EFTA00013373

U.S. v. Montano, 873 F.Supp. 1177 (1995) evidence obtained as direct or indirect result of 873 F.Supp. 1177 illegal search. United States District Court, N.D. Illinois, Eastern Division. Cases that cite this headnote UNITED STATES of America, Plaintiff, v. Christopher Richard MESSINO, et al., Defendants. 121 Criminal Law No. 93 CR 294. -SCausal nexus; independent discovery or basis or source Jan. 31, 1995. When disputed evidence is attributable to source independent of illegally obtained primary item, independent source doctrine renders evidence Synopsis admissible despite primary taint. Eight defendants, who were charged in connection with alleged drug distribution and money laundering conspiracy, and government filed pretrial motions in Cases that cite this headnote limine. The District Court, Alesia, J., held that: (1) evidence and witnesses' testimony would not be suppressed as result of having been derived from leads attributable to suppressed evidence; (2) testimony regarding statutory maximum penalty faced by 131 Criminal Law government's witnesses was admissible; (3) government -SInevitable discovery would be allowed to recall witnesses during its case in chief; (4) evidence regarding weapons possession, taxes, When disputed evidence inevitably would have and dealings involving large amounts of cash was been discovered by lawful means, inevitable admissible; (5) district court would not grant additional discovery doctrine renders evidence admissible peremptory challenges to defendants; (6) government was despite primary taint. not required to put nondefendant participant in conversation with one of defendants on stand in order to play tape recordings of conversation; (7) court would Cases that cite this headnote reserve ruling on marital communications privilege; (8) references to one of defendants in codefendants' conversations did not implicate confrontation clause; and (9) government could introduce evidence of incarceration 19 Criminal Law of one of defendants. -SCausal nexus; independent discovery or basis or source Motions denied in part and granted in part. Defendants, who were charged in connection with alleged drug distribution and money laundering conspiracy, were not entitled to West Headnotes (34) suppression of first defendant's lease, identification and place of purchase of second defendant's boat, and witnesses' testimony, even Ill Criminal Law though lease, boat information, and witnesses -SSearches, seizures, and arrests were derived from leads attributable to Criminal Law suppressed evidence; lease, boat information, -SSearch or seizure in general and identification and use of witnesses were attributable to independent source of discovery. Exclusionary rule prohibits introduction of WEST LAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA00013373 U.S. v. Mannino, 873 F.Supp. 1177 (1995) Cases that cite this headnote 2 Cases that cite this headnote Isl Criminal Law Isl Criminal Law iil lnevitable discovery -SRelevancy in General Defendant, who was charged in connection with Evidence as to defense counsel's prior alleged drug distribution and money laundering prosecution experience was not admissible as it conspiracy, was not entitled to suppression of was irrelevant. Fed.Rules Evid.Rules 401, 402, bank and credit card records and prohibition of 28 U.S.C.A. use of witness, even though records and witness were derived from leads attributable to suppressed evidence; records and identity and Cases that cite this headnote significance of witness would have been inevitably discovered even absent utilization of tainted leads. Witnesses Cases that cite this headnote p-Competency of contradictory evidence Draft transcript prepared by one witness could not be used to impeach another witness. 161 Criminal Law -SMotions in limine Cases that cite this headnote District court would deny government's motion in limine seeking to preclude evidence and argument, at trial on charges arising from Pw Criminal Law alleged drug distribution and money laundering conspiracy, of lawfulness, noncorrupt conduct, 4SMotions in limine and outrageous government conduct; motion could not be evaluated absent more specific District court would deny government's motion context provided at trial. in limine regarding allegations of witness wrongdoing not involving dishonesty; government sought to regulate impeachment of 2 Cases that cite this headnote its witnesses at trial and, without context, court was required to reserve ruling. Cases that cite this headnote ITI Criminal Law aMotions in limine District court would deny as moot government's 1111 motion in limine seeking to preclude, at trial on Witnesses charges arising from alleged drug distribution limExplanation of Testimony on and money laundering conspiracy, evidence and Cross•Examination argument of entrapment; no defendant Witnesses responded to motion by asserting right to argue fl•Interest in Event of Witness Not Party to entrapment in opening statements. Record Testimony regarding statutory maximum WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00013374 U.S. v. Messino, 873 F.Supp. 1177 (1995) penalties faced by government's witnesses was laundering admissible, notwithstanding contention that such numbers were misleading given realities of Evidence of defendants' possession of weapons sentencing under Sentencing Guidelines; was admissible, at trial on charges arising out of evidence was relevant as to issue of credibility, alleged drug distribution and money laundering and, to extent that statutory maximum did not conspiracy, on a tool-of-the-trade theory. tell whole story, government was free to explore that on redirect examination. U.S.S.G. § 1B1.1 et seq., 18 U.S.C.A.App.; Fed.Rules Evid.Rule Cases that cite this headnote 401,28 U.S.C.A. Cases that cite this headnote 1151 Conspiracy -4Admissibility