The opinion of the court was delivered by: Herndon, District Judge
Before the Court is defendant James E. Rollins, Sr.'s Motion for New Trial (Doc. 453),*fn1 filed pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 33, to which the Government has filed its opposing Response (Doc. 461). Rollins, Sr. was found guilty by a jury as to Counts 1 and 5 (Docs. 409 & 412) of the Indictment (Doc. 1). Count 1 charged Rollins, Sr. with 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 5 charged him with knowingly and intentionally distributing five hundred grams or more of a mixture or substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(B).
Regarding the jury's finding of "guilty" as to Count 1, the Special Verdict found Rollins, Sr. guilty of conspiring to distribute 500 grams or more but less than 5 kilograms of a mixture or substance containing cocaine base (Doc. 410). However, in a separate Special Verdict also regarding Count 1, the jury did not find Rollins, Sr. guilty of conspiracy to distribute 5 grams or more of a mixture or substance containing cocaine base, in the form of, or commonly known as, "crack" cocaine (Doc. 411). As to Count 5, the Special Verdict found Rollins, Sr. guilty of knowingly and intentionally distributing 500 grams or more of a mixture or substance containing cocaine (Doc. 413). Rollins, Sr. now awaits sentencing for his conviction, as well as resolution of this post trial motion.
Under FEDERAL RULE OF CRIMINAL PROCEDURE 33, a defendant may move for a new trial. Upon review, the Court "may vacate any judgment and grant a new trial if the interest of justice so requires." FED.R.CRIM. P. 33(a). If the basis for seeking a new trial is not due to new evidence, then the Court must determine if a new trial is warranted because there exists a "reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict." United States v. Van Eyl, 468 F.3d 428, 436 (7th Cir. 2006) (citing United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996)). A new trial may also be warranted where a "trial errors or omissions have jeopardized the defendant's substantial rights." United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989) (citing United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir.1989)). Such a determination is completely within the Court's sound discretion . Id. (citing United States v. Nero, 733 F.2d 1197, 1202 (7th Cir. 1984)). However, the Court should be mindful that the power bestowed by Rule 33 to grant a new trial should only be done in the "most 'extreme cases.'" United States v. Linwood, 142 F.3d 418, 422 (7th Cir.1998) (quoting United States v. Morales, 902 F.2d 604, 605 (7th Cir.1990)).
According to Rollins, Sr., justice requires a new trial be granted due to certain pretrial errors and errors committed during the course of the trial which served to deny him a fair trial (Doc. 453). Rollins, Sr. specifically asserts two ground he believes entitles him to a new trial under Rule 33: the wiretap authorization order and admission of DEA Special Agent John McGarry's testimony.
A. Suppression of Electronic Surveillance Evidence
Rollins, Sr. first takes issue with the Court's Order authorizing the Government to conduct electronic surveillance pursuant to 18 U.S.C. § 2518(1)(c).*fn2 Prior to trial, Rollins, Sr. filed a Motion to Suppress the Results of Electronic Surveillance (Doc. 284), challenging whether the Order was properly granted in accordance with the statutory requirements. A motion hearing was conducted on January 4, 2007.*fn3 Specifically, Rollins, Sr. asserted that the Application and Affidavit submitted by the Government requesting a Title III telephone intercept order did not make a sufficient showing of necessity as required by § 2518(1)(c). Instead of specifically demonstrating the failure or unfeasibility of other previously attempted investigative techniques, Rollins, Sr. suggests the application and affidavit merely made "vague assertions of failure or unfeasibility" (Doc. 453, p. 2). Denying the Motion to Suppress, the Court found, at the hearing, that the application and affidavit sufficiently met the requirements of § 2518(1)(c).
Wiretaps are not required to be the last resort in an investigation, but also should not be the first method used either. United States v. McLee, 436 F.3d 751, 763 (7th Cir. 2006) (citation omitted). Because the Government does not carry a heavy burden to meet the requirements of showing necessity for a wiretap order under § 2518(1)(c), a court order authorizing the wiretap can be issued for a variety of reasons. Id. (citations omitted). In the affidavit submitted by United States Drug Enforcement Agency ("DEA") Special Agent John McGarry (lead investigator), it listed the other methods of investigative techniques used prior to requesting a wiretap order: use of confidential sources, consensual telephone calls, surveillance, administrative subpoenas, telephone records and dialed number recording (Doc. 278, p. 3). Other investigative techniques were rejected due to their inadequacy or because they would not be feasible given the particular circumstances of the investigation: body wires/monitoring devices, mobile tracking devices, closed circuit television cameras, trash seizures, Grand Jury subpoenas, undercover agents, target/associate interviews, search warrants, police records, pen register, SINS and trap & trace (Id.).
The Government's reasons for seeking the wiretap order were further expounded upon through Agent McGarry's testimony given at the suppression hearing. Agent McGarry demonstrated, via his affidavit and later through his testimony, why a wiretap was necessary in order to secure evidence that the targeted subjects (Rollins, Sr. and co-defendants) were engaged in illegal activity, as well as reveal the "true scope and nature of the offenses and the unknown participants in them" (Id. at 4). A wiretap that enables investigators "to gauge the depth and scope of [a] conspiracy" meets the requirements under § 2518(1)(c). United States v. Fudge, 325 F.3d 910, 919 (7th Cir. 2003).
Rollins, Sr. offers nothing additional in way of legal argument or evidence to support his assertion that the Court's ruling on his Motion to Suppress was erroneous. He merely appears to be reinstating his original Motion to Suppress. The Court still finds that the wiretap application and affidavit were carefully considered by the Court and found to have sufficiently met the statutory requirements to warrant the wiretap order. The Government adequately demonstrated how it was reasonably unlikely that the alternate methods of investigation would work and that the wiretap was the only practical method for the ...