United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
A. GUZMÁN UNITED STATES DISTRICT JUDGE
reasons stated below, Defendant's motions for judgment of
acquittal notwithstanding the verdict  and a new trial
 are denied.
Chavez was charged with conspiracy to possess with intent to
distribute heroin and cocaine (Count One) and distribution of
heroin (Count Two). After a three-day trial, a jury convicted
her of both counts. Chavez moves for judgment of acquittal
notwithstanding the verdict and a new trial under Federal
Rules of Criminal Procedure (“Rule”) 29 and 33.
Chavez did not file replies in support of her motions, so the
Court rules without them.
for Judgment of Acquittal Under Rule 29
motion for a judgment of acquittal is appropriate if
“the evidence is insufficient to sustain a
conviction.” Fed. R. Crim. Proc. 29(a). A court must
“uphold the jury's verdict if, viewing the evidence
in the light most favorable to the government, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v.
Miller, 782 F.3d 793, 797 (7th Cir. 2015). “[A]
defendant seeking a judgment of acquittal faces a
‘nearly insurmountable hurdle.'” United
States v. Garcia, 919 F.3d 489, 496 (7th Cir. 2019)
(internal quotation marks and citations omitted).
contends that she is entitled to a new trial because the
government's evidence at trial was insufficient to prove
beyond a reasonable doubt that she was guilty of Counts One
and Two. The jury heard the testimony of Willie Slater, a
confidential informant, that he had delivered tens of
thousands of dollars to Chavez in exchange for drugs on
several occasions. Slater testified that these transactions
took place at Roma III, the store Chavez owned and operated
with her aunt and codefendant, Rosalinda Perez. Slater's
testimony was corroborated by a video and audio recording he
made at the request of the government, which the jury watched
and heard. The video of the relevant transaction on August
28, 2015 showed Slater entering Roma III and, at Perez's
direction, walking into the back office where Chavez, also at
Perez's direction, was retrieving an item from a box.
After wrapping the item in tissue paper and putting it in a
shoe box, Chavez told Slater she would give it to him in
front at the cash register. Slater then went to the cash
register to purchase socks. After Perez rang him up and
handed him a plastic bag with the socks inside, Chavez
appeared and handed Slater another bag. Slater then left the
store. Special Agent Ben Milligan testified that upon
Slater's exit from Roma III that day, Milligan and
another agent met Slater and took possession of the two bags:
one containing socks and another with a kilogram brick of
heroin wrapped in tissue paper. The government also presented
bank records and documentary evidence from the state of
Illinois showing that Chavez and Perez owned the store and
were two of only three Roma III employees.
this evidence in a light most favorable to the government, a
rational jury could have found that Chavez was guilty of
Counts One and Two of the superseding indictment.
for a New Trial Under Rule 33
allows a new trial “if the interest of justice so
requires, ” which has been interpreted to require a new
trial where “the evidence preponderates so heavily
against the defendant that it would be a manifest injustice
to let the guilty verdict stand.” United States v.
Conley, 875 F.3d 391, 399 (7th Cir. 2017) (citation and
internal quotation marks omitted). In deciding a Rule 33
motion, the Court may consider the credibility of the
witnesses. Id. “[T]he exercise of power
conferred by Rule 33 is reserved for only the most extreme
Government's Rebuttal During Closing Argument
first asserts that statements during the government's
rebuttal of the defense's closing argument were
inappropriate or misstated the evidence, thus resulting in a
miscarriage of justice. The Seventh Circuit analyzes in two
steps claims of misconduct relating to prosecutors'
statements: “First, [the Court] determine[s] whether
the prosecutor's comments were improper standing alone.
Second, [the Court] ask[s] whether the remarks in the context
of the whole record denied the defendants the right to a fair
trial.” United States v. Kelerchian, 937 F.3d
895, 916 (7th Cir. 2019). Factors the Court looks at to
determine if the relevant statement deprived a defendant of a
fair trial include “1) the nature and seriousness of
the misconduct; 2) the extent to which the comments were
invited by the defense; 3) the extent to which the prejudice
was ameliorated by the court's instruction to the jury;
4) the defense's opportunity to counter any prejudice;
and 5) the weight of the evidence supporting the
conviction.” Id. at 916-17 (citation and
internal quotation marks omitted).
initially points to the government's assertion that the
defense attorney unfairly parsed statements “like
defense lawyers are paid to do.” Chavez
characterizes this statement as “highly pejorative,
completely inappropriate and designed to bias the jury
against [Chavez] and her attorneys.” (Def.'s Mot.
New Trial, Dkt. # 166, at 2.) The Court finds that the
government's statements were not improper standing alone.
Contrary to Chavez's assertion, the statements were not a
personal attack but an observation about defense lawyers
generally. See United States v. Bloom, 846 F.3d 243,
254 (7th Cir. 2017) (government's statement that defense
counsel's cross-examination was repetitious and
“practically bordering on a waste of the jury's
time[, ]” and its subsequent assertion that defense
counsel was putting up a “smoke screen” were not
improper because the comments “criticized defense
counsel's tactics, not defense counsel personally,
” which is “permissible.”). Even if the
statements were improper standing alone, they did not deprive
Chavez of a fair trial; they were not outrageous or extreme
and were made during closing argument, which the jury was
told constituted an opportunity for the parties to argue
their interpretation of the facts. The Court denies this
basis for relief.
next challenges the government's “repeatedly and
improperly vouch[ing] for Slater during its rebuttal
argument.” (Def.'s Mot. New Trial, Dkt. # 166, at
3.) Chavez contends that in response to her assertion that
Slater changed his testimony regarding how many times he had
received drugs from Chavez, the government improperly implied
that if Slater had altered his testimony between direct
examination and cross-examination, the government would have
“yanked him off the stand.” According to Chavez,
the government “essentially invoked [its] prestige to
vouch for the fact that Slater was telling the truth . . .
.” (Id.) The trial transcript shows that the
government, in response to Chavez's assertion that Slater
was not credible because his story changed as to how many
drug transactions he had engaged in with Chavez and Perez,
stated as follows: “And if [Slater] had gotten on the
witness stand and told you, you know what, I got it wrong, .
. . the defendant is really the head of the whole operation.
Yoink. Plea agreement is gone, he is in prison for the rest
of his life. If he gets up and says, it wasn't four to