in general Tax evidence was admissible, at trial on charges 1121 Witnesses arising from alleged drug distribution and faRecalling Witnesses money laundering conspiracy, to show no legitimate source of income. District court has discretionary authority to allow government to recall witnesses during its case in chief. Cases that cite this headnote Cases that cite this headnote 118 Criminal Law -4Evidence calculated to create prejudice against or sympathy for accused 1131 Witnesses -4Recalling Witnesses Evidence of defendants' use of prostitutes was not admissible at trial on charges arising from District court would allow government at trial of alleged drug distribution and money laundering eight defendants on charges arising from alleged conspiracy; defendants' use of prostitutes was drug distribution and money laundering irrelevant and overly prejudicial, absent some conspiracy to recall specific witnesses during its special circumstances, which government did case in chief; such recall would be beneficial to not forward. July's following government's case. I Cases that cite this headnote Cases that cite this headnote I"I Criminal Law Criminal Law -4Evidence calculated to create prejudice -4Conspiracy, racketeering, and money against or sympathy for accused laundering Criminal Law Government could elicit, at trial on charges -4Controlled substances arising from alleged drug distribution and Criminal Law money laundering conspiracy, testimony that -4Conspiracy, racketeering, and money some of defendants might have had sexual laundering relationships with same witnesses; it might be Criminal Law difficult for each witness to tell her story of her -4Conspiracy, racketeering, and money relation to those defendants without discussing WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00013375 U.S. v. Messino, 873 F.Supp. 1177 (1995) fact that she dated them, and government would reserve ruling. intended to elicit information in noninflammatory manner. Cases that cite this headnote Cases that cite this headnote 1211 Criminal Law *Motions in limine Conspiracy *admissibility in general District court would deny defendant's motion in limine seeking to preclude testimony at trial on Evidence of large cash loans made by defendant charges arising from alleged drug distribution was admissible, at trial on charges arising from and money laundering conspiracy; government's alleged drug distribution and money laundering theory of admissibility was based on witness' conspiracy, to show defendant's possession of being unindicted coconspirator, and papers such cash as evidence of conspiracy. submitted could not supply enough context to rule on issue. Cases that cite this headnote Cases that cite this headnote 1191 Criminal Law *Motions in limine 122l Jury 4Codefendants District court would deny defendant's motion in limine seeking to preclude, at trial on charges Decision as to whether to grant additional arising from alleged drug distribution and peremptory challenges in multidefendant trial money laundering conspiracy, testimony lies within sound discretion of district court. regarding aliases, carrying of briefcase Fed.Rules Cr.Proc.Rule 24(b), 18 U.S.C.A. containing $10,000, and putting assets in other persons' names; depending on context, those incidents could be relevant, and any I Cases that cite this headnote foundational issues were properly addressed at trial. Fed.Rules Evid.Rule 401, 2S U.S.C.A. Cases that cite this headnote 1231 Jury i*Codefendants District court would not grant defendant's request for additional peremptory challenges, 1201 Criminal Law allotting three peremptory challenges for each of -4Motions in limine eight defendants, but, rather, would collectively allow defendants ten peremptory challenges District court would deny defendant's motion in with each defendant having sole authority over limine seeking to preclude, at trial on charges one challenge and joint authority over remaining arising from alleged drug distribution and challenges, even though length of trial might money laundering conspiracy, evidence of debt complicate jury selection process. Fed.Rules owed to defendant; government's theory was Cr.Proc.Rule 24(b), IS U.S.C.A. that debt would be linked up when viewed in context of evidence at trial and, thus, court I Cases that cite this headnote WEST LAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00013376 U.S. v. Messino, 873 F.Supp. 1177 (1995) demonstrative evidence District court would exclude alleged references, in tape-recorded conversation involving 1241 Criminal Law defendant, who was charged in connection with 4—Materiality and probable effect of information alleged drug distribution and money laundering in general conspiracy, to potential intimidation or murder of government witness; it was not clear that Under Brady rule, prosecution is barred from defendant was agreeing to or encouraging such withholding evidence that is favorable to intimidation, either through inaudibility or defendant and material to issue at trial. truncated transmission, transcripts were incomplete, and subject matter was highly inflammatory. Cases that cite this headnote I Cases that cite this headnote 1251 Criminal Law -4Grand jury proceedings 1251 Witnesses Defendant was not entitled to disclosure, under -4Incompetency for or Against Each Other in Brady, of witness' grand jury testimony; General prosecution did not intend to call witness at trial, and, although witness' testimony indicated "Adverse spousal testimony privilege" gives absence of knowledge of any illegality on part person presently married to criminal defendant of defendant, Brady materiality determination right not to testify against his spouse. was not search for mere possibilities. Cases that cite this headnote Cases that cite this headnote Witnesses 1261 Criminal Law -4Objections to competency in general -4Sound recordings Criminal Law Only testifying spouse can assert adverse -4Sound recordings spousal testimony privilege. Government was not required, as foundational matter or under Sixth Amendment, to place Cases that cite this headnote nondefendant participant in conversation with defendant on stand in order to play tapes of conversation, which participant transmitted on behalf of government. U.S.C.A. Const.Amend. 