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 discretionary remedy under Rule 16(d)(2) or any other authority.
C. Fourth Amendment
Defendant's other argument for exclusion is a violation of the Fourth Amendment. The court orders a hearing with the following guidance:
The court has not been provided the warrants executed for the items at issue, but the language of the warrants has been quoted by the government. (See Government's Consolidated Response to Defendant Clement Messino's Additional Pretrial Motions at 6-7.) As described, there are warrants for the real property itself and warrants for personalty.
The realty warrants were apparently procured in violation of the principle of United States v. James Daniel Good Real Property, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993), wherein the Supreme Court held that seizure of real property, pursuant to civil forfeiture, after merely an ex parte hearing violates due process. The government appears to be taking the same stance hear as it took regarding Defendant Christopher Richard Messino's Motion to Suppress and in the parallel civil forfeiture proceeding -- the government does not suggest that the realty warrants, despite Good, are legal (see United States v. Messino, Memorandum Opinion and Order at 6 n.3 (N.D. Ill. Dec. 16, 1994)). Rather the government argues that the seizure of all of the listed items was consistent with the Fourth Amendment either under one of the warrants unaffected by Good or under the plain view doctrine, see Horton v. United States, 496 U.S. 128, 134-36, 110 S. Ct. 2301, 2306-07, 110 L. Ed. 2d 112 (1990); United States v. Wilson, 2 F.3d 226, 232 (7th Cir. 1993), cert. denied, 128 L. Ed. 2d 341, 114 S. Ct. 1615 (1994).
Invocation of the plain view doctrine requires an airing of the facts of the seizure. The court accordingly will hold a hearing. As it ordered for the previously held hearing on defendant Christopher Richard Messino's Motion to Suppress, the court orders further submissions to clarify the parties' positions prehearing. The government is ordered before 4:00 p.m., December 20, 1994, to file with the court and personally serve on Clement Messino's counsel a list of proffered items with an indication as to each item whether (1) the government relies on a warrant for the legality of the item's seizure and, if so, which warrant, or (2) the government relies on the plain view doctrine. Defendant is ordered by 4:00 p.m., December 21, 1994, to file with the court and personally serve the government with a submission listing the bare fact of which government positions he opposes.
In the likely event that defendant opposes all the items, he can file something as simple as a one-line statement to that effect.
Accordingly, Defendant Clement A. Messino's Motion to Exclude Evidence Seized During Execution of Warrants of Seizure and Monition Pursuant to Civil Forfeiture Proceedings is denied in part and continued for a hearing in part.
III. DEFENDANT CLEMENT MESSINO'S MOTION FOR ENTRY OF AN ORDER REQUIRING AN IMMEDIATE HEARING REGARDING RELEASE OF ASSETS FOR PAYMENT OF ATTORNEY'S FEES OR OTHER RELIEF
As noted above, Clement Messino is a claimant in a parallel civil forfeiture proceeding. The Seventh Circuit recently remanded that case for proceedings to ensure that the initial ex parte civil forfeiture effected in that case will not interfere with defendant's qualified right to criminal counsel of choice. United States v. Michelle's Lounge, 39 F.3d 684 (7th Cir. 1994). "Due process requires the government to participate in a post-seizure adversary hearing on probable cause when the district court has found that the government has seized through civil forfeiture all of the assets a criminal defendant needs to obtain counsel." Id. at *14. Defendant Clement Messino's motion in effect seeks to have this court provide him the proceedings to which he is entitled as a claimant in the civil forfeiture proceeding pursuant to the Seventh Circuit's opinion.
To state the obvious, the Seventh Circuit remanded the civil forfeiture case to the district court judge presiding over the civil proceeding, not to this court, which only presides over the criminal proceeding. Furthermore, that judge, not this court, has jurisdiction over any items that may have to be released to pay defendant's attorney's fees. It does not fall to this court, therefore, to provide the Michelle's Lounge proceeding. This court, of course, does have jurisdiction over ensuring that the defendant receives a fair trial. But that does not mean that it would be this court's province to supplant the Michelle's Lounge proceedings with its own examination of the legality of the civil forfeiture. The Seventh Circuit has considered the "constitutional difficulty arising from the complex interplay between civil forfeiture and criminal prosecution," Michelle's Lounge, 39 F.3d 684, 1994 WL 586391, at *15, and its solution was to order an expedited opportunity for the defendant to be heard on the fee issue in the civil forfeiture proceeding as soon as possible before the criminal proceeding. That matter it appears will either be settled or resolved by the court in the civil forfeiture proceeding before the trial in this cause begins. Any settlement, of course, must be before the civil forfeiture court. The settlement would involve a release of items over which that court, not this court, has jurisdiction.
