MICHAEL P. McCUSKEY, District Judge.
Defendant, Deandre Haynes, was convicted at jury trial on May 2, 2013, of conspiracy to manufacture methamphetamine, conspiracy to possess and distribute pseudoephedrine in the manufacture of a controlled substance, and possession of pseudoephedrine for use in the manufacture of a controlled substance. Defendant had made a motion for acquittal at the close of the government's case-in-chief, which was denied, and renewed his motion (#165) on May 14, 2013. Defendant filed a Motion for a New Trial (#177) on June 27, 2013. The government filed its Responses (#198, #199) on October 18, 2013. For the following reasons, Defendant's Motion for Judgment of Acquittal (#165) and Motion for a New Trial (#177) are DENIED.
MOTION FOR JUDGMENT OF ACQUITTAL (#165)
Defendant incorporates the memorandum and arguments he made in his motion for acquittal during trial into the current Motion for Judgment of Acquittal (#165). Defendant argues that he was not proven guilty beyond a reasonable doubt of being engaged in a conspiracy, and that the government only proved the existence of a "buyer-seller" relationship, which does not amount to a conspiracy.
Under Rule 29(c) of the Federal Rules of Criminal Procedure, "[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later." Fed. R. Crim. P. 29(c)(1). "The issue on a motion under Rule 29(c) is the same as the issue on appeal: whether the evidence, taken in the light most favorable to the verdict, permits a sensible person to find beyond a reasonable doubt that the defendant committed the crime alleged." United States v. Genova, 333 F.3d at 750, 757 (7th Cir. 2003). Rule 29 does not permit the trial judge "to play thirteenth juror." Genova, 333 F.4d at 757.
To prove a conspiracy to manufacture methamphetamine and a conspiracy to possess and distribute pseudoephedrine for use in the manufacture of methamphetamine, the government was required to prove beyond a reasonable doubt that Defendant knowingly and intentionally joined an agreement with at least one other person to commit an unlawful act, here the manufacture of methamphetamine and the possession or distribution of pseudoephedrine for use in the manufacture of methamphetamine. See United States v. Rea, 621 F.3d 595, 608 (7th Cir. 2010). The Seventh Circuit has cautioned, however, that:
"[t]here is a distinction  between a mere buyer-seller relationship and a defendant's participation in a conspiracy. [citation omitted] In a buyer-seller relationship, the sale of drugs, without more, does not constitute a conspiracy because the sale itself is a substantive crime.' [citation omitted] But [a]ll that is necessary to establish a drug distribution conspiracy is an understanding related to the subsequent distribution of narcotics.' [citation omitted] In order to carry its burden, [t]he government need only show an agreement that goes beyond the individual sale between buyer and seller." Rea, 621 F.3d at 608 (emphasis in original).
The agreement does not need to be formal, and the government may establish the agreement through circumstantial evidence. Rea, 621 F.3d at 608. A jury can infer the conspiracy from the parties' course of dealing, such as when the defendant and a co-conspirator were on the "same side of the transaction." Rea, 621 F.3d at 608, quoting United States v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006). Other evidence the government may present to prove conspiracy to distribute drugs includes: sales of large amounts of drugs, prolonged cooperation, a level of mutual trust between the parties, standardized dealings, and sales on a consignment or "fronted" basis. Rea, 621 F.3d at 608. However, because some of these factors individually may create an inference of either a buyer-seller relationship or a conspiracy to distribute drugs, the Seventh Circuit has clarified that the following examples weigh more heavily in favor of finding a conspiracy:
"sales on credit or consignment, an agreement to look for other customers, a payment of commission on sales, an indication that one party advised the other on the conduct of the other's business, or an agreement to warn of future threats to each other's business stemming from competitors or law-enforcement authorities." Rea, 621 F.3d at 608, quoting United States v. Johnson, 592 F.3d 749, 755-56 (7th Cir. 2010).
Here, it should be noted that Defendant was not convicted of conspiracy to distribute methamphetamine, the finished product, but rather with conspiracy to manufacture methamphetamine (Count I) and conspiracy to possess and distribute pseudoephedrine in the manufacture of methamphetamine (Count II). This fact distinguishes this case from United States v. Valdez-Santos, 370 F.Supp. 1051 (E.D. Cal. 2005), reversed on other grounds by United States v. Valdez-Santos, 457 F.3d 1044 (9th Cir. 2006), where the defendant was charged with conspiracy to both manufacture and distribute methamphetamine. Valdez-Santos, 370 F.Supp.2d at 1052. Defendant was not part of a conspiracy to distribute methamphetamine, but rather was part of a conspiracy to manufacture methamphetamine, and distribute pseudoephedrine in the manufacture of that methamphetamine. The court agrees with the government that the buyer-seller defense does not apply in this circumstance. Defendant has cited to no case law where the buyer-seller relationship defense applies in a case purely concerned with a conspiracy to manufacture an illicit drug.
However, assuming arguendo the "buyer-seller" defense applies to the conspiracy to manufacture, the court agrees with the government that the evidence in this case is overwhelming that Defendant was engaged in a conspiracy to manufacture methamphetamine. He had full knowledge that the pseudoephedrine was being used to cook methamphetamine. Jennifer McCullough, a co-conspirator, fully explained to Defendant how the manufacturing process would work when she recruited him to use his crack distribution network to obtain pseudoephedrine. Defendant was well-aware of the role he was playing in the methamphetamine manufacturing process. He was given small amounts of the finished product. He also discussed with Joe Long (a methamphetamine cook) the viability of selling the product to crack addicts in Chicago, but they decided not to expand into the Chicago market because crack users would most likely not like methamphetamine. Further, Defendant had a stake in the outcome of the manufacture, in that Defendant made at least $30 per box of pseudoephedrine he sold to Jennifer McCullough and Joe Long for production of methamphetamine. When the meth production ran into difficulty, such as trouble cooking the meth and selling sufficient meth to provide McCullough money to pay Defendant for more pseudoephedrine, Defendant became involved and McCullough found a new cook. When that cook was arrested, Defendant contacted him and asked him for the contact information for a new cook to take his place. Defendant did have a stake in the operation to ensure that it continued operating to provide him with a market for his pseudoephedrine.
Defendant was also involved in stimulating the manufacturing business, by telling Joe Long that, if Long could cook more, Defendant would provide more pseudoephedrine. Defendant recruited his crack buyers to become a network of pseudoephedrine pill purchasers. Acting on the direction of Jennifer McCullough, Defendant trained these people on how to purchase large amounts of pseudoephedrine and avoid detection by law enforcement. Defendant further provided an enormous amount of pseudoephedrine to manufacture the meth, such as over 1, 000 boxes of pseudoephedrine to Long alone. Defendant also provided other ingredients to Long, such as lithium batteries, to manufacture the methamphetamine. Finally, Defendant would, on occasion, front boxes of pseudoephedrine to McCullough if he had more boxes than she could pay for. She would pay Defendant the next week. At other times, McCullough would front Defendant money when he did not have all of the boxes she had money to buy, and then he would make up the difference the following week. This exhibited a level of trust between Defendant and the other members of the conspiracy.
Defendant was engaged, with McCullough, Long, and others, in far more than a mere buyer-seller relationship. This was a large conspiracy to manufacture methamphetamine, in which Defendant, as the main purchaser and supplier of pseudoephedrine, was an important cog. The evidence is overwhelming that this was a conspiracy. This evidence, taken in the light most favorable to the government, would certainly permit a rational person to find beyond a reasonable doubt that Defendant ...