The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
On September 17, 2010 Defendant Kenosha Fullilove ("Fullilove") was convicted by a jury of one count of conspiracy to commit bank robbery (Count I), one count of aiding and abetting a bank robbery (Count II) and one count of aiding and abetting use of a firearm during the commission of a bank robbery (Count III), in violation of 18 U.S.C. §§ 371, 2113(a) and 924(c)(1) respectively. She now brings a motion for judgment of acquittal or new trial under Federal Rules of Criminal Procedure 29 and 33 (Docs. 65 and 83), asserting that: (1) there was insufficient evidence to convict her on all three counts; (2) the Court erred in admitting her statements about traveling to Minnesota after being contacted by law enforcement about the robbery; (3) the Government presented testimony from a now-suspected bank robber; and (4) the prosecutor made a comment alluding to Fullilove's decision not to testify in his closing argument. For the below reasons, the Court denies Fullilove's motion.
On November 24, 2006, Nickolas Lee robbed the Chase bank branch located at 850 South Wabash Street in Chicago at gunpoint, making off with $109,000. The Government indicted Fullilove, formerly employed by that Chase branch, as a conspirator in that crime. Before Fullilove's trial in September 2010, Lee and Caroline Rivera, another employee of the branch, were convicted in connection with the robbery. At trial, in addition to other witnesses, the Government presented the testimony of Lee and Rivera, who testified regarding planning meetings that Lee, Rivera and Fullilove held in advance of the robbery, and that according to Lee, Fullilove received $10,000 in proceeds from the robbery from Lee. The Government also presented testimony of FBI Agent Matthew Alcoke, who testified that he interviewed Fullilove in June 2007 about the robbery. Agent Alcoke testified that during that pre-arrest meeting, he showed Fullilove an arrest a warrant had been issued to Lee for the Chase robbery, as well as a picture of Rivera. Agent Alcoke also testified regarding a second meeting with Fullilove after she was arrested in connection with the robbery. According to Agent Alcoke, at that post-arrest meeting, Fullilove admitted she had arranged the initial meeting involving herself, Rivera and Lee, to discuss the robbery, that the meeting concerned the bank's security procedures, and that she was "80 percent sure" a gun was discussed during that meeting. Agent Alcoke also testified that Fullilove told him that right before the robbery, she saw Lee, and Fullilove told Agent Alcove that she thought Lee had a gun. The jury convicted Fullilove on all three counts.
A. Motion for Judgment of Acquittal.
A motion for judgment of acquittal under Rule 29 challenges the sufficiency of the evidence against a defendant. See Fed. R. Crim. P. 29 (requiring the Court to "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction"). In challenging the sufficiency of the evidence, Fullilove "bears a heavy, indeed, nearly insurmountable, burden."
United States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010). Such a motion should be denied if, after viewing the evidence in the light most favorable to the Government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Hicks, 368 F.3d 801, 804 (7th Cir. 2004); see also United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003) (citing United States v. Menting, 166 F.3d 923, 928 (7th Cir. 1999) and finding a conviction entered after trial by jury should not be overturned unless "the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.")
A motion for a new trial under Rule 33(a) should be granted only if required "by the interest of justice." Fed. R. Crim. P. 33(a). Such motions should be granted sparingly and are only appropriate if "substantial rights of the defendant have been jeopardized by errors or omissions during trial." United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). A defendant is entitled to a new trial only if there is a reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict. See United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996).
A. There Was Sufficient Evidence to Convict Fullilove on All Three Counts.
1. Counts I and II (Conspiracy to Commit Bank Robbery and Bank Robbery)
Fullilove asserts that the Court should reverse the jury's verdict because the Government presented insufficient evidence to convict Fullilove of conspiracy to commit bank robbery (Count I) and bank robbery (Count II), arguing that the "testimony did not establish that . . . Fullilove agreed" with Rivera and Lee to commit the robbery. (Mot. at 2.) Fullilove further asserts that there was no evidence that she "advised, counseled or instructed anyone to use force, violence or intimidation to commit the robbery." (Id.) To prove conspiracy the Government must establish "that there was agreement between two or more persons to commit an unlawful act, that a defendant was party to the agreement, and that an overt act was committed in furtherance of the agreement by one of the coconspirators." United States v. Jones, 950 F.2d 1309, 1313 (7th Cir. 1991); 18 U.S.C. § 371. "In meeting its burden, 'the government need not establish that there existed a formal agreement to conspire; circumstantial evidence and reasonable inferences drawn therefrom concerning the relationship between the parties, their overt acts, and the totality of their conduct may serve as proof.'" Jones, 950 F.2d at 1313 (internal citations omitted). To show Fullilove committed bank robbery under an aiding and abetting theory, the Government must show the elements of bank robbery, (1) the principal (Lee) took money belonging to the bank, (2) that the bank was federally insured, and (3) that the principal acted to take the money by force, violence or intimidation, as well as the "knowledge of the crime, intent to further the crime, and some act of help" by Fullilove. See 18 U.S.C. §§ 2, 2113; United States v. Carter, 410 F.3d 942, 952 (7th Cir. 2005); United States v. Woods, 148 F.3d 843, 846 (7th Cir. 1998).
The evidence presented by the Government-in particular the testimony of her co-conspirators and her own statements-was more than sufficient for a reasonable jury to convict Fullilove of conspiracy and aiding and abetting the bank robbery. Lee testified that:
1. Fullilove spoke to him about how the ease of robbing the Chase branch where she used to work, knowing he had previously robbed banks. (Tr. 387-90);
2. Fullilove then called Rivera, introduced Lee to Rivera, the three had a planning meeting. (Tr. 393-400.) At that meeting, Fullilove told Rivera that Fullilove and Lee wanted to rob the Chase branch where Rivera worked. (Tr. 395.) Fullilove asked Rivera about specific bank procedures, including requiring two separate codes to access the vault, and the three planned the date and time of the robbery. (Tr. 397-400.)
3. On the morning of the Fullilove called Lee to ensure he was up, met him at her boyfriend's apartment, and drove him to the car to be used in the robbery (Tr. 402-03.) At that point, Fullilove and Lee agreed to meet after the robbery in her apartment. (Tr. 403.)
4. Lee robbed the bank at gunpoint, met Fullilove at her apartment, and gave her $10,000. (Tr. 404-06.) At that exchange, Fullilove told Lee not to give Rivera any money from the robbery because she did not show up at work the day of the robbery and participate as planned. (Tr. 406.)
Rivera confirmed Lee's testimony regarding the planning meeting in many respects, testifying that:
1. Two days before the robbery, Fullilove called Rivera to meet up. (Tr. 309-10.) That day, Rivera met with Fullilove and Lee, and Fullilove talked about her need for money and introduced Lee as friend who "robs banks for a living." (Tr. 313.) During that meeting, the three discussed the bank's security procedures. (Tr. 313-16.) Rivera stated that Fullilove did most of the talking at this meeting. (Tr. 312.)
2. During the planning meeting, Fullilove asked Rivera to play an "innocent" victim role and enter one of the two codes to enter the vault for Lee. (Tr. 316.) Fullilove told Rivera that if she did not go through with the plan, she Rivera would be "just as guilty" as Fullilove and Lee. (Tr. 320.) ...