MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
Defendant Joel Rivas has moved for a judgment of acquittal and for a new trial. For the reasons explained below, the Court denies Defendant's motion for judgment of acquittal and his motion for a new trial.
On February 1, 2011, a federal grand jury returned a superseding indictment (the "Indictment") charging Rivas and his co-defendant, Ismael Miranda, with various felony offenses. The Indictment charged Defendant Rivas with five separate counts: (1) conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine and marijuana, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 841(a)(1) and 28 U.S.C. §2; (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (4) two counts of unlawful possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (R. 25, Indict.) Defendant pled not guilty and proceeded to trial. Co-defendant Miranda pled guilty on September 20, 2011, and the Court subsequently sentenced him to 20 years in prison. The Seventh Circuit granted Miranda's counsel's motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and dismissed the appeal on November 8, 2012. (R. 104.)
Defendant Rivas proceeded to a jury trial. During the trial, the government called the following witnesses: Calvin Stringer, Beth Sterricker of the Elgin Police Department, Mark Liby, Special Agent Christopher Labno of the Bureau of Alcohol, Tobacco & Firearms ("ATF"), Corey Glass, ATF Intelligence Analyst Adam Gibson, Gregory Flowers from Kane County Jail, Miguel Pantoja from the Department of Homeland Security, and Patricia Gonzalez, an interpreter from the United States Attorney's Office. Agent Labno gave expert testimony regarding narcotics trafficking based on his extensive experience in working narcotics investigations, including working undercover in such investigations. In addition, the government called Edward Rottman, a fingerprint expert with the Illinois State Police, to testify at trial. Defendant called Dennis Palmer, who was a former teacher of Defendant's. Defendant Rivas also testified.
On July 18, 2013, following a four day jury trial, the jury returned a verdict of guilty against Defendant on all counts. (R. 180.) The jury found Defendant responsible for more than 5 kilograms of cocaine in connection with the drug conspiracy in Count One. In addition, the jury found that Defendant Rivas had possessed two firearms in furtherance of the drug charge in Count Two of the Indictment. Defendant now moves for judgment of acquittal and a new trial.
I. Defendant is Not Entitled to a Motion for Judgment of Acquittal
Defendant argues that the government failed to prove him guilty beyond a reasonable doubt on each of the counts. Defendant has not met his heavy burden on any of the counts of conviction.
A. Legal Standard for a Motion for Judgment of Acquittal - Rule 29
Rule 29(a) provides that, "[a]fter the government closes its evidence or after the close of all the evidence, 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, as here, a defendant makes a Rule 29(a) motion at the close of the government's case, and the court reserves decision, the court "must decide the motion on the basis of the evidence at the time the ruling was reserved." Fed. R. Crim. P. 29(b).
"In challenging the sufficiency of the evidence, [a defendant] bears a heavy, indeed, nearly insurmountable, burden." U.S. v. Warren, 593 F.3d 540, 546 (7th Cir. 2010); see also U.S. v. Jones, 713 F.3d 336, 339-40 (7th Cir. 2013); U.S. v. Berg, 640 F.3d 239, 246 (7th Cir. 2011); U.S. v. Dinga, 609 F.3d 904, 907 (7th Cir. 2010); U.S. v. Morris, 576 F.3d 661, 665-66 (7th Cir. 2009). The reviewing court will view the "evidence in the light most favorable to the prosecution, " and the defendant "must convince' the court that, even in that light, no rational trier of fact could have found him guilty beyond a reasonable doubt.'" Warren, 593 F.3d at 546 (quoting U.S. v. Moore, 572 F.3d 334, 337 (7th Cir. 2009)); see also U.S. v. Eller, 670 F.3d 762, 765 (7th Cir. 2012); U.S. v. Dood y, 600 F.3d 752, 754 (7th Cir. 2010) (stating that the inquiry is "whether evidence exists from which any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt"). In other words, a court will "set aside a jury's guilty verdict only if the record contains no evidence, regardless of how it is weighed, ' from which a jury could have returned a conviction." U.S. v. Presbitero, 569 F.3d 691, 704 (7th Cir. 2009) (quoting U.S. v. Moses, 513 F.3d 727, 733 (7th Cir. 2008)); see also Warren, 593 F.3d at 546.
