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UNITED STATES v. MESSINO

June 24, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER RICHARD MESSINO, et al., Defendants.


ALESIA


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

Before the court are the pending pretrial motions of defendants. Many of the various motions are similar, if not identical, and so where appropriate the court will group its treatment of the motions. The court has previously described the contents of the Superseding Indictment in detail, and incorporates that discussion herein. See United States v. Messino, 852 F. Supp. 652, 1994 U.S. Dist. LEXIS 11974, 1994 WL 187774, at *1-2 (N.D. Ill. 1994).

 1. Defendant Christopher Richard Messino's Motion to Suppress

 Christopher Richard Messino seeks to have suppressed certain physical evidence seized and removed from said defendant's Blue Island, Illinois, home pursuant to a warrant of seizure and monition, obtained ex parte pursuant to a civil forfeiture proceeding. Defendant's theory is that the government did not afford defendant or any other interested party an opportunity to be heard before this seizure of his home and personal property, and that under the Supreme Court's recent decision in United States v. James Daniel Good Real Property, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993), the seizure upon ex parte warrant was illegal and the fruits thereof must be excluded. The government has asked for a hearing on this issue.

 The government takes the position that any illegalities in the civil forfeiture proceeding cannot affect these criminal proceedings. Such a per se rule would seem to conflict with the general premise of exclusion. Illegal procedures that lead to exclusion of evidence are not always directly linked, at the time of the procedure, to the case number at which exclusion occurs.

 The government also raises retroactivity of James Daniel Good. This is a bit of a misnomer. The real retroactivity-type issue may be whether a good faith exception may be applied, based upon the state of the law pre- James Daniel Good and the facts surrounding the seizure at issue here. Cf. United States v. Leon, 468 U.S. 897, 918-21, 104 S. Ct. 3405, 3418-19, 82 L. Ed. 2d 677 (1984). But the government is at least right that a straight line cannot be drawn from a violation of James Daniel Good to exclusion here. Therefore the motion cannot be resolved on the submitted papers, and further proceedings will be necessary.

 Accordingly, Defendant Christopher Richard Messino's Motion to Suppress is referred to the magistrate judge for a hearing and report and recommendation.

 2. Defendant Clement Messino's Motion to Suppress Illegally Seized Evidence

 Defendant Clement Messino's motion to suppress concerns evidence that was seized incident to or at an inventory after Clement Messino's arrest by the Chicago Police Department on a weapons charge. A Cook County, Illinois, judge found the arrest lacked probable cause, and now defendant seeks to suppress evidence recovered either incident to or at an inventory after Clement Messino's arrest. The evidence involved is a handgun and a notebook.

 As far as the handgun is concerned, the government "does not intend" to use it. (Government's Consolidated Response to Defendants' Pretrial Motions ("Government's Consolidated Response") at 43, n.3.) The court therefore will not explore Fourth Amendment issues regarding this piece of evidence, since no one appears interested in showing it to the trier of fact. Concerning the handgun, defendant's motion is denied as moot.

 As far as the notebook is concerned, it is apparent from the briefing on the motion that resolution of the notebook's admissibility (as well as any implications of their being any tainted fruit from the notebook) revolves in part around determining the true nature of the seizure. The government's primary defense as regards the notebook is that regardless of the legality of the arrest, the notebook was seized pursuant to an inventory that had independent legality because the car was parked in a tow zone. A full airing of the facts here will require a hearing, since the court does not find defendant in explicit agreement with the government's version based on the pleadings. Concerning the notebook and related tainted evidence issues, defendant's motion is referred to the magistrate judge for a hearing and report and recommendation.

 3. Motions to Dismiss Indictment Based on Tainted Grand Jury

 Defendants Christopher Richard Messino, William Underwood and Michael Homerding have moved to dismiss the indictment and requested discovery and a hearing.

 Defendants' theory concerns a taint on the Special October 1992-I Grand Jury, the grand jury that indicted them, stemming from facts underlying the conviction of grand juror Robert Girardi, a member of the grand jury. See United States v. Coffey, No. 92 CR 203, 854 F. Supp. 520, 1994 U.S. Dist. LEXIS 4099 (N.D. Ill. Mar. 16, 1994). Mr. Girardi breached the secrecy of grand jury proceedings by leaking information to a defendant up for indictment before the grand jury. In Coffey, Judge Plunkett analyzed the propriety of dismissing the indictment as against codefendants of the recipient of leaks and concluded that those codefendants could not secure dismissal of their indictments based on the tainting.

 A district court generally "may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants." Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S. Ct. 2369, 2373, 101 L. Ed. 2d 228 (1988) (applying FED. R. CRIM. P. 52(a)); cf. Ortiz-Salas v. I.N.S., 992 F.2d 105, 107 (7th Cir. 1993). An exception will apply where "the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair." Bank of Nova Scotia, 487 U.S. at 257, 108 S. Ct. at 2374.

 Here, the prejudice theory does not apply to defendants because there is no allegation that the grand jury improprieties affected the moving defendants or any of their codefendants. Defendants have no theory as to how the improprieties affected them. In Coffey, Judge Plunkett concluded that "there is no indication that Girardi's conduct affected the grand jury's decision to indict in any way." Coffey, 854 F. Supp. 520, 1994 U.S. Dist. LEXIS 4099, at *7 That 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. *fn1" 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.
 
The government will preserve rough notes and writings in this case.

 (Government's Consolidated Response at 61.)

