The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
On August 3, 2007, a jury found defendants Michael Harris, Chris Blitch, Devarl Washington, and Michael Carwell guilty of (1) conspiracy to possess with intent to distribute cocaine in excess of five kilograms, in violation of 21 U.S.C. § 846; (2) attempt to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) being felons in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). All defendants have moved for a judgment of acquittal, a new trial, or alternatively a mistrial. See FED. R.
CRIM. P. 29, 31, 33. For the following reasons, the motions are denied.
On or about the first week of July 2006, Special Agent David Gomez of the Bureau of Alcohol, Tobacco & Firearms ("ATF") met with Jamison Moore, a confidential informant ("CI"), in order to prepare an undercover sting operation. Moore had become a CI after entering into a plea agreement with the Kane County State's Attorney's Office, which had charged him with "unlawful delivery of controlled substance" (a class X felony punishable by a six to thirty year sentence under 720 ILCS 570/401(a)(1)(A)). As part of the plea agreement, Moore agreed to (1) a sentence of 48 months probation, receiving a credit for the time already served in the Kane County Jail; (2) pay statutory assessments and other fines and costs; and (3) "perform whatever functions or assistance required by Aurora Police Department and the Kane County State's Attorney's Office which resulted in the arrest and charging of TEN different individuals with Delivery or Possession with intent to deliver controlled substances or cannabis." (Moore Plea Agreement at ¶ 2.A) (emphasis in original). The plea agreement also provides that "[e]ach case must involve a class X amount of cannabis or controlled substance by weight. The Defendant [Moore] will not be a transactional witness in any of the cases that are ultimately charged as felony drug offenses, unless specifically authorized by a Kane County, Illinois, Assistant State Attorney." (Id.) (emphasis in original).
Agent Gomez and Moore came up with a cover story for the sting operation. Agent Gomez (who was going by the name "Loquito") was going to tell defendants he had served time with Moore at a penitentiary facility within the Illinois Department of Corrections. "Loquito" would claim to be a disgruntled drug courier for a large Mexican organization that was trafficking cocaine from Mexico to the United States. He was looking for accomplices to commit a robbery of the stash house where the cocaine was stored and was relying on Moore to put him in contact with potential accomplices.
On July 27, 2006, Agent Gomez met with Moore, defendant Washington, and Antoine Bell (an individual who was not charged in this case) and told them the cover story. The record at trial was silent as to how Moore specifically got in touch with Washington and/or Bell and procured their presence at the meeting. The recordings and transcripts of the recordings from that meeting indicate that Washington was told that Loquito would get a call about one hour prior to having to pick up the drugs and that he would drive to wherever he was instructed for the pick up. Once he was at the stash house, which was always changing locations, he would be greeted by a group of men who are drug workers. Loquito also claimed to have seen fifteen kilograms of cocaine at the stash house. Washington asked a series of questions about the stash house and agreed to meet again.
On August 8, 2006, another meeting took place between the same four individuals. This time two additional individuals, identified as "Ritz" and "Mike-Mike," were supposed to attend, but failed to appear. Mike-Mike is defendant Harris. The four individuals discuss the deal again and agree to meet again at a later date. Again, the record is silent as to how Moore specifically got in touch with Harris and his representations to Harris prior to the meeting.
The next meeting took place on August 14, 2006. This time all four defendants were present along with the CI and the undercover agent. Agent Gomez re-told the cover story and described the stash house. Defendant Carwell asked about the number of people in the house and defendant Harris suggested "robbing" Agent Gomez as he leaves the house with five kilos of cocaine. However, this suggestion was rejected in order to obtain fifteen kilos of cocaine, not just the five kilos that Loquito says he would be transporting. There were also discussions about guns.
The next day, Agent Gomez and all four defendants reconvened. Specifically, Agent Gomez and Moore met at a McDonald's restaurant parking lot and called defendants. Defendant Blitch drove his car to meet them and Harris was in the car with him. Agent Gomez, still as Loquito, tried to get them in the van with him, but they refused and insisted on remaining in their car. A few minutes later, defendants Washington and Carwell arrived and got in the van with Agent Gomez. Agent Gomez told them he was going to drive them to a storage facility where they would eventually store and split the drugs, and to show them where to enter and leave the car after the raid. Both cars drove to the storage facility. Upon arriving at the storage facility's gated entrance, Agent Gomez entered the code for the gate and started driving past the gate, Blitch and Harris refused to follow him past the gate. Instead, Blitch and Harris backed their car outside of the gate and waited. Once past the gate, Agent Gomez and Moore exited the van and ATF agents arrested Washington and Carwell. Outside the gate, ATF agents and police blocked Blitch's car and arrested Blitch and Harris. Each of the defendants had guns on his person or within his reach at the time of the arrest. Washington also had a ski mask, duct tape, and twine. Carwell also had baseball batting gloves on. A fifth gun was found in the van.
