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 Salvador Rosales 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 (Count One); (ii) distribution of 500 grams or more of cocaine (Counts Four and Seven); (iii) distribution of cocaine (Count Six); and (iv) possession with intent to distribute 500 grams or more of cocaine (Count Eight). During that trial, the jury heard overwhelming evidence of defendant's guilt. What became clear at trial was that defendant regularly supplied wholesale quantities of cocaine to defendant Gaya at locations in Summit, Illinois, often times by "fronting," without requiring Gaya to provide payment immediately. The evidence revealed that Gaya, a member of the Latin Kings street gang, distributed large quantities of cocaine to Latin Kings and others in the Chicago and Summit area. The evidence showed that Gaya received cocaine from Rosales, and, at times, other Latin Kings, including cooperating witness Jesse Guajardo.
Jesse Guajardo testified at trial and explained that he understood Rosales to be a major supplier of cocaine to Gaya over the years. As Guajardo explained, he also supplied Gaya at times when Guajardo received cocaine from his suppliers. Likewise, Gaya supplied Guajardo at times when Guajardo needed cocaine. Guajardo understood that Gaya received cocaine from Rosales, both because Gaya said so and because at times Guajardo saw Rosales supply Gaya with cocaine. Guajardo testified that in Title III intercepted telephone calls between himself and Gaya in October 2004 through early 2005, they routinely exchanged cocaine with each other. When Guajardo needed cocaine from Gaya, he understood from Gaya that it was coming from Rosales.
By 2006, Guajardo was cooperating with the ATF investigation and wore a wire against Gaya and Rosales. On September 13, 2006, Guajardo ordered a half-kilogram of cocaine from Gaya. Later in the day, Rosales delivered a kilogram of cocaine to Gaya, who then split it into halves and gave approximately one-half to Guajardo and kept one-half for himself.
The evidence revealed that during Gaya's meetings with Guajardo while Guajardo was cooperating, Gaya made several incriminating statements about his drug dealing with Rosales. For instance, on July 18, 2006, Gaya and Guajardo talked about Gaya's cousin, Zyneida Rodriguez, getting arrested while in possession of a kilogram of Gaya's cocaine. Gaya had received the cocaine from Rosales. Gaya told Guajardo that he was "paying him [Rosales] little by little, you know. I paid him like six stacks."
On September 13, 2006, when Rosales delivered a kilogram of cocaine to Gaya which was split with Guajardo, Gaya made several statements about his cocaine trafficking. In discussing Rosales, Gaya said that he owed Rosales for "two bricks and he ain't sweatin' me for the money." Gaya then referenced nine kilograms of cocaine that had apparently been stolen from Rosales. Later in the conversation, Gaya told Guajardo, when referring to Rosales, "I owe him for two bricks because of my cousin [Zyneida Rodriguez], but boy, believe me he used to hit me with 15, 10, you remember . . . ."
Later in the day, as they gathered the money to pay Rosales, Gaya and Guajardo spoke again. Gaya recounted an event in which sheriff's police searched his home on Southwest Highway looking for a suspect and failed to find "five bricks ... by the stove" that Gaya had. According to testimony at trial, Gaya lived on Southwest Highway in 2003 and Guajardo was there a handful of times when Rosales supplied Gaya with cocaine. Gaya and Guajardo then met with Rosales in a recorded meeting.
On October 18, 2006, Guajardo purchased a kilogram of cocaine from Rosales. That transaction was captured on tape, played to the jury, and admitted to by Rosales on the stand. Moreover, on December 5, 2006, at the time of Rosales' arrest, law enforcement officers found four kilograms of cocaine hidden in a trap compartment of one of Rosales' vehicles - a blue Honda. The car was in the garage of an apartment building Rosales owned in Summit, Illinois.
Gaya also testified at trial. He claimed not to have any cocaine trafficking relationship with Rosales and instead claimed that a "Chava" with whom he dealt was actually another individual (who was in jail for much of the relevant time period). Rosales also testified at trial. He testified about his relationship with Gaya and denied involvement in drug trafficking.
