The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
The United States of America (the "Government") brought a
one-count indictment against Defendants, Eduardo Favela, Jr. and
Aurora Alaya, for conspiring to possess with intent to distribute
marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1). On
April 1, 2004, after a trial by jury, Defendants were found
guilty. Defendant Alaya filed a post-trial motion challenging the
specific in-court identification of Alaya made at trial by Drug
Enforcement Agency Task Force Officer Roberto Guerra; and, in a
Memorandum Opinion and Order dated May 4, 2005, Defendants were
granted a new trial.
Thereafter, Defendants filed a number of motions. Both
Defendants seek a ruling on their motions for judgment of
acquittal. Also presently before the Court are: (1) Alaya's
Motion to Bar Second Prosecution; (2) Alaya's Motion for
Production of Documents and Other Tangible Items; (3) Favela's
Motion in Limine to Bar Part of the Testimony of the
Government's Expert at Retrial of this Case; and (4) Favela's
Motion to Reconsider the Denial of His Motion to Suppress
Identification of Officer Roberto Guerra. ANALYSIS
Defendants' Motion for Judgment of Acquittal
Motions for judgment of acquittal should only be granted when
"the evidence is insufficient to sustain a conviction."
Fed.R.Crim.P. 29(a). A defendant "faces a nearly insurmountable hurdle
[because courts] consider the evidence in the light most
favorable to the Government, defer to the credibility
determination of the jury, and overturn a verdict only when the
record contains no evidence, regardless of how it is weighed,
from which the jury could find guilt beyond a reasonable doubt."
United States v. Blassingame, 197 F.3d 271, 284 (7th Cir. 1999)
(quoting United States v. Moore, 115 F.3d 1348, 1363 (7th Cir.
1997). Thus, in viewing the evidence in the light most favorable
to the Government, if "any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt," a defendant's motion for judgment of acquittal should be
denied. United States v. Benjamin, 116 F.3d 1204, 1206 (7th
Under 21 U.S.C. § 841(a)(1), it is unlawful to knowingly
"manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance."
Under 21 U.S.C. § 846, the penalties of § 841 are extended to
those who conspire or attempt to commit an offense under § 841.
United States v. Patterson, 348 F.3d 218, 228 (7th Cir. 2003)
(Patterson). "A conspiracy under 21 U.S.C. § 846 requires that
(1) two or more people agreed to commit an unlawful act and (2)
the defendant knowingly and intentionally joined in the
agreement. No overt act is required." Patterson,
348 F.3d at 225 (citation omitted). To demonstrate an agreement existed, the
government may rely on inferences and circumstantial evidence.
Patterson, 348 F.3d at 225-26 (citations omitted). Favela argues that there was insufficient evidence to sustain
his conviction. However, at trial, the Government introduced
evidence consisting of: (1) Detective Fernando Carvajal's
observation that a male Hispanic, who Detective Carvajal
identified as Favela, was carrying boxes of marijuana; (2)
Officer Geoffrey Farr's and Officer Jeff Werniak's testimonies
identifying Favela as the driver of an sport utility vehicle
which drove behind another automobile that was transporting
narcotics; and (3) Drug Enforcement Agency Special Agent Nancy
Evans's testimony that marijuana traffickers use escort vehicles
driven by trusted persons to follow vehicles carrying narcotics.
Based on the above, when viewed in the light most favorable to
the Government, the Government presented evidence, from which the
jury could find guilt beyond a reasonable doubt, that Favela
joined with others with the intent to distribute or possess
marijuana and that Favela knowingly participated in an agreement
to commit this unlawful act.
Alaya also argues that, without the suppressed identification
of Alaya by Officer Guerra, there was insufficient evidence to
support her conviction. In support of this argument, Alaya
contends that the ruling for a new trial stated circumstantial
evidence alone was not sufficient to support a conviction.
However, that statement was made in the context of considering a
motion for a new trial, which is governed by a different legal
standard than a motion for judgment of acquittal.
