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UNITED STATES v. MESSINO

March 11, 1996

UNITED STATES OF AMERICA
v.
CLEMENT MESSINO



The opinion of the court was delivered by: ALESIA

 On February 12, 1996, the court held an evidentiary hearing on the third-party claim of Joseph Messino to a 1991 Harley Davidson Sturgis motorcycle ("motorcycle") and a 19.15 percent interest in a 1963 Chevrolet Corvette ("Corvette"), both of which were ordered forfeited in connection with the above-captioned criminal case.

 The court, based upon the credible evidence of record, makes the following Findings of Fact and Conclusions of Law.

 I. 1991 Harley Davidson Sturgis Motorcycle

 A. FINDINGS OF FACT

 Facts

 1. The court entered a preliminary order of forfeiture against the motorcycle on August 21, 1995, as a substitute asset against the money judgment special verdict of forfeiture against Clement Messino.

 2 Joseph Messino, the claimant to the motorcycle, is the son of Clement Messino.

 3. The motorcycle was a defendant in the civil forfeiture proceeding United States v. Michelle's Lounge, No. 91 C 5783 (N.D. Ill.). Joseph Messino filed a claim to the motorcycle in that proceeding in October 1991.

 4. The receipt for the motorcycle lists Joseph Messino's name and an address of 15201 South Lavergne, Oak Forest, Illinois.

 5. Joseph Messino never lived at 15201 South Lavergne, Oak Forest, Illinois.

 6. Clement Messino lived at 15201 South Lavergne in February 1991 when the motorcycle was purchased.

 8. Perrott testified that Clement Messino paid for the motorcycle on three separate occasions.

 9. On February 5, 1991, Clement Messino gave Perrott a $ 2,000 deposit on the motorcycle.

 10. On February 9, 1991, Clement Messino gave Perrott cashier's checks totalling $ 6,000 for the motorcycle.

 11. On February 14, 1991, Clement Messino gave Perrott $ 4,000 as the final payment for the purchase of the motorcycle. On this date, Clement and Joseph Messino picked up the motorcycle. 12. The parties in the criminal trial stipulated that a series of seven checks from three different banks totalling $ 8,000 were used towards the purchase of the motorcycle: Check No. Bank Remitter Amount 417240876 A.J. Smith Robin Smith $ 1,000 417240877 A.J. Smith Robin Smith $ 1,000 417240908 A.J. Smith Daniel George $ 1,000 417240909 A.J. Smith Daniel George $ 1,000 434558 Mutual Bank Joseph Messino $ 2,000 2461072882 Interstate Kathy Lewis $ 1,000 2461072883 Interstate Kathy Lewis $ 1,000

 13. Robin Smith was Clement Messino's girlfriend from the early 1980s until 1987. Daniel George married Robin Smith after Clement Messino went to prison in 1987.

 14. Kathy Lewis was Clement Messino's girlfriend between 1989 and 1992.

 15. Joseph Messino purchased one cashier's check for the motorcycle.

 16. Joseph Messino testified at the hearing before this court that during the years preceding the time Clement bought the motorcycle, Joseph Messino had worked and earned an income. He testified that he saved money from those earnings by giving his paychecks or money to his father to keep for him. Joseph Messino testified that he had saved about $ 8,000 by February 1991. He also testified that the remaining $ 4,000 spent to buy the motorcycle was money his father loaned him and which he paid back in the year that followed February 1991.

 17. In a meeting with the judge in the civil forfeiture proceeding, Michelle's Lounge, Joseph Messino's attorney represented to the judge that the motorcycle was bought for $ 10,500, with half of the money coming from money Joseph Messino received from his grandmother as a graduation present, and the rest from money Joseph Messino earned himself.

 18. Perrott testified at the criminal trial that Clement Messino told him to put Joseph Messino's name and the address of 15201 South Lavergne, Oak Forest, Illinois, on the receipt for the motorcycle.

 19. Perrott testified at the criminal trial that Clement Messino told him if anyone asked, the ...


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