The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
On May 13, 2011, a jury convicted defendant Terrance Jones of possession with intent to distribute more than 50 grams of crack cocaine and of using a telephone to commit a narcotics trafficking crime. Jones filed both a motion for judgment of acquittal and a motion for a new trial, arguing inter alia that the evidence was insufficient to sustain his conviction. While the court initially denied both motions, it reexamined the sufficiency of the evidence in ruling upon a subsequent post-trial motion. The court requested oral argument, which took place in November 2011. Because the court agrees that the evidence at trial was insufficient to prove Jones guilty of the charged offenses beyond a reasonable doubt, the court grants the motion for a judgment of acquittal.
On February 8, 2010 the government filed a complaint detailing the existence of a drug trafficking operation run by Dominique Finley, a high-ranking member of the Four Corner Hustlers street gang. According to the complaint, Finley and his associates began operating on the west side of Chicago in 2008. Finley was responsible for running several drugs spots and supplying wholesale quantities of crack cocaine to other individuals. Finley purportedly made use of Terrance Jones, Clarence Johnson, and Milton Bills to convert powder cocaine into crack cocaine; Eric Ollison to transport and deliver drugs or money; and Frederick Taylor to sell the drugs to others.
Law enforcement agents began investigating Finley's organization, making use of confidential informants, surveillance, and Title III wiretaps. As a result of that investigation, Finley, Bills, and Jones were arrested on February 9, 2010, followed by the arrests of Taylor and Ollison. Count I of the superseding indictment charged Finley, Bills, Ollison, and another individual (Kelvin Green) with conspiracy to possess and intent to distribute more than 50 grams of narcotics. Jones is not named as part of the conspiracy; instead, the counts brought against him all related to specific events that unfolded on June 17, 2009.
Briefly-these facts will be discussed in detail below-on that day the Federal Bureau of Investigation ("FBI") and the Chicago Police Department ("CPD") were working together to monitor the activities of Finley and his associates. They had a wiretap on Finley's telephone, which was capable of making normal telephone calls as well as "push-to-talk" ("PTT") communications. CPD Officer Pacino tailed Finley's automobile for most of the day, while Agent Duda used a confidential informant to attempt a controlled purchase of crack cocaine from Frederick Taylor. Agent Duda placed an audio recording/transmitting device on the informant and provided him with money to make the purchase. The informant approached Taylor and spent some period of time with him before Finley showed up. Finley briefly spoke with Taylor, and then Taylor returned to the informant. The audio from the subsequent conversation between Taylor and the informant indicated that Finley had a kilogram of cocaine, but that it had not yet been converted (or "cooked") into crack cocaine. Taylor returned the informant's funds, and the informant dutifully reported back to Agent Duda.
Following his meeting with Taylor, Finley met with a number of other individuals, including Jones. At around 7:00 p.m., CPD officers attempted to execute an enforcement stop on Finley and Jones while they were together in Finley's vehicle. During the ensuing car chase, two officers observed Finley toss a bag from the driver's side window into an alley. Moments later, Finley stopped the vehicle and took off running; Jones stayed put. Neither was arrested at the time, although Officer Hladik recovered 86.8 grams of crack cocaine, which Finley had thrown from the window. Neither Finley nor Jones noticed that the crack cocaine was recovered by the CPD, because later wiretap recordings established that Finley asked Jones return to the area to conduct an unsuccessful search for the drugs.
It is this crack cocaine, recovered on June 17, 2009, that is at issue. Jones was eventually arrested, and the superseding indictment charged him with two counts of using a telephone to commit narcotics trafficking crimes (based on PTT call # 5881, which took place at 2:00 p.m., and PTT call # 5646, which took place at 9:07 p.m.*fn1 ) and one count of possession with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 843(b). Everyone else charged in the indictment-Finley, Taylor, Green, Ollison, and Bills-pleaded guilty,*fn2 but Jones proceeded to trial.
At trial, the government introduced testimony from Agent Duda and CPD Officers Pacino, Conneely and Hladik. In addition, the government called as witnesses Clarence Johnson and Eric Ollison, both of whom received lower sentence recommendations from the government in exchange for their cooperation; Agent Riordan, who served as the administrative agent on the wiretap investigation; Agent Culloton, who testified as an expert in crack cocaine trafficking; Jeremy Wintz, a forensic fingerprint examiner; and Peter Ausili, a forensic chemist. The government also played audio recordings of calls made to and from Finley's phone, starting at about 2:00 p.m. that day (PTT call # 5881) and ending at about 11:31 p.m. (PTT call # 6027). Jones did not testify or put on any witnesses.
The government's general theory of the case was that Finley needed to convert his raw cocaine into crack cocaine so that Taylor could sell the product to the informant. According to the government, Finley reached out to Jones because Finley's normal cooker, Clarence Johnson, was not available. The government claimed that Jones helped Finley obtain the diluents and equipment needed to convert the raw cocaine into crack cocaine; the two then met inside a residence at 1447 South Christiana for an hour and a half. Because Finley was in possession of crack cocaine after they left the house, the government asked the jury to infer that Jones obtained the necessary supplies (i.e., the ingredients and a blender), then cooked the crack cocaine inside the house at South Christiana for Finley:
[A]t 3:24 p.m., the defendant had a series of phone conversations with Finley that give us a window into what he and Finley were doing at that time. "I'm taking you where you want to go, man. I'm handling this." Those are the defendant's words. What is the defendant handling for Finley, ladies and gentlemen? The defendant is assuring Finley that he'll get his crack cooked for him. And what is it that Finley want[s] from Walgreens? Agent Culloton told you that drug dealers dilute the cocaine that they sell with all sorts of other substances, substances that you can buy from places like Walgreens. The next call continues the conversation.
