United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
AMY J.ST EVE, District Judge.
Defendant Steven Mandell has moved for a judgment of acquittal, or, in the alternative, a new trial on Counts One, Two, Three, Four, Five, and Six of the Superseding Indictment. For the reasons explained in detail below, the Court denies Defendants' motions.
On November 1, 2012, a grand jury returned an Indictment against Steven Mandell ("Mandell", or the "Defendant") and his co-defendant, Gary Engel ("Engel"), charging them with two counts of extortion under 18 U.S.C. § 1951(a). (R. 13.) The Court subsequently granted the government's motion to dismiss co-defendant Gary Engel from the indictment after he was found dead in his prison cell. (R. 24.)
On March 21, 2013, a grand jury returned an eight-count Superseding Indictment against Defendant Mandell. (R. 38, Sup. Ind.) The Superseding Indictment charged Mandell with conspiracy to commit kidnapping, in violation of 18 U.S.C. § 1201 (Count I); conspiracy and attempted extortion, in violation of 18 U.S.C. § 1951 (Counts Two and Three); possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Four); being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count Five); obstruction of justice, in violation of 18 U.S.C. § 1512 (Count Six); and murder-for-hire, in violation of 18 U.S.C. § 1958(a) (Counts Seven and Eight). The Superseding Indictment also contained a forfeiture allegation. Defendant pled not guilty to each of the counts in the Superseding Indictment.
After extensive pretrial litigation, Defendant proceeded to a two week jury trial. During the course of the trial, the government called the following witnesses:
Defendant Steven Mandell also testified at trial. Defendant did not call any additional witnesses.
The jury returned a verdict of guilty against Defendant on Counts One through Six of the Superseding Indictment and not guilty on Counts Seven and Eight of the Superseding Indictment. Defendant now moves for a judgment of acquittal or new trial on the counts of conviction.
I. 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." United States v. Warren , 593 F.3d 540, 546 (7th Cir. 2010); see also United States v. Jones , 713 F.3d 336, 339-40 (7th Cir. 2013); United States v. Berg , 640 F.3d 239, 246 (7th Cir. 2011); United States v. Dinga , 609 F.3d 904, 907 (7th Cir. 2010); United States 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 United States v. Moore , 572 F.3d 334, 337 (7th Cir. 2009)); see also United States v. Eller , 670 F.3d 762, 765 (7th Cir. 2012); United States v. Doody , 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." United States v. Presbitero , 569 F.3d 691, 704 (7th Cir. 2009) (quoting United States 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." United States v. Arthur , 582 F.3d 713, 717 (7th Cir. 2009); see also United States v. Severson , 569 F.3d 683, 688 (7th Cir. 2009). This strict standard is 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)).
II. Motion for a New Trial - Rule 33
Rule 33 of the Federal Rules of Criminal Procedure provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a); see also Berg , 714 F.3d at 500; United States v. Smith , 674 F.3d 722, 728 (7th Cir. 2012) (reviewing a district court's order on a Rule 33 motion for abuse of discretion); United States v. McGee , 408 F.3d 966, 979 (7th Cir. 2005). "[C]ourts have interpreted [Rule 33] to require a new trial in the interests of justice in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial.'" United States v. Eberhart , 388 F.3d 1043, 1048 (7th Cir. 2004) (quoting United States v. Kuzniar , 881 F.2d 466, 470 (7th Cir. 1989)), overruled on other grounds , 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005).
"A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly.'" Eberhart , 388 F.3d at 1048 (quoting United States v. Santos , 20 F.3d 280, 285 (7th Cir. 1994)). The court may grant a new trial if the jury's verdict is so contrary to the weight of the evidence that a new trial is required in the interest of justice.'" United States v. Washington , 184 F.3d 653, 657 (7th Cir. 1999) ("The focus in a motion for a new trial is not on whether the testimony is so incredible that it should have been excluded. Rather, the court considers whether the verdict is against the manifest weight of the evidence, taking into account the credibility of the witnesses."); see also United States v. Chambers , 642 F.3d 588, 592 (7th Cir. 2011). Put another way, "[t]he court should grant a motion for a new trial only if the evidence preponderate[s] heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.'" United States v. Swan , 486 F.3d 260, 266 (7th Cir. 2007) (quoting United States v. Reed , 875 F.2d 107, 113 (7th Cir. 1989)). See also United States v. Presbitero , 569 F.3d 691, 706 (7th Cir. 2009).
