Accordingly, Defendant Christopher Richard Messino's Motion to Produce Exculpatory or Impeaching Information is denied.
VIII. DEFENDANT CLEMENT A. MESSINO'S MOTION IN LIMINE TO PRECLUDE CERTAIN EVIDENCE
Defendant Clement Messino raises five issues.
A. Granata Transactions
The government apparently has defendant Clement Messino on tape with Joseph Granata, who was transmitting the conversation on behalf of the government. The government wants to play the tapes without putting Granata himself on the witness stand. Clement Messino's motion in this regard seeks to prevent the government from playing the tapes unless Granata testifies.
The court finds the Seventh Circuit's decision in United States v. McClain, 934 F.2d 822 (7th Cir. 1991), instructive. In McClain, the Seventh Circuit approved admission of tapes even where the government did not put the non-defendant participant in the conversation on the stand. Id. at 832. The district court also in that case properly denied the opportunity of the defendant to impeach the non-defendant should the defendant call him. Id. The foundational and Sixth Amendment issues here are no different than in McClain.6
This is not a ruling on foundation issues or any other aspect of any Granata tapes. This is merely a ruling on whether some per se requirement prevents the government from introducing the Granata tapes without Granata. The court finds no such requirement, and so in this regard denies defendant's motion.
Defendant has, however, noted transcript portions that the court agrees are objectionable and will exclude. Specifically, defendant objects to September 15 and 16, 1991, references potentially to intimidating or even murdering a government witness. Both instances have two problematic aspects. First, it is not entirely clear that Clement Messino in either instance is agreeing to or encouraging such intimidation. Second, either through inaudibility or truncated transmission the transcripts are incomplete. When the subject matter is so potentially inflammatory, the better course is to exclude those portions of the transcripts. In this regard, therefore, defendant's motion is granted.
B. Pamela Messino
There is no question that Pamela Messino and defendant Clement Messino have been legally married since 1968. They are apparently married now and were married at all times relevant to this case. Defendant's motion raises the implications of that fact for the evidence in this case, based on the confidential marital communications privilege. United States v. Keck, 773 F.2d 759, 767 (7th Cir. 1985).
The court does not reach issues of the confidential marital communications privilege, because there is a threshold issue of whether the adverse spousal testimony privilege will apply. See Keck, 773 F.2d at 767. By the government's own description, this privilege gives a person presently married to a criminal defendant the right not to testify against his or her spouse. See United States v. Fulk, 816 F.2d 1202, 1205 (7th Cir. 1987). The government has two reasons why the adverse spousal testimony privilege will not apply: first, Pamela Messino is not asserting the privilege (as only she can assert it); and second, the marriage is a sham.
As far as the first point. Clement Messino's counsel's information is that Pamela Messino will assert the privilege. (See Defendant Clement Messino's Reply Memorandum in Support of Motion in Limine to Exclude Certain Evidence at 9 n.5.) Therefore, questions under this privilege may arise. As far as the second point, as the strength of the marriage is contested by defendant, the government would have to prove up any exception, or at least present uncontested facts on which the exception would be based. See generally United States v. Clark, 712 F.2d 299 (7th Cir. 1983). Such a prove up would undoubtedly resolve many of the issues as to the confidential marital communications privilege, which Clement Messino himself can invoke. Nonetheless, the adverse spousal testimony privilege is a threshold matter.
The court reserves the factual determinations necessary to rule on the privileges until trial, and accordingly denies defendant's motion in this regard.
C. Michael Gubbins
As the briefing came to a close, all defendant wants here is to obligate the government, before presenting attorney-client communications, to establish out of hearing of the jury that an exception to the privilege operates. This is a safe and reasonable request, so the motion in this regard is granted.
D. "Post-conspiracy" Evidence
Defendant here challenges transcript portions from five dates: January 7, 1992; January 28, 1992; March 3, 1992; March 15, 1993; and April 7, 1993.
1. January 7 and 28, 1992
The court agrees that the January 7 and 28, 1992, statements are, as a preliminary matter, admissible under Rule 801(d)(2)(E).
2. April 7, 1993
The government concedes that the April 7, 1993, conversation should be redacted as in Exhibit E-5 to defendant's motion.
4. March 3 and 15, 1993
As to the March 3 and 15, 1992, conversations, the government's position is that while those conversations admittedly took place after the end of the charged conspiracy (and therefore Rule 801(d)(2)(E) does not apply), the proposed redactions are too broad.
Since this is not an 801(d)(2)(E) admission, issues arise under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). "[A] defendant is deprived of his rights under the Confrontation Clause when his nontestifying codefendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant." Richardson v. Marsh, 481 U.S. 200, 201-02, 107 S. Ct. 1702, 1704, 95 L. Ed. 2d 176 (1987). The Richardson court makes clear that the references to Clement Messino that he notes do not present a Bruton problem because those references require "linkage" to Clement Messino before they implicate him. Id. at 208, 107 S. Ct. at 1708. The government is right here, and therefore the redactions should be as the government proposes. Accordingly. in this regard defendant's motion is granted in part and denied in part.
E. Other Issues
Defendant wishes to avoid introduction any evidence of his incarceration. The government's most important response, with which defendant never comes to grips, is that paragraph eleven of Count I of the Superseding Indictment specifically charges that Clement Messino directed co-conspirators while incarcerated. Introduction of evidence of incarceration is therefore hard to avoid.
In this regard defendant's motion is denied.
The government does not intend to introduce specific evidence of defendant's escape, so the motion in this regard is denied as moot.
