the five flagged categories or similar categories, to make an offer of proof outside the presence of the jury to determine if the evidence is evidence of the charged conspiracy or meets the Roberts criteria and to determine whether the danger of unfair prejudice substantially outweighs its probative value, FED. R. EVID. 403.
B. Rule 404(b)
Alternatively, the government seeks admission of the proffered evidence under Rule 404(b) of the Federal Rules of Evidence. One initial consideration here is that on March 4, 1994, in the Government's Consolidated Response to Defendants' Pretrial Motions at 22, the government represented, "The United States herein agrees to give the defendants notice of any FED. R. EVID. 404(b) evidence it intends to use against them 30 days prior to trial in accordance with the reasonable notice requirements of the rule." Not only the defendants, but also the court relied upon the representation in its disposition of Rule 404(b) motions. See United States v. Messino, 855 F. Supp. 955, 965 (N.D. Ill. 1994). With a February 6, 1995, trial date in this case, it appears the government's attempt to notice Rule 404(b) evidence is within the agreed time frame. The court notes that, absent good cause shown, it will hold the government to its agreement, on the basis of both Rule 404(b)'s reasonable notice requirement and the court's interest in holding the government to its representations to the defendants and the court.
As far as a ruling on Rule 404(b), the government's primary position is that Rule 404(b) is not necessary to introduce the evidence at trial. Therefore, any 404(b) ruling would border on an advisory discussion. This is even more true here where the government's motion has mentioned broad categories of evidence, with brief descriptions of specific acts. The government's submission does not support a Rule 404(b) ruling.
Accordingly, the Government's Motion in Limine to Admit Certain Evidence of the Charged Conspiracy is denied, the court reserving ruling on admission of evidence discussed therein.
VI. CROSS-MOTIONS IN LIMINE
Two defendants have responded to the government's motion in limine with motions in limine of their own.
A. Defendant Thomas Hauck
Defendant Thomas Hauck has, in response to the government's notice and motion in limine, himself moved for the exact opposite result. The court's analysis above applies, and the court defers ruling. Therefore, defendant's motion is denied.
B. Defendant Christopher Richard Messino
Defendant Christopher Richard Messino has filed a motion in limine or in the alternative renewed motion for severance. Severance issues are disposed of below, the court here only considering defendant's motion in limine.
The gist of defendant's motion in limine is that allegations of acts of his codefendant Clement Messino are not his acts. The government on a narcotics conspiracy charge must "demonstrate the existence of such an agreement, that the defendants knew of the agreement, and that the defendants intended to join it." United States v. Williams, 31 F.3d 522, 525 (7th Cir. 1994). Defendant Christopher Richard Messino would have the court adopt a rule that only the acts of an alleged conspirator himself are admissible against that particular conspirator. But the government is able to introduce evidence of the existence of the conspiracy even if that particular evidence does not help prove a particular defendant's intention to join the conspiracy. Of course the government must prove the individual defendant conspired; otherwise the government has made no case against that defendant. And, just as self-evident, the proffered evidence must be evaluated (at trial, as noted above) for its relevancy and prejudicial effect. But the court cannot state categorically that the acts of Clement Messino are per se inadmissible against Christopher Richard Messino for any purpose, or that where they are inadmissible against Christopher Richard Messino the situation cannot be solved through proper jury instructions.
VII. MOTIONS FOR SEVERANCE
In response to the government's motion, defendants Christopher Richard Messino, Christopher B. Messino, Paul Messino, and Daniel Shoemaker have moved for severance. Defendant Lawrence Thomas has filed no motion, but has mentioned that he believes severance may be necessary in his case.
The motions are based on Rule 14 of the Federal Rules of Criminal Procedure, which provides that a court finding prejudicial joinder "may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." The court has previously described the standards for granting a Rule 14 severance in United States v. Messino, 855 F. Supp. 955, 970-71 (N.D. Ill. 1994), and refers to that discussion for background.