It follows that under Rule 29, courts "do not reassess the weight of the evidence or second-guess the trier of fact's credibility determinations." U.S. v. Arthur, 582 F.3d 713, 717 (7th Cir. 2009); see also U.S. v. Severson, 569 F.3d 683, 688 (7th Cir. 2009). This strict standard is a recognition that "[s]orting the facts and inferences is a task for the jury." Warren, 593 F.3d at 547. The Seventh Circuit teaches that:
[t]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Moore, 572 F.3d at 337 (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
B. Count One
Count One charged Defendant with a conspiracy to possess with the intent to distribute and to distribute 5 kilograms or more of cocaine and marijuana. In order to find Defendant guilty on Count One, the government had to prove beyond a reasonable doubt that a conspiracy existed and Defendant knowingly became a member of the conspiracy with an intent to advance the conspiracy. The government introduced sufficient evidence to establish Defendant's guilt beyond a reasonable doubt on this count.
1. The Search of the Elgin Storage Unit
On February 18, 2010, Elgin police officers executed a state search warrant at a storage unit located at 1460 Illinois Parkway in Elgin, Illinois (the "Eglin storage unit"). Calvin Stringer, the owner of the storage unit, testified that he rented that unit to co-defendant Miranda in late 2008 or early 2009. Stringer testified that Miranda and Defendant Rivas worked on cars at the Elgin storage unit. He further testified that Defendant and Miranda installed security cameras outside of the unit and that both of them came to the Elgin storage unit almost daily. In addition, Stringer testified that Defendant wore a blue mechanic shirt with a nametag "Tony" when he worked at the storage unit.
During the February 18, 2010 search, the Elgin officers recovered quantities of marijuana and cocaine and two firearms - a 9mm handgun from one of the desk drawers and a.357 loaded handgun. Detective Sterricker testified about the items recovered, and the government introduced photographs of the items as well as the actual items. Detective Sterricker also testified that they recovered a shirt hanging on the wall with the nametag on the front pocket of the shirt that said "Tony." The shirt had a small baggy in the pocket that turned out to be 2.1 grams of cocaine. In total, the Elgin police officers recovered approximately 210 grams of cocaine and 490 grams of marijuana during their search. They also seized a significant amount of drug paraphernalia, including a vacuum sealer, several boxes of plastic bags, digital scales, bottles of Inositol Power (a cutting agent), a body-wire detector, and a large sprayer full of orange peels that emitted a strong citrus order. In the toolbox where they found the loaded.357 handgun, they also found five boxes of.38 caliber ammunition, a radio frequency scanner, a body-wire detector, two bags with cocaine, a large digital scale, and a bottle of Inositol.
Furthermore, the Elgin police recovered paperwork that belonged to Defendant, including a student handbook from Rock Valley College where Defendant attended community college, several invoices from a mechanic business that Defendant ran, and a Western Union money order receipt that Defendant had sent.
2. The Call with Co-Defendant Miranda
Co-defendant Miranda was at the storage unit when the Elgin police executed the search warrant. The police arrested him on state drug charges. While incarcerated at the Kane County Jail, co-defendant Miranda placed a call from the jail to Defendant Rivas on March 3, 2010. The jail recorded the call and the government introduced it as evidence at trial. The government called a Spanish interpreter to testify regarding the English translation of the call. During the call, the following exchange took place:
MIRANDA: Hey, what's happening, bro? The... the law come down on us!
RIVAS: Yeah.... right?
MIRANDA: I just... got... got...got hold of a phone car; it was hard to get a hold of your number. Um...
RIVAS: I see.
MIRANDA: Um... put a stop... put a stop to all...
MIRANDA:... the shit, dud, because it's goddamn D.A., loco.