I. The Evidence Was More than Sufficient to Sustain the Guilty Verdicts
Defendant argues that the evidence was not sufficient to sustain the guilty verdicts against him on Counts One through Six. The Court disagrees. During the course of the trial, the evidence overwhelmingly showed that Mandell plotted with his co-defendant Gary Engel as follows:
Mandell and Engel developed a plan to kidnap and extort Steven Campbell ("Campbell"), an owner of a significant number of rental properties. Mandell and Engel agreed to pose as law enforcement officers, and arrest Campbell with a fake warrant Engel had created bearing the forged signature of a federal judge. They planned to take Campbell to 5308 West Devon in Chicago, a location that Defendants outfitted for the express purpose of killing Campbell and that Mandell chillingly referred to as "Club Med." Once they brought Campbell to Club Med, they planned to cover his face with a ski mask, forcibly restrain him with handcuffs in a wheelchair, torture him with a razor blade (including mutilating his genitals), make him sign over his real estate holdings and reveal the location of money hidden in his home, and then ultimately kill and dismember him.
The FBI intercepted Mandell and Engel on their way to meet Campbell on October 25, 2012. Mandell was dressed as a law enforcement officer, and possessed a fake Cook County Sheriff's identification card with his picture and the phony arrest warrant for Campbell. On Mandell's person, agents recovered black gloves, a flashlight, and an Airsoft pistol BB gun. Engel also had false law enforcement identification, and possessed a stun gun and handcuffs. At Club Med, the FBI recovered (among other items) a wheelchair, a ski mask, zip ties, bags of disposable gloves, plastic goggles, large plastic sheets, garbage bags, a loaded Ruger.22 semi-automatic pistol, a knife, hemostats, and a meat cleaver.
The government's evidence was exceptionally strong. The government proved its case through, among other things, numerous witnesses, consensual calls with a cooperating witness, video and audio records from a Title III wiretap at Club Med, the evidence recovered from the execution of a search warrant at Club Med, and the evidence regarding Defendant's actions and statements. The Court discusses the evidence in further detail below, which it organizes into four categories: a) consensual calls between Mandell and cooperating witness George Michael; b) Title III evidence obtained from Club Med; c) the arrest of Mandell and Engel; and d) the search of Club Med. Viewing the evidence in the light most favorable to the government, a rational trier of fact easily could have found the essential elements of the crimes at issue beyond a reasonable doubt.
A. The Consensual Calls with George Michael
Significantly, the government introduced a substantial amount of consensual recordings between George Michael ("Michael"), the government's cooperating witness, and Defendant in which Defendant openly discussed his plan to kidnap Steven Campbell. George Michael met Defendant in July of 2012 through mutual acquaintances, and Mandell told Michael that "he was my new doctor and would take care of all my problems." (Transcript of the Trial ("Tr.") at 188.) Defendant and Michael subsequently had conversations regarding Steven Campbell in which Defendant told Michael that "I'm going to need your help with something" after he showed him a picture of Mr. Campbell's home. Defendant told Michael that he had been watching Mr. Campbell, including sitting in the front of his house and monitoring his activities. Defendant knew Campbell had money and owned a significant amount of rental properties. In addition, Defendant told Michael that he wanted Michael, who was active in real estate, to lure Mr. Campbell out of his home and to Michael's office so Defendant could pose as a police officer and pretend to arrest Mr. Campbell. Once he handcuffed Mr. Campbell and put him in the back of his car, Defendant intended to "take him to a location where he could extract and extort his money." (Tr. 203.) Defendant repeatedly referred to Mr. Campbell as "Soupy Sales, Soupy Kitchen, Soupy" in reference to his "last name being Campbell." (Tr. at 204, 306.)
