United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
On January 24, 2014, a jury convicted defendant Tracy Conley of four charges: (1) conspiracy to possess with intent to distribute five kilograms or more of mixtures containing cocaine; (2) attempt to possess with intent to distribute five kilograms or more of mixtures containing cocaine; (3) possession of a firearm in furtherance of a drug trafficking crime; and (4) unlawful possession of a firearm. Pursuant to Federal Rules of Criminal Procedure 29 and 33, Conley moves for a judgment of acquittal or, alternatively, for a new trial [373, Amended at 387]. This Court heard oral arguments on the motion on December 18, 2014. After a thorough review of the trial transcript, the parties' briefs and arguments, including Tracy Conley's own post-trial submissions, the Court denies the motion.
The following facts were adduced at the jury trial held in this matter. On October 31, 2011, brothers Myreon and David Flowers met with their cousin Anwar Trapp for the purpose of planning a robbery of a drug stash house. At that meeting the cousins discussed recruiting Anthony Adams for the scheme. On November 1, 2011, Anwar Trapp, Myreon and David Flowers met Anthony Adams in the basement of Adams' house. Later that same day, Trapp, David Flowers, and Anthony Adams picked up Tracy Conley and went back to Adams' basement. Anwar Trapp testified that at this meeting Myreon Flowers told them about the robbery, and discussed, according to Trapp, that Anthony Adams, Tracy Conley, and a third person would commit the actual robbery. There is no testimony in the record that weapons were discussed at this meeting.
Upon his arrest, Conley provided a statement to law enforcement. In that statement, Conley said that he had gone to work that morning, but was sent home early. He did not have enough money to purchase gas for his car so he agreed to help his friend Anthony Adams clean an apartment. Anthony Adams picked Conley up and they went to Adams' basement where they smoked marijuana and cigarettes and discussed the cleaning job, including raking leaves and cleaning gutters. Later that day, Conley, Adams, and Rudy Space drove to an address on Mozart (which turned out to be David Flowers' home), and entered a white work van. They then drove to a Forest Preserve and, according to Conley's statement, "he handed him a tool case." All of the perpetrators were arrested upon arrival at the Forest Preserve, but Conley was released shortly thereafter before ultimately being arrested.
Joseph Raschke provided testimony for the government regarding the cell tower locations and cell site information for the members of the conspiracy. Tracy Conley's phone records were never collected or analyzed by Raschke. FBI agent, Helen Dunn, testified as an expert. She identified the contents of the undercover van, including walkie-talkies and the guns that were located inside a toolbox. Trial Tr. at 652. Kathryn Knorr also testified as an expert, over objection, about the nature of fingerprints and latent fingerprints. Neither Conley's fingerprints nor his latent fingerprints were found on any of the guns or the toolbox. Trial Tr. at 639. Conley contends his convictions should be overturned due to a lack of sufficient evidence and rulings or errors that jeopardized his rights.
Federal Rule of Criminal Procedure 29 provides that the Court on the defendant's motion may enter a judgment of acquittal for an offense lacking sufficient evidence to sustain the conviction. Fed. R. Crim. P. 29. When evaluating a defendant's motion for judgment of acquittal the court considers the evidence in the light most favorable to the prosecution, draws all reasonable inferences in its favor, and "affirms the conviction so long as any rational trier of fact could have found the defendant to have committed the essential elements of the crime." United States v. Hassebrock, 663 F.3d 906, 918 (7th Cir. 2011) (citing United States v. Paneras, 222 F.3d 406, 410 (7th Cir. 2000). The Court will overturn the guilty 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. Huddleston, 593 F.3d 596, 601 (7th Cir. 2010).
Federal Rule of Criminal Procedure 33 allows the Court to vacate any judgment and grant a new trial if the interest of justice so requires. Fed. R. Crim. P. 33(a). Such motions are only appropriately granted if "substantial rights of the defendant have been jeopardized by errors or omissions during trial." United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). A defendant is entitled to a new trial only if there is a reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict. See United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996).
Conley moves for acquittal or, alternatively, a new trial on several bases: (1) that the government failed to prove each element of every count beyond a reasonable doubt, especially in light of the use of a stash house sting; (2) that the Court erred by denying Conley's request for discovery concerning the selective prosecution of similar stash house cases, by proceeding with a jury that did not reflect a fair cross-section of the community in violation of Conley's Sixth Amendment right, and by allowing Kathryn Knorr to testify because her testimony was irrelevant and unduly prejudicial; (4) that trial counsel was ineffective for urging Conley to waive his right to testify, for failing to seek exclusion of Rashke's expert testimony, and for improperly alleging that Conley had knowledge in and participated in the conspiracy in his closing argument; (5) that the interest of justice requires that this Court overturn the conviction because it was secured through the use of a fictional stash house robbery that Conley had no predisposition to commit.
I. Sufficiency of the Evidence
1. Weapons Charges
Conley was convicted at trial of possession of a firearm in furtherance of a drug trafficking crime and unlawful possession of a firearm. In order to convict under § 924(c), the government must prove beyond a reasonable doubt that the defendant: (1) possessed a gun; and (2) used it in relation to a drug offense. See United States v. Duran, 407 F.3d 828, 840 (7th Cir. 2005). In order to obtain a conviction for felon-in-possession under §922(g), the government must establish beyond a reasonable doubt that (1) the defendant had a previous felony conviction, (2) the defendant possessed a firearm, and (3) the firearm had traveled in or affected interstate commerce. United ...