The opinion of the court was delivered by: Herndon, District Judge
Before the Court is defendant Rudy Slack's Motion for New Trial (Doc. 456),*fn1 filed pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 33, to which the Government has filed its opposing Response (Doc. 462). The jury found Slack guilty as to 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" as to 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 5 grams or more of a mixture or substance containing cocaine base, in the form of, or commonly known as, "crack" cocaine. Slack also filed a Motion for Judgment of Acquittal (Doc. 446) as to Count 1, which the Court has denied (Doc. 486). Slack currently awaits sentencing for his conviction, as well as resolution of this pending 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)).
Slack bases his Rule 33 Motion on the assertion that the verdicts were against the weight of the evidence and also that the Court erred in the following ways:
(1) failing to suppress the wiretap evidence, (2) admitting testimony of DEA Special Agent John McGarry pursuant to FEDERAL RULE OF EVIDENCE 701, (3) admitting testimony of witness Donald Slack, (4) failing to give Slack's proposed jury instructions numbers 7, 8 and 9, which were cautionary instructions on witness credibility, (5) failing to give Slack's proposed theory of defense instruction number 12, (6) admitting testimony of witness Alan Taylor regarding alleged hearsay statements made to him by Christy Woolsey, (7) failing to dismiss the indictment due to alleged speedy trial act violation, and (8) admitting testimony of witness Timothy Weddle. The Court will now address Slack's arguments in like order.
A. Verdicts Against the Weight of the Evidence
As Slack also moved for a judgment of acquittal pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 29(c) (Doc. 446) regarding Count 1 based upon essentially the same grounds, he requests that if acquittal is denied, he alternatively seeks a grant of a new trial. He also believes the verdicts finding him guilty as to Counts 6 and 7 were against the manifest weight of the evidence and therefore, warrant a new trial.
Count 1 was the conspiracy charge. Slack states that the only Government witnesses questionably implicating him for selling narcotics did not offer enough evidence to prove that he was a member of the charged conspiracy. Further, other Government witnesses Richard Pittman and Tamiesha Williams, co-conspirators who had already pled guilty, testified they were unaware of Slack's participation in the conspiracy. In response, the Government argues that all it was required to show was "that Slack was aware of the common purpose and was a wiling participant [in the conspiracy]" (Doc. 462, p. 2). It was not required to show all members of the conspiracy knew each others' identities. Additionally, the Government asserts that wiretap evidence was used to reveal Slack's participation in the conspiracy -- namely his telephone calls to his half-brother, Richard Pittman, to warn him that the police were in the area so that Pittman could flee and the narcotics conspiracy could continue.
These arguments have been addressed at length in the Court's Order (Doc. 486) denying Slack's Motion for Acquittal (Doc. 446). Therefore, the Court need only analyze these arguments using a Rule 33 framework. As the Court previously found enough evidence that a reasonable juror could find Slack guilty beyond a reasonable doubt as to Count 1, there is no "strong doubt of guilt" as Slack suggests. This is not grounds to warrant a new trial.
Slack was found guilty as to Count 6 for distribution of cocaine. There was no specific quantity charged and no special verdict returned. Slack believes the evidence failed to demonstrate that witness Alan Taylor was not found in possession of cocaine when the police searched is pickup truck. Instead, Slack proffers that the evidence shows the seized narcotics actually belonged to Taylor's passengers, Gary and Leslea Ontis, as Taylor testified "he did not lie in his post-arrest telephone conversation with Defendant ...