The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Defendant Montreece Kindle (hereinafter, "Kindle") moves for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 or, in the alternative, a new trial pursuant to Federal Rule of Criminal Procedure 33. For the reasons stated below, Defendant's motion is denied.
Defendant Montreece Kindle was arrested on August 10, 2009, along with Leslie Mayfield ("Mayfield"), Nathan Ward ("Ward"), and Dwayne White ("White"). On September 9, 2009, a grand jury charged the four defendants with (Count 1) conspiracy to possess with intent to distribute five kilograms or more of cocaine; (Count 2) attempted possession with intent to distribute five kilograms or more of cocaine; and (Count 3) possession of a firearm in furtherance of the conspiracy to possess with intent to distribute five or more kilograms of cocaine. The grand jury also charged Kindle with (Count 5) possession of a firearm after having been convicted of a felony.
Kindle was tried separately from the other three defendants in the case. The trial began on May 24, 2010 and lasted three days. On May 26 the jury returned a verdict and found Kindle guilty on all counts (Counts 1, 2, 3, and 5). The Court set a deadline of June 29 for post-trial motions. On June 25, Kindle filed the present motion for acquittal or a new trial, alleging that there was insufficient evidence that Kindle joined a drug distribution conspiracy or that he attempted to possess with intent to distribute drugs. Kindle argues that if he is acquitted on these counts, then he must also be acquitted on all the weapons charges.
1. Testimony and Recordings of Gomez
Agent Gomez ("Gomez") testified that he operated undercover and posed as a disgruntled drug courier in this case. His role in the case began when a confidential informant introduced him to Mayfield in a meeting on July 23, 2009. The meeting took place in Gomez's undercover vehicle, which was an SUV wired to record the meeting. During this first meeting, Gomez explained to Mayfield that he transported cocaine from a stash house once a month but was unhappy with the compensation he received. He told Mayfield that the stash house usually had 25-35 kilograms of cocaine in it when he arrived, and this was usually guarded by three people with guns. He explained that he needed a crew to help him rob the stash house, and had heard that Mayfield might be able to provide such a crew. After some further discussion on the details of the stash house, Mayfield agreed to bring a crew to meet with Gomez and plan the robbery.
On August 9, 2009, Mayfield, Kindle, Ward, and an individual known as "New York" (who was not a defendant in this case) met with Gomez in Gomez's SUV. Gomez testified that Kindle was present for the duration of this meeting, was within arm's reach at all times, paid attention to what was being said, and participated in the conversation. In addition to Gomez's testimony, the jury also listened to a recording of the conversation.
At the beginning of this meeting, Gomez repeated that he was a disgruntled drug courier looking for a crew to help him rob a stash house of 25-35 kilograms of cocaine. He explained that he received a phone call the day before a pickup letting him know to be ready the next day and another phone call twenty minutes before the pickup informing him of the location of the stash house.
Mayfield, Kindle, Ward, and New York then planned the robbery and asked Gomez detailed questions about the stash house. Gomez told them that he wanted to split the proceeds of the robbery so that each person would get one fifth of the total cocaine stolen.
Gomez answered questions regarding the number of guards in the house, whether the guards carried firearms, how long Gomez was usually in the stash house, and how Gomez would contact them when the drugs arrived at the stash house. New York explained that they would shoot the guard in charge first, they would be carrying silencers, and that they wanted Gomez to be ready to go into hiding if the robbery went badly. At one point, Gomez said "So if you guys said to me right now, hey, listen, this is way too much for you to handle -- for you guys to handle, let me know now." In response to this, Gomez testified that Kindle "shook his head no." Mayfield also shook his head no, while New York said no and Ward explained that it wasn't too much to handle, but that they wanted to get as much information as possible to ensure they were not walking into the situation blindly. At the end of this meeting, Gomez told the crew that as soon as he received the call from the stash house to be ready the next day, he would call Mayfield who in turn would call Kindle, Ward, and New York.
On the evening of August 9, after the crew left, Gomez called Mayfield, told him that the stash house had called and that the robbery was on for the next day, and told him to meet the next day in a particular parking lot. On August 10, Mayfield arrived in the parking lot in a brown van driven by Ward, with Kindle in the passenger seat. Mayfield got out of the van and into Gomez's SUV. Gomez then drove out of the parking lot and led the van to a storage facility. At the storage facility, everyone got out of their vehicles and met in a semicircle. Gomez discovered at this time that New York was absent, and in his place was White. Gomez then asked White if he knew why they were there, what they were going to do, and whether he was ready to do it. White responded in the affirmative. Gomez then asked Kindle if he was good, to which Kindle replied yes. At this point, Gomez gave the arrest signal and Mayfield, Kindle, Ward, and White were arrested.
2. Testimony of Heiserman, Rotunno, Stemmet, and Labno
Agent Heiserman ("Heiserman") testified about his search of the brown van that Kindle used. Heiserman found a mask, a shotgun wrapped in a towel, and three bags in the van. Inside of these bags, Heiserman found a .44 caliber Ruger revolver, a Glock 22 ...