The opinion of the court was delivered by: Judge Joan H. Lefkow
On August 1, 2011, defendant Gonzalo Garcia-Avila was convicted by a jury of conspiracy to possess with intent to distribute and attempted distribution of 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, respectively. He has moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal and under Federal Rule of Criminal Procedure 33 for a new trial. The court, having read the transcript of the trial, the parties' submissions on the motions, and the arguments of counsel on the record in open court, denies the motions for the following reasons.
I. Motion for Judgment of Acquittal
Federal Rule of Criminal Procedure 29 provides, in pertinent part, that "the court on the defendant's motion 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). When requesting a judgment of acquittal under Rule 29, a defendant "faces a nearly insurmountable hurdle [because] . . . [the court] consider[s] the evidence in the light most favorable to the Government, defer[s] to the credibility determination of the jury, and overturn[s] a verdict only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Blassingame, 197 F.3d 271, 284 (7th Cir. 1999) (quoting United States v. Moore, 115 F.3d 1348, 1363 (7th Cir. 1997)). A jury verdict of guilty must be set aside if, even though the verdict is not "wholly irrational," the evidence would not have justified a reasonable juror in finding guilt beyond a reasonable doubt. United States v. Curescu, 674 F.3d 735, 741--42 (7th Cir. 2012) cert. denied, Nos. 12-5304 & 12-5371, 674 F.3d 735 (U.S. Oct. 1, 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 317--19, 99 S. Ct. 2781, 61 L .Ed. 2d 560 (1979); United States v. Mojica, 185 F.3d 780, 789 (7th Cir. 1999); United States v. Rahman, 34 F.3d 1331, 1337 (7th Cir. 1994); United States v. DeCorte, 851 F.2d 948, 952 & n.2 (7th Cir. 1988); United States v. Brown, 776 F.2d 397, 402 (2d Cir. 1985) (Friendly, J.)).
Garcia-Avila argues that the evidence presented at trial failed to prove his guilt beyond a reasonable doubt on any element of the two offenses. As such, he requests that the court set aside the jury's guilty verdict and enter a judgment of acquittal. Each of defendant's arguments is addressed below.
A. The evidence at trial was sufficient to establish a conspiracy.
Garcia-Avila argues that there was insufficient evidence that a conspiracy existed and that he became a member of that conspiracy with the specific intention to further the goals of the conspiracy. He contends that, due to shortcuts in the investigation, the evidence collected by the Drug Enforcement Agency ("DEA") failed to establish that he agreed to commit a crime. Garcia-Avila points to the lack of surveillance photographs of him or any of the activities on February 24, 2010 or March 1, 2010 (Tr. 435); the poor quality of the tape recording of the February 24 meeting (Tr. 37--38, 324); the inherent unreliability of the informant, who had received immunity one week before the trial but was the only witness to make a voice identification of the defendant (Tr. 122); the absence of evidence that defendant had made telephone calls to the informant or the DEA undercover agent, and insufficient evidence that the keys found in defendant's pocket were for the informant's car. (See Tr. 271--284; 403--415; 468--83; 504; 517--29.)
The points Garcia-Avila makes reflect weaknesses in the evidence, but they do not demonstrate that evidence of any element of the charged crimes is missing or so insubstantial as to render a jury verdict unjust. The informant testified at trial that he was present at the meeting on February 24 where Garcia-Avila and his co-conspirators discussed obtaining methamphetamine to sell to the undercover agent. (See Tr. 194--230.) DEA agents were at various sites maintaining visual surveillance of the individuals and monitoring the body wire conversations. (Tr. 24--40.) Although the tape recording of the February 24 meeting was of poor quality and its contents were difficult to hear, the interpreter who prepared the English translation of the conversation testified that she marked as unintelligible all portions of the conversation for which she was not 100 percent confident. (Tr. 56.) Although the informant was the only witness to make a voice identification of the defendant, this procedure is not unusual. (See Tr. 46--112; 133--41; 145--83.) Moreover, Garcia-Avila has not provided any evidence to substantiate his assertion that the government exerted undue influence on the informant. The jury was instructed to treat the informant's testimony with caution and great care. (Dkt. #159 at 4; 14.) The jury's choice to believe the informant was its prerogative.
In addition, the absence of telephone calls between Garcia-Avila and the informant or the undercover agent does not defeat evidence that from February 24 to March 1 there were 115 cell phone contacts between defendant and Francisco Mendez, defendant's broker, 65 contacts between defendant and Carlos Figueroa, defendant's associate, and 17 contacts between defendant and Rosendo Jiminez, the drug deliveryman. (Tr. 542--43; Ex. C.) The informant also testified that it would have been unusual for defendant to make calls directly to the informant, the undercover agent, or Pedro Quiroz, the informant's broker, because Mendez was defendant's contact, not the informant, the agent or Quiroz. (Tr. 208).
Finally, Garcia-Avila argues that there was insufficient evidence that he had the keys to the informant's car in his pocket at the time of his arrest. That the keys were not introduced in evidence and that there was no evidence indicating how Garcia-Avila happened to have the keys merely goes to the weight to be given to the agent's testimony that he found the keys in defendant's pocket and used them to open the informant's car and recover the drugs. (Tr. 482--83; 503--05; 518.) Garcia-Avila has not demonstrated that it would have been impossible for him to have had possession of the keys.
In light of all of the evidence supporting the principal facts that Garcia-Avila participated in a discussion of plans to procure methamphetamine for sale to the undercover agent, participated in numerous phone calls in furtherance of the transaction, and was identified in the vicinity at the time of the delivery of almost two pounds of methamphetamine, a reasonable jury could infer that defendant was a member of a conspiracy to distribute 50 grams or more of methamphetamine.
B. The evidence at trial was sufficient to establish attempt.
Defendant bases his motion for judgment of acquittal of the attempt conviction on the same facts as set out above and contends that the proof introduced at trial was insufficient to prove that he attempted to distribute a controlled substance, that he did so knowingly and intentionally, and that he knew the substance was a controlled substance. Further, defendant argues, that he did not knowingly take a substantial step toward ...