All motions urge essentially the same points, that highly prejudicial or disparate evidence of acts of various codefendants will unfairly influence the jury as to each defendant. It falls to this court to balance the "'costs of conducting separate trials and the possible prejudice inherent in a single trial.'" United States v. Diaz, 876 F.2d 1344, 1357 (1989) (quoting United States v. Moya-Gomez, 860 F.2d 706, 754 (7th Cir. 1988), cert. denied, 492 U.S. 908, 109 S. Ct. 3221 (1989)). Particularly in a conspiracy case, the trial court is to give deference to the public interest in joint trials. Id.; see also United States v. Donovan, 24 F.3d 908, 914-15 (7th Cir.), cert. denied, 130 L. Ed. 2d 187, 115 S. Ct. 269 (1994). Nonetheless, the Seventh Circuit has directed that "denial of a motion for severance may be an abuse of discretion if there is a great disparity of evidence between the moving defendant and his codefendants." Moya-Gomez, 860 F.2d at 765. In Moya-Gomez one of the defendants in a narcotics conspiracy case made the same argument made by some defendants here, that "the evidence of a conspiracy involving his codefendants was overwhelming as compared with the relatively slight evidence liking him to the conspiracy," id. at 765, and still the court concluded that the trial court's instructions solved any problem presented. The court has carefully considered the effect of prejudicial evidence and disparity of evidence for each moving defendant and concludes that severance is not necessary for any defendant, with proper instructions.
The "relevant inquiry is whether it is within the jury's capacity to follow the trial court's limiting instructions requiring separate consideration for each defendant and the evidence admitted against him." Id. The court does not see a problem in this case that jury instructions will not solve. The jury will be instructed upon the concept that the government must consider each defendant separately, and without belief that the jury is capable of following such an instruction no alleged coconspirators could ever be tried together. See Liefer, 778 F.2d at 1248. The court finds no special circumstances here warrant severance.
Christopher B. Messino also argues the danger of the jury visiting the sins of his father, Christopher Richard Messino, upon him. As far as confusing references to the respective defendants, this is less of a problem than Christopher B. Messino makes it out to be. As long as witnesses and lawyers make clear about whom they are taking, the jury will be able to differentiate between the two individuals. As far as the jury's ability to give fair, independent consideration to Chris, Jr., again the court believes it within the jury's capacity to consider each defendant separately, and that within this capacity is the ability, should they find Christopher Richard Messino guilty, to avoid leaping to the conclusion based on family affiliation that Christopher B. Messino is likewise guilty (or vice-versa).
Lawrence Thomas argues that he believes he is linked to the conspiracy only through the testimony of government witness George Thorpe. Thomas argues that Thorpe stole a substantial amount of money from Thomas, and therefore lacks credibility to testify against Thomas. Thomas in essence would have this court find on the basis of his brief description of the situation that Thorpe is per se incredible, leaving no evidence linking Thomas to the conspiracy. It falls to the jury to evaluate Thorpe's credibility, and Thomas will have the opportunity to attack the strength of the government's case against him at trial.
Daniel Shoemaker and Paul Messino's arguments are based on the prejudicial effect of evidence of acts of other alleged conspirators. Again, as discussed above, neither the effect of certain types of evidence or disparity of evidence warrants severance here. Christopher Richard Messino's prejudice argument likewise fails. In addition to other considerations discussed, evidence of his own violence has been proffered against Christopher Richard Messino, and he for one would be hard-pressed to urge severance based on disparity of evidence.
Accordingly, the court denies Defendant Christopher Richard Messino's Motion in Limine or in the Alternative Renewed Motion for Severance, Defendant Christopher B. Messino's Motion for Severance, Defendant Paul Messino's Motion for Severance, and Defendant Daniel C. Shoemaker's Motion for Rule Severance Based on Prejudicial Joinder.
Defendant Daniel C. Shoemaker's Motion to Reconsider the court's order regarding the government's original Santiago proffer is denied. 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. The Government's Supplemental Santiago Proffer on the Superseding Indictment 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 A. Messino's Motion to Exclude Evidence of "Granata Transactions" is denied. The Government's Motion in Limine to Admit Certain Evidence of the Charged Conspiracy is denied, the court reserving ruling on admission of evidence discussed therein. Defendant Thomas Hauck's Motion in Limine Pursuant to Rules 403 and 404(b) to Deny Admission of the Government's Proffered Evidence is denied. Defendant Christopher Richard Messino's Motion in Limine or in the Alternative Renewed Motion for Severance, Defendant Christopher B. Messino's Motion for Severance, Defendant Paul Messino's Motion for Severance, and Defendant Daniel C. Shoemaker's Motion for Rule Severance Based on Prejudicial Joinder are all denied.
Date: JAN 04 1995
JAMES H. ALESIA
United States District Judge