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UNITED STATES v. MESSINO

January 28, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER R. MESSINO, BLAISE MESSINO, PAUL MESSINO, et al., Defendants.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

 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

 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. *fn1"

 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 . . . 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, ...

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