The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court are the Motions of Defendants Robert George and Michael Spagnola for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 or, in the alternative, for a new trial pursuant to Federal Rule of Criminal Procedure 33. For the reasons stated below, Defendants' motions are denied.
Defendant George and Defendant Spagnola were tried together before a jury in connection with a sting operation in which George and Spagnola conspired to rob over 5 kilograms of cocaine from a disgruntled drug courier and then sell it for cash. This conspiracy came about when Jamie Ringswald (hereinafter, the "CI"), a confidential informant working on behalf of the Bureau of Alcohol, Tobacco, and Firearms (the "ATF"), approached George in June 2007 and proposed that they help an acquaintance of the CI with a robbery. The CI told George that his acquaintance was a drug courier, although the courier was actually an undercover ATF agent, who had been shortchanged by the drug dealer for whom he worked. The courier, now seeking revenge, wanted to steal a large amount of cocaine from a garage where the dealer stored his drugs. The problem, the CI told George, was that the robbery would require more people and guns since the courier expected the garage to be guarded by armed men.
In order to document George's agreement to participate in the robbery, the CI wore an audio and video recording device during several meetings with George. During these meetings George not only agreed to participate in the robbery in exchange for a portion of the robbery proceeds, but also suggested his brother, Spagnola, as a participant. Before long, the CI was also recording conversations between himself and Spagnola in which Spagnola eagerly agreed to participate in the robbery.
The recordings admitted at trial depict conversations between the CI and George and between the CI and Spagnola, and in some instances the courier is present as well. In none of the recordings are George and Spagnola present simultaneously, although in certain recordings George and Spagnola discussed with the CI their conversations with each other regarding the proposed robbery, and in some of the recordings George can be heard speaking on the phone about the robbery with a person that he tells the CI is Spagnola, and vice versa. During these recordings George and Spagnola discussed with the CI the robbery plan and proposed changes to it, the drug courier and his trustworthiness, the weapons needed for the robbery to succeed, and their plans to sell the stolen cocaine for cash, among other things.
The robbery was scheduled to take place on July 12, 2007. Although the evidence indicated that the original plan was for George to participate in the actual robbery, he backed out on July 12 because, he claimed at the time, he could not find a babysitter for his children. Nonetheless, George stated on July 12, both to Spagnola and to ATF agents after his arrest, that he still expected to receive a portion of the robbery proceeds. Since George could not attend, Spagnola traveled alone with the CI on July 12 to meet the courier in a forest preserve near Cicero, Illinois. Spagnola brought two guns to that meeting which he planned to use in the robbery later that day. Spagnola was arrested by ATF agents in the forest preserve shortly after exiting the CI's car to speak with the courier. George was arrested later that same day in Marseilles, Illinois. Both George and Spagnola gave incriminating post-arrest statements to ATF agents in which they admitted that they agreed to participate in the robbery and planned to sell the stolen cocaine for cash.
After a four-day trial, a jury convicted George of conspiracy to possess, and attempt to possess, with intent to distribute in excess of 5 kilograms of cocaine, both in violation of 21 U.S.C. § 841(a)(1). Spagnola, who testified on his own behalf, was convicted of these same two charges as well as possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and 21 U.S.C. § 846, and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). After the jury rendered its verdict, both Defendants filed motions for judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29, or, in the alternative, for a new trial, pursuant to Federal Rule of Criminal Procedure 33. The pending motions raise several challenges to the sufficiency of the government's evidence of conspiracy and rulings of the Court before and during trial. The Court will examine each of Defendants' arguments in turn.
A. The Sufficiency of the Evidence of a Conspiracy Between Defendants
The Defendants contend that the evidence at trial was legally insufficient to sustain their conspiracy convictions because the government failed to present evidence of an agreement between them. To succeed on a Rule 29 motion for judgment of acquittal, a defendant must show that there was insufficient evidence presented at trial from which any rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Presbitero, 569 F.3d 691, 704 (7th Cir., 2009). The jury's verdict will only be set aside where "the record contains no evidence, regardless of how it is weighed," from which a jury could have returned a conviction. United States v. Moses, 513 F.3d 727, 733 (7th Cir., 2008) (quoting United States v. Gougis, 432 F.3d 735, 743-44 (7th Cir., 2005). Similarly, a Rule 33 motion for a new trial should be granted where the evidence "preponderates heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand." United States v. Washington, 184 F.3d 653, 657-58 (7th Cir., 1999).
To prove a drug conspiracy, the government must establish that two or more persons agreed to commit an unlawful act, and that each defendant knowingly and intentionally joined in the agreement. United States v. Haynes, --- F.3d ---, 2009 WL 2959254, at *7 (7th Cir., Sept. 17, 2009). No overt act is required. United States v. Duran, 407 F.3d 828, 835 (7th Cir., 2005) (citing United States v. Thornton, 197 F.3d 241, 254 (7th Cir., 1999). Two or more persons conspired together if they "embraced a common criminal objective, even if they did not know each other or participate in every aspect of the crime." Haynes, 2009 WL 2959254, at *7.
Here, the jury heard ample evidence of a conspiracy between George and Spagnola. Although the idea to rob the garage may have originated with the CI, George and Spagnola actively agreed to participate, as demonstrated by the following evidence contained on the recordings presented to the jury:
* After agreeing to participate in the robbery, George recruited Spagnola who also agreed to participate.
* George arranged a meeting between the CI and Spagnola to plan the robbery.
* George told the CI that he planned to pay Spagnola out of his share of the stolen drugs.
* Both George and Spagnola met separately with the courier on separate dates.
* George told the CI that he and Spagnola had modified the robbery plan so that instead of robbing the garage, they would rob and kill the courier after he left the garage so they would not have to share the robbery proceeds with the courier and so that there would be one less witness to their criminal acts.
* George told the CI that Spagnola was willing to commit the robbery and kill the courier.
* George told the CI that he and Spagnola discussed Spagnola's meeting with the courier and that Spagnola told George that he suspected the courier was a law enforcement officer.
* Spagnola told the CI that he and George discussed George's meeting with the courier, that George also suspected the courier was a law enforcement officer, and that George told Spagnola to check the courier's ...