Finley tells the defendant: "I'm trying to find some." He's trying to get the defendant what he needs to sell the crack. **** Later that day at 5:24 p.m. the defendant talks to Finley about something else he needs to cook the crack cocaine. A blender. You can see the call up there, and you can read it in your jury books. And it's clear from that call they really need the blender, ladies and gentlemen. The defendant has a blender, but he needs the pieces. He tries to get the blender from Finley's girl. Then he tries to get the blender from his cousin. He really needed that blender. And ladies and gentlemen, you can tell from the context of this conversation what the defendant needed a blender for. He wasn't blending margaritas. He wasn't making milk shakes. He needed a blender so he could cook crack cocaine for Finley.
Agent Culloton testified that a blender is used in processing cocaine powder into crack cocaine to mix the cut so you can stretch the cocaine. And Lakefront, Clarence Johnson, told you that when you cook crack a hand blender or mixer is sometimes used to beat the substance while it hardens as it's being cooked. And that's why the defendant needed a blender so badly. It wasn't for a party. It wasn't to make a margarita. It was for business. **** What were Finley and the defendant doing in that residence for 90 minutes? Well, let's use some good old-fashioned common sense. Finley was a drug dealer. He had powder cocaine he needed cooked into crack. He had gotten a scale to weigh the cocaine. He got a blender. He got the stuff from Wal-Mart. And he's inside the defendant's residence with him for 90 minutes. And what happens at the end of the 90 minutes? They emerge from that residence with this crack cocaine on Finley. This crack cocaine which Finley tossed out the window. It's clear what happened inside that house, ladies and gentlemen. The defendant, Terrance Jones, cooked that crack cocaine, and he gave it to Finley. (Trial Tr. 140:3-20, 141:21-142:14, 143:4-16, May 12, 2011.)
After hearing the evidence and arguments presented at trial, the jury returned a verdict of guilty on both counts. Thereafter, Jones filed both a motion for judgment of acquittal and a motion for a new trial. The court denied these motions, and Jones then filed a second motion for a new trial based on newly discovered evidence, which the court also denied. In determining whether this newly discovered evidence warranted a new trial, however, the court necessarily reviewed all of the evidence introduced at trial. In light of that review, the court reconsidered its earlier ruling on the motion for a judgment of acquittal, and asked the parties to address the issue at oral argument. As the motion itself was timely made, the court concludes that it has the ability to revisit its initial ruling. See United States v. Reed, 375 F.3d 340, 342 (5th Cir. 2004) (affirming a district court that initially denied, then reconsidered and granted, a motion for judgment of acquittal); see also United States v. Byrne, 203 F.3d 671, 675 (9th Cir. 2000) ("[N]othing in the  amended rule or notes explicitly precludes a district court from reconsidering a Rule 29 acquittal."). Thus, the matter is now ripe for a resolution.
In evaluating a motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29, the court views the evidence and the facts in the light most favorable to the non-moving party-here, the government. See United States v. Chambers, 642 F.3d 588, 592 (7th Cir. 2011) (citing United States v. Jones, 222 F.3d 349, 351 (7th Cir. 2000)). The court is not tasked with determining whether a particular defendant is actually guilty; the only question is whether, based upon the evidence presented, a rational jury could believe that the defendant was guilty beyond a reasonable doubt. See United States v. Moore, 572 F.3d 334, 337 (7th Cir. 2009). For this reason, "[a] defendant attacking the sufficiency of the evidence used to convict him faces a nearly insurmountable hurdle." United States v. Morris, 576 F.3d 661, 665-66 (7th Cir. 2009) (quoting United States v. Pulido, 69 F.3d 192, 205 (7th Cir. 1995) (internal quotation marks omitted)).
Circumstantial evidence alone may suffice, but "each link in the chain of inferences the jury constructed [must be] sufficiently strong to avoid a lapse into speculation." Moore, 572 F.3d at 337 (quoting United States v. Jones, 371 F.3d 363, 366 (7th Cir. 2004)) (internal quotation marks omitted); see Piaskowski v. Bett, 256 F.3d 687, 693 (7th Cir. 2001) ("Although a jury may infer facts from other facts that are established by inference, each link in the chain of inferences must be sufficiently strong to avoid a lapse into speculation."). Where a court concludes that the evidence at trial was not sufficient to sustain a conviction, such a finding "is akin to an acquittal and bars the defendant's retrial under the Double Jeopardy Clause." United States v. Rogers, 387 F.3d 925, 935 (7th Cir. 2004) (citing Burks v. United States, 437 U.S. 1, 18 (1978) and United States v. Lanzotti, 90 F.3d 1217, 1220-24 (7th Cir. 1996)).
The court must view the evidence in the light most favorable to the government. To do so, it is helpful to set out that evidence in a detailed timeline of the date in question.
At about 12:30 p.m., Agent Duda observed Frederick Taylor and unknown others on the corner of Mayfield Avenue and Thomas Street on the west side of Chicago. Agent Duda outfitted his confidential informant with an audio recording/transmitting device and gave the informant $1800 so that the informant could purchase crack cocaine from Frederick Taylor. The informant was instructed to approach Taylor on foot from a few blocks away. After sending the informant to make the purchase, Agent Duda entered a surveillance van and drove to a vantage point where he could observe and videotape the action on the corner.
The informant approached Taylor at about 1:30 p.m., and continued to meet with him for "several hours." Taylor briefly left the group on the corner at about 2:30 p.m., when Finley's car, a blue Infiniti G20, approached the area. Finley drove up to where Taylor was standing, and Taylor got in on the passenger side of the vehicle. ...