The opinion of the court was delivered by: Wayne R. Andersen District Judge
MEMORANDUM, OPINION AND ORDER
This case is before the Court on the motion of defendant Jose Gaya for judgment of acquittal or for a new trial. For the following reasons, the motion is denied.
After a multi-week jury trial, defendant was found guilty of (i) conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count One); (ii) possession with intent to distribute 500 grams or more of cocaine (Counts Two, Five); (iii) use of a telephone in furtherance of drug trafficking (Count Three); and (iv) distribution of cocaine (Count Six).
During that trial, the jury heard overwhelming evidence of defendant's guilt. What became clear at trial was that defendant Rosales regularly supplied wholesale quantities of cocaine to defendant Gaya at locations in Summit, Illinois, often times on credit, without requiring Gaya to provide payment immediately. The evidence revealed that Gaya was a member of the Latin Kings street gang who distributed large quantities of cocaine to Latin Kings and others in the Chicago and Summit area. Gaya received cocaine from Rosales, and, at times, also from Danny Aguilar (a fellow Latin King), Jesse Guajardo (a fellow Latin King), and Anthony Compean (a fellow Latin King). Gaya also provided cocaine to Guajardo at times when Guajardo did not have any cocaine available.
In the government's case-in-chief, Gaya was captured on tape in many different ways--through Title III wiretaps, through recorded telephone calls, and through recorded face-to-face meetings. His own words captured on tape provided evidence of defendant's drug trafficking. In addition, one of Gaya's close gang and drug associates testified against him and provided background into Gaya's drug-dealing.
Gaya also testified at trial. He testified about his relationship with Rosales, his relationship with Zyneida Rodriguez, and his drug trafficking. He claimed to be a marijuana dealer, primarily, and not a significant cocaine trafficker.
Defendant raises three arguments in his motion for acquittal or for a new trial. First, he claims that the Court abused its discretion when it denied defendant's motion for substitution of counsel on the day of trial. Second, he argues that the verdict on Count One was improper based upon "impossibility." Third, he asserts that the evidence on Count One failed to establish a conspiratorial relationship between defendant and Rosales. We will address each argument in turn.
I. Defendant's Motion For New Counsel Made On The Day Of Trial
Defendant first argues that the Court abused its discretion when it denied his motion for substitution of counsel made on the day of trial. On April 30, 2008, defendant's trial started with the voir dire process and the selection of jurors. Defendant raised no objections to his counsel at any point that day. On May 6, 2008, right before the jury was to be sworn and the opening arguments were to commence, defendant advised the Court for the first time that he wanted to switch lawyers. After much colloquy between the Court and defendant, the Court inquired of defendant's reason for wanting to switch lawyers. Defendant responded that he thought that his lawyer, Mr. Clark, was ineffective because he was not adequately preparing defendant for trial. The Court then allowed time for a private consultation between defendant and his lawyer.
After that, the Court then gave defendant his options and gave him a chance to think things over. Defendant made his choice right then, opting to withdraw his motion, saying "[y]eah, it is fine, your honor. I will just go with what you say. I will go with Clark." The Court then invited defendant at the end of the day to continue to raise whatever concerns he had with Mr. Clark, but defendant never again during trial asked for new counsel or requested to proceed alone.
The Seventh Circuit has made clear that "[i]f the defendant has been given an opportunity to explain to the court the reasons behind his request for substitute counsel, we review the denial of that request only for an abuse of discretion." United States v. Harris, 394 F.3d 543, 551 (7th Cir. 2005) (citing cases). As the transcript of these proceedings made clear, this Court did solicit the reasons for defendant's dissatisfaction with Mr. Clark. Indeed, the Court's inquiry was more developed than that which the Seventh Circuit found sufficient in Harris.
In determining whether the Court abused its discretion in denying a motion for substitute counsel, a number of factors are considered: "the timeliness of the motion, the adequacy of the court's inquiry into the motion, and whether the conflict was so great that it resulted in a total lack of communication preventing an adequate defense." Harris, 394 F.3d at 552 (citing United States v. Bjorkman, 270 F.3d 482, 500 (7th Cir. 2001); United States v. Brown, 79 F.3d 1499, 1505-06 (7th Cir. 1996); United States v. Zillges, 978 F.2d 369, 372 (7th Cir. 1992)). Even if there were an abuse of discretion, the ...