United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING RENEWED MOTION FOR JUDGMENT OF ACQUITTAL
TANYA WALTON PRATT, District Judge.
This matter is before the Court on Defendant Frank Jordan's ("Jordan") renewed Motion for Judgment of Acquittal (Dkt. 2495) under Federal Rule of Criminal Procedure 29. This matter was tried to a jury on November 4, 2013 to November 6, 2013. At the close of the Government's case, Jordan orally moved for judgment of acquittal, which the Court denied. On November 6, 2013, the jury returned a verdict of guilty to one count of Conspiracy to Distribute Cocaine in an amount greater than 500 grams in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B)(ii), and 846, and one count of Unlawful Use of a Communication Facility in Connection with a Drug Offense in violation of 21 U.S.C. § 843(b). After the verdict was read, Jordan renewed his motion for judgment of acquittal and sought an extension to renew the motion in writing, which was later granted. Jordan timely filed his renewed written motion, which the Court now considers. Finding the evidence sufficient that a rational jury could find Jordan guilty beyond a reasonable doubt, Jordan's motion is DENIED.
Jordan is Defendant No. 48 in a multi-count RICO case involving 50 other defendants, of which many were members of the Outlaws Motorcycle Club ("the Outlaws"). Jordan was not alleged to be an Outlaw, but instead was implicated in a conspiracy for selling narcotics to members of the Outlaw Motorcycle Club. Specifically, Jordan was charged in a Second Superseding Indictment with Count 16, Conspiracy to Distribute Cocaine and Count 41, Unlawful Use of Communication Facility in Connection with a Drug Offense. Jordan's case was severed from his co-defendants and on November 4, 2013 he proceeded to trial. At trial, the Government presented evidence that drug deals were routinely conducted in the restrooms and parking lot of Sidewinders Bar ("Sidewinders") in Indianapolis, Indiana. Hector Nava-Arrendondo ("Nava"), a cooperating witness, testified that he received cocaine from Jose Diaz ("Diaz") during the fall of 2010 until his arrest in April 2012. Nava identified Abraham Flores ("Flores") and James Stonebraker ("Stonebraker") as his cocaine customers. Nava also testified that he distributed cocaine to Jordan, the bouncer at Sidewinders. Nava testified that he delivered cocaine to Jordan on a regular basis for a six month period and that Jordan would contact him by telephone and indicate that he needed cocaine for one of his customers. Nava would then deliver the cocaine to Jordan, usually at Sidewinders. Nava sometimes received cash for the cocaine and sometimes fronted' the cocaine to Jordan. Following a three day trial, a jury convicted Jordan of both counts. As stated above, the matter is before the Court on Jordan's renewed motion for judgment of acquittal.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 29 permits the court, upon motion of defendant, to enter a "judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Federal Rule of Criminal Procedure 29(b)(2) allows the Court to enter an acquittal after the jury has returned a verdict of guilty. When deciding a motion for judgment of acquittal, courts view the "evidence in the light most favorable to the government" and ask whether "any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." United States v. Philpot, 733 F.3d 734, 742 (7th Cir. 2013).
Jordan contends that no rational jury could have found that he was part of a conspiracy to distribute 500 grams of cocaine. Rather, he asserts that he was part of a buyer-seller relationship and there was insufficient evidence to prove a conspiracy. A conspiracy is distinct from an underlying crime-here, the distribution of drugs, a crime with which Jordan was not charged- and "is the extra act of agreeing to commit a crime." United States v. Brown, 726 F.3d 993, 997 (7th Cir. 2013) (emphasis in original). The crime of conspiracy requires that "(1) two or more people agreed to commit an unlawful act; and (2) the defendant knowingly and intentionally joined in the agreement." United States v. Claybrooks, 729 F.3d 699, 704 (7th Cir. 2013). For a drug-distribution conspiracy, the Government must prove "that the defendant knowingly agreed-either implicitly or explicitly-with someone else to distribute drugs." Id. (quoting United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010)).
There is an important distinction in drug distribution conspiracies, elucidated upon recently by the Seventh Circuit in United States v. Brown . In Brown, the Seventh Circuit reiterated that:
A drug sale itself is an agreement: a buyer and seller come together, agree on terms, and exchange money or commodities at the settled rate. But although the substantive trafficking crime is an agreement, it cannot also count as the agreement needed to find conspiracy. Rather, conspiracy to traffic drugs requires an agreement to further distribution. For example, the buyer could agree to resell the drugs at the retail level.
.... Mere knowledge of further illegal use, for example, may make the seller an aider and abettor to further drug crimes committed by the buyer but not a coconspirator. Being a co-conspirator requires more. As the Supreme Court aptly put it: a co-conspirator has a stake in the venture' and therefore exhibits informed and interested cooperation.