6. 1 " Criminal Law -4Motions in limine I Cases that cite this headnote District court would deny defendant's motion in limine seeking to preclude his spouse's testimony based on confidential marital communications privilege; defense counsel's information indicated that spouse would assert 1271 Criminal Law adverse spousal testimony privilege, government faIntroduction of documentary and claimed that marriage was sham and would be WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA00013377 U.S. v. Messino, 873 F.Supp. 1177 (1995) required to prove that claim at trial, and adverse spousal testimony privilege was threshold matter. Wl Criminal Law 4-Motions in limine Cases that cite this headnote District court would deny defendant's motion in limine to preclude, at trial on charges arising from alleged drug distribution and money laundering conspiracy, evidence regarding 1311 isolated incidents of small controlled substance Criminal Law deliveries; government intended to prove that 4-Presence of jury during inquiry as to defendant sold small amounts of cocaine during admissibility course of and in furtherance of conspiracy, and, furthermore, defendant's motion was too vague District court would require government, before to warrant ruling that all incidents fitting into his presenting attorney-client communications, to description should be excluded. establish out of hearing of jury that exception to attorney-client privilege operated. I Cases that cite this headnote Cases that cite this headnote Attorneys and Law Firms 1321 Criminal Law 4-Confessions or declarations of codefendants *1180 L. Felipe Sanchez, Matthew Schneider, Kathleen Murdock, Asst. U.S. Attys., Chicago, IL, for U.S. Admission of references to defendant in codefendants' conversations which took place Marc William Martin, Chicago, IL, for Christopher after alleged drug distribution and money Richard Messina. laundering conspiracy ended did not implicate confrontation clause; references required Douglas P. Roller, Naperville, IL, E.E. Edwards, III, "linkage" to defendant before they implicated Nashville, TN, for Clement A. Messino. him. U.S.C.A. Const.Amend. 6. Linda Amdur, Chicago, IL, for Michael Homerding. Cases that cite this headnote Robert A. Loeb, Chicago, IL, for Donald Southern. Donna Hickstein—Foley, Chicago, IL, for William Underwood. 1331 Conspiracy Gerardo Gutierrez, Chicago, IL, for Christopher B. 4-Admissibility in general Messino. Government could introduce evidence of Robert L. Gevirtz, Gevirtz, Born & Kissel, Northfield, IL, defendant's incarceration at trial on charges for Blaise Messino. arising out of alleged drug distribution and Joseph R. Lopez, Chicago, IL, for Paul Messino. money laundering conspiracy; superseding indictment specifically charged that defendant Walter Jones, Jr., Chicago, IL, for Thomas Hauck. directed coconspirators while incarcerated. Edna Selan Epstein, Chicago, IL, for Gray Chrystall. Cases that cite this headnote Leland Shalgos, Chicago, IL, for Daniel C. Shoemaker. Steven A. Greenberg, Chicago, IL, Richard Friedman, WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA00013378 U.S. v. Messino, 873 F.Supp. 1177 (1995) Chicago, IL, for Lawrence Thomas. 2. The lease between Nick Sula and Christopher Richard Messino is attributable to an independent source of discovery. 3. The government's identification and use of Jerry Haas and Lisa Batts as witnesses are attributable to an independent source of discovery. MEMORANDUM OPINION AND ORDER ALESIA, District Judge. Challengesfrom Clement A. Messino Before the court are pretrial motions in limine as well as a 4. The government's identification of Clement A. few remaining pretrial motions and matters. For Messino's boat and place of purchase are attributable to background on this case see United States v. Messino, 871 an independent source of discovery. F.Supp. 1035 (N.D.I11.1995), and other cases cited at 871 F.Supp. at 1037-38 of that opinion. 5. The government's identification and use of George Thorpe, John Richard, Phillip Webb, Ed Cozzi, and Frank Fuscone as witnesses are attributable to an independent source of discovery. 6. The identity and significance of Chris Smith as a I. TAINT ISSUES RELATED TO PREVIOUSLY witness would have inevitably been discovered even SUPPRESSED EVIDENCE absent utilization of tainted leads. On January 18, 1995, the court conducted a taint hearing to determine what, if any, items would be suppressed as 6. Bank records from Interstate Bank of Oak Forest, evidence because of their having been derived from leads Chesterfield Bank, Beverly Bank, Thomridge State Bank, attributable to already suppressed evidence. The hearings Evergreen Plaza Bank, Heritage Bank of Crestwood, First were on the motions of defendants Christopher Richard National Bank of Harvey, and First National Bank of Blue Messino and Clement A. Messino. Based upon the Island, as well as any credit card records would, at the credible evidence of record the court makes the following very least, have been inevitably discovered even absent findings of fact and conclusions of law. The court utilization of tainted leads. considers now only those items challenged in defendants' post-hearing submissions. B. Conclusions of Law I. The exclusionary rule prohibits "the introduction of *1181 A. Findings of Fact evidence obtained as the direct or indirect result of an illegal search." United States v. Markling, 7 F.3d 1309, 1315 (7th Cir.1993) (citing Murray v. United States, 487 U.S. 533, 536, 108 S.Ct. 2529, 2532, 101 L.Ed.2d 472 Credibility Finding (1988)). 