3. Employment as Police Officer
The motion in this regard is denied. FED. R. EVID. 401, 402.
4. Organized Crime References
The government does not intend to introduce references to organized crime, except perhaps for a statement by Clement Messino that he is a good gangster because he used to be a police officer. The court has been provided a paraphrased snippet of testimony from a witness about whom it has heard little or nothing in the context of this case. The court must therefore reserve ruling, and the motion is accordingly denied.
In conclusion Defendant Clement Messino's Motion in Limine to Exclude Certain Evidence is granted in part, denied in part, and denied as moot in part.
IX. DEFENDANT DONALD SOUTHERN'S MOTION IN LIMINE TO PRECLUDE VARIOUS INADMISSIBLE STATEMENTS
Defendant Donald Southern raises two evidentiary issues regarding (1) statements of presumption, guesses or conclusions by lay witnesses, and (2) testimony of Southern's role without personal knowledge, unless foundation is laid or Rule 801(d)(2)(E) applies. This is in the category of motions to have the Federal Rules of Evidence apply to the trial.
Accordingly, Defendant Donald Southern's Motion in Limine to Preclude Various Inadmissible Statements is granted.
X. DEFENDANT CHRISTOPHER B. MESSINO'S MOTION IN LIMINE WITH REGARD TO CERTAIN EVIDENCE
Christopher B. Messino raises two evidentiary issues.
A. Evidence of Violence of Christopher B. Messino
The government rightly points out that the court has reserved ruling here. Accordingly, in this respect the motion is denied.
B. Evidence Regarding Isolated Incidents of Small Controlled Substance Deliveries
The government will attempt to prove that defendant sold small amounts of cocaine during the course of and in furtherance of the conspiracy. Furthermore, defendant's motion is too vague to warrant a ruling that all incidents fitting into defendant's description should be excluded. Accordingly, in this respect the motion is denied.
Defendant Christopher B. Messino's Motion in Limine with Regard to Certain Evidence is denied.
XI. DEFENDANT BLAISE MESSINO'S MOTION IN LIMINE REGARDING THE INTRODUCTION OF CERTAIN EVIDENCE
Defendant Blaise Messino raises two issues.
A. Possession of Firearms
At least as a preliminary matter, evidence of possession of firearms is admissible on a tool-of-the-trade theory.
Issues regarding evidence of violence have been reserved for trial.
Defendant Blaise Messino's Motion in Limine Regarding the Introduction of Certain Evidence is denied.
XII. DEFENDANT PAUL MESSINO'S MOTION IN LIMINE REGARDING INTRODUCTION OF CERTAIN EVIDENCE
Paul Messino's motion in conclusory fashion raises seven evidentiary issues.
A. Evidence of Robberies or a Fight
The government either does not intend to introduce such evidence or correctly notes the motion is not specific enough to support a ruling. In this respect the motion is denied.
B. Evidence Regarding His Possession of Weapons
In this respect defendant's motion is denied. The evidence may be admissible on a tool-of-the-trade theory.
C. Evidence of Violence
In this respect defendant's motion is denied, the court reserving ruling.
D. Evidence of Drug Deliveries Outside of Charged Conspiracy
Defendant's cursory request here is too vague and overbroad to support a ruling. Accordingly, the motion in this respect is denied.
E. Evidence of Involvement with Stolen Vehicles
The government correctly notes that the court has previously reserved ruling on this issue. In this respect the motion is denied.
F. Evidence that Paul Messino Traveled to Florida to Pick Up Cocaine for Clement Messino or Others
Among other things, this conduct would seem to be part of the heart of the case against Paul Messino. The motion in this regard is without basis and is denied.
G. Evidence that Defendant Sold Cocaine to Confidential Informant Unless Informant is Produced for Cross-examination
The government argues that there is no such requirement. However, any legal issue here is mooted because the government intends to produce informants in that category. In this regard the motion is denied as moot.
In conclusion, Defendant Paul Messino's Motion in Limine Regarding Introduction of Certain Evidence is denied in part and denied as moot in part.
No further items are suppressed as evidence because of tainted leads. Government's Motion in Limine is granted in part, denied in part, and denied as moot in part. Government's Motion for Leave to Recall Certain Witnesses During Its Case in Chief is granted. Defendant Christopher Richard Messino's Motion in Limine to Preclude Incompetent Law Opinion Evidence, Evidence Based upon Lack of Personal Knowledge and Evidence Based upon Hearsay is granted. Defendant Christopher Richard Messino's Motion in Limine to Preclude Evidence Regarding Christopher Richard Messino's Employment as a Police Officer is denied. Defendant Christopher Richard Messino's Omnibus Motion in Limine is granted in part, denied in part, and denied as moot in part. Defendant Christopher Richard Messino's Motion for Additional Peremptory Challenges is denied. Defendant Christopher Richard Messino's Motion to Produce Exculpatory or Impeaching Information is denied. Defendant Clement Messino's Motion in Limine to Exclude Certain Evidence is granted in part, denied in part, and denied as moot in part. Defendant Donald Southern's Motion in Limine to Preclude Various Inadmissible Statements is granted. Defendant Christopher B. Messino's Motion in Limine with Regard to Certain Evidence is denied. Defendant Blaise Messino's Motion in Limine Regarding the Introduction of Certain Evidence is denied. Defendant Paul Messino's Motion in Limine Regarding Introduction of Certain Evidence is denied in part and denied as moot, in part.
Date: JAN 31 1995
JAMES H. ALESIA
United States District Judge