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UNITED STATES v. MESSINO

January 31, 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 pretrial motions in limine as well as a few remaining pretrial motions and matters. For background on this case see United States v. Messino, 871 F. Supp. 1035, 1995 WL 3877 (N.D. Ill. 1995), and other cases cited at page *1 of that opinion.

 I. TAINT ISSUES RELATED TO PREVIOUSLY SUPPRESSED EVIDENCE

 On January 18, 1995, the court conducted a taint hearing to determine what, if any, items would be suppressed as evidence because of their having been derived from leads attributable to already suppressed evidence. The hearings were on the motions of defendants Christopher Richard Messino and Clement A. Messino. Based upon the credible evidence of record the court makes the following findings of fact and conclusions of law. The court considers now only those items challenged in defendants' post-hearing submissions.

 Credibility Finding

 1. Special Agent Michael Priess, the sole witness at the hearing, was a credible witness in all respects. His testimony demonstrated detailed recall of facts surrounding the instant investigation.

 Challenges from Christopher Richard Messino

 2. The lease between Nick Sula and Christopher Richard Messino is attributable to an independent source of discovery.

 3. The government's identification and use of Jerry Haas and Lisa Batts as witnesses are attributable to an independent source of discovery.

 Challenges from Clement A. Messino

 4. The government's identification of Clement A. Messino's boat and place of purchase are attributable to an independent source of discovery.

 5. The government's identification and use of George Thorpe, John Richard, Phillip Webb, Ed Cozzi, and Frank Fuscone as witnesses are attributable to an independent source of discovery.

 6. The identity and significance of Chris Smith as a witness would have inevitably been discovered even absent utilization of tainted leads.

 6. Bank records from Interstate Bank of Oak Forest, Chesterfield Bank, Beverly Bank, Thornridge State Bank, Evergreen Plaza Bank, Heritage Bank of Crestwood, First National Bank of Harvey, and First National Bank of Blue Island, as well as any credit card records would, at the very least. have been inevitably discovered even absent utilization of tainted leads.

 B. Conclusions of Law

 1. The exclusionary rule prohibits "the introduction of evidence obtained as the direct or indirect result of an illegal search." United States v. Markling, 7 F.3d 1309, 1315 (7th Cir. 1993) (citing Murray v. United States, 487 U.S. 533, 536, 108 S. Ct. 2529, 2532, 101 L. Ed. 2d 472 (1988)).

 2. Various doctrines define whether evidence not primarily tainted was obtained as a result of the primary illegality. See generally 4 WAYNE R. LAFAVE, SEARCH & SEIZURE ┬ž 11.4(a) (2d ed. 1987).

 3. When the disputed evidence is attributable to a source independent of the illegally obtained primary item, the independent source doctrine renders the evidence admissible despite the primary taint. Markling, 7 F.3d at 1314-18, 1318 n.1.

 4. When the disputed evidence inevitably would have been discovered by lawful means, the inevitably discovery doctrine renders the evidence admissible despite the primary taint. See United States v. Jackson, 901 F.2d 83, 84-85 (7th Cir. 1990); Markling, 7 F.3d at 1318 n.1.

 C. Holding

 No further items are suppressed as evidence because of tainted leads.

 II. GOVERNMENT'S CONSOLIDATED PRE-TRIAL MOTION IN LIMINE

 The government's motion raises eight separate evidentiary issues.

 A. Impeachment of Joseph Granata

 For reasons discussed under Clement Messino's motion in limine, the government's motion in this regard is granted.

 B. Evidence and Argument of Lawfulness and Non-corrupt Conduct

 The government's motion in this respect cannot be evaluated absent the more specific context provided at trial. Accordingly, in this respect said motion is denied.

 C. Evidence and Argument of Outrageous Government Conduct

 The government's motion in this respect cannot be evaluated absent the more specific context provided at trial. Accordingly, in this respect said motion is denied.

 No defendant has responded to this part of the motion by asserting a right to argue entrapment in opening statements. Accordingly, in this regard the government's motion is denied as moot. *fn1"

 E. Mention of Prior Prosecution Experience by Defense Counsel

 Clement Messino's attorney, as far as the court is aware, is the only person to whom this argument is directed. Counsel represents he has no intention to mention his prosecution experience. On the off chance another attorney or a witness might introduce the fact of counsel's prosecution experience, the court holds that the subject is irrelevant, and accordingly grants the motion in this regard. FED. R. EVID. 401, 402.

 F. Evidence and Argument About Draft Transcripts

 The government does not appear to dispute that a draft transcript prepared by a witness may be used to impeach that witness. Rather the government objects to using the draft against another witness, which would not be proper impeachment. Accordingly in this regard the government's motion is granted. *fn2"

 G. Allegations of Witness Wrongdoing Not Involving Dishonesty

 The government here seeks to regulate impeachment of its witnesses at trial. Without context, the court must reserve ruling, and accordingly in this respect the government's motion is denied.

 H. Maximum Penalties Faced by Witnesses

 The government wants to exclude introduction of the statutory maximum penalty, arguing that such a number is misleading given the realities of sentencing under the United States Sentencing Guidelines. Such evidence is Rule 401 relevant to the issue of credibility. To the extent the statutory maximum does not tell the whole story, the government is free to explore that on re-direct examination. Accordingly, in this regard the government's motion is denied.

 In conclusion, the Government's Motion in Limine is granted in part, denied in part, and denied as moot in part.

 III. GOVERNMENT'S MOTION FOR LEAVE TO RECALL CERTAIN WITNESSES DURING ITS CASE IN CHIEF

 In order to present its case in a "chronological, coherent manner," the government asks to be able to recall certain witnesses during its case in chief. The court has the discretionary authority to allow the case in chief to proceed as the government suggests. See United States v. Dent, 984 F.2d 1453, 1463 (7th Cir.) (citing cases). cert. denied. 126 L. Ed. 2d 129, 114 S. Ct. 169 and 209 (1993); FED. R. EVID. 611(a). The court agrees with the government that properly executed, its proposal would be beneficial to the jury's following the government's case.

 Accordingly, the Government's Motion for Leave to Recall Certain Witnesses During Its Case in Chief is granted.

 IV. 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

 Defendant Christopher Richard Messino's motion, phrased as it is, seeks merely to enforce Rules 602, 701 and 802. As long as the court is careful to note that defendant's examples of enforcement of these rules are not necessarily valid, the motion may be granted.

 IV. DEFENDANT CHRISTOPHER RICHARD MESSINO'S MOTION IN LIMINE TO PRECLUDE EVIDENCE REGARDING CHRISTOPHER RICHARD MESSINO'S EMPLOYMENT AS A POLICE OFFICER

 Defendant Christopher Richard Messino's Motion in Limine to Preclude Evidence Regarding Christopher Richard Messino's Employment as a Police officer is denied. FED. R. EVID. 401, 402, 403.

 V. DEFENDANT CHRISTOPHER RICHARD MESSINO'S OMNIBUS MOTION IN LIMINE

 Defendant Christopher Richard Messino seeks to preclude introduction of sixteen ...


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