United States District Court, N.D. Illinois, Eastern Division
June 1, 2005.
United States of America
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION & ORDER
This case is before the Court on the following post-trial
motions filed by Defendant Angel Figueroa: motion for a new
trial; amended motion for a new trial; motion for judgment of
acquittal; and supplement to previously filed post-trial motions.
For the following reasons, the motions are denied.
On March 23, 2004, defendant was convicted at trial of
conspiracy to possess with intent to distribute heroin. The Court
ordered that post-trial motions be filed on or before April 27,
2004. On April 27, 2004, defendant filed his motion for a new
trial. On July 29, 2004, defendant filed his amended motion for a
new trial and his motion for judgment of acquittal. On February
22, 2005, defendant filed a supplement to his post-trial motions,
alleging his entitlement to a new trial based upon: (1) the
Court's refusal to grant a continuance, (2) the Court's denial of
defendant's request for a hearing on his motion to suppress, (3)
the Court's instructions regarding the government informant, (4)
the Court's failure to grant a mistrial based upon improper
argument by the prosecution, and (5) other unspecified errors. Of
these arguments, only arguments (3) and (4) had not been raised
by defendant in his initial post-trial motions. DISCUSSION
I. Motions For A New Trial and Motion Judgment of Acquittal
In his motions for a new trial, defendant argues that he is
entitled to a new trial for numerous reasons. As we have stated
earlier on the record, the Court finds that the verdict is not
against the weight of the evidence and that there was ample
evidence to support the jury's decision. Moreover, the trial
proceedings were fair to the defendant.
For these reasons, we deny defendant's motion for a new trial, his amended
motion for a new trial, and his motion for judgment of acquittal.
II. Supplemental Post-Trial Motions
First, it is questionable whether we have jurisdiction to
decide the February 22, 2005 supplemental post-trial motions.
See United States v. Hocking, 841 F.2d 735, 736 (7th Cir.
1988) (holding that a district court lacks the authority to
dispose of untimely filed post-trial motions). Federal Rule of
Criminal Procedure 29(c) provides that a motion for acquittal
"may be made or renewed within 7 days after the jury is
discharged or within such further time as the court may fix
during the 7-day period." Rule 33, governing motions for new
trial, employs the same seven-day rule, except for motions based
on newly-discovered evidence, which does not apply to this
defendant's motion. Rule 45(b) provides in turn that the Court
"may not extend the time for taking any action under Rules 29,
33, 34 and 35, except to the extent and under the conditions
stated in them." This Court, therefore, lacks the adjudicatory
power to dispose of an untimely motion under Rules 29, 33, 34,
and 35. Id; see also United States v. Brown, 742 F.2d 363, 368
(7th Cir. 1984) (Rule 33). Defendant's supplemental post-trial
motions are, therefore, denied as untimely. Second, even if this Court does have jurisdiction to dispose of
defendant's supplemental post-trial motions, the motions are denied on the
A. The Court's Refusal To Grant A Continuance.
We properly refused to continue the trial date when, shortly
before trial, the government executed a search warrant on one of
defendant's phones. As the government pointed out in open court
the week before trial, the evidence obtained from the search
warrant was hardly surprising to the defense: the government
searched one of six cell phones previously seized from defendant
and found that one of the ten most recent outgoing calls placed
from that phone had been placed to the phone of government
cooperator Noberto Rodriguez. Because the government had recorded
that phone call when it happened and because the defense was
aware of that recording, further evidence of that phone call was
not surprising and did not warrant any additional preparation by
the defense. When defendant asked for additional time to subpoena
further information about the phones, the Court pointed out that
defendant knew about the seized phones and could have subpoenaed
the information. Tr. 8,111-5.
For these reasons, defendant's supplemental post-trial motion
on this issue is denied.
B. The Court's Denial Of Defendant's Request For A Hearing On
His Motion To Suppress.
