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UNITED STATES v. MESSINO

June 29, 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

The government has submitted a pretrial written proffer of evidence pursuant to United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), summarizing the evidence that the government expects to adduce at trial to establish that a conspiracy existed; that each of the defendants participated in the conspiracy; and that the coconspirator statements sought to be introduced were made during the course of and in furtherance of the conspiracy. The government seeks a ruling that proffered coconspirator statements are admissible against all defendants under Rule 801(d)(2)(E) of the Federal Rules of Evidence.

 Statements made by a coconspirator of a defendant during the course of and in furtherance of the conspiracy are not hearsay when offered against a defendant. FED. R. EVID. 801(d)(2)(E). However, to admit such evidence, the court must determine that the government has demonstrated by a preponderance of the evidence that as to each defendant "1) a conspiracy existed, 2) the defendant and the declarant were members thereof, and 3) the proffered statements were made during the course of and in furtherance of the conspiracy." United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991). The court may, in making the determination, examine the hearsay statements sought to be admitted. Bourjaily v. United States, 483 U.S. 171, 181, 107 S. Ct. 2775, 2781, 97 L. Ed. 2d 144 (1987).

 I. EXISTENCE OF THE CONSPIRACY

 All the defendants in this case are charged in the narcotics conspiracy alleged in Count I of the Superseding Indictment. According to the government, the overall conspiracy extended from 1980 through 1991. During this time, the conspiracy caused the delivery of over 100 kilograms of cocaine into the Chicago area from southern Florida. The cocaine was transported by couriers, primarily in racing cars and other vehicles. Naturally enough, the conspiracy allegedly also transported cash from Chicago to Florida.

 According to the government's proffer, evidence of the existence of the conspiracy will include: (1) the testimony of unindicted coconspirators who were personally involved in procuring, transporting, storing and/or selling cocaine; (2) the testimony of immunized witnesses describing their cocaine-related relationships with defendants; (3) the testimony of defendants' cocaine customers; (4) the testimony of paid informants; (5) the testimony of undercover Drug Enforcement Agency agents who purchased cocaine from several defendants and observed transactions or took part in cocaine seizures; and (6) corroborative evidence including undercover tapes, telephone records, personal telephone books, narcotics ledgers, photographs, leases, deeds, bank records, automobile registrations, and other financial records.

 II. EACH DEFENDANT'S PARTICIPATION IN THE CONSPIRACY

 Once the charged conspiracy or joint venture is established, substantial evidence is required to connect a defendant to it. United States v. de Ortiz, 907 F.2d 629, 635-36 (7th Cir. 1990), cert. denied, 498 U.S. 1029, 111 S. Ct. 684 (1991). The court may consider the conduct, knowledge and statements of the defendants and others in establishing their participation. United States v. Baskes, 687 F.2d 165, 169 (7th Cir. 1981). The court may "reach the necessary level of satisfaction [to admit coconspirator statements] at least in part on the basis of the hearsay." de Ortiz, 907 F.2d at 634.

 A defendant joins a conspiracy if he agrees with a conspirator to one or more of the common criminal objectives set forth in the indictment; it is immaterial whether the defendant knows, has met with, or has agreed with every conspirator. United States v. Boucher, 796 F.2d 972, 975 (7th Cir. 1986). Furthermore, the government need not prove that a defendant knew every detail of the conspiracy or played a more-than-minor role in the conspiracy. United States v. Liefer, 778 F.2d 1236, 1247 n.9 (7th Cir. 1985). Additionally, any of the defendants may be found to have participated in a conspiracy even if they joined or terminated their relationship with core conspirators at different times. *fn1" See United States v. Ramirez, 796 F.2d 212, 215 (7th Cir. 1986). The determination is individual, each defendant being entitled to separate consideration of his alleged participation.

 The Government's Santiago Proffer on the Superseding Indictment ("Government's Proffer") is a summary of the facts and statements establishing the existence of a conspiracy and each defendant's participation in the conspiracy. The evidence discussed herein does not exhaust the evidence the government proffers.

 Each defendant is now considered in turn:

 A. Christopher Richard Messino


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