Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 06 CR 00023-Theresa L. Springmann, Judge.
The opinion of the court was delivered by: Flaum, Circuit Judge.
Before POSNER, FLAUM and WILLIAMS, Circuit Judges.
On May 24, 2006, defendant-appellant, Melvin Taylor, was indicted, along with Marlyn Barnes, Michael Alexander, Theodis Armstead, Herbert Hightower, and Vernell Brown, for conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846. Taylor was also indicted for carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). After proceeding to trial on April 15, 2008, a jury found Taylor guilty of both counts. Several months later, Taylor filed a motion for a new trial based on newly discovered evidence. The district court denied the motion. At Taylor's sentencing hearing, the district court found that the conspiracy involved forty kilograms of cocaine, which resulted in a sentence of 188 months on the conspiracy count. Taylor appeals his conviction, the district court's denial of his motion for a new trial, and his sentence. For the reasons set forth below, we affirm Taylor's conviction and the district court's denial of a new trial. However, because of an error in the district court's determination of the amount of cocaine attributable to the conspiracy, we vacate the sentence and remand for re-sentencing.
A. Facts of the Underlying Conspiracy
This conspiracy involved a fake shipment of drugs traveling from Texas to Fort Wayne, Indiana. Barnes, the mastermind of the conspiracy and the person who recruited Taylor, first learned of the fake shipment from Kurt Hunter. Hunter and Barnes had been providing each other with drugs on a regular basis for several months prior to April of 2006. However, Barnes was unaware that Hunter was working as a confidential informant for the government. On April 17, 2006, Hunter and Barnes met to develop a plan to steal a local dealer's stash of drugs. At that meeting, Hunter mentioned the fictional shipment of drugs that became the core of this conspiracy. Barnes became interested in stealing this fictional shipment rather than going forward with the original plan. On April 23, 2006, Hunter introduced Barnes and Alexander, Barnes's brother, to Agent Wayne Lessner, the undercover agent working with Hunter. Barnes and Alexander believed that Hunter and Agent Lessner were couriers for the drug shipment from Texas. Barnes met with Hunter and Agent Lessner once more that month to discuss the logistics of the heist. Agent Lessner recorded both meetings. During the first meeting with Agent Lessner, Barnes indicated that he had recruited several people to participate in the heist. Barnes told Hunter and Agent Lessner that one of the people he had recruited was a friend named MacMel. Several witnesses at trial testified that Taylor commonly went by the nicknames Mac, Mel, and MacMel. During these two meetings, Hunter and Agent Lessner intentionally never indicated the exact quantity of drugs that would be involved in the shipment because drug couriers would not normally know that information. Although Hunter and Agent Lessner never named an exact amount of drugs, the audiotapes of the meetings capture Barnes making various assumptions about the quantity of drugs involved, ranging from twenty-to-eighty kilograms. After the second meeting, Hunter and Agent Lessner stayed in contact with Barnes, updating him on the progress of the fictional drug shipment. Once it was determined that the heist would occur on May 5, 2006, the government, through Agent Lessner and Hunter, arranged for Barnes and his co-conspirators to stay in two hotel rooms under video surveillance at the Knights Inn in Fort Wayne, Indiana for the nights of May 3 and May 4, 2006.
Between April 17, 2006, when he first learned of the fictional shipment, and May 3, 2006, when he traveled to Fort Wayne, Barnes compiled his team to carry out the heist. At trial, Hightower testified that Barnes recruited him to the conspiracy in April of 2006. Hightower testified that Barnes told him that the plan was to rob fifty kilograms of cocaine from a stash house in Fort Wayne with Taylor and two individuals recruited by Taylor. Brown and Armstead, two of the other co-conspirators, testified that Taylor recruited them in April of 2006. Armstead also testified that prior to going to Fort Wayne, he understood this to be a "lifetime deal" involving about forty kilograms of cocaine.
On May 3, 2006, Barnes and Hightower traveled from Gary, Indiana to Fort Wayne to meet with Agent Lessner. At trial, there was conflicting testimony about what happened when they were leaving Gary. Barnes testified that they went directly to Fort Wayne. Hightower testified that they stopped at Taylor's house on their way out of Gary. According to Hightower, who claims to have stayed in the car while Barnes went into Taylor's house, Taylor came out of the house, got a bag out of his car, and gave the bag to Barnes. Barnes then gave the bag to Hightower. Inside the bag, Hightower saw a Keltec automatic rifle and a bulletproof vest. Hightower took an AK-47 from the car and put it into the bag.
The next day, Taylor, Brown, and Armstead traveled from Gary to Fort Wayne. Brown testified that they dis- cussed the plan to steal the load of drugs on the drive. When they arrived in Fort Wayne, they saw Barnes in his car at an intersection and followed him to the Knights Inn. After meeting Barnes at the Knights Inn, Taylor, Brown, and Armstead went to visit Taylor's uncle at the nearby Applebee's. Several hours later, Taylor, Brown, and Armstead returned to the Knights Inn and joined a meeting with Agent Lessner, Hightower, Alexander, and Barnes in one of the hotel rooms. The government introduced a videotape of this meeting at trial. During the meeting, Agent Lessner discussed the logistics of the shipment and how they would carry out the heist, but stopped short of mentioning the specific amount of drugs that would be involved. In response to a question from Alexander, Agent Lessner did tell the group that the drugs would be in the fuel tank and described the fuel tank as the size of the dresser in the room. The meeting lasted thirty minutes. The videotape shows Taylor sitting on the bed and participating in the meeting on three occasions: he commented on the type of truck that would be involved; he informed Barnes that Youngstown was in Ohio; and he described a person who would be involved in the heist and how he would be armed.
On the morning of May 5, 2006, Agent Lessner called Barnes to tell him everything was ready. Barnes took the bag with the bulletproof vests and guns. Barnes and Hightower rode with Agent Lessner to the storage facility to pick up the van that they were planning to use in the heist. Taylor drove behind Agent Lessner's car with Armstead and Brown. Once they arrived at the storage facility, the group was arrested. The arresting officers found a .40-caliber handgun and three additional loaded magazines on Taylor.
On September 18, 2007, Barnes, Armstead, Brown, and Taylor proceeded to trial. Alexander and Hightower pleaded guilty prior to September of 2007. Early in the September 2007 trial, Armstead, Brown, and Taylor moved for a mistrial when Barnes agreed to testify on their behalf. The court granted the mistrial and severed Barnes's trial from the other defendants. Barnes proceeded to trial alone in February of 2008 and was found guilty. Armstead and Brown then pleaded guilty, and in April of 2008, Taylor proceeded to trial as the only remaining defendant. Armstead, Brown, and Hightower testified against Taylor at his trial. Barnes testified on Taylor's behalf. Barnes denied ever talking to Taylor about the heist before May 4, 2006 and claimed it was a coincidence that they ran into each other in Fort Wayne on May 3, 2006. The jury found Taylor guilty.
In October of 2008, Taylor filed a motion for a new trial based on a post-sentencing statement of Alexander, and then filed an amended motion based on a post-sentencing statement of Brown. Alexander claimed that Taylor did not know about the conspiracy and was only in Fort Wayne to visit his uncle. Brown claimed that he pleaded guilty and testified against Taylor out of fear of a life sentence, but that he and Taylor had never spoken of the drug heist. The district court denied the motion. In rejecting Alexander's statement, the district court reasoned that all of the information in Alexander's statement was information known to Taylor prior to trial, and therefore was not newly discovered evidence. Additionally, the district court found that Alexander's statement was weak exculpatory evidence ...