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, 1994 U.S. Dist. LEXIS 4137, 1994 WL 118539, at *2 (N.D. Ill. 1994) (Hart, J.); United States v. Mebust, 1994 U.S. Dist. LEXIS 3795, No. 93 CR 436, 1994 WL 113113, at *6-7 (N.D. Ill. Mar. 30, 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. 411, 1994 U.S. Dist. LEXIS 4137, 1994 WL 118539, at *1. 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. 520, 1994 U.S. Dist. LEXIS 4099, at *5.
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.) (attached as Exhibit A to Government's Supplemental Consolidated Response to Defendants' Motions to Dismiss Indictment). 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 11-12, 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.
4. Christopher Richard Messino's Motion to Dismiss Indictment - Non-Grand Jury Issues
A. James Daniel Good Concerns Regarding the Forfeiture
Defendant Christopher Richard Messino seeks to dismiss the forfeiture portion of the indictment as against said defendant based on United States v. James Daniel Good Real Property, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993). In James Daniel Good, as discussed above, the Supreme Court held that before the government could effect a forfeiture of real property based upon probable cause of a property's being tainted by involvement in drug trafficking, the owner must be afforded notice and a hearing. Id. at 501. Defendant's theory is that therefore "the forfeiture aspect of the indictment, insofar as it relates to the seizures of real property in which Christopher Richard Messino has property interest, is tainted." (Defendants Christopher Richard Messino and William Underwood's Memorandum of Law in Support of Motion to Dismiss and Request for Discovery and Hearing at 4.) The government's position, in short, is that it wants a hearing. (Government's Consolidated Response at 61.)
But it is not clear why a hearing would be necessary here. Defendant has mounted an argument that the civil forfeiture was in contravention of James Daniel Good. One possible consequence of that is discussed above regarding the motion to suppress. Here, however, there is only the bare assertion that, because of the James Daniel Good problems, "the forfeiture aspect of the indictment, insofar as it relates to the seizures of real property in which Christopher Richard Messino has property interests, is tainted. Dismissal is therefore required." (Defendants Christopher Richard Messino and William Underwood's Memorandum of Law in Support of Motion to Dismiss and Request for Discovery and Hearing at 4.) The natural question, and one unanswered by defendant, is "Why?" The forfeiture allegations in the instant Superseding Indictment are not a seizure in themselves, and therefore cannot yet violate James Daniel Good. No theory is presented under which dismissal is warranted on the James Daniel Good argument.
Nor does the court find a reason why dismissal is warranted on that basis. Cf. United States v. 4204 Thorndale Ave., 1994 U.S. Dist. LEXIS 3251, No. 92 C 3744, 1994 WL 92005, at *2-3 (N.D. Ill. Mar. 21, 1994).
B. Statute of Limitations Regarding Forfeiture
Defendant Christopher Richard Messino also argues regarding the forfeiture allegations against him that the allegations are barred by the statute of limitations. The government had no response whatsoever to this position, which defendant supported with authority and without conclusory argument. The government's response to defendant's motion as it regarded the forfeiture allegations was to state as follows:
For the reasons stated in the Governments [sic] Response to Defendant Christopher Richard Messino's motion to suppress, the Government seeks a hearing on the propriety of the seizure of the houses.