The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Defendants Scott Lewis ("Lewis"), Vernon Williams ("Williams") and Lavoyce Billingsly ("Billingsly") were charged with conspiracy to knowingly and intentionally possess with intent to distribute a controlled substance, namely, in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846 (Count One), attempt to knowingly and intentionally possess with intent to distribute in excess of five kilograms of mixtures containing cocaine in violation of 21 U.S.C. § 846 (Count Two)and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three). In addition, Billingsly was charged with possession of a firearm by a felon in violation of 18 U.S.C. §922(g)(1) (Count Four). Billingsly was severed from Lewis and Williams and therefore had a separate trial. Lewis and Williams proceeded to trial and the jury convicted them of conspiracy to possess with intent to distribute a controlled substance and carrying a firearm in relation to a drug trafficking crime but acquitted them of attempt. They now each bring a Motion for Judgment of Acquittal and a Motion for a New Trial. For the reasons stated below, both Motions for a New Trial and Motions for Judgment of Acquittal are denied.
In December of 2006, a confidential informant who called himself "Rojo" introduced Lewis to a supposed disgruntled drug courier by the name of "Loquito." Loquito, however, was actually Bureau of Alcohol Tobacco and Firearms ("ATF") Special Agent David Gomez ("Gomez"), who was working undercover. According to Gomez's cover story, his employers, a Mexican drug cartel, would at some point give him notice of the location of their current cocaine stash house so that he could go there to pick up cocaine. He instead wanted to steal the cocaine from the stash house and was looking for a robbery crew that would be interested in committing the robbery and splitting up the cocaine. The stash house would be guarded by cartel members with guns and would contain between 15 and 25 kilograms of cocaine. In reality, of course, there was no organization, no stash house and no cocaine.
Lewis spoke to Gomez on the phone and said he was interested and had a crew. Gomez and Rojo met with Lewis on December 15, 2006. The meeting was both audio and video recorded. Gomez told Lewis his cover story and Lewis told Gomez that he had done this type of thing before and that he had a crew willing to commit the robbery. Lewis further suggested that he and his crew enter the stash house as Gomez left after picking up cocaine to make it look like they were robbing him. The crew could then enter the stash house, tie up the occupants and steal the cocaine. Lewis agreed to meet again the following week and to bring his proposed crew.
Lewis spoke to Rojo again on December 17, 2006 and set up a meeting for the next day. Lewis, Williams and an individual known only as "B" met with Gomez and Rojo on December 18, 2006. That meeting was also both audio and video recorded. This was the first time Williams appeared on the scene, and he verbally agreed to commit the robbery more than once during the meeting. Lewis set forth a new plan for committing the robbery. He proposed that the crew should pretend to be police raiding the stash house. When the occupants became frightened, the crew could tie them up, remove their clothing and steal the cocaine. Williams echoed his agreement with the plan, stating that they should get in and out quickly and that the occupants without a doubt should be stripped "buck naked." Gomez and the others discussed further details of the plan for the robbery including sources for obtaining firearms.
Gomez had further telephone conversations with Lewis over the following weeks, some of which were and some of which were not recorded. Finally, on January 3, 2009 Gomez informed Lewis that the robbery would take place the next day. On January 4, 2007, Lewis, Williams and Billingsly, all riding in a Chevrolet Caprice driven by Billingsly, met Gomez at 61st and Cass Avenue. This meeting was not recorded. According to Gomez this was due to an equipment failure. Lewis and Williams got into the car with Gomez and the CI and they drove to a storage facility where they were to store the cocaine they stole from the stash house. Billingsly followed in the Caprice. At that point, the Defendants were arrested by officers who were hiding in one of the storage lockers. Only videotape (no audio) of the arrest was recorded. The videos showed Billingsly throwing something under the Caprice right before he was arrested. Officers recovered a gun, specifically a Smith & Wesson .40 caliber semi-automatic weapon loaded with seven rounds, from below the Caprice and two boxes of ammunition from its trunk.
As to the missing recordings, Gomez testified that he used only one recording device, although he had previously used two - one for video and a separate one for audio. During the final meeting the device malfunctioned. He further testified that he did not immediately realize that the device malfunctioned because he did not immediately review the tapes. Rather he left them in his desk drawer for approximately two weeks while he attended to other matters. When he discovered that the device malfunctioned, he sent the device and tapes to the manufacturer to see if any information could be recovered, but he kept no record of this inquiry. In addition, Gomez failed to record some of his telephone calls with Lewis because he did not attach a voice recorder to his phone.He did not mention these recording failures to co-case agent Timothy Wilson until a long time after he discovered them.
At trial, Lewis argued that he was entrapped. Specifically, he testified that he only took part in the robbery because he owed a drug debt to Rojo which he incurred as a result of Rojo introducing him to cocaine. Lewis ran up a $500 drug debt to Rojo which Rojo allowed him to work off by selling some cocaine. Lewis, however, used the cocaine he was supposed to sell resulting in at total of $1000 of drug debt. Lewis testified that Rojo threatened him and he feared for his and his family's safety so agreed to do the robbery in order to pay off the debt. In addition, he asserted that he told Gomez that he did not want to go through with the robbery in a telephone call immediately preceding the robbery that Gomez failed to record. Lewis further testified that he only showed up at the final meeting to discuss his decision not to participate in the robbery with Gomez. Williams relied on an insufficiency of the evidence defense.
Both Defendants were convicted of Counts One and Three - conspiracy and of use of a firearm in a drug trafficking offense - but were acquitted of Count Two - attempt. Both Defendants now bring motions for new trials and for acquittal.
A motion for a new trial under Rule 33(a) should be granted only if required "by the interests of justice." Fed. R. Crim. P. 33(a). Such a motion should be granted sparingly and is only appropriate if "substantial rights of the defendant have been jeopardized by errors or omissions during trial." United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). A defendant is entitled to a new trial if there is a reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict. See United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996). In addition, a court may order a new trial in a criminal case if the evidence "preponderates heavily against the verdict such that it would be a miscarriage of justice to let the verdict stand." United States v. Swan, 486 F.3d 260, 266 (7th Cir. 2007) quoting United States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir. 1985).
A motion for 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).
Lewis and Williams each argue that: 1) prejudicial errors occurred at trial such that justice requires that they be granted new trials; and 2) the evidence was insufficient to support their convictions on Count One and Count Three. Additionally, Lewis argues that he was entrapped, or in the alternative, coerced as a matter of law and thus is not guilty as a matter of law.
Lewis's Alleged Errors at Trial
Lewis moves for a new trial arguing that this Court erred by: 1) admitting three of his prior convictions into evidence; and 2) allowing the Government to refer to a prior conviction as "possession of a weapon by a felon."
Admission of Prior Convictions
At trial the Court admitted two of Lewis's prior convictions into evidence under Federal Rule of Evidence 404(b) for use in the Government's case in chief: a 1998 conviction for possession of a firearm by a felon and a 2000 conviction for theft. The Court did not admit Lewis's 1991 conviction for residential burglary. In addition, it permitted the use of a 1998 misdemeanor conviction for making a false statement to a police officer for impeachment purposes under Federal Rule of Evidence 609(a)(2).
Under Federal Rule of Evidence 404(b) evidence of a defendant's "other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith" but such "other bad acts" evidence may be admissible for other purposes. Fed.R.Evid. 404(b). In general, in order to be admissible, evidence of other bad acts must meet a three-part test:
1) the evidence be relevant to a matter in issue other than the defendant's propensity to commit the charged crime;
2) the act at issue must be similar in nature and close in time to ...