1. Special Agent Michael Priess, the sole witness at the hearing, was a credible witness in all respects. His 2. Various doctrines define whether evidence not testimony demonstrated detailed recall of facts primarily tainted was obtained as a result of the primary surrounding the instant investigation. illegality. See generally 4 WAYNE R. LAFAVE, SEARCH & SEIZURE § 11.4(a) (2d ed. 1987). 121 3. When the disputed evidence is attributable to a source independent of the illegally obtained primary item, the independent source doctrine renders the evidence Challenges from Christopher Richard Messina admissible despite the primary taint. Markling, 7 F.3d at WEST LAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA00013379 U.S. v. Messino, 873 F.Supp. 1177 (1995) 1314-18, 1318 n. I. *1182 D. Evidence and Argument ofEntrapment I'll No defendant has responded to this part of the motion PI 4. When the disputed evidence inevitably would have by asserting a right to argue entrapment in opening been discovered by lawful means, the inevitably statements. Accordingly, in this regard the government's discovery doctrine renders the evidence admissible motion is denied as moot.' despite the primary taint. See United States v. Jackson, 901 F.2d 83, 84-85 (7th Cir.I990); Markling, 7 F.3d at 1318 n. 1. E. Mention ofPrior Prosecution Experience by Defense Counsel 181 Clement Messino's attorney, as far as the court is C. Holding aware, is the only person to whom this argument is 141 151 No further items are suppressed as evidence because directed. Counsel represents he has no intention to of tainted leads. mention his prosecution experience. On the off chance another attorney or a witness might introduce the fact of counsel's prosecution experience, the court holds that the subject is irrelevant, and accordingly grants the motion in this regard. FED.R.EVID. 401, 402. II. GOVERNMENT'S CONSOLIDATED PRE—TRIAL MOTIONINLIMINE The government's motion raises eight separate evidentiary issues. F. Evidence and Argument About Draft Transcripts 191 The government does not appear to dispute that a draft transcript prepared by a witness may be used to impeach that witness. Rather the government objects to using the draft against another witness, which would not be proper A. Impeachment ofJoseph Granata impeachment. Accordingly, in this regard the For reasons discussed under Clement Messino's motion in government's motion is granted.' !amine, the government's motion in this regard is granted. G. Allegations of Witness Wrongdoing Not Involving B. Evidence and Argument ofLawfulness and Dishonesty Non-corrupt Conduct 1101 The government here seeks to regulate impeachment 161 The government's motion in this respect cannot be of its witnesses at trial. Without context, the court must evaluated absent the more specific context provided at reserve ruling, and accordingly in this respect the trial. Accordingly, in this respect said motion is denied. government's motion is denied. C. Evidence and Argument ofOutrageous H. Maximum Penalties Faced by Witnesses Government Conduct 1111 The government wants to exclude introduction of the The government's motion in this respect cannot be statutory maximum penalty, arguing that such a number is evaluated absent the more specific context provided at misleading given the realities of sentencing under the trial. Accordingly, in this respect said motion is denied. United States Sentencing Guidelines. Such evidence is Rule 401 relevant to the issue of credibility. To the extent the statutory maximum does not tell the whole story, the government is free to explore that on re-direct WEST LAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA00013380 U.S. v. Messino, 873 F.Supp. 1177 (1995) examination. Accordingly, in this regard the EVIDENCE REGARDING CHRISTOPHER government's motion is denied. RICHARD MESSINO'S EMPLOYMENT AS A POLICE OFFICER In conclusion, the Government's Motion in Limine is Defendant Christopher Richard Messino's Motion in granted in part, denied in part, and denied as moot in part. Limine to Preclude Evidence Regarding Christopher Richard Messino's Employment as a Police officer is denied. FED.R.EVID. 401, 402, 403. III. GOVERNMENT'S MOTION FOR LEAVE TO RECALL CERTAIN WITNESSES DURING ITS CASE IN CHIEF VI. DEFENDANT CHRISTOPHER RICHARD 1121 " 31 In order to present its case in a "chronological, MESSINO'S OMNIBUS MOTION IN LIMINE coherent manner," the government asks to be able to Defendant Christopher Richard Messino seeks to preclude recall certain witnesses during its case in chief. The court introduction of sixteen categories of evidence. has the discretionary authority to allow the case in chief to proceed as the government suggests. See United States v. Dent, 984 F.2d 1453, 1463 (7th Cir.) (citing cases), cert. denied, 510 U.S. 858, 114 S.Ct. 169, 126 L.Ed.2d 129, and 510 U.S. 875, 114 S.Ct. 209, 126 L.Ed.2d 165 (1993); FED.R.EVID. 611(a). The court agrees with the A. Certain Et ents Pe g to Clement Messino government that, properly executed, its proposal would be beneficial to the jury's following the government's case. Accordingly, the Government's Motion for Leave to I. Escape Recall Certain Witnesses During Its Case in Chief is granted. The government does not intend to introduce such evidence, and so the motion in this regard is denied as moot. IV. DEFENDANT CHRISTOPHER RICHARD MESSINO'S MOTION IN LIMINE TO PRECLUDE INCOMPETENT LAW OPINION EVIDENCE, EVIDENCE BASED UPON LACK OF PERSONAL 2. Granata Dealings KNOWLEDGE AND EVIDENCE BASED UPON HEARSAY The court has previously ruled on the Granata Defendant Christopher Richard Messino's motion, transactions, and in this regard the motion is denied. phrased as it is, seeks merely to enforce Rules 602, 701 and 802. As long as the court is careful to note that defendant's examples of enforcement of these rules are not necessarily valid, the motion may be granted. *1183 Defendant Christopher Richard Messino's Motion in Limine to Preclude Incompetent Law Opinion 3. Gun Evidence, Evidence Based upon Lack of Personal NI Such evidence is admissible on a tool-of-the-trade Knowledge and Evidence Based upon Hearsay is granted. theory. See United States v. Ramirez, Nos. 93-4056 & FED.R.EVID. 602, 701 and 802. 