United States v. Messino

Citations: 917 F. Supp. 1303; 1996 U.S. Dist. LEXIS 6110; 1996 WL 110322Docket: 93 CR 294

Court: District Court, N.D. Illinois; March 11, 1996; Federal District Court

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On February 12, 1996, an evidentiary hearing was conducted concerning Ted Borowski's third-party claim to a 1957 Pro-Mod race car named "Shake, Rattle, Run," which was ordered forfeited in a criminal case involving defendants Clement and Christopher Richard Messino. The jury had previously issued a special verdict of forfeiture against the car, leading to preliminary orders of forfeiture in August 1995. 

Ted Borowski, a competitive race car driver and owner of Ted Borowski Race Enterprises, Inc., claimed ownership of the car and had filed a claim in a related civil forfeiture proceeding in 1991. The original car, owned by Dick Messino, had been raced prior to Borowski's involvement. A contract between Dick Messino and Jerry Haas Race Cars, Inc. was established for the car's construction, with both Borowski and Messino making payments towards it. Borowski testified that a racing agreement signed on August 31, 1990, stipulated that Messino held no ownership interest in the car, and he claimed full ownership after the first racing season.

The race car was seized from Dick Messino's residence on September 13, 1991, the same day federal agents interviewed Borowski, during which he did not disclose the racing agreement. The car was typically stored at Messino's home and bore the lettering "Messino Bros."

The civil forfeiture claim by Borowski does not reference the racing agreement with Dick Messino. During a March 30, 1992 hearing, Borowski testified about his claim to a race car, stating that Messino was a sponsor who provided funding without expecting a return beyond advertising. The race car lacked any branding for Auto Abbey, a business associated with the Messinos. Borowski did not mention the racing agreement during the hearing and implied that he was uncertain about ownership of the car. He also clarified that he was present in relation to the car he drove, not one he owned. 

Subsequent interviews with federal agents revealed that Borowski acknowledged driving a race car named "Shake, Rattle and Run," owned by the Messinos, and stated he was not paid directly but benefited from advertising on the car. He did not claim ownership during these interviews. He mentioned to agent Michael Priess that there was a written agreement for the car to become his at the season's end, but it was seized before that. 

Witness testimonies during the criminal trial of Clement and Christopher Richard Messino indicated that both Messinos owned the race car, and a payment of $2,725 for the car was made via a check from Christopher R. Messino's account.

A $9,000 payment for a race car was made by Sam Delisi, who testified that Dick Messino instructed him to purchase a cashier's check payable to Jerry Haas. John Platek also testified about submitting an $8,000 check to Haas on behalf of Markham Cycle at Clement Messino's request. During a February 12, 1996, hearing, various witnesses provided testimony, including Ted Borowski, who was not deemed credible due to inconsistencies with prior statements and contradictions with other testimonies regarding the ownership of the race car. The court found it implausible that Dick Messino, who had invested significantly in the car named "Shake, Rattle and Run," would give it away after one season, leading to the conclusion that Borowski's racing agreement with Messino was likely a sham. In contrast, Special Agents John Sullivan and Michael Priess were found to be credible witnesses, with their testimonies aligning consistently. Other witnesses, including Kathy Lewis, Lou Trench, John Platek, Sam Delisi, and Jerry Haas, did not testify at the hearing, limiting the court's ability to assess their credibility. However, the jury at the criminal trial, which found those witnesses credible, returned a special verdict of forfeiture against the race car.

The court will assess the testimony and evidence from the February 12, 1996 hearing alongside relevant portions of the criminal case record related to the forfeiture of the race car, as stipulated by 21 U.S.C. 853(n)(5). For claimant Borowski to prevail in claiming the race car, he must prove by a preponderance of the evidence that he possesses a legal right, title, or interest in the vehicle, which invalidates the forfeiture order because his interest is superior to those of Christopher Richard or Clement Messino at the time the acts leading to forfeiture occurred, as outlined in 21 U.S.C. 853(n)(6)(A). Borowski did not meet this burden of proof, leading to the denial of his claim to the race car "Shake, Rattle and Run."