Defendant now raises six arguments in his motion for acquittal or for a new trial. First, he claims that the Court violated his right to counsel during an overnight recess in the middle of defendant's cross-examination by the government. Second, he argues that the Court abused its discretion by permitting the government's cooperating witness to testify about his understanding of certain conversations. Third, defendant asserts that the Court abused its discretion by sustaining objections to defense counsel's closing argument. Fourth, defendant claims that the Court abused its discretion by limiting questioning of the cooperating witness's post-arrest silence after a previous arrest. Fifth, defendant maintains that this Court erred when it allowed the government to question the defendant concerning a claimed friend of his named "El Gordo." Finally, defendant argues that he should be acquitted as a matter of law of Count One. We will address each argument in turn.
I. The Court Did Not Abuse Its Discretion By Denying Defendant Contact With His Lawyer On A Single Issue In The Middle Of Defendant's Cross-Examination
Defendant first argues that the Court improperly infringed upon his right to communicate with his attorney by denying him the opportunity to discuss a subject relevant to his defense (phone records) during an overnight recess. We disagree for several reasons. First, defendant affirmatively waived this argument by withdrawing his motion for a mistrial. Second, the Court did not impermissibly limit defendant from having any contact with his lawyer during the overnight recess--it simply limited contact for one evening on a very specific evidentiary issue that arose in the middle of defendant's cross-examination. Thus, the Court appropriately applied the Supreme Court's ruling in Perry v. Leeke, 488 U.S. 272, 284 n.8 (1989) (judge may permit consultation between counsel and defendant but forbid discussion of ongoing testimony). Third, nothing precluded defendant from examining the phone records after the overnight recess and testifying about them or calling other witnesses to testify if he thought it was in his interest. Tactically, he chose not to do so. Finally, even if any error occurred here, it was harmless.
At issue is the government's use of phone records of September 13 during the cross-examination of defendant. The defendant claims that his counsel previously asked the government for the phone records of September 13, but he did not receive them. The government claims that it made no such promises about records from September 13 before trial because it did not subpoena those phone records until after the government had rested and as the defense began to put on a case. As soon as the government reviewed the documents on the morning of May 16, it used them as a reference in the cross-examination of co-defendant Jose Gaya. The government then sought to examine defendant about the phone records. Defense counsel objected to the government's use of government exhibit 68, which contained phone records from the September 13 period, and the jury was excused for the day. The parties and the Court then had a discussion outside of the jury's presence, and defense counsel offered to have defendant excused from the courtroom because the parties were discussing a matter concerning his potential testimony. Defendant was so excused.
Defense counsel then argued that the government had acted improperly by failing to produce the phone records in question until defendant was cross-examined about them. Defense counsel also claimed that the government had reneged on a promise it had made to produce the records. Government counsel argued that he had made no such promise. The Court then postponed the matter until the following morning.
Defense counsel then asked for permission to speak to his client about the phone records. The government objected to defendant talking about his testimony on this issue with his lawyer while his cross-examination was on-going. The Court agreed and told defense counsel not to discuss the substance of defendant's testimony with him, including the phone records that night. The Court, however, clarified that defense counsel could meet with his client but that he just could not discuss the substance of the defendant's testimony while it was on-going.
The next morning, the Court announced that it would bar cross-examination on the phone records at that point. Defense counsel then asked that the jury be instructed to disregard the phone records, but when the Court suggested that it would be best not to remind the jury of the records' existence, defense counsel withdrew his suggestion.
The parties later returned to the issue, and the Court ruled definitively on the use of the phone records holding that it would not let the government use the phone records unless the defendant agreed to their use. The Court then asked defendant's counsel "[a]nd I assume, Mr. Brindley, that that moots out the motion for a mistrial?" Tr. 1958. Defense counsel responded, "[y]es, ...