The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
The Defendants Leslie C. Mayfield ("Mayfield"), Nathan L. Ward ("Ward"), and Dwayne R. White ("White") each move for a Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure 29 or, in the alternative, Defendants Mayfield and Ward move for a new trial pursuant to Federal Rule of Criminal Procedure 33. For the reasons stated below, Defendants' Motions are denied.
Defendants Leslie Mayfield, Nathan Ward, and Dwayne White were arrested on August 10, 2009, along with Co-Defendant Montreece Kindle ("Kindle"). On September 9, 2009, a grand jury charged the four defendants with conspiracy to possess with intent to distribute five kilograms or more of cocaine (Count 1), attempted possession with intent to distribute five kilograms or more of cocaine (Count 2), and possession of a firearm in furtherance of the conspiracy to possess with intent to distribute five or more kilograms of cocaine (Count 3). The grand jury also charged Mayfield, Ward, and White with possession of a firearm after having been convicted of a felony in Counts 4, 6, and 7 respectively.
Mayfield, Ward, and White were tried separately from Kindle. Their trial began on July 6, 2010 and lasted six days. On July 14, 2010, the jury returned a verdict of guilty for all three defendants on all counts (Counts 1-4 and 6-7). The Court granted an extension of time to August 23, 2010 for post-trial motions. Mayfield and White filed their post-trial motions before this deadline, but Ward filed his motion on August 25, 2010. Ward's attorney filed an affidavit stating that the delay was caused by an internet service interruption and was unintentional. This Court accepts Ward's late filing. The Government filed a consolidated response to all three post-trial motions, and requested permission to file a brief exceeding fifteen pages. This request is granted.
The post-trial motions contain arguments that are common to all three defendants as well as some that are unique for each defendant. All three defendants argue that there was insufficient evidence that they joined a conspiracy and that the conspiracy involved the distribution of the drug proceeds. White separately argues that he should be acquitted of the attempt charge because he never took a substantial step toward the commission of the crime.
Mayfield and Ward separately argue that the Court erred in its rulings on a number of pre-trial motions.
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: 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 was told 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. In addition to Gomez's testimony, the jury also watched the audio and video from a concealed camera in the SUV. The jury was given a transcript of this audio to assist them in following the conversations in the recording.
On August 9, 2009, Mayfield, Kindle, Ward, and an individual known only as "New York" (who was not a defendant in this case) met with Gomez in the undercover SUV. Gomez testified that Mayfield and Ward were present for the duration of this meeting, were within arm's reach at all times, paid attention to what was being said, and participated in 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. The jury listened to an audio recording of the August 9, 2009 meeting and had a transcript to aid in following the conversation.
On the evening of August 9, 2009, 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, 2009, 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 told the group that if there were any hesitations about the crime, now was the time to bring them up. Ward said that they didn't come all the way from Milwaukee for nothing. 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. The jury listened to an audio recording of the August 10, 2009 meeting and had a transcript to aid in following the conversation.
2. Testimony of Heiserman, Rotunno, Stemmet, and Baumgartner
Agent Heiserman ("Heiserman") testified about his search of the brown van that Mayfield, Ward, and White used. Heiserman found a mask, a shotgun wrapped in a towel, and three bags in the van, among other things. Inside of these bags, Heiserman found a .44 caliber Ruger revolver, a Glock 22 semiautomatic pistol, two masks, two bulletproof vests, and latex gloves.
Agent Rotunno ("Rotunno") testified that he searched White after the arrest and found a mask in White's pocket. Immediately after the search, White told Rotunno that he (White) was lucky the officers did not catch him with the work. Rotunno testified that he understood "work" to mean narcotics such as heroin or cocaine.
Officer Stemmet ("Stemmet") testified that he recovered a .357 magnum handgun from the rear cargo area of Gomez's vehicle the day after the arrest. No one noticed the gun at the time of the arrest, but Gomez testified that when he later reviewed the video recording from the SUV, he can see that Mayfield threw the gun into the cargo area when Gomez was not looking. After Gomez's testimony about the video, the jury watched the video themselves.
Agent Baumgartner ("Baumgartner") testified to his knowledge of illegal narcotics, including his training and experience from multiple investigations and informant interviews. Baumgartner testified that a kilogram of cocaine had a Chicago market price of between $25,000 and $29,000 in August 2009. Baumgartner also testified that a kilogram or more of cocaine is consistent with distribution by a drug dealer and not consumption by a drug user. This is based on the limited amount of cocaine one user can consume, as a gram of cocaine is considered a dangerous amount to use.
Mayfield testified in the case. On direct, Mayfield admitted to his prior felony convictions and discussed how he met the confidential source at his job shortly after moving to Naperville. The confidential source told him that Gomez was looking for a robbery crew and organized a meeting with him. Mayfield testified that he called Kindle, who then called Ward and New York, and the four met with Gomez as described in Gomez's testimony. After this meeting, Mayfield testified that the four agreed that this was a "suicide mission," and decided not to go through with the crime. On August 10, Mayfield said that he deceived White to come to help him put on a show for Gomez in Naperville, and Kindle and Ward came along. Mayfield ...