93-4059, 1995 WL 17808, at •7 (7th Cir. Jan. 19, 1995). In this regard, the motion is denied. V. DEFENDANT CHRISTOPHER RICHARD MESSINO'S MOTION IN LIMINE TO PRECLUDE WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 EFTA00013381 U.S. v. Messino, 873 F.Supp. 1'177 (1995) 4. Severance *1184 E. Possession of Weapons This evidence is admissible on a tool-of-the-trade theory, The government is right. The severance issue has been as discussed above. In this regard the motion is denied. given its due. In this regard the motion is denied. F. Loan Sharking B. Tax Evidencefor Years Other than 1986 and 1987 I'M All the government intends to do here is introduce 115) This evidence may be admissible to show no evidence of large cash loans to show defendant's legitimate source of income. See United States v. Briscoe, possession of such cash as evidence of the conspiracy. 896 F.2d 1476, 1500 (7th Cir.) ("It is well settled that in This introduction is admissible. See United States v. narcotics prosecutions, a defendant's possession and James, 40 F.3d 850, 861 (7th Cir.1994), cert. denied, No. expenditure of large sums of money, as well as his or her 94-7225, 1995 WL 21671 (U.S. Jan. 23, 1995); see also failure to file tax returns, are relevant to establish that, in Briscoe, 896 F.2d at 1500. In this regard the motion is all probability, the reason for the failure to report this denied. income is due to the defendant's participation in illegal activities."), cert. denied, 498 U.S. 863, III S.Ct. 173, 112 L.Ed.2d 137 (1990). Accordingly, in this regard the motion is denied. G. Car Theft Activity On this issue the court has previously reserved ruling. In this regard the motion is denied. C. Rumors Regarding Murders The government has no intention of introducing any murder issue, so in this regard the motion is denied as moot. H. Kim Forbes Defendant seeks to bar introduction of confidential marital communications. The government agrees with this theory. In this regard the motion is granted, although fact issues related to the privilege may arise at trial. D. Sex Evidence/Use ofProstitutes 1161 1171 The motion and the government's response raise a few issues here. First, any defendant's use of prostitutes is irrelevant and overly prejudicial, absent some special circumstances, which the government does not forward. Second, defendant wants to avoid reference to the fact I. Yvette Gifford that some defendants may have had sexual relationships 1191 Defendant raises three objections to predicted with the same women. The government is right, though, testimony by Yvette Gifford regarding aliases, the to note that it may be difficult for a witness to tell her carrying of a briefcase full of $10,000, and putting assets story of her relation to those defendants without in other persons' names. Depending on context, these discussing the fact that she dated them. The government incidents could be Rule 401 relevant. Also, any intends to elicit the information in a "non-inflammatory" foundational issues are properly addressed at trial. In this manner, a representation under which the introduction of regard the motion is denied. the evidence will not be unduly prejudicial. In this regard the motion is granted in part and denied in part. J. MichaelHomerding Defendant seeks to bar evidence of Homerding being shot at, which the government does not seek to introduce. In WEST LAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 EFTA00013382 U.S. v. Messino, 873 F.Supp. 1177 (1995) this regard the motion is denied as moot. P. Terry Saberhagen PH The government's theory of the admissibility of challenged testimony by Saberhagen is based on Saberhagen's being an unindicted coconspirator. The court reserves ruling until trial, as the papers cannot supply enough context presently to rule. In this regard the K. Timothy Larkin motion is denied. Two concerns are here. First is evidence of an accusation by Christopher Richard Messina that Larkin stole money. In conclusion, Defendant Christopher Richard Messino's The government does not seek to introduce such Omnibus Motion in Limine is granted in part, denied in evidence. Second is evidence of large amounts of cash, part, and denied as moot in part. which the government is entitled to introduce. In this regard the motion is denied as moot in part and denied in part. *1185 VII. DEFENDANT CHRISTOPHER RICHARD MESSINO'S MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES L. Mary Beth Maroulis MI Under Rule 24(b) of the Federal Rules of Criminal Here the motion raises foundational issues, reserved for Procedure, in this non•capital case in which "the offense trial. In this regard the motion is denied. charged is punishable by more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges." FED.R.CRIM.P. 24(b). However, where, as here, "there is more than one defendant, the court may allow the defendants additional peremptory challenges M. Dawn Peco and permit them to be exercised separately or jointly." Id. Here the motion addresses a gun shot incident, which the Both the language of Rule 24(b) and Seventh Circuit government says it will not introduce. In this regard the cases make clear that "[t]he decision whether to grant motion is denied as moot. additional peremptory challenges in multi-defendant trials ... lies within the sound discretion of the district court." United States v. Cochran, 955 F.2d 1116, 1121 (7th Cir.) (citing United States v. Farmer, 924 F.2d 647, 653 (7th Cir.I99I)), cert. denied, — U.S. 113 S.Ct. 460, N. Pete Peco, Jr. 121 L.Ed.2d 368 (1992). 