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November 2, 2004.


The opinion of the court was delivered by: BLANCHE MANNING, District Judge


A jury found Defendant Jose Roberto Moran guilty on one count of possession with intent to distribute cocaine, in violation of 18 U.S.C. § 841(a)(1). This matter comes before the Court on Defendant Jose Moran's Motion For New Trial Or For Judgment of Acquittal [71-1]. For the reasons set forth below, the Court DENIES this motion.


  Moran is an independent long-haul truck driver, who up until the time of his arrest owned and operated his own truck. On July 15, 2002, the police arrested Moran at a truck stop just outside of Chicago after finding 48 kilograms of cocaine in two suitcases inside the trailer attached to his truck. Officer Michaels, the arresting officer, testified that he initially approached Moran's truck at a truck stop for a "consensual encounter." The officer stated that Moran's truck caught his attention because it had "indicators" which the police look for in spotting trucks carrying contraband. These indicators included the fact that Moran's truck had a high Department of Transportation Number, was owner operated, based in Los Angeles (which is a source city for drugs), had a larger than usual padlock on the trailer, and was carrying two passengers. After questioning Moran about his passengers, load, destination, and why he was in Chicago, Officer Michaels asked Moran if he could search his truck. Moran consented to the search. After Moran opened the padlock, Officer Michaels climbed into the trailer. He immediately noticed that all the pallets of produce looked in tact and were lying flat on the bed of the trailer, except for a single pallet, which was leaning against the wall of the trailer. Upon looking closer at this pallet, Officer Michaels saw what appeared to be a suitcase under the pallet. After closer inspection, Officer Michaels found two suitcases, which contained numerous bundles of what appeared to be cocaine. Officer Michaels then arrested Moran and read him his Miranda rights. An analysis revealed that the suitcases contained 48 kilograms of cocaine.

  After a trial, in which Moran took the stand, a jury found him guilty of possession with intent to distribute cocaine.


  Moran now moves this Court for a judgment of acquittal, or in the alternative for a new trial, pursuant to Federal Rules of Criminal Procedure 29 and 33. In support of his motion, Moran has listed a laundry list of reasons, many of which lack any authority or specific citations to the record, and therefore, need not be addressed. See, e.g., United States v. Lanzotti, 205 F.3d 951, 957 (7th Cir. 2000). Nevertheless, this Court will address each of his contentions, which can be grouped into four categories: (1) sufficiency of evidence; (2) erroneous evidentiary rulings; (3) improper jury instructions; and (4) objections during closing arguments. Before discussing these contentions, however, the Court will first review the standards of review for Rules 29 and 33. I. Standards of Review for a Rule 29 Judgment of Acquittal and a Rule 33 Motion for a New Trial

  Federal Rule of Criminal Procedure 29 governs Moran's insufficiency of evidence argument. Under Rule 29, a court may acquit a defendant on "one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses." When reviewing a motion for judgment of acquittal pursuant to Rule 29, the Seventh Circuit mandates that the district court determine:
whether at the time of the motion there was relevant evidence from which the jury could reasonably find [the defendant] guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to the government . . . bearing in mind that it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences.
United States v. Reed, 875 F.2d 107, 111 (7th Cir. 1989). In short, the court views all the evidence in the government's favor and is absolutely barred from second-guessing the jury's credibility determinations or findings of fact. Id. Instead, the court merely assesses the record to determine if all the admissible evidence supports the defendants' adjudication of guilt beyond a reasonable doubt. Id.

  Rule 33 permits the Court to order a new trial "in the interests of justice." Unlike a motion for acquittal under Rule 29, in ruling on a motion for a new trial under Rule 33, the court is not required to view the evidence in a light most favorable to the government. United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999); 58 Am. Jur. 2d New Trial § 391(2001). Despite the more lenient standard, however, Rule 33 motions are nevertheless disfavored and courts generally should only grant in "the most extreme cases." United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998). See also United States v. Kamel, 965 F.2d 484, 490 n. 7 (7th Cir. 1992). The trial court "may not reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable." Reed, 875 F.2d at 113. The court may only order a new trial if "the verdict is against the manifest weight of the evidence" and a guilty verdict would result in a "miscarriage of justice." Washington, 184 F.3d at 657.

  II. Sufficiency of Evidence

  Moran was found guilty on one count of possession with intent to distribute cocaine in violation of 18 U.S.C. § 841(a)(1). To prove possession with intent to distribute under section 841, the Government was required prove beyond a reasonable doubt that Moran: (1) knowingly or intentionally possessed cocaine; (2) with intent to distribute it; and (3) knew cocaine was a controlled substance. United States v. Durades, 929 F.2d 1160, 1168 (7th Cir. 1991). Moran contends that the Government failed to prove beyond a reasonable doubt that he knew there was cocaine in his truck.

  Contrary to Moran's assertions, it was permissible for the Government to use circumstantial evidence to prove that Moran had knowledge of the cocaine. Indeed, the Seventh Circuit holds that "[i]n narcotics cases, knowledge must often be proved by circumstantial evidence." United States v. Hernandez, 13 F.3d 248, 252 (7th Cir. 1994). See also United States v. Valencia, 907 F.2d 671, 678 (7th Cir. 1990).

  After viewing the trial and carefully observing the testimony and the demeanor of the witnesses, this Court finds that the Government presented sufficient circumstantial evidence for the jury to reasonably find beyond a reasonable doubt that Moran knew that there was cocaine in his truck. For example, how and why Moran found his way to a truck stop outside of Chicago leads to a reasonable inference that Moran had knowledge of the drugs. The produce in Moran's truck came from three different locations in California, which Moran picked up on July 12 and 13 of 2002. The "trucking broker," who gave Moran his pick-up instructions, testified that Moran called him on July 11 and stated that he was in Los Angels and ready to work. Based on this information, the broker prepared a "load sheet," which called for Moran to pick up three loads of produce, the first pick-up being in Los Angeles with the other two in the "Central Valley" of California. After picking up the last load in Central Valley, Moran was to proceed cross country to deliver the produce to Maryland.

  Moran, however, did not follow the "load sheet." According to the broker, the "load sheet" provided the fastest delivery time, which would thereby earn Moran more money on his delivery. Instead, on July 12, Moran drove his empty truck from Los Angels to the Central Valley, where he picked up two loads before heading back to Los Angeles to spend the night. Moran then picked up his third and final load of produce in Los Angeles around 11:00 a.m. on July 13. Based on the reading from ...

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