RIVAS: Oh, yeah?
MIRANDA: Yeah, it's not the feds. I thought it was the... the... the... the big one but no, it's just the D.A.
(Trial Transcript ("Tr") at 562-63.) Miranda informed Defendant in this exchange that the state authorities had arrested him, not federal agents. He also told him to "put a stop... put a stop to all." During the call, Miranda also told Rivas that the police were looking for him and that Miranda would not talk to the police about Rivas:
MIRANDA: And truth is they're looking for you, loco.
RIVAS: Mch! Naah?!
MIRANDA: For real, loco. They asked me about you and don't know you.
RIVAS: No shit!
(Tr. at 563.) Defendant and Miranda then went on to discuss who had informed the police about their drug operation. Miranda then told Rivas "don't you worry about a thing, cause nothing's coming out of me; I don't know nothing." (Tr. at 564.)
3. The Testimony of Drug Customers
Mark Liby and Corey Glass, two of Defendant's wholesale cocaine and marijuana customers, also testified at trial. Liby testified how he had discussed purchasing cocaine from Defendant, and Defendant thereafter had him meet his friend "Mexico" to pick up the cocaine. Liby identified co-defendant Miranda as "Mexico". After receiving the cocaine from "Mexico", Liby then paid Defendant for it. In addition, Liby testified that he purchased the following quantities of cocaine from Defendant Rivas: 1) four ounces; 2) 4.5 ounces on two occasions, 3) nine ounces on one to two occasions, and 4) a kilogram of cocaine two to three times. In total, Defendant sold Liby at least 2, 868 grams of cocaine.
Similarly, Corey Glass testified that he began purchasing marijuana from Defendant in late 2008, and typically purchased between two and five pounds at a time. Glass also testified that he purchased cocaine from Defendant. Specifically, Corey Glass testified that he purchased the following quantities of cocaine from Defendant: 1) a half ounce; 2) one once on two occasions, 3) two ounces, 4) nine ounces, and 5) eighteen ounces "four or five, maybe six times." Defendant thus sold Glass at least 2, 450 grams of cocaine.
Viewing this evidence in the light most favorable to the government, a rational trier of fact could have found the essential elements of the drug conspiracy beyond a reasonable doubt. Defendant has not met his heavy burden.
C. Count Two
Count Two charged Defendant with possession with intent to distribute cocaine and marijuana. In order to find Defendant guilty, the government had to prove that 1) Defendant knowingly possessed a controlled substance; and 2) Defendant intended to distribute the substance to another person; and 3) Defendant knew the substance contained some kind of a controlled substance. See United States v. Campbell, 534 F.3d 599, 605 (7th Cir. 2008). The evidence discussed above - including the items seized during the search of the Elgin storage unit, the quantity of cocaine and marijuana seized from the Elgin storage unit, Calvin Stringer's testimony that Defendant and Miranda rented the storage unit and went there daily, the recorded conversation with Miranda, and the testimony of Liby and Glass regarding the purchase of cocaine from Defendant inside the Elgin storage unit - supports Defendant's conviction on Count Two. Defendant's request that the Court reweigh the evidence fails.
D. Counts Three, Four and Five
Count Three charged Defendant with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). In order to prove Defendant guilty of this crime, the government had to prove that 1) Defendant committed the crime of possession with intent to distribute a controlled substance as charged in Count Two of the indictment; and 2) Defendant knowingly possessed a firearm; and 3) Defendant's possession of the firearm was in furtherance of the possession with intent to distribute a controlled substance. See United States v. Brown, 724 F.3d 801 (7th Cir. 2013).
Counts Four and Five both charge Defendant with being a felon in possession of a firearm. Count Four pertains to the.357 revolver and Count Five involves the 9 millimeter firearm. In order to prove Defendant guilty, the government had to establish beyond a reasonable doubt that Defendant knowingly possessed the firearm, the he previously had been convicted of a felony and that the possession was in or affecting interstate ...