The first trial in this case began on July 23, 2007. Representing the government at trial were Assistant United States Attorney ("AUSA") Patrick C. Pope and Kane County State's Attorney (acting as a "special AUSA") Jody Gleason. Prior to trial, at the pre-trial conference, defense counsel for all defendants sought to contact Moore. The government agreed to serve Moore with a subpoena for trial and offered to have a telephone conference with Moore and defense counsel on July 17, 2007. Moore was not available for the telephone conference and failed to appear on the first day of trial as required by the subpoena. On July 24, this court issued a bench warrant for Jamison Moore, for failure to comply with the subpoena. On July 25, the first trial resulted in a mistrial being declared as a result of statements and conduct by some of the jurors.
The second trial in this case began on July 26, 2007. Moore never appeared nor was located by the government for the second trial. Jury deliberations began on August 3, 2007. The jury indicated it had reached its verdict the same day - guilty as to all defendants on all counts. After the defense requested the jurors be individually polled in open court, one juror denied this was her verdict, and the jury was instructed by the court to resume its deliberations as it had not reached a unanimous verdict. None of defense counsel objected or moved for a mistrial. After additional deliberations, the jury subsequently returned guilty verdicts on all counts.
Although AUSA Pope represented that the government was making efforts to locate Moore throughout the proceedings, he was never found during the trials. But on August 11, 2007, Moore was apprehended on two unrelated state court warrants: one for failure to appear/disorderly conduct and the other for retail theft. Moore had a cash bond of $329. Detectives Smaha and Woody, of the Belvidere Police Department, executed these warrants by going to Moore's last known address at 10:05 p.m., knocking on the door, and identifying themselves as police. Moore opened the door, expressed surprise as to the existence of a warrant, and was arrested at the scene without resistance. On August 13 and 14, the government represented in open court that it would not prosecute Moore for contempt for failure to appear at trial pursuant to the subpoena requiring his attendance.
A. Sufficiency of the Evidence for Counts I and II
All defendants argue there is insufficient evidence to sustain their convictions for conspiracy (count I) and attempted possession with intent to distribute in excess of five kilograms of cocaine (count II). In evaluating a sufficiency challenge, I must "'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. Gougis, 432 F.3d 735, 743-44 (7th Cir. 2005) (quoting United States v. Jackson, 177 F.3d 628, 630 (7th Cir. 1999)).
In order to establish a violation of 21 U.S.C. § 846, the government must prove 1) that the defendant acted with the intent to possess cocaine with intent to distribute and 2) that he engaged in conduct which constitutes a substantial step toward the commission of the offense. United States v. Jean, 25 F.3d 588, 596 (7th Cir. 1994) (citation omitted). Attempted possession of cocaine with intent to distribute is a specific intent crime; thus, intent is an element of the offense that the government must prove beyond a reasonable doubt. See United States v. Best, 250 F.3d 1084, 1091 (7th Cir. 2001) (citations omitted). "A substantial step is something more than mere preparation, but less than the last act necessary before the actual commission of the substantive crime." United States v. Barnes, 230 F.3d 311, 315 (7th Cir. 2000). "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." United States v. Gardner, 238 F.3d 878, 879 (7th Cir. 2001).
In this case, the government was required to show that all four defendants knowingly and intentionally joined in the agreement to commit the "unlawful act" - to knowingly and intentionally possess with intent to distribute mixtures containing cocaine. The government's evidence at trial consisted primarily of tape-recorded meetings of the defendants with the undercover agent and Moore, as well as the undercover agent's testimony, and testimony concerning the defendants' actions on the day of the arrest by other law enforcement at the scene. I examine the evidence against each defendant.
Washington met with Agent Gomez and the CI three times prior to the day of the arrest. At the first meeting, Washington asked about the number of people they would find in the stash house, agreed to be secretive about the plan to rob the stash house, and was instructed to find four other people to work the plan. In the recordings, Washington discusses the way they should enter the stash house and how he would want more information on the layout of the house. Washington also states that if at some point the occupants of the house raise a gun to him, he is going to shoot them. At the second and third meetings, Washington continues to play an active role in discussions with Agent Gomez and suggests renting a car to commit the robbery. Washington also discusses on several occasions the quantity of drugs they expect to obtain from the robbery - fifteen kilos - and rejects a proposed robbery plan which would only lead them to recover five kilos. During his arrest, ATF Agent Timothy Wilson found a loaded .22 caliber revolver on Washington's person, as well as a black hooded sweatshirt, ski mask, ball of twine, and duct tape.
Carwell's first meeting with Agent Gomez took place on August 14, 2006. In the recordings, Carwell says he wants to know everything about the people in the stash house, including the number of people in the house and the number of weapons. He also asks about the risk involved, i.e., whether they could be killed. When the remaining defendants arrive, Carwell shares this information with them. Carwell expresses concern that if they enter the house for the robbery somebody may end up dead. Carwell makes suggestions with respect to the amount of time that Agent Gomez should spend inside the house before the defendants enter to commit the robbery. Carwell also adds that they need a driver, two cars, and discusses the location of the getaway car. Carwell says he wants two cars in order to dispose of the weapons with one car and to have a separate getaway car. Carwell also goes over the plan to wait until Agent Gomez exits the ...