 The referenced motion to dismiss dealt with James Daniel Good issues, having no relevance to the statute of limitations. As far as any intention to preserve rough notes and writings, the court is at a loss to explain how such a representation is responsive to the statute of limitations issue.

 The court has held defendants to strict standards of motion practice in this case, consistently denying motions that vaguely adopt other motions or have been untimely filed without good cause shown. The government, of course, is held to the same standard. There are too many defendants and too many motions pending for the court to do the scouring of the indictment, statutes and case law that the government should have done. "The district court [is] not required to investigate the pleadings and evidence for additional arguments that might support [a party's position] . . . ." Garlington v. O'Leary, 879 F.2d 277, 282 (7th Cir. 1989).

 The government's silence regarding the statute of limitations as to the forfeiture allegations against defendant Christopher Richard Messino leads the court to conclude that the government acquiesces in defendant's argument. Any contention by the government to the contrary may be raised by motion for reconsideration within 10 days of entry of this order on the docket. Accordingly, the motion is granted in part, and the forfeiture allegations against said defendants are dismissed.

 5. Motions for Bill of Particulars

 Six defendants, Christopher Richard Messino, Clement Messino, Michael Homerding, Donald Southern, William Underwood, Thomas Hauck, and Daniel Shoemaker, have moved for a bill of particulars.

 A. Background Law

 Rule 7(f) of the Federal Rules of Criminal Procedure authorizes the court to order the filing of a bill of particulars whenever, in the court's discretion, the indictment fails to sufficiently apprise the defendant of the charges in the indictment so that the defendant can prepare an adequate defense. United States v. Kendall, 665 F.2d 126, 134 (7th Cir. 1981), cert. denied, 455 U.S. 1021, 102 S. Ct. 1719, 72 L. Ed. 2d 140 (1982). A bill of particulars should be supplied

 
to clarify the nature of the offenses charged and the ultimate facts necessary to avoid surprise or double jeopardy. When more than this is requested, the request is in the nature of a demand for evidentiary detail. The Government is not required to supply its evidence in advance of trial.

 United States v. Isaacs, 347 F. Supp. 743, 762 (N.D. In. 1972). Although defendants are entitled to know the facts surrounding the offense with which they are charged, defendants are not entitled to know the details of how the offense will be proved. United States v. Glecier, 923 F.2d 496, 502 (7th Cir.), cert. denied, 116 L. Ed. 2d 31, 112 S. Ct. 54 (1991); Kendall, 665 F.2d at 135.

 The court considers each defendant's motion in turn.

 B. Individual Motions

 
(1) Christopher Richard Messino

 Christopher Richard Messino seeks a bill of particulars in two regards. As to Count I, he wants the government to "give the dates, places and parties present on each occasion when Christopher Richard Messino allegedly committed any act in furtherance of the charged conspiracy." (Defendant Christopher Richard Messino's Motion for Bill of Particulars at 1.) This request, first, is entirely too overbroad. It constitutes the sort of demand for "evidentiary detail" the court discussed above. Furthermore, much of the information requested is provided in the government's Santiago proffer, which provides extra detail on the conspiracy. Finally, it appears that this request is or will be at least partially fulfilled by the government's discovery.

 Christopher Richard Messino also seeks a bill of particulars regarding Counts II and IV, which allege filing a false income tax return for calendar years 1986 and 1987. Defendant's first request, for the government's "method of proof" is plainly not an appropriate request, or, in any event, not one the court in its discretion will accommodate. As far as his requests for dates, amounts and parties present for the receipt of income, or the amount by which he underreported, the government has committed itself to claiming only that defendant's drug sale receipts will be the basis for this allegation. (Government's Consolidated Response at 21.) Therefore, the information defendant has as to the larger conspiracy should allow defendant an opportunity to prepare his defense.

 Defendant Christopher Richard Messino's Motion for Bill of Particulars is denied.

 
(2) Clement Messino

 Defendant Clement Messino's motion for a bill of particulars is more ambitious than Christopher Richard Messino's motion. As to Count I, Clement Messino asks for 19 different categories of detailed information. To the extent defendant is entitled to the information, the indictment, Santiago proffer and government's discovery should allow Clement Messino to prepare for trial on Count I.

 As to Count III, filing a false tax return, Clement Messino wants the government to "state the exact amount of money the government alleges should have been reported on defendant Clement Messino's 1986 Tax Return and identify the sources of the money and all details regarding defendant's receipt of said money and the basis upon which the government alleges said money should have been reported." (Defendant Clement Messino's Motion for a Bill of Particulars at 5.) In response to a similar request on the part of Christopher Richard Messino, the government made the representation that it was only pursuing the tax charge based on unreported drug receipts. Inexplicably, the government provided no such guidance to defendant Clement Messino. As a matter of fairness, considering the government's treatment of his codefendant, and as a matter of the court's discretion, Clement Messino's request as to Count III will be granted. The government, however, in preparing its bill of particulars, may be guided by what the court has previously accepted as sufficient information regarding defendant Christopher Richard Messino.

 Finally, Clement Messino seeks a bill of particulars regarding the forfeiture allegations. He seeks various details regarding the alleged transactions and their connection to illegality. Read with Counts I and XI of the indictment (which are incorporated by reference into the forfeiture allegations), along with the Santiago proffer, defendant appears to have enough of an understanding of the government's case to prepare for trial.

 Defendant Clement Messino's Motion for a Bill of Particulars is granted in part ...


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