The opinion of the court was delivered by: Herndon, District Judge
Before the Court is defendant John Frost's Motion for New Trial (Doc. 452),*fn1 filed pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 33, to which the Government has filed its opposing Response (Doc. 460).
Frost was found guilty by a jury as to Counts 1 and 5 (Docs. 419 & 422) of the Indictment (Doc. 1). Count 1 charged Frost 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 Frost guilty of conspiring to distribute a mixture or substance containing cocaine base in an amount less than 500 grams (Doc. 420). In a separate Special Verdict also regarding Count 1, the jury did not find Frost 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. 421). As to Count 5, although found guilty of the charge, the Special Verdict did not find Frost guilty of knowingly and intentionally distributing 500 grams or more of a mixture or substance containing cocaine (Doc. 423). Frost 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)).
A. Denial of Motion for Acquittal
Frost's first issue addressed by his Rule 33 Motion for New Trial is that the Court erred in denying his Motion for Judgment of Acquittal, made at the conclusion of the Government's case. Frost fails to further elaborate this assertion with supporting argument. The following paragraphs of his Motion (Doc. 452, ¶¶ 2-5) argue that the jury verdicts are contrary to the weight of the evidence, not supported by substantial evidence, and that the special verdicts are not consistent with the verdicts finding Frost guilty as to Counts 1 and 5. The Court is unable to decipher whether the argument regarding the jury verdicts are the reasons why Frost believes the Court erred in denying his request for a judgment of acquittal at the close of trial or if they are additional grounds for his Motion for New Trial. Perhaps they are both.
Either way, the Court does not find it erred in denying Frost's oral motion for judgment of acquittal. In considering a motion for a judgment of acquittal, 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 no "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). As the Court previously found at trial, there was ample evidence existed upon which a reasonable juror could have found Frost guilty as to Counts 1 and 5 beyond a reasonable doubt. The fact Frost now asserts that the verdicts were not supported by substantial evidence is not enough for the Court to find otherwise without further substantiation from Frost. Contrary to Frost's assertions, the jury was not required to find Frost guilty of conspiracy to distribute both a mixture or substance containing cocaine and "crack cocaine." Additionally, it is not accurate to state that the special verdicts made "no specific findings of any amount of cocaine or cocaine base" (Doc. 452, ¶ 5) -- the special verdicts reflect that the jury found Frost conspired to distribute and then distributed a mixture or substance containing cocaine in an amount under 500 grams. As the Government argues in its Response, the drug amount was not an element of the charged offense (Doc. 460, p. 5, citing United States v. Martinez, 301 F.3d 860, 864 (7th Cir. 2002); United States v. Tolliver, 454 F.3d 660, 669 (7th Cir. 2006)).
Upon this basis, Frost shows no justifiable reason for granting a new trial.
B. Special DEA Agent McGarry
Frost essentially makes the same argument as his co-defendants -- that the Court erroneously allowed Special Agent John McGarry to provide his "impressions" of the wiretapped telephone conversations involving Frost and his co-defendants by finding his testimony was lay testimony and not expert testimony. Frost also believes the Court erred in admitting Agent McGarry's "expert" testimony, as the ...