Even without the suppressed identification of Alaya, the
Government adduced at trial that: (1) Detective Carvajal observed
a five-foot-three-inch "chubby" Hispanic female with light brown
hair a description similar to Alaya's appearance take the
keys to the van containing marijuana from the confidential
informant; (2) the smell of the marijuana in the van was
noticeable, and there was no division between the passenger
compartment and the cargo compartment of the van; (3) Officer Roberto Guerra observed a
female, whom he identified as Alaya, return the van to a
restaurant parking lot; and (4) pictures, which were taken on the
day of the marijuana delivery, identifying Alaya and the clothing
she was wearing. Accordingly, when viewed in the light most
favorable to the Government, the Government presented evidence,
from which the jury could find guilt beyond a reasonable doubt,
that Alaya joined with others with the intent to distribute or
possess marijuana and that Alaya knowingly participated in an
agreement to commit this unlawful act.
Alaya's Motion to Bar Second Prosecution
Alaya contends that a retrial is barred by the Double Jeopardy
Clause of the Fifth Amendment of the United States Constitution
that provides "nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb." Improperly
admitted evidence does not bar a retrial on double jeopardy
grounds. United States v. Rogers, 387 F.3d 925, 935 (7th Cir.
2004). Because Alaya's motion for a judgment of acquittal has
been denied, jeopardy has not attached; and her Motion to Bar
Second Prosecution is denied.
Alaya's Motion for Production of Documents and Other Tangible
Alaya also seeks an order requiring the Government to produce:
(1) all tape-recorded conversations and transcripts thereof the
confidential informant had with Defendants in July 2000; (2) all
reports and statements, written or oral, of all information the
confidential informant provided to any person regarding the
description of all persons the confidential informant met with or
observed concerning the pick-up and delivery of marijuana in July
2000; and (3) complete copies of the two photographic line-ups
provided to the confidential informant by Special Agent Moussiaux
on October 25, 2000, as described in Special Agent Moussiaux's report of October 30, 2000. The Government states that it has
turned over all the requested discovery and will continue to
comply with its discovery obligations. Therefore, Alaya's motion
is granted; and the Government is ordered to continue to comply
by delivering any additional material covered by this motion as
it becomes known and available to the Government.
Favela's Motion in Limine to Bar Part of the Testimony of the
Government's Expert at Retrial of this Case
Favela seeks to bar part of the testimony of Drug Enforcement
Agency Special Agent Nancy Evans. Specifically, Favela seeks to
bar any testimony or argument regarding whether Special Agent
Evans may opine if people assisting in the transportation of
marijuana know they are transporting marijuana. Favela also seeks
to bar the Government from arguing or inferring, based on Special
Agent Evans's testimony, that Favela was recruited to participate
in a drug conspiracy because he was trusted.
Favela contends that these areas of testimony, argument, and
inferences violate Federal Rule of Evidence 704(b), which states
No expert witness testifying with respect to the
mental state or condition of a defendant in a
criminal case may state an opinion or inference as to
whether the defendant did or did not have the mental
state or condition constituting an element of the
crime charged or of a defense thereto. Such ultimate
issues are matters for the trier of fact alone.
Favela also contends these areas violate Federal Rule of Evidence
403, which provides that relevant evidence "may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice. . . ." Evidence is excluded on a motion in limine only if the
evidence is clearly inadmissible for any purpose. Hawthorne
Partners v. AT&T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill.
This court has the power to exclude evidence in
limine only when evidence is clearly inadmissible on
all potential grounds. . . . Unless evidence meets
this high standard, evidentiary rulings should be
deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in
proper context. . . . Denial of a motion in limine
[in this order] does not necessarily mean that all
evidence contemplated by the motion will be admitted
at trial. Denial merely means that, without the
context of trial, the court is unable to determine
whether the evidence in question should be excluded.
The court will entertain objections on individual
proffers as they arise at trial, even though the
proffer falls within the scope of a denied motion in
Hawthorne, 831 F. Supp. at 1400-01 (internal ...