We denied defendant's motion to suppress without holding an
evidentiary hearing. Evidentiary hearings on motions to suppress
are not granted as a matter of course but are held only when the
defendant alleges sufficient facts which if proven would justify
relief. United States v. Villegas, 388 F.3d 317, 324 (7th Cir.
2004). Evidentiary hearings are warranted only when the
allegations and moving papers are sufficiently definite,
specific, non-conjectural and detailed enough to conclude that a substantial claims are
presented and that there are disputed issues of material fact
which will affect the out come of the motion. Id. at 324.
Furthermore, a district court is obligated to hold a hearing only
if the difference in facts is material that is only if the
disputed facts make a difference in the outcome.
Here, there were no disputed issues of material fact. Defendant argues
that there was a dispute about whether he gave consent for the vehicle
search. However, this is not a material dispute because, as this Court
ruled, defendant did not have a right to privacy in the car and his consent
was therefore not required. Tr. 312,11.9-16. As there was no disputed issue
of fact, we properly decided the motion on the papers and after hearing oral
C. The Court's Instructions Regarding The Government
Defendant claims that the Court erred because it did not
instruct the jury that a government informant cannot be
considered a participant in a conspiracy. Even if defendant had
raised this issue at trial, the Court's denial of the instruction
would still be proper because the instruction did not apply. The
government informant, Noberto Rodriguez, conspired with defendant
to pick up 4 kilograms of heroin in California and deliver the
heroin to defendant in Chicago. Rodriguez did not become a
government informant until after he had brought the heroin back
to the Chicago area from California. At trial, the government
introduced a variety of evidence showing the existence of the
conspiracy and defendant's participation in the conspiracy prior
to Rodriguez's becoming a government informant. For instance, the
government showed evidence of defendant's recruitment of
Rodriguez to pick up the drugs, telephone calls between defendant
and Rodriguez, Rodriguez's visit to California, and defendant and
Rodriguez's interaction with the seller of the heroin. The
government introduced evidence of defendant's continued participation in, and furtherance of, the
multi-defendant conspiracy (defendant and Guillermo Alvarez were
still involved) after Rodriguez had become a government
informant. Such evidence did not require an instruction about
Rodriquez's status as a conspirator or non-conspirator. To the
contrary, the instruction would have been inappropriate and
likely would have confused the jury. Therefore, defendant's
supplemental post-trial motion on this issue is denied.
D. The Court's Failure To Grant A Mistrial Based Upon Improper
Argument By The Prosecution.
Defendant argues that the prosecution engaged in improper
burden-shifting in closing argument by improperly suggesting that
defendant could have called Inspector Ray Zak to testify about
defendant's confession. The government did no such thing. In the
government's initial closing argument, the government did not
mention the issue of Inspector Zak testifying or not testifying.
The government merely named Inspector Zak as one of several law
enforcement officials who were present for defendant's confession.
Defendant concedes in his motion that defendant, in his
closing, asked the jury to imagine what Inspector Zak would have
said if called to testify, and said that the witness was within
the control of the government. In response to these remarks, the
government, in rebuttal, properly pointed out that the defense
had "as much of an opportunity to call Inspector Zak as we did."
Tr. 1088, 11. 14-24. Nothing about this statement is improper.
See United States v. Aldaco, 201 F.3d 979, 988 (7th Cir.
2000) (government permitted to note in rebuttal that both parties
may compel any witness to testify); United States v. Miller,
276 F.3d 370, 374 (7th Cir. 2001); United States v. King,
150 F.3d 644, 649 (7th Cir 1998). Therefore, defendant's
supplemental post-trial motion on this issue is denied.
For the foregoing reasons, the following post-trial motions of defendant
Angel Figueroa are denied: motion for a new trial (# 125); amended motion
for a new trial (# 135); motion for judgment of acquittal (#136); and
supplement to previously filed post-trial motions (# 157).
It is so ordered.
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