knowingly false declaration under penalty of perjury to the Internal Revenue Service in April 1987 and 1988 respectively. Count III charges the same conduct of Clement A. Messino regarding his 1987 submissions to the IRS.

Counts V, VI and VII charge Paul Messino with three distinct, specific distributions of cocaine all in quantities under one kilogram. Counts VIII and IX charge that Christopher B. Messino distributed similar quantities of cocaine on two separate occasions. Count X alleges one such distribution by Lawrence Thomas. In Count XI, Clement Messino is charged with money laundering.

Count XII charges Christopher B. Messino with travelling from Florida to Illinois with the intention of promoting, carrying on and facilitating an unlawful activity involving controlled substance offenses, and thereafter performing and attempting to perform acts to promote, carry on and facilitate said activity, namely the transportation of three kilograms of cocaine in a car.

Count XIII charges Christopher Richard Messino with obstruction of justice by attempting to influence witnesses to be subpoenaed before the federal grand jury in its investigation of him.¹

The case now comes before the court because of a conflict of interest under which defendant Blaise Messino's attorney John P. De Rose, is laboring. Mr. De Rose represented Samuel Delisi and Joseph P. Storto prior to and during their testimony before the grand jury during April 1993. The government represents (1) that both Mr. Delisi and Mr. Storto "testified to matters that were relevant to the investigation and to issues that will arise at trial"; and (2) that the government intends to call both those men in its case-in-chief. (Government's Motion at 1)

The government now moves to disqualify attorney John De Rose. Incident to resolving that motion, the court inquired of Mr. De Rose's client, Blaise Messino, to assure itself that Mr. Messino is fully informed of the conflict-of-interest issues at stake and that despite those issues it is his wish to continue to retain Mr. De Rose.

II. THE INTERESTS AT STAKE

The Sixth Amendment to the Constitution guarantees that "in all criminal prosecutions, the accused shall enjoy the right ... to have the effective assistance of counsel." Furthermore, "the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988); see also United States v. Lowry, 971 F.2d 55, 59 (7th Cir.1992). The Sixth Amendment also encompasses a right to representation by an attorney with unwavering, undivided loyalty to the defendant. Lowry, 971 F.2d at 59 (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)).

As the Seventh Circuit has noted, "at times, the right to choose one's own attorney and the right to be represented by an attorney with undivided devotion clash." Lowry, 971 F.2d at 59. The attorney of choice may be one who owes to other clients, past or present, duties that conflict or potentially conflict with the attorney's duties toward the defendant. The Supreme Court has described the dilemma facing a district court trying to ensure that these sometimes conflicting Sixth Amendment interests are served: "If a district court agrees to the multiple representation, and the advocacy of counsel is thereafter impaired as a result, the defendant may well claim that he did not receive effective assistance. On the other hand, a district court's refusal to accede to the multiple representation may result in a challenge based on denial of counsel of choice." Wheat, 486 U.S. at 161, 108 S.Ct. at 1698; see also United States v. Alamo, 872 F.2d 202, 206 (7th Cir.1989). These considerations, most often discussed in the context of representation of multiple defendants, apply with equal force to the context of representation of government witnesses and a single defendant, which the court addresses here. See United States v. O'Malley, 786 F.2d 786 (7th Cir.1986).

One judicial aid in this regard is a defendant's effective waiver of the right to conflict-free counsel. Such a waiver is recognized as generally barring subsequent ineffective assistance claims based on the attorney's conflict of interest. See Lowry, 971 F.2d at 63 ("A valid waiver of the right to conflict-free counsel bars any later claim of ineffective assistance growing from that conflict...."); see also Harvey v. McCaughtry, 11 F.3d 691, 695 (7th Cir.1993) ("A defendant who knowingly and intelligently waives his attorney's potential or actual conflict of interest may not, under any circumstances, later claim that such a conflict deprived him of his right to effective assistance of counsel."); United States v. Flores, 5 F.3d 1070, 1079 (7th Cir. 1993) (defendant having waived right to conflict-free counsel, "cannot ... reverse course" on appeal), cert. denied, ___ U.S. ___, 114 S.Ct. 884, 127 L.Ed.2d 79 (1994). Securing an effective waiver, however, does not end the court's obligation to address the situation, because there are independent considerations besides the defendant's waiver that the court must weigh and protect.

A trial court has "an independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment." Wheat, 486 U.S. at 161, 108 S.Ct. at 1698. And even beyond the defendant's interests is an "institutional interest in the rendition of just verdicts in criminal cases." Id. at 160, 108 S.Ct. at 1698. Criminal trials must "appear fair to all who observe them." Id. Furthermore, the court is charged with enforcing the ethical standards of its...