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UNITED STATES v. MESSINO

January 4, 1995

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



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

 Before the court are (1) the Government's Supplemental Santiago Proffer on the Superseding Indictment ("Supplemental Proffer"), see United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), as well as various motions related to Santiago issues, or arising out of evidence discussed in the Supplemental Proffer; and (2) the Government's Notice and Motion in Limine to Admit Certain Evidence of the Charged Conspiracy, as well as various cross-motions filed by defendants in response to the government's notice and motion.

 I. DEFENDANT DANIEL C. SHOEMAKER'S MOTION TO RECONSIDER ORDER ON ORIGINAL SANTIAGO PROFFER

 Defendant Daniel C. Shoemaker has filed a motion to reconsider the court's previous ruling on the government's original Santiago proffer. The court's original Santiago ruling is published at 855 F. Supp. 973 (N.D. Ill. 1994). Defendant has one argument why the court's original ruling was erroneous: "All of the allegations contained in the Santiago proffer concern themselves with wrongdoing, but do not in any way demonstrate goods or action that Daniel Shoemaker agreed to become a member of the conspiracy, much less was a member of the conspiracy." (Defendant's Motion to Reconsider at 2.)

 Shoemaker's argument fails for two reasons. First, evidence of an explicit agreement need not be the basis for the government's conspiracy case against Shoemaker. See United States v. Liefer, 778 F.2d 1236, 1247 n.9 (7th Cir. 1985). "It is enough that the government present[] evidence that, if believed, prove[s] that [defendant] knew of the conspiracy's general scope and sought the common end." Id. Second, although the evidentiary burden to link a defendant to a conspiracy is substantial evidence, 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), "because circumstantial evidence can be the sole support for a conspiracy conviction, the government is not required to present direct evidence that a defendant joined the conspiracy," United States v. Pazos, 993 F.2d 136, 139 (7th Cir. 1993) (citing United States v. Gutierrez, 978 F.2d 1463, 1469 (7th Cir. 1992)); see also United States v. Kellum, 42 F.3d 1087, 1994 WL 706096, at *3 (7th Cir. Dec. 19, 1994). Looked upon in light of the obligations of the government, it is clear even from defendant's catalogue of the proffer as it pertains to him (see Defendant's Motion to Reconsider at 1-2), that the court's original ruling was not in error.

 Nothing in defendant's motion alters the court's original careful consideration of the government's first Santiago proffer as it pertains to defendant Shoemaker. Accordingly, Defendant Daniel C. Shoemaker's Motion to Reconsider is denied.

 II. DEFENDANT DANIEL C. SHOEMAKER'S MOTION TO RECONSIDER THIS COURT'S RULING DENYING A PRE-TRIAL REQUEST FOR A BILL OF PARTICULARS, ALTERNATIVELY MOTION TO DISMISS THE INDICTMENT BASED UPON MISJOINDER

 Defendant Shoemaker also moves for reconsideration of the court's denial of his motion for a bill of particulars, or alternatively for dismissal based on misjoinder. Defendant presents nothing that was not considered during the court's original analysis of whether it would order a bill of particulars regarding said defendant. United States v. Messino, 855 F. Supp. 955, 961-63 (N.D. Ill. 1994).

 The court's analysis regarding the Santiago proffer and motion for bill of particulars as regards defendant Shoemaker applies to Shoemaker's misjoinder argument. Likewise, the court refers to its disposition of Shoemaker's codefendants' Motions for Severance on the issue of misjoinder as well. Id. at 969-70.

 Accordingly, Defendant Daniel C. Shoemaker's Motion to Reconsider this Court's Ruling Denying a Pre-trial Request for a Bill of Particulars, Alternatively Motion to Dismiss the Indictment Based upon Misjoinder is denied. *fn1"

 III. GENERAL CONSIDERATION OF GOVERNMENT'S SUPPLEMENTAL SANTIAGO PROFFER

 The government previously submitted a pretrial written proffer of evidence pursuant to United States v. Santiago. After considering that proffer the court ruled that, based upon that filing, "it is more likely than not that a conspiracy existed, that defendants participated in the conspiracy, and that statements were made 'during the course of and in furtherance of' the conspiracy." United States v. Messino, 855 F. Supp. 973, 978 (N.D. Ill. 1994). The court exercised the option of conditionally admitting the coconspirator declarations subject to proof of those matters at trial. Id. (citing Santiago, 582 F.2d at 1131; United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991)). Nothing in the government's Supplemental Proffer alters that basic analysis of the Santiago issues.

 Accordingly, the government's Supplemental Proffer as to coconspirator statements is conditionally admitted pursuant to Rules 104(a),(b) and 801(d)(2)(E) of the Federal Rules of Evidence, subject to proof of the conspiracy at trial.

 Defendant Clement Messino has raised certain separate issues related to the Granata transactions, which remain to be considered.

 IV. DEFENDANT CLEMENT A. MESSINO'S MOTION TO EXCLUDE EVIDENCE OF "GRANATA TRANSACTIONS"

 Defendant Clement Messino has raised a number of objections to the government's intended introduction of the Joseph Granata transactions, referenced above. The court previously ruled that double jeopardy does not bar the introduction of such evidence. (See Memorandum Opinion and Order dated December 19, 1994.) Here, however, Clement Messino argues that (1) Rule 16 of the Federal Rules of Criminal Procedure bars introduction of the evidence; and (2) Rules 403 and 404(b) of the Federal Rules of Evidence bar introduction of the evidence.

 A. Rule 16

 Defendant argues that the government violated its Rule 16(a) disclosure obligations and that the proper remedy under Rule ...


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