12.1 Here defendant raises an issue of evidence of a debt owed by Gray Chrystall to Christopher Richard Messina. P1 Defendant Christopher Richard Messino argues that The government's theory is that the debt will be linked up because potential jurors in this case face a lengthy trial, when viewed in the context of the evidence at trial. additional peremptory challenges are necessary. At the Accordingly, the court reserves ruling by denying the time of the motion, eleven defendants were going to trial, motion in this regard. and defendant argued that each of the eleven defendants going to trial should be allotted three peremptory challenges. While the court is aware that the length of a trial may complicate the jury selection process,' the peremptory challenge plan defendant proposes is not one the court in its discretion will employ. 0. Pete Peco, Sr. The government has agreed not to introduce the disputed With eight defendants going to trial as the court writes, evidence that Christopher Richard Messina asked this the court collectively will allow the defendants ten witness to beat up a certain "kid." Accordingly, in this peremptory challenges.s Each defendant will have sole regard the motion is denied as moot. authority over one challenge. The defendants should come to agreement on exercising the remaining challenges. Accordingly, Defendant Christopher Richard Messino's WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 EFTA00013383 U.S. v. Messino, 873 F.Supp. 1177 (1995) Motion for Additional Peremptory Challenges is denied. A. Granata Transactions 1261 The government apparently has defendant Clement Messino on tape with Joseph Granata, who was transmitting the conversation on behalf of the government. The government wants to play the tapes without putting Granata himself on the witness stand. VIII. DEFENDANT CHRISTOPHER RICHARD Clement Messino's motion in this regard seeks to prevent MESSINO'S MOTIONFOR PRODUCTION OF the government from playing the tapes unless Granata EXCULPATORY OR IMPEACHINGMATERIAL testifies. Defendant seeks material pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and The court finds the Seventh Circuit's decision in United Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 States v. McClain, 934 F.2d 822 (7th Cir.1991), L.Ed.2d 104 (1972). Specifically, defendant seeks instructive. In McClain, the Seventh Circuit approved information regarding three individuals: Fred Maleki, admission of tapes even where the government did not put Cindy Delapena and Patrick Tobin. Regarding Tobin, the the non-defendant participant in the conversation on the government represents that it has no written statements. stand. Id. at 832. The district court also in that case Regarding Maleki and Delapena, the government asserts properly denied the opportunity of the defendant to that (1) it does not intend to call those witnesses; and (2) impeach the non-defendant should the defendant call him. none of the material on them is exculpatory. Id. The foundational and Sixth Amendment issues here are no different than in McClain.' 1241 1251 The court has verified through in camera inspection that the government's files on Malcki and This is not a ruling on foundation issues or any other Delapena do not contain Brady material. Brady bars the aspect of any Granata tapes. This is merely a ruling on prosecution from withholding "evidence that is favorable whether some per se requirement prevents the to the defendant and material to an issue at trial." United government from introducing the Granata tapes without States v. Carson, 9 F.3d 576, 582 (7th Cir.1993), cert. Granata. The court finds no such requirement, and so in denied, 513 U.S. 844, 115 S.Ct. 135, 130 L.Ed.2d 77 this regard denies defendant's motion. (1994). The Delapena Grand Jury testimony does not meet this test. Stretching materiality to its limits, one In Defendant has, however, noted transcript portions that could argue that on some theory Delapena's absence of the court agrees are objectionable and will exclude. knowledge of any illegality on the part of Christopher Specifically, defendant objects to September 15 and 16, Richard Messino makes her testimony material. But a 1991, references potentially to intimidating or even Brady materiality determination is not a search for mere murdering a government witness. Both instances have two possibilities. Id., 9 F.3d at 583. Under this analysis the problematic aspects. First, it is not entirely clear that court will not order production of the Delapena testimony. Clement Messino in either instance is agreeing to or encouraging such intimidation. Second, either through Similarly, Maleki's testimony need not be produced by inaudibility or truncated transmission the transcripts are the government. The court's inspection of the testimony incomplete. When the subject matter is so potentially reveals no Brady material. inflammatory, the better course is to exclude those portions of the transcripts. In this regard, therefore, *1186 Accordingly, Defendant Christopher Richard defendant's motion is granted. Messina's Motion to Produce Exculpatory or Impeaching Information is denied. B. Pamela Messino There is no question that Pamela Messino and defendant IX. DEFENDANT CLEMENT A. MESSINO'S Clement Messino have been legally married since 1968. MOHONINLIMINE TO PRECLUDE CERTAIN They are apparently married now and were married at all EVIDENCE times relevant to this case. Defendant's motion raises the Defendant Clement Messina raises five issues. implications of that fact for the evidence in this case, based on the confidential marital communications