During these numerous conversations, Defendant disclosed to Michael that he had an accomplice who would help him carry out his extortion plan, but he told Michael that he would not reveal his accomplice's name. Defendant also explained his alibi to Michael:
The alibi would be that upon the abduction of Mr. Campbell, he would drop off Mr. Campbell at the location where he would be murdered; circle back to my office; pick up Mr. Campbell's cell phone, keys; drive his car - his car' being Mr. Campbell's - back to his home, where he would make multiple telephone calls so that the cellular towers would indicate that Mr. Campbell was still alive and well.
( Id. at 205.)
1. The Details of the Plan
Defendant and Michael had numerous recorded conversations in which Defendant discussed the details of his plan. The government introduced these recordings into evidence. On September 30, 2012, for example, Mandell told Michael the details of his scheme. Defendant also discussed how he intended to have a phony arrest warrant to arrest Mr. Campbell when Campbell arrived at Michael's real estate office. ( Id. at 319.) Mandell told him that he would meet Campell at Michael's office, and "deposit him over here with my associate", at Club Med. Mandel even mapped out the distance from Michael's office to Club Med as 1.3 miles. ( Id. at 317.) He explained that his accomplice would keep Campbell at Club Med. Mandell, in the meantime, intended to take Campbell's car and phone and continue to make calls or place texts from the cell phone so it looked like Campell was using it. (Tr. 318-19; 9/30/12 Recorded Call.) He further intended to drive Mr. Campbell's car to Campbell's home and continue placing phone calls. (Tr. at 320, 326.)
2. Prior Contact with the Victim
During these conversations, Mandell told Michael that he had tried to get Campbell earlier. Steven Campbell testified at trial, and he corroborated Mandell's statement. Specifically, Campbell testified that during the first week of October in 2011, he received a handwritten letter in the storm door at his residence. The letter said "Hi, Steven. Stopped by this morning. Wanted to know your current thoughts about 8934 Ogden. Please give me a call." Campbell owned the 8934 Ogden property. The letter, which the government introduced at trial, also had a business card enclosed with it with a phone number from an out of state area code. (Gov. Ex. Campbell 1.) The business card contained Steven Mandell's name. ( Id. ) Campbell called the number twice. Campbell became concerned based on Mandell's answers during these conversations regarding how he had located Campbell's home. (Tr. at 1190.) Campbell had never heard of Mandell at the time. Because of his concerns, Campbell took the letter to the Riverside Police Department and handed it to the Chief of Police.
3. Club Med
Despite his lack of success in 2011, Mandell continued to pursue Campbell. Mandell knew the color and type of Campbell's car because he had been watching him. ( Id. at 302-03.) Mandell had multiple discussions with Michael regarding "Club Med" - a location he asked Michael to help him find. Michael found 5308 West Devon for Mandell to rent, and Mandell signed a lease for it. (Gov. Ex. Lease 1.) Mandell told him that he would "change the locks and all that stuff" at the location. (Tr. at 286.) The front of the building had a sign that read "Christian Consulting, By appointment only." ( Id. at 373; Gov. Ex. Devon Photo 4.) During the recorded conversations, Mandell talked a significant amount about the items he wanted in Club Med to carry out his scheme. He wanted a big "double sink" that he could use to "drain the victims' blood" after he tortured and killed them. (Tr. at 272-7.) In an October 4, 2012, consensual recording, Mandell told Michael that he wanted a "big counter" put in Club Med, "like a meat cut-Like a meat cutting block." ( Id. at 362.) He also wanted a "big sink" a "two compartment sink" put next to it. ( Id. at 365.) The evidence demonstrated that Mandell wanted the counter next to the double sink in order to place Campbell's body on it and dismember it.
