The opinion of the court was delivered by: Virginia M. Kendall, United States District Judge
Honorable Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
On April 3, 2008, defendant Erwin Acox ("Acox") was convicted of two counts of attempted bank robbery and one count of bank robbery, in violation of 18 U.S.C. § 2113(a). Acox now moves this Court for a judgment of acquittal or, alternatively, for a new trial with respect to all three counts. For the reasons set forth below, Acox's Post Trial Motion for Judgment of Acquittal and/or for a New Trial is granted in part and denied in part. Specifically, Acox's motion for a judgment of acquittal is granted as to Counts I and II, but denied as to Count III. In addition, Acox's motion for a new trial is denied as to all three counts.
Acox was charged in a three-count Indictment with the following crimes: (1) attempted bank robbery of the Fifth Third Bank located at 900 West Armitage, Chicago, Illinois (the "Fifth Third Bank") on March 21, 2007; (2) attempted bank robbery of the North Community Bank located at 2201 North Halsted, Chicago, Illinois (the "Halsted North Community Bank") on March 21, 2007; and (3) bank robbery of the North Community Bank located at 1401 West Belmont, Chicago, Illinois (the "Belmont North Community Bank") on January 20, 2007. (Indictment 1-3.) After a jury trial, Acox was convicted of all three counts.
Prior to and during the course of trial, Acox made oral and written motions requesting the disclosure of certain evidence related to a photo array and requested a jury instruction outlining a lesser included offense with respect to Count III. These motions were denied by the Court. At the close of the Government's case-in-chief, Acox moved for a judgment of acquittal on Count II pursuant to Federal Rule of Criminal Procedure 29(a), which the Court took under advisement. Acox now moves for a judgment of acquittal or, alternatively, for a new trial with respect to all three counts, asserting that the Court erred in its denial of his motions and that the evidence presented failed to establish guilt beyond a reasonable doubt.
I. Motion for a Judgment of Acquittal
A motion for a judgment of acquittal under Rule 29 challenges the sufficiency of the evidence against the defendant. See Fed. R. Crim. P. 29. Such a motion should be denied if after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Hicks, 368 F.3d 801, 804 (7th Cir. 2004). A conviction should not be overturned unless "the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt." United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003) (citing United States v. Menting, 166 F.3d 923, 928 (7th Cir. 1999)).
A. Attempted Bank Robbery (Counts I and II)
Acox challenges the sufficiency of the evidence presented to convict him of attempted bank robbery of the Fifth Third Bank (Count I) and attempted bank robbery of the Halsted North Community Bank (Count II). At trial, the parties presented the following evidence in support of their respective positions with regard to Counts I and II.
According to Chicago police officer Patrick Bryant ("Officer Bryant"), on the evening of March 21, 2007, Officer Bryant observed a man (who he later identified as Acox) with what he described as "an obvious fake beard," sunglasses, and a knit skull cap, enter the Fifth Third Bank. (Trial Tr., vol. 2-A, 290-93, 302-03, Apr. 1, 2008.) After a few seconds, Acox walked out of the bank. (Trial Tr., vol. 2-A, 302, Apr. 1, 2008.) Jeremy Ruberg ("Ruberg"), who was working at the Fifth Third Bank on March 21, 2007, testified that he was standing at the teller counter with his manager when he saw Acox step into the bank wearing a black beard and sunglasses. (Trial Tr. vol. 2-A, 335, 337-39, Apr. 1, 2008.) At the time, no one else was in the front of the bank. (Trial Tr. vol. 2-A, 346, Apr. 1, 2008.) Ruberg and his manager started to greet Acox, and as they did, Acox looked at them, turned around, and left the building. (Trial Tr. vol. 2-A, 339, Apr. 1, 2008.) Ruberg did not look at Acox's hands. (Trial Tr. vol. 2-A, 345, Apr. 1, 2008.) In addition, Acox uttered no words to Ruberg and made no noticeable hand gestures to him from the doorway. (Id.) Subsequently, Ruberg told his manager that the encounter seemed suspicious. (Trial Tr. vol. 2-A, 339-41, Apr. 1, 2008.) Ruberg's manager locked the door pursuant to bank policy and called the police. (Id.) However, Ruberg did not trigger the police alarm that was located behind the teller counter. (Trial Tr. vol. 2-A 345, Apr. 1, 2008.)
Meanwhile, outside of the bank, Officer Bryant observed Acox exit the bank and saw someone look out of the window at the bank and "kind of" look in Acox's direction; but no one came out looking alarmed. (Trial Tr. vol. 2-A 311, Apr. 1, 2008.) Officer Bryant followed Acox, who began walking away from the bank. (Trial Tr. vol. 2-A, 296-98, April 1, 2008.) Officer Bryant contacted one of his sergeants and told him that he was following someone who had just walked into a bank for a few seconds while wearing a disguise and who Officer Bryant believed may attempt to rob another bank. (Trial Tr. vol. 2-A, 296, Apr. 1, 2008.) As Acox proceeded towards the second bank, Officer Byrant observed Acox take off his hat, fake beard, and sunglasses. (Trial Tr. vol. 2-A, 296-98, Apr. 1, 2008.)
According to Officer Bryant, Acox then stopped east of the Halsted North Community Bank and stared at the bank for at least one minute before turning into a nearby alley (Trial Tr. vol. 2-A, 297-300, 312, Apr. 1, 2008.) By the time Officer Bryant caught sight of Acox in the alley, Acox had put on the fake beard, sunglasses, and hat. (Trial Tr. vol. 2-A, 300, Apr. 1, 2008.) Acox then exited on the other side of the alley and walked east on Belden towards Halsted, the street on which the bank was located. (Trial Tr. vol. 2-A, 300-02, 313, Apr. 1, 2008.) According to Officer Bryant, Acox proceeded to the east side of Halsted (the side of the street on which the Halsted North ...