privilege. United States v. Keck, 773 F.2d 759, 767 (7th Cir.1985). WEST LAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 EFTA00013384 U.S. v. Messino,873 F.Supp.1177(1995) 1281 1291 The court does not reach issues of the confidential marital communications privilege, because there is a threshold issue of whether the adverse spousal testimony privilege will apply. See Keck, 773 F.2d at 767. By the government's own description, this privilege gives a 1. January 7 and 28, 1992 person presently married to a criminal defendant the right The court agrees that the January 7 and 28, 1992, not to testify against his or her spouse. See United States statements are, as a preliminary matter, admissible under v. Fulk, 816 F.2d 1202, 1205 (7th Cir.1987). The Rule 801(dX2)(E). government has two reasons why the adverse spousal testimony privilege will not apply: first, Pamela Messino is not asserting the privilege (as only she can assert it); and second, the marriage is a sham. 1101 As far as the first point, Clement Messino's counsel's information is that Pamela Messino will assert the 2. April 7, 1993 privilege. (See Defendant Clement Messino's Reply Memorandum in Support of Motion in Limine to Exclude The government concedes that the April 7, 1993, Certain Evidence at 9 n. 5.) Therefore, questions under conversation should be redacted as in Exhibit E-5 to this privilege may arise. As far as the second point, as the defendant's motion. strength of the marriage is contested by defendant, the government would have to •1187 prove up any exception, or at least present uncontested facts on which the exception would be based. See generally United States v. Clark, 712 F.2d 299 (7th Cir.1983). Such a prove up would undoubtedly resolve many of the issues as to the 3. March 3 and IS, 1993 confidential marital communications privilege, which Clement Messino himself can invoke. Nonetheless, the As to the March 3 and IS, 1992, conversations, the adverse spousal testimony privilege is a threshold matter. government's position is that while those conversations admittedly took place after the end of the charged The court reserves the factual determinations necessary to conspiracy (and therefore Rule 801(dX2)(E) does not rule on the privileges until trial, and accordingly denies apply), the proposed redactions are too broad. defendant's motion in this regard. 1~~1 Since this is not an 801(dX2)(E) admission, issues arise under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). "[A] defendant is deprived of his rights under the Confrontation Clause C. Michael Gubbins when his nontestifying codefendant's confession naming 1311 As the briefing came to a close, all defendant wants him as a participant in the crime is introduced at their here is to obligate the government, before presenting joint trial, even if the jury is instructed to consider that attorney-client communications, to establish out of confession only against the codefendant." Richardson v. hearing of the jury that an exception to the privilege Marsh, 481 U.S. 200, 201-02, 107 S.Ct. 1702, 1704, 95 operates. This is a safe and reasonable request, so the L.Ed.2d 176 (1987). The Richardson court makes clear motion in this regard is granted.' that the references to Clement Messino that he notes do not present a Bruton problem because those references require "linkage" to Clement Messino before they implicate him. Id. at 208, 107 S.Ct. at 1708. The government is right here, and therefore the redactions should be as the government proposes. Accordingly, in D. "Post-conspiracy" Evidence this regard defendant's motion is granted in part and Defendant here challenges transcript portions from five denied in part. dates: January 7, 1992; January 28, 1992; March 3, 1992; March 15, 1993; and April 7, 1993. WEST LAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 13 EFTA00013385 U.S. v. Messino, 873 F.Supp. 1177 (1995) E. Other Issues denied in part, and denied as moot in part. 1. Incarceration X. DEFENDANT DONALD SOUTHERN'S Defendant wishes to avoid introduction of any MOTION IN LIMINE TO PRECLUDE VARIOUS evidence of his incarceration. The government's most INADMISSIBLE STATEMENTS important response, with which defendant never comes to Defendant Donald Southern raises two evidentiary issues grips, is that paragraph eleven of Count I of the regarding (1) statements of presumption, guesses or Superseding Indictment specifically charges that Clement conclusions by lay witnesses, and (2) testimony of Messino directed coconspirators while incarcerated. Southern's role without personal knowledge, unless Introduction of evidence of incarceration is therefore hard foundation is laid or Rule 80 1(dX2)(E) applies. This is in to avoid. the category of motions to have the Federal Rules of Evidence apply to the trial. In this regard defendant's motion is denied. Accordingly, Defendant Donald Southern's Motion in Limine to Preclude Various Inadmissible Statements is granted. 2. Escape The government does not intend to introduce specific XI. DEFENDANT CHRISTOPHER B. MESSINO'S evidence of defendant's escape, so the motion in this MOTION IN LIMINE WITH REGARD TO regard is denied as moot. CERTAIN EVIDENCE Christopher B. Messino raises two evidentiary issues. 3. Employment as Police Officer A. Evidence of Violence of Christopher B. Messino The motion in this regard is denied. FED.R.EVID. 401, The government rightly points out that the court has 402. reserved ruling here. Accordingly, in this respect the motion is denied. 