The opinion of the court was delivered by: Herndon, District Judge
Before the Court is defendant Rudy Slack's Motion for Judgment of Acquittal after Jury Verdict (Doc. 446),*fn1 to which the Government responds in opposition (Doc. 448) and Slack replies to this response (Doc. 449). Specifically, Slack moves pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 29(c), solely as to Count 1 of the Indictment (Doc. 1).*fn2 The jury found Slack guilty on Counts 1, 6 and 7 of the Indictment (Docs. 424, 427 & 428). The specific charges were as follows:
Count 1 - conspiracy to knowingly and intentionally manufacture, distribute, and possess with intent to distribute cocaine and a mixture or substance containing cocaine base, in the form of, or commonly known as "crack" cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(A), and 21 U.S.C. § 846.
Count 6 - knowingly and intentionally distributing diverse amounts of a mixture or substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C).
Count 7 - knowingly and intentionally distributing a mixture or substance containing cocaine base, in the form of, or commonly known as, "crack" cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(B).
Regarding the jury's finding of "guilty" on Count 1, the Special Verdict did not find Slack guilty of conspiring to distribute 500 grams or more of a mixture or substance containing cocaine base (Doc. 425). However, in a separate Special Verdict also regarding Count 1, the jury did find Slack guilty of conspiracy to distribute 5 grams or more, but less than 50 grams, of a mixture or substance containing cocaine base, in the form of, or commonly known as, "crack" cocaine (Doc. 426). There was no Special Verdict rendered by the jury regarding the charges against Slack stated in Count 6. As to Count 7, the Special Verdict found Slack guilty of knowingly and intentionally distributing five grams or more of a mixture or substance containing cocaine base, in the form of, or commonly known as, "crack" cocaine. Slack awaits sentencing for his conviction, as well as resolution of his pending post trial motions.
Slack challenges the jury's finding of guilty on Count 1 of the Indictment (conspiracy) and moves for an acquittal of this charge, pursuant to Rule 29(c). In other words, Slack does not believe sufficient evidence was presented to connect him to the conspiracy beyond a reasonable doubt.
A motion for judgment of acquittal made after trial, pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 29(c), does not allow a district court judge "to play thirteenth juror" by substituting his or her own views on the evidence for that of the jury. United States v. Genova, 333 F.3d 750, 757 (7th Cir. 2003) (citing CHARLES ALAN WRIGHT &ARTHUR R.MILLER,2AFEDERAL PRACTICE & PROCEDURE § 467 (3d ed. 2000)). Only the jury may "determine the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences." United States v. Hagan, 913 F.2d 1278, 1281 (7th Cir. 1990) (citations omitted). Therefore, on review, the Court "must view all evidence in the light most favorable to the prosecution," United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999), and may only acquit the moving defendant if there is "relevant evidence from which the jury could reasonably find [the defendant] guilty beyond a reasonable doubt." United States v. Reed, 875 F.2d 107, 111 (7th Cir. 1989) (alteration in original) (citation omitted).
Slack does not challenge the existence of the conspiracy to manufacture, possess and distribute cocaine and crack cocaine. Instead, Slack challenges the sufficiency of the evidence showing his participation in the conspiracy. Under the charging statute, 21 U.S.C. § 846, to show a conspiracy, there must be an agreement in existence "between two or more individuals, with the intent to commit an offense in violation of the Controlled Substance Act." United States v. Lamon, 930 F.2d 1183, 1190 (7th Cir. 1991) (quoting United States v. Sweeney, 688 F.2d 1131, 1140 (7th Cir. 1982)). To prove Slack was guilty of participation in the conspiracy, the Government must show Slack "(1) knew of the conspiracy, and (2) intended to associate himself with the criminal scheme." Id. (citing United States v. Sullivan, 903 F.2d 1093, 1098 (7th Cir. 1990)). What is unnecessary is for the Government to prove Slack knew the identity of each co-conspirator or every detail of the conspiracy. Id. at 1191 (citing Sullivan, 903 F.2d at 1098).
The Government may use circumstantial evidence to support a conviction for conspiracy, even if the evidence is solely circumstantial. United States v. Durrive, 902 F.2d 1221, 1229 (7th Cir. 1990). A "reasonable inference" of Slack's participation in the conspiracy may be drawn from "'the relationship of the parties, their overt acts and the totality of [defendants'] conduct . . . .'" Lamon, 930 F.2d at 1191 (quoting United States v. Redwine, 715 F.2d 315, 320 (7th Cir. 1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2661 (1984)).
However, "the existence of a mere buyer-seller relationship alone is insufficient to support a conspiracy conviction." United States v. ...