4. The Accomplice
Mandell continued to discuss his plan to kidnap and murder Campbell with Michael. Although Mandell told Michael that he had a "partner" who would help him with the murder and dismemberment at Club Med, Mandell intentionally never disclosed Engel's identity to Michael. ( Id. at 306-07, 385, 474-75.) During a recorded conversation, Mandell even told Michael that he would never know his partner. ( Id. at 307.) He further told Michael that he did not want him present at Club Med. ( Id. at 307.)
5. The Victim's Heirs
In a subsequent recorded conversation with Michael, Defendant learned that Campbell's wife had recently passed away and that Campbell's daughter was his only remaining heir. Defendant expressed his excitement that Campbell only had one heir who might legally challenge Defendant's claimed right to Campbell's property. Mandell told Michael that if the daughter came around and challenged him "she's gone. If I find out where she's at, look out. There is nobody on that playing field." (10/14/12 Transcript at 26.) Mandell then made a slashing gesture across his throat. In short, if Campbell's daughter interfered with Mandell's plan to keep Campbell's property, Mandell would kill her. (Tr. at 460-62.)
6. Further Details of the Scheme
Defendant photographed Campbell's properties and obtained fake quit claim deeds and a power of attorney form that he intended to force Campbell to sign. The government introduced this documentation into evidence at trial. ( Id. at 446-53; Gov. Ex. Crown Vic 7-B, 7-C, 7-D, 7-E, 7-F). The documents transferred the property to Mandell. Mandell told Michael that he had picked the right target based on Campbell's wealth.
During the recorded calls, Defendant also discussed what they intended to do to Campbell at Club Med. He explained that they would have Campbell handcuffed and blindfolded. (Tr. at 322-23.) Mandell "starting moaning" to describe Mr. Campbell "suffering" and made noises to describe him "defecating upon himself" from the torture. ( Id. at 323, 330-31.) Defendant had the double sink and long counter installed at Club Med to assist in the torture. (Gov. Ex. Devon Photo 68.) Mandel subsequently told Michael that his "associate" "knows how to waterboard, do interrogation." (Tr. at 385; 10/4/12 Transcript at 4).
The evidence, including the recorded conversations, captured Defendant consistently using code words, hushed tones, hand gestures and facial expressions to communicate with Michael. Defendant did not, however, reveal Engel's identity to Michael. Defendant told Michael that his associate was going to help him with the kidnapping and extortion plot, but he was cautious not to reveal Engel's identity to him. In fact, he told Michael that he never would know Engel's identity.
B. Title III Evidence from 5308 West Devon
In addition, the government introduced both oral communications and visual, non-verbal conduct intercepted pursuant to Title III wiretaps at Club Med, located at 5308 West Devon in Chicago. Specifically, the government obtained wiretaps to intercept oral communications and visual, non-verbal conduct at 5308 West Devon. They introduced the audio and video recordings captured on October 23, 2012 through October 25, 2012 - the day Defendant and Engel intended to carry out their extortion and torture plot. These recordings provided overwhelming evidence against Defendant Mandell and corroborated the testimony of George Michael. These recordings captured the raw discussions between Mandell and Engel in which they elaborated on the intricacies of their kidnapping and extortion plot and the care and detail they put into the plan. The videotapes further captured these co-defendants bringing the tools of their plot into Club Med and the excitement on their faces at the prospect of carrying out the scheme.
