The opinion of the court was delivered by: JAMES H. ALESIA
Before the court are various remaining pretrial motions. The court has previously described the Superseding Indictment in this case. See United States v. Messino, 852 F. Supp. 652, 653-54 (N.D. Ill. 1994); see also Memorandum Opinion and Order 871 F. Supp. 1027 (N.D. Ill. Dec. 16, 1994); 1994 WL 583110 (N.D. Ill. Oct. 21, 1994); 855 F. Supp. 973 (N.D. Ill. 1994); 855 F. Supp. 955 (N.D. Ill. 1994); 852 F. Supp. 657 (N.D. Ill. 1994); 842 F. Supp. 1107 (N.D. Ill. 1994). The court therefore will proceed directly to disposition of the motions.
I. DEFENDANT CHRISTOPHER RICHARD MESSINO'S MOTION TO PRECLUDE TESTIMONY ABOUT DESTROYED EVIDENCE
Defendant Christopher Richard Messino seeks to preclude introduction of evidence regarding an alleged cocaine transaction involving him, on the basis that the cocaine involved has been destroyed by the government. The court holds defendant has not provided a basis for any exclusion.
In United States v. Kelly, 14 F.3d 1169, 1174-75 (7th Cir. 1994), the Seventh Circuit provided guidance on lost or destroyed evidence. The Kelly court affirmed a district court's refusal to exclude seized narcotics that were lost, even where the government provided no explanation for the loss. Id. Initially, the court noted, "[a] narcotics violation need not be proved by direct evidence; there is no need for a sample of the narcotics seized to be placed before the jury." Id. at 1174. Thus, the failure of the government to be able to introduce the destroyed cocaine is not a concern.
As far as any unfairness in the situation, again the Kelly court's discussion leads toward denial of the motion. The Seventh Circuit noted three factors in Kelly, warranting affirmance, that are also present here: First, "Kelly ... presented no evidence that the seized narcotics evidence, which disappeared after being analyzed, was lost in bad faith." Kelly, 14 F.3d at 1175. That holding in Kelly was despite the fact that there no explanation was offered by the government. Here the government has explained the missing evidence, and provided documentation of its explanation. The destruction was routine given the decision of the United States Attorney for the Northern District of Indiana not to prosecute. (See Government's Response to Defendant Christopher Richard Messino's Motion to Preclude Testimony About Destroyed Evidence & Exs. A, B, C.) There is not an indication of bad faith based on this record. Second, in Kelly there was "no indication that the contraband was anything but what the chemical analysis indicated it to be." Id. Here, too, there is at least no contrary indication. Finally, "Kelly had the opportunity to cross-examine all government witnesses ... about the seized evidence." Id. This court, of course, will allow defendant the opportunity similarly to raise the issue.
In short, the Kelly court's admonition that "in future cases ... prosecutors are well advised to provide an explanation if similar losses occur," Kelly, 14 F.3d at 1175, has been followed here. The court is satisfied with the government's explanation based on its brief and supporting documentation. Accordingly, Defendant Christopher Richard Messino's Motion to Preclude Testimony About Destroyed Evidence is denied.
II. DEFENDANT CLEMENT A. MESSINO'S MOTION TO EXCLUDE EVIDENCE SEIZED DURING THE EXECUTION OF WARRANTS OF SEIZURE AND MONITION PURSUANT TO CIVIL FORFEITURE PROCEEDINGS
The court is told that pursuant to a parallel civil forfeiture proceeding (United States v. Michelle's Lounge, et al., No. 93 C 5783), the government executed warrants of seizure and monition related to real property at 15240-44 South Broadway, Harvey, Illinois, and 10630 South Seeley, Chicago, Illinois. Defendant Clement Messino moves to suppress the fruit of those seizures, raising two issues: (1) whether a government violation of Rule 16 of the Federal Rules of Criminal Procedure compels exclusion; and (2) whether a violation of the Fourth Amendment compels exclusion. The government opposes both bases for exclusion, as well as arguing that the motion should be disregarded as untimely.
Defendant argues that when the court granted him leave to file his additional pretrial motions it ruled in his favor on the timeliness issue. Defendant is right. If the government had argued that the motion was outside the scope of the leave granted defendant, that would be a different story; but the government in essence only seeks to revisit the issue of whether defendant should have been allowed to file his motions. The government's timeliness argument fails.
The court will not exclude the disputed evidence based on the claimed Rule 16 violation by the government. Defendant's theory is that since the government only on November 17, 1994, listed intended evidence from the seizures, the evidence should be disqualified because the notification was less than Sixty days before trial.
First, defendant provides no authority for a hard sixty-day rule. Second, the difference between the notice defendant received (about fifty-three days before trial) and the notice defendant wants (sixty days) is not so great as to warrant exclusion under Rule 16(d)(2) or any other authority for exclusion. Third, it is not as if defendant has been blind-sided. He received seizure inventories as exhibits to the March 4, 1994, Government's Consolidated Response to Defendants' Pretrial Motions. Defendant argues that this is different than notice of intended introduction at trial, which no doubt is true, but defendant at least since March 1994 had notice of the list from which the government would choose. Finally, along the same vein, there is no prejudice. Defendant had the opportunity to prepare based on the inventory lists, and the court has allowed him the opportunity pretrial to challenge the evidence on Fourth Amendment grounds.
The court finds no Rule 16 violation on the part of the government. Furthermore, if the two-week difference in notice between what defendant requests and what he received were to be construed as a Rule 16 violation, exclusion would not be the court's ...