The opinion of the court was delivered by: Reagan, District Judge
After a four day trial, a jury convicted John Wysinger of conspiracy to distribute crack cocaine and aiding and abetting the distribution of cocaine in violation of 21 U.S.C. §§ 841(a) and 846 (Docs. 167--174). During trial, Wysinger moved for judgment of acquittal at the close of the prosecution's evidence and at the close of his own evidence; the Court denied both motions (See Doc. 159). He has renewed his motions for judgment of acquittal and also moves for a new trial (Doc. 180). For the reasons outlined below, both of his motions will be denied.
Motions for Judgment of Acquittal
On the defendant's motion or sua sponte, the Court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). The evidence is insufficient to withstand the motion if, viewing the evidence in the light most favorable to the prosecution, "no reasonable factfinder could find the defendant guilty beyond a reasonable doubt." United States v. Dinga, 609 F.3d 904, 907 (7th Cir. 2010) (citing United States v. Morris, 576 F.3d 661, 665 (7th Cir. 2009)); see id. ("A defendant posing this challenge 'faces a nearly insurmountable hurdle.'" (quoting Morris, 576 F.3d at 665)); United States v. Hicks, 368 F.3d 801, 804 (7th Cir. 2004); United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003).
To prove Wysinger guilty of conspiracy to distribute and possess with intent to distribute a controlled substance (Count 1), the Government had to show that an agreement to distribute and possess with intent to distribute cocaine existed and that Wysinger knowingly joined the conspiracy with intent to further it. See, e.g., United States v. Curry, 977 F.2d 1042, 1053 (7th Cir. 1992) ("A conspiracy consists of a combination or confederation between two or more persons formed for the purpose of committing, by their joint efforts, a criminal act." (quoting United States v. Mealy, 851 F.2d 890, 895 (7th Cir. 1988))). To prove Wysinger guilty of aiding and abetting the possession with intent to distribute (Count 2), the Government had to show that Wysinger participated in a criminal venture (possession with intent to distribute) and sought by his actions to make it succeed. See United States v. Wesson, 889 F.2d 134, 135 (7th Cir. 1989).
After stating the applicable standards for deciding a motion for judgment of acquittal, Wysinger argues that "the evidence adduced at trial was insufficient for the Jury to make a finding of guilt beyond a reasonable doubt." That is as far as he goes. The lack of the development of this argument "speaks to the paucity of the argument." United States v. Jones, 224 F.3d 621, 626 (7th Cir. 2000); see also United States v. Reese, No. 08 CR 1061, 2010 WL 55695, at *6 (N.D. Ill. Jan. 4, 2010) (noting that undeveloped arguments are waived) (citing Jones, 224 F.3d at 626). Even if Wysinger had endeavored to develop his argument that judgment of acquittal was warranted, there was plenty of evidence for a jury to find him guilty beyond a reasonable doubt on the counts against him in the superseding indictment.
A reasonable juror could have found that the drug conspiracy existed beyond reasonable doubt and that Wysinger knowingly joined the conspiracy with intent to further it-again beyond a reasonable doubt. At trial, the Government presented the testimony of Montez Douglas, Keith Holmes and Sebastian Robinson, his co-defendants, who testified that Wysinger provided them with cocaine from Chicago, on consignment, for their activities in the East Saint Louis, Illinois, area. They testified that Wysinger was present for some the deliveries of cocaine and, when he was not, he employed couriers to deliver the cocaine and pick up the money. They also testified that they and Wysinger delivered cocaine well in excess of 5 kilograms during the conspiracy. Along with this testimony, the Government presented recorded calls involving the co-conspirators which corroborated the testimony and some of which involved Wysinger. The Government also presented a videotaped statement of the Defendant and a recorded call between the Defendant and a DEA agent which showed his involvement in the conspiracy. This evidence showed not only that Wysinger joined an ongoing drug conspiracy, but also that he was a major participant in it and directed its ongoing activities.
A reasonable juror could also have found, beyond reasonable doubt, that John Wysinger knowingly possessed-or associated with those who knowingly possessed-more than 500 g of cocaine with intent to distribute it. Testimony, recorded conversations and evidence at trial showed that Tryd Wysinger possessed cocaine in the East Saint Louis area on May 27, 2009. Officers seized cocaine from a van that Tryd drove on his way to deliver cocaine to a confidential informant. Tryd had just delivered 0.5 kg of cocaine just before being stopped with the kilogram of cocaine. Tryd was delivering the cocaine on behalf of John, and John had negotiated the sale of the kilogram with a testifying witness. Numerous telephone calls were recorded in which John and the witnesses discussed the delivery of the cocaine; and surveillance of the meeting between Tryd and the confidential informant a few days before the seizure of the cocaine corroborated witness testimony. This evidence shows that not only did John Wysinger know of Tryd's possession, he aided and abetted it. As the evidence was sufficient for a reasonable juror to convict Wysinger on counts 1 and 2 of the superseding indictment, the Court cannot grant Wysinger's motion for judgment of acquittal.
Motion for New Trial (Doc. 180)
A court may vacate a conviction or judgment and grant a new trial "if the interest of justice so requires." Fed. R. Crim. P. 33(a). This power is reserved for the most extreme cases. United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998) (quoting United States v. Morales, 902 F.2d 604, 606 (7th Cir. 1990)). An extreme case is if a reasonable probability exists that a trial error had a prejudicial effect on the jury's verdict. United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996). Wysinger notes several issues that, he claims, were errors that had a prejudicial effect on the jury's verdict.
Wysinger first argues that it was error for the Court to admit Government's Exhibit 21, which was a DVD (marked N-44 in discovery) of an interrogation of him. He moved that this evidence be suppressed before trial (Doc. 101), and objected in trial to its admission for the same reasons outlined in his motion to suppress. The argument he advances on this motion is that the interrogating officer, Agent Michael Rehg of the Drug Enforcement Agency, tricked Wysinger into continuing to talk after stating to Wysinger his Miranda rights and obtaining the statement that Wysinger understood those rights. He argues that this means that there was no implicit waiver of his Miranda rights.
The Court sees no chicanery in Rehg's conduct. The video reveals that Rehg clearly read to Wysinger his Miranda rights and asked Wysinger not once, but twice if he understood those rights. Wysinger acknowledged each time. The Court stands by its finding that Wysinger implicitly waived his Miranda rights. See United States v. Wysinger, No. 09-CV-30159-MJR, 2010 WL 2802507, at *6--12 (S.D. Ill. July 14, 2010) (Doc. 151) ("To establish implicit waiver, the prosecution must demonstrate not only that a Miranda warning was given and the accused offered an uncoerced statement, but also that the accused understood the Miranda rights. All three elements are present here: Wysinger was read his rights, he stated that he understood those rights and he made uncoerced statements." (citation omitted) (citing Berghuis v. Thompkins, 130 S.Ct. 2250, 2261 (2010))). To the extent that Wysinger argues that his statement immediately before being read his rights-"Do I need a lawyer before we start talking??"-was an invocation of his right to an attorney, the Court stands by its holding that he did not invoke the right to an attorney with that statement. Id. at *11 (citing United States v. Shabaz, 579 F.3d 815, 819 (7th Cir. 2009)).
As Wysinger offers no other reason for the video's exclusion (and objected on no other basis), the admission of this evidence does not ...