Defendant does not contradict that as long as he receives his Michelle's Lounge proceedings before the trial in this cause begins he suffers no prejudice. In fact, defendant states in his reply brief that the anticipated settlement "most likely moots this motion." (Defendant Clement Messino's Reply to Government's Consolidated Response to Additional Pretrial Motions at 7.) It is therefore the civil forfeiture court's province to preserve the rights discussed in the Seventh Circuit's opinion, and defendant's motion is accordingly denied.
To say that preservation of the Michelle's Lounge rights is not this court's province is not to say that it is not this court's concern. If, the week before trial, the civil forfeiture settlement has broken down and the defendant has not been afforded his Michelle's Lounge proceedings, this court will have to consider that development's impact on this case. To begin the trial without the procedure having unfolded as the Seventh Circuit directed is simply not an option. It is the court's understanding that the government is working toward avoiding that development.
Accordingly, Defendant Clement Messino's Motion for Entry of an Order Requiring an Immediate Hearing Regarding Release of Assets for Payment of Attorney's Fees or Other Relief is denied.
IV. DEFENDANT CLEMENT A. MESSINO'S MOTION TO DISMISS INDICTMENT
Clement Messino moves to dismiss the Superseding Indictment in this case based on his argument that this indictment places him in double jeopardy in violation of the Fifth Amendment to the United States Constitution. Defendant has two different encounters with the justice system that he claims stand as the initial jeopardy, so each is considered separately.
A. Parallel Civil Forfeiture Proceeding
Defendant first claims that the civil forfeiture proceeding described above is the initial jeopardy. In resolution of this argument, the court is primarily guided by the Seventh Circuit's decision in United States v. Torres, 28 F.3d 1463 (7th Cir. 1994), cert. denied, 130 L. Ed. 2d 603, 115 S. Ct. 669, 1994 WL 650095 (U.S. Dec. 12, 1994), which concerned the civil forfeiture/criminal prosecution double jeopardy issue. The Torres court ultimately held that because the criminal defendant in that case had not filed a claim in the prior civil forfeiture proceeding he had not been put in jeopardy in the constitutional sense. "As a non-party, Torres was not at risk in the forfeiture proceeding, and 'without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.'" Id. at 1465 (quoting Serfass v. United States, 420 U.S. 377, 391-92, 95 S. Ct. 1055, 1064, 43 L. Ed. 2d 265 (1975)). En route to that conclusion, however, the court made clear that parallel civil forfeiture and criminal proceedings may have double jeopardy effect on each other. See id. Since Clement Messino was and is a claimant in the civil proceeding, the court must consider whether the civil proceeding constitutes a bar on the instant prosecution.
A claimed double jeopardy must necessarily have been preceded by an initial jeopardy, and whether there is the first instance of jeopardy depends on whether jeopardy "attached" for Fifth Amendment purposes. Commentary by the Seventh Circuit in Torres indicates that jeopardy did not attach in the parallel civil proceeding, and thus defendant's argument fails. In Torres the Seventh Circuit commented, "Suppose the civil forfeiture gets to trial first. The United States will try to show that the money was used in an illegal drug transaction. 21 U.S.C. § 881(a)(6). At the beginning of the hearing, when evidence is first presented to the trier of fact in a proceeding seeking to impose a penalty for crime, jeopardy 'attaches.'" Torres, 28 F.3d at 1465. The civil proceeding has not progressed that far, so jeopardy has not attached in that proceeding. It follows that the instant proceeding may not be "double" jeopardy.
Defendant argues, however, that the tying up of his assets during the pendency and stay of the civil proceedings is a punishment in its own right. This argument likewise fails. The jeopardy cannot attach at the initiation of the civil proceeding. Otherwise, the Torres holding that the claimant must appear for jeopardy to attach would be meaningless. That said, the unavailability of the assets is not a punishment for jeopardy purposes, again otherwise the Torres holding is superfluous. Defendant raises the interference with his criminal trial, but the Seventh Circuit in United States v. Michelle's Lounge provided the remedy for the danger of the government through civil forfeiture tying up legal assets that the defendant would direct towards the criminal defense of his choice. With that remedy available, the initiation of civil forfeiture would not be the jeopardy. And, in any event, abrogation of the qualified right to counsel of choice, not double jeopardy, is the wrong discussed in Michelle's Lounge.
The court holds jeopardy has not attached in the civil proceeding, and therefore defendant's double jeopardy argument based on the civil proceeding does not succeed.
B. Prior Criminal Proceeding
Defendant next argues that a prior criminal proceeding bars the instant prosecution on double jeopardy grounds. The first jeopardy, defendant argues, occurred in case No. 92 CR 69 (N.D. Ill.), in which "defendant pled guilty to a superseding indictment alleging four separate sales of cocaine, totalling approximately 700 grams, two sales of various weapons and an escape charge." (Memorandum of Law in Support of Defendant Clement Messino's Motion to Dismiss Indictment at 9.) Defendant moved to vacate that guilty plea, that motion was denied, and defendant has appealed from that order. (See id.)