The wiretap evidence revealed Defendant and Engel discussing the details of their plan over a three day period. They openly discussed: 1) the preparation of Club Med for the restraint, torture, murder and dismemberment of Steven Campbell, including the installation of the large sink and the need for hot water; 2) their elaborate plan to pose as law enforcement officers when they abducted Campbell; 3) what they planned to say when they approached Campbell; 4) their use of handcuffs and a fake arrest warrant with the fake "signature" of Judge Zagel; 5) how they intended to respond to law enforcement officers if they approached them during the abduction; 6) how they intended to restrain Campbell during the plot and their intent to cover his face with a ski mask; 7) their use of a firearm, if necessary, when abducting Campbell; 8) where they intended to place Campbell at Club Med and the location of their interrogation of him within the facility; 9) the methods of torture they intended to implement if Campbell failed to provide information regarding the location of his assets; 10) the methods they intended to utilize to taunt and interrogate Campbell; 11) their methods to subdue and kill Campbell, including through the use of sleeping pills; 12) their plan to dismember Campbell's body after they murdered him; 13) their efforts, including placing plastic covering on the walls to capture the blood splatter, to avoid leaving any evidence of the crime at the scene; 14) how they intended to transport Campbell to Club Med and how Defendant planned to travel to his residence; 15) Mandell's plan to break into Campbell's residence and his intent to return Campbell's cell phone and car to Campbell's residence; 16) the fact that Club Med is disguised as Christian Consulting; and 17) their efforts to conceal their criminal activity. (Gov. Exs. 5308 West Devon 10/23/2012 Transcript, 5308 West Devon 10/24/2012 Transcript, 5308 West Devon 10/25/2012 Transcript.)
On October 23, 2012, for example, Mandell tells Engel that "[w]e want to be able to secure [Campbell] while he's sitting down. We don't want him laying. We're not doing spread-eagle." (Gov. Ex. 5308 West Devon Transcript 10/23/2012 at 11.) They then discuss securing Campbell in the wheelchair. ( Id. )
When discussing Campbell's abduction, Mandell told Engel "Yeah, he is going to have a ski-, uh, ski mask over his face. It's going to be darkness, he's you know, it's going to be psychological warfare. He's going to be in the dark. He's not going to get to look at you and fall in love with his captor. He's going to be in the dark." (Gov. Ex. 5308 West Devon 10/23/2012 Transcript at 14.)
The next day, Mandell and Engel discussed dismembering Campbell:
ENGEL: Umm, I got this. I got bigger tie-, I got extra tie-wraps. I got those, I got extra blades.
MANDELL: Okay, where are you going to do the deed on this guy? You want to get him up here on the counter top? You wanna put 2x4's over here? Cause we don't want (thudding sound) to be cutting into here.
ENGEL: Well I'm wondering.
MANDELL (Inaudible) there is a very nice bucket for clean up.
ENGEL: What do you think - If we should just lean him across this? Just let him drain.
ENGEL: (Inaudible) I'm just saying lay him across.
ENGEL: You lay him across here, head up here -
MANDELL: He's down, yep -
ENGEL: - head up here, ass right here (inaudible).
MANDELL: He's dead weight now. Whap.
ENGEL: (inaudible) bleed, drain.
ENGEL: Let his ass sag.
MANDELL: You want him, you want him to bleed out.
ENGEL: Yeah, and you want to let him drain.
ENGEL: So we can leave him here. Then -
MANDELL: But as soon as he bleeds out in about a half hour, we want to straighten him out.
MANDELL: I don't want a curled body. Because he's going to be like this then.
ENGEL: Right, no... we just lay him up here, you get plastic - HERE. Just cut him.
MANDELL: But you're not going to be doing any dinning over here.
ENGEL: Fuck no. But at least we don't have a big mess though.
MANDELL: It's all about congealing -
ENGEL: (Inaudible). We need something to hold a bag over near the garbage bags.
MANELL: I'm going to get a container. I just... get out of here.
ENGEL: Just one of those little metal wire things you lay a bag over.
(Gov. Ex. 5308 West Devon 10/24/2012 Transcript at 15-16.)
Mandell tells Engel that "we will do this tomorrow. At 6:00, he's supposed to be there." ( Id. at 31.) Mandell then tells Engel "this is the way it's going to go." ( Id. at 30.) They will have the fake arrest warrant. Mandell explains how he is going to approach Campbell at his "friend's" office with the warrant, ask him "Are you Mr. Campbell?", read him his rights, and put the "Smiths" on him. ( Id. at 32.) "We're going to cuff him up, we're going to do our speech." ( Id. at 33.) Engel tells Mandell, "you can cuff him to the front, and you can anything, and just - a towel - or anything, and just wrap it over the cuffs and walk him out." ( Id. at 34.) They then discuss ...