4. Organized Crime References B. Evidence Regarding Isolated Incidents of Small Controlled Substance Deliveries The government does not intend to introduce references to lit The government will attempt to prove that defendant organized crime, except perhaps for a statement by sold small amounts of cocaine during the course of and in Clement Messina that he is a good gangster because he furtherance of the conspiracy. Furthermore, defendant's used to be a police officer. The court has been provided a motion is too vague to warrant a ruling that all incidents paraphrased snippet of testimony from a witness about fitting into defendant's description should be excluded. whom it has heard little *1188 or nothing in the context of Accordingly, in this respect the motion is denied. this case. The court must therefore reserve ruling, and the motion is accordingly denied. Defendant Christopher B. Messino's Motion in Limine with Regard to Certain Evidence is denied. In conclusion Defendant Clement Messino's Motion in Limine to Exclude Certain Evidence is granted in part, WESTLAW © 2019 Thomson Reuters. No claim to original U.S Government Works. 14 EFTA00013386 U.S. v. Messino, 873 F.Supp. 1177 (1995) XII. DEFENDANT BLAISE MESSINO'S MOTION C. Evidence of Violence IN LIMINE REGARDING THE INTRODUCHON In this respect defendant's motion is denied. the court OF CERTAIN EVIDENCE reserving ruling. Defendant Blaise Messino raises two issues. D. Evidence of Drug Deliveries Outside of Charged A. Possession of Firearms Conspiracy At least as a preliminary matter, evidence of possession of Defendant's cursory request here is too vague and firearms is admissible on a tool-of-the-trade theory. overbroad to support a ruling. *1189 Accordingly, the motion in this respect is denied. B. Violence Issues regarding evidence of violence have been reserved E. Evidence of Involvement with Stolen Vehicles for trial. The government correctly notes that the court has previously reserved ruling on this issue. In this respect the Defendant Blaise Messino's Motion in Limine Regarding motion is denied. the Introduction of Certain Evidence is denied. F. Evidence that Paul Messino Traveled to Florida to XIII. DEFENDANT PAUL MESSINO'S MOTION Pick Up Cocainefor Clement Messino or Others IN LIMINE REGARDING INTRODUCHON OF Among other things, this conduct would seem to be part CERTAIN EVIDENCE of the heart of the case against Paul Messino. The motion Paul Messino's motion in conclusory fashion raises seven in this regard is without basis and is denied. evidentiary issues. G. Evidence that Defendant Sold Cocaine to A. Evidence of Robberies or a Fight Confidential Informant Unless Informant is Produced The government either does not intend to introduce such for Cross-examination evidence or correctly notes the motion is not specific The government argues that there is no such requirement. enough to support a ruling. In this respect the motion is However, any legal issue here is mooted because the denied. government intends to produce informants in that category. In this regard the motion is denied as moot. In conclusion, Defendant Paul Messino's Motion in Limine Regarding Introduction of Certain Evidence is denied in part and denied as moot in part. B. Evidence Regarding His Possession of Weapons In this respect defendant's motion is denied. The evidence may be admissible on a tool-of-the-trade theory. WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 15 EFTA00013387 U.S. v. MossIno, 873 F.Supp. 1177 (1995) CONCLUSION Produce Exculpatory or Impeaching Information is denied. Defendant Clement Messino's Motion in Limine No further items are suppressed as evidence because of to Exclude Certain Evidence is granted in part, denied in tainted leads. Government's Motion in Limine is granted part, and denied as moot in part. Defendant Donald in part, denied in part, and denied as moot in part. Southern's Motion in Limine to Preclude Various Government's Motion for Leave to Recall Certain Inadmissible Statements is granted. Defendant Witnesses During Its Case in Chief is granted. Defendant Christopher B. Messino's Motion in Limine with Regard Christopher Richard Messino's Motion in Limine to to Certain Evidence is denied. Defendant Blaise Preclude Incompetent Law Opinion Evidence, Evidence Messino's Motion in Limine Regarding the Introduction Based upon Lack of Personal Knowledge and Evidence of Certain Evidence is denied. Defendant Paul Messino's Based upon Hearsay is granted. Defendant Christopher Motion in Limine Regarding Introduction of Certain Richard Messino's Motion in Limine to Preclude Evidence is denied in part and denied as moot in part. Evidence Regarding Christopher Richard Messino's Employment as a Police Officer is denied. Defendant Christopher Richard Messino's Omnibus Motion in All Citations Limine is granted in part, denied in part, and denied as moot in part. Defendant Christopher Richard Messino's 873 F.Supp. 1177 Motion for Additional Peremptory Challenges is denied. Defendant Christopher Richard Messino's Motion to Footnotes The course of trial may raise other entrapment issues. For now, the court considers only opening statements. 2 Any attempt by defendants to use the drafts for other purposes would be evaluated at trial. 3 The government wants to preclude evidence that any of its witnesses once worked as prostitutes, but presents no motion. The defendants therefore have not properly been afforded an opportunity to present a theory of relevance. 4 Length of trial is the only reason defendant offers for his jury selection plan. Ile does not raise the issue of conflicting trial strategy. The court nonetheless has taken that danger into consideration and concludes that no conflicting trial strategy problem warrants the plan defendant proposes. See Oxtan, 955 F.2d at 1121. 5 Of course the government will have six challenges, as prescribed by Rule 24(b). 6 In McClain the Seventh Circuit discussed limiting instructions for this situation, 934 F.2d at 832, which the government should proffer. 7 The court finds no waiver of the privilege on the record it now has. End of Document C 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 16 EFTA00013388