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United States v. Billingsley

January 12, 2010


The opinion of the court was delivered by: Judge Virginia M. Kendall


On June 26, 2009, a jury convicted Defendant Lavoyce Billingsley ("Billingsley") on three Counts of an Indictment. The jury found Billingsley guilty of conspiracy to possess with the intent to distribute a measurable amount but less than 500 grams of mixtures containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 ("Count One"),*fn1 possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) ("Count Three") and possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) ("Count Four"). Billingsley now moves for a judgment of acquittal or alternatively a new trial. For the reasons explained below, Billingsley's Motion for Judgment of Acquittal or New Trial is denied.


Billingsley and co-defendants Scott Lewis ("Lewis") and Vernon Williams ("Williams") were arrested on January 4, 2007 at the culmination of an undercover operation conducted by agents of the Department of Alcohol, Tobacco, Firearms and Explosives("ATF"). The operation involved undercover agent David Gomez ("Gomez"), who masqueraded as a disgruntled drug courier for a Mexican drug cartel. In a series of recorded meetings beginning on December 18, 2006, Gomez and the defendants planned the robbery of a purported "stash house," a location where large quantities of drugs would be processed as part of a large-scale cocaine distribution operation. Several of the recorded conversations involved the planned procurement of firearms to be used in the stash house robbery. Gomez, the CI and the three defendants were to divide the narcotics stolen from the stash house amongst themselves for further distribution.

On January 4, 2007, the three defendants met with Gomez and a government Confidential Informant ("CI") in Gomez's vehicle, although this meeting was not recorded due to a malfunctioning audio recording device. Gomez's testimony at trial set forth the following sequence of events, about which Billingsley's counsel conducted a thorough cross-examination.

Upon Billingsley's arrival in his own car, Gomez observed Billingsley retrieve an object from the trunk and put it in the waistband of his pants. After then entering Gomez's vehicle for the meeting, Gomez spoke with Billingsley about his awareness of the planned robbery, including that the team was planning to rob approximately twenty kilograms of cocaine from the stash house. Gomez then asked Billingsley if he was still willing to participate, to which Billingsley replied, "yes." Gomez then asked to see "the firearm," and Billingsley retrieved a firearm from his waistband and showed it to Gomez.

Gomez then told defendants that he wanted to show them the location of a storage facility where his and the CI's shares of the stolen narcotics should be left after the robbery. He asked Billingsley to leave his firearm behind, but Billingsley told him that he did not want to do so. Defendants Lewis and Williams then traveled with Gomez and the CI to the storage facility, with Billingsley following in his own vehicle. After exiting the vehicles in which they had arrived, Lewis, Williams and Billingsley were arrested. The video recordings of the arrest showed Billingsley throwing something underneath his vehicle. A Smith & Wesson .40 caliber semi-automatic firearm was later recovered from that location. Agents also retrieved ammunition for the firearm from the trunk of Billingsley's vehicle.

After his arrest, Billingsley waived his Miranda rights and made a statement in which he admitted that he had met with Lewis concerning the planned robbery and was aware that there would be fifteen kilograms of cocaine at the home. He also stated that Lewis had informed him about how the robbery would be carried out, and that he had picked up Lewis and Williams before proceeding to the final meeting with Gomez and the CI.

After a jury trial in June 2009, the jury found that Billingsley had conspired to knowingly and intentionally possess with intent to distribute a measurable amount, but less than 500 grams, of mixtures containing cocaine, that he had possessed a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c), and that he had possessed a firearm after having been previously convicted of a felony in violation of 18 U.S.C. § 922(g). Billingsley now seeks a judgment of acquittal or a new trial under Fed. R. Civ. P. 29(c) and 33, claiming: 1) that there was insufficient evidence to support the jury's guilty verdict; 2) that this Court erred when it sustained a particular objection made by the Government during his cross-examination of the agent to whom he made his post-arrest statement; 3) that this Court erred when it did not allow him to inspect the malfunctioning recording device used on January 4, 2008, and 4) that this court erred when it allowed the government to introduce tape-recorded conversations between Billingsley's co-defendants, Lewis and Williams.


I. Motion for Judgment of Acquittal

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 entered after trial by jury 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)).

To the extent that the jury's verdict on all three Counts reflects its assessment of Agent Gomez's credibility as a witness, the Court notes that determinations of witness credibility are the province of the jury. See United States v. Bailey, 510 F.3d 726, 734 (7th Cir. 2007) ("it is for the jury to evaluate the credibility of the witnesses"); United States v. Scott, 145 F.3d 878, 883 (7th Cir. 1998) ("questions of witness credibility typically rest with the jury, not the court"). Testimony is only incredible as a matter of law where it is "physically impossible for a witness to have observed that which he claims occurred, or impossible under the laws of nature for the occurrence to have taken place at all." Bailey, 510 F.3d at 733 (internal quotations omitted). Testimony is not incredible as a matter of law simply because a witness has been impeached or has a motive to provide evidence favorable to the government. See Scott, ...

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