The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
The Defendants, Michael Harris, Chris Blitch, Devarl Washington, and Michael Carwell (hereinafter, the "Defendants") were each found guilty of three counts of a four-count indictment charging them with Conspiracy to Possess with Intent to Distribute in excess of Five Kilograms of Cocaine (Count One); Carrying a Firearm During and in Relation to a Drug Trafficking Crime (Count Three); and Being a Felon in Possession of a Firearm (Count Four). They were each acquitted of Count Two charging Attempt to Possess with Intent to Distribute in Excess of Five Kilograms of Cocaine.
The underlying factual setting involved the all too familiar fake stash house robbery which had been set up by an undercover agent (here ATF Agent Gomez) and a confidential informant "to entice alltoo-eager gangsters to agree to something illegal." See, e.g., United States v. Corson, 579 F.3d 804 (7th Cir. 804); United States v. Lewis, 641 F.3d 773 (7th Cir. 2011); and United States v. Hall, 608 F.3d 340.
Each of the Defendants has filed Post-Trial Motions seeking judgment of acquittals or in the alternative for a new trial. (The Court has previously ruled on Defendant Blitch's Post-Trial Motion as his sentencing hearing has already been held.)
I. MOTIONS FOR JUDGMENT OF ACQUITTAL
In reviewing such a challenge, the Court reviews all of the evidence in the light most favorable to the Government. United States v. Hale, 448 F.3d 971, 982 (7th Cir. 2006). Defendants acknowledge that this normally is an almost "insurmountable" hurdle. Id. While the Defendants each urge that the evidence was insufficient to establish any type of agreement between them, their main thrust is that there was no evidence to support the element of Count One that they conspired to possess drugs "with the intent to distribute." However, the evidence was overwhelming with regard to establishing the agreement to rob the stash house. The Government played numerous tape recordings in which each of the Defendants contributed remarks that clearly showed that he was involved in the planning of the robbery of the stash house and was present when other Defendants contributed remarks and suggestions. As stated in Corson, "the jury convicted Marcus and Alverez of conspiring to rob a drug stash house and sell their loot. 'Conspiracy is agreement to violate some other law.' Though it might seem odd, the fact that the stash house, the drugs - indeed the whole plot - was fake is irrelevant. That the crime agreed upon was in fact impossible to commit is no defense to the crime of conspiracy. The crime of conspiracy is the agreement itself." (Citations omitted). United States v. Corson, 579 F.3d at 810.
The Defendants, however, contend that there was no evidence that they intended to distribute the expected proceeds of the stash house robbery. The Court notes that the Defendants did not argue this in the Corson case. However, the evidence of intent to distribute was, in fact, overwhelming. The Defendants on several occasions, as they did in Corson, discuss how the expected kilogram quantities of cocaine were to be distributed among themselves. At various times the amounts were to be expected to be 2 1/2 Kilograms, and toward the end 3 kilograms each. On several occasions in the presence of each other the need to repackage the cocaine was discussed by some of the co-conspirators in order to maximize the profits. (Selling "fi'ty hard" and "forty soft" and dividing in "dubs" (twenty dollar bags) and "dimes" (ten dollar bags). The jury was entitled to conclude that these were not amounts which would be for personal consumption only so that the conspiracy was to include plans to distribute the robbery proceeds to others. See United States v. Lewis, 641 F.3d 773, 782 (7th Cir. 2011) ("A jury could reasonably believe that no sane person would rob a stash house guarded by armed gang members to score some recreational drugs for personal use.")
The Defendants' reliance on United States v. Radomski, 473 F.3d 728 (7th Cir. 2007) is misplaced. In that case the defendant and a co-defendant agreed to rob an FBI informant, posing as an Ecstasy dealer, of the proceeds of expected Ecstasy transaction. The informant turned over the agreed upon sum of money to the co-defendant who took the proceeds with the promise that he would return with the Ecstasy. Instead he and the defendant took off with the money without turning over the Ecstasy. In reversing Radomski's conviction (the co-defendant pleaded guilty) the court noted that the evidence amounted merely to evidence of intent to defraud. A conspiracy to pretend to sell an illegal drug is not a crime. Here the defendants by their own words intended to rob the stash house of cocaine, not money proceeds.
The final argument the Defendants make is that the evidence merely demonstrated a mere buyer-seller relationship which is insufficient to establish a conspiracy to distribute illegal drugs, citing United States v. Harris, 567 F.3d 846, 850-851 (7th Cir. 2009). However, there was no such relationship between the alleged co-conspirators. They were on the same, i.e., receiving side of the expected transaction, which precludes a buyer-seller relationship. United States v. Johnson, 437 F.3d 665, 675 (7rth Cir. 2006).
Each Defendant also moves for acquittal on Count Three, using a fire arm in relation to a drug trafficking crime. The arguments of the Defendants as to why they should be acquitted on Count Three depend on their success in obtaining acquittal on Count One. Since they are not successful in obtaining acquittal on Count One, they are not entitled to acquittal on Count Three.
Accordingly the Motion for Acquittal by the Defendants is denied.
II. MOTION FOR A NEW TRIAL
Each Defendant also moves in the alternative ...