The opinion of the court was delivered by: Stiehl, District Judge:
Before the Court are defendant's pro se motion for a new trial (Doc. 151) and a second motion for new trial filed by defendant's trial counsel (Doc. 152). The grounds asserted in the two motions are distinct, therefore, the Court will address each in turn. The government has not filed a response to either motion.
I. Defendant's Pro Se Motion.
In his motion, the defendant objects to the jury instructions given to the jury. He asserts that the instructions were not properly followed because, although the Court instructed that he could be found guilty for taking crack cocaine from his co-defendant, Mintai Bedford, the Court allowed the government to introduce evidence at trial that he took things other than crack cocaine from Bedford.
The Court instructed the jury the defendant had been charged with the offenses of conspiracy to interfere with commerce by threats or violence (Count 2); interference with commerce by threats or violence (Count 3); and possession of a firearm in furtherance of a crime of violence (Count 4). (Government's Instruction #7.) The Court instructed the jury as follows
as to each count, as follows:
a. The Instruction given for the charges in Count 2 provided: A conspiracy is an agreement between two or more persons to accomplish an unlawful purpose.
To sustain the charge alleged in Count 2 of the Superseding Indictment, the government must prove the following propositions:
First: A conspiracy existed to interfere with commerce by threat or violence; and
Second: The defendant joined the conspiracy with the intent to further it.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty of that charge.
If, on the other hand, you find from your consideration of all of the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty of that charge.
To be a member of the conspiracy, the defendant need not join at the beginning or know all the other members or the means by which its purpose was to be accomplished. The government must prove beyond a reasonable doubt that the defendant was aware of the common purpose and was a willing participant. (Government's No. 14).
b. The Instruction given on Count 3 provided: To sustain the charge alleged in Count 3 of the Superseding Indictment, the government ...