The opinion of the court was delivered by: Virginia M. Kendall, United States District Judge Northern District of Illinois
MEMORANDUM OPINION AND ORDER
On November 20, 2008, a jury convicted Defendant Wosvaldo Villegas ("Villegas") of one count of attempting to obstruct, delay, and affect commerce and the movement of United States currency in the custody, possession, and control of employees of Pendum Inc., by robbery, in violation of 18 U.S.C. §§ 1951 & 2. After the close of the government's case, Villegas moved orally for a judgment of acquittal under Fed. R. Crim. P. 29(a). The court denied Villegas' motion. Now before the Court are Villegas' renewed Motion for a Judgment of Acquittal or Arrest of Judgment under Rule 29 or for a New Trial under Rule 33. For the reasons set forth below, Villegas' motion is denied.
Villegas was charged in a one-count Indictment with attempted robbery of an armored truck in violation of 18 U.S.C. §§ 1951 & 2. After a jury trial, Villegas was found guilty.
At trial Villegas presented an entrapment defense after the Court ruled that he had met his threshold burden by making a prima facie showing of entrapment. In support of his entrapment defense, Villegas called Dr. Jerri Morris, a neuro-psychologist to testify regarding his subnormal intelligence. At the close of the Government's case-in-chief, Villegas moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a), which the Court took under advisement and subsequently denied. Villegas now moves for a judgment of acquittal or, alternatively, for a new trial, asserting that the Court made numerous errors throughout the trial and that the evidence presented failed to establish guilt beyond a reasonable doubt.
I. Motion for 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)).
Villegas asserts that the Court should enter a judgment of acquittal because the Government did not prove beyond a reasonable doubt that he was not entrapped into committing the charged offense. Specifically, Villegas challenges the sufficiency of the evidence presented by the Government to establish predisposition or lack of inducement.
The defense of entrapment requires proof of two elements: 1) government inducement of the crime, and 2) the defendant's lack of predisposition to engage in the criminal conduct. See Mathews v. United States, 485 U.S. 58, 63 (1988). Once the defendant establishes both, the burden shifts to the government, which can defeat the entrapment defense by proving beyond a reasonable doubt either that the defendant was predisposed to commit the offense or the absence of government inducement. See United States v. Santiago-Godinez, 12 F.3d 722, 722 (7th Cir. 1993). In assessing a defendant's predisposition to commit the offense in question, the following factors are relevant:
1) the character and reputation of the defendant; 2) whether the government first suggested the criminal activity; 3) whether the defendant engaged in the crime for profit; 4) whether the defendant demonstrated a reluctance to commit the offense that was overcome by government persuasion; and
5) the nature of the inducement or persuasion offered by the government. See U.S. v. Higham, 98 F.3d 285, 290 (7th Cir. 1996).
Here, the evidence introduced by the Government at trial, when viewed in the light most favorable to the Government, was more than sufficient to allow the jury to conclude that Villegas was not entrapped into committing the attempted robbery. The government introduced evidence that it was Villegas' idea to rob the armored car and not an idea suggested by the government. The government introduced evidence that Villegas came up with a plan and sought the assistance of Rudy Garibay ("Garibay"), a Cooperating Informant, and Special Agent ("SA") Araya,an undercover agent with the Federal Bureau of Investigation ("FBI") who, unbeknownst to him at the time, were working for law enforcement: The government introduced numerous recorded conversations between Villegas, Garibay and SA Araya in which Villegas actively discussed the details of the robbery, including but not limited to, what role each of them would play, the use of a rental vehicle to execute the robbery, the use of stolen plates for the robbery, the getaway route to be followed after the robbery, storage of the getaway vehicle in Villegas' garage after the robbery and splitting the proceeds from the robbery.
The government also introduced video recordings where Villegas was seen on tape having meetings with Garibay and/or SA Araya to discuss the execution of the robbery. These meetings capture Villegas telling Garibay and SA Araya that he has an inside man who works for the armored car company but that he is not going to tell his inside man the full plan so he can pass a polygraph test if questioned by the police. The recordings also show Villegas discussing the possibility of using a taser on his inside man during the robbery. In one particular video, Villegas is sitting at a restaurant table with Garibay, looking around furtively while leaning in to discuss the robbery. In another video, taken on April 27, 2007, the day of his arrest, Villegas is seen arriving at a Walgreens parking lot to meet Garibay. Villegas pulls into the lot, leaves his car running and hands Garibay a stolen license plate to be used during the execution of the robbery. The jury also heard evidence that Villegas brought a garage door opener with him that day so that he would have access to a place to store the getaway car. The government also introduced evidence that Villegas wanted SA Araya eliminated from the robbery plan because he did not trust him and that after SA Araya was eliminated from the plan, Villegas did not chose to abandon the plan but instead went ahead with his preparations. The government also introduced evidence of Villegas criminal history, which included a prior conviction for identity theft, to demonstrate predisposition. Accordingly, viewing the evidence in the light most favorable to the government, the jury had sufficient evidence to conclude that Villegas was not entrapped into committing the charged offense.
Next, Villegas asserts that he is entitled to a judgment of acquittal because there was insufficient evidence for the jury to find Villegas guilty of attempted Hobbs Act Robbery under 18 U.S.C. § 1951(a). Specifically, Villegas asserts that there was no evidence of actual force, violence or intimidation and there ...