The Double Jeopardy Clause of the Fifth Amendment bars "the duplicative prosecution of a defendant for the 'same offense.'" United States v. Felix, 503 U.S. 378, 118 L. Ed. 2d 25, 112 S. Ct. 1377, 1382 (1992) (quoting U.S. CONST. Amend. 5, citing Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). The precedent is with the government in its argument that the instant prosecution for a conspiracy to commit acts including previous acts for which defendant has previously been convicted is not double jeopardy. "Prosecution of a defendant for conspiracy, where certain of the overt acts relied upon by the Government are based on substantive offenses for which the defendant has previously been convicted, does not violate the Double Jeopardy Clause." Id. at 1380; see also United States v. Garcia, 32 F.3d 1017, 1019 n.1 (7th Cir. 1994) ("It is established doctrine that a conspiracy to commit a crime is distinct from the crime itself."). Defendant therefore has not here stated a double jeopardy violation.
Accordingly, Defendant Clement A. Messino's Motion to Dismiss Indictment is denied.
V. DEFENDANT CLEMENT A. MESSINO'S MOTION TO DISMISS FORFEITURE ALLEGATIONS
Defendant Clement Messino's Motion to Dismiss Forfeiture Allegations raises the issue of whether the criminal forfeiture sought in the Superseding Indictment would constitute an excessive fine in violation of the Eighth Amendment to the United States Constitution.
Defendant's argument is one of proportionality, guided by the Supreme Court's holding in the RICO context that an "in personam criminal forfeiture ... is clearly a form of monetary punishment no different, for Eighth Amendment purposes, from a traditional "'fine.'" Alexander v. United States, 125 L. Ed. 2d 441, 113 S. Ct. 2766, 2775-76 (1993). The court agrees with the government that any proportionality argument is premature. Indeed, in defendant's preferred outcome (acquittal), proportionality of the punishment to the crime would be mooted.
Defendant argues that the prematurity of the motion is attributable to the government's not having provided enough information on the extent of the drug transactions in which defendant is alleged to be involved. The court will not transform this motion into an examination of whether the government has fulfilled its disclosure requirements. That said, the only way to fulfill defendant's request would be to require some pretrial proffer for the purposes of pretesting whether the potential criminal forfeiture is out of proportion to the alleged crimes. Such a procedure is not directed by any precedent defendant cites, and the procedure is not one the court would require.
The government makes other arguments besides prematurity; it challenges the applicability of a proportionality test to the potential criminal forfeiture in this case. The court does not reach those issues; it only holds dismissal of the forfeiture allegations is not warranted because of prematurity.
Accordingly, Defendant Clement A. Messino's Motion to Dismiss Forfeiture Allegations is denied.
VI. DEFENDANT CLEMENT A. MESSINO'S RENEWED MOTION FOR DISCLOSURE PURSUANT TO RULE 6(E)
Defendant's motion revisits tainted-grand-jury issues this court discussed in United States v. Messino, 855 F. Supp. 955, 959-60 (N.D. Ill. 1994). Nothing in defendant's submitted argument or affidavits alters the court's previous analysis of the situation.
Accordingly, Defendant Clement A. Messino's Renewed Motion for Disclosure Pursuant to Rule 6(e) is denied.
VII. DEFENDANT DANIEL C. SHOEMAKER'S MOTION IN LIMINE
Defendant Daniel Shoemaker has moved in limine to exclude certain taped conversations from introduction in the government's case in chief. The government has agreed not to introduce the specified evidence. Apparently satisfied with the government's representation, defendant filed a statement of "No reply" to the government's response. (Reply to Government's Consolidated Response to Defendant Shoemaker's Motions at 1.)
Accordingly, Defendant Daniel C. Shoemaker's Motion in Limine is denied as moot.
Defendant Christopher Richard Messino's Motion to Preclude Testimony About Destroyed Evidence is denied. Defendant Clement A. Messino's Motion to Exclude Evidence Seized During Execution of Warrants of Seizure and Monition Pursuant to Civil Forfeiture Proceedings is denied in part and continued for a hearing in part. Defendant Clement A. Messino's Motion for Entry of an Order Requiring an Immediate Hearing Regarding Release of Assets for Payment of Attorney's Fees or Other Relief is denied. Defendant Clement A. Messino's Motion to Dismiss Indictment is denied. Defendant Clement A. Messino's Motion to Dismiss Forfeiture Allegations is denied. Defendant Clement A. Messino's Renewed Motion for Disclosure Pursuant to Rule 6(e) is denied. Defendant Daniel C. Shoemaker's Motion in Limine is denied as moot.
Date: DEC 19 1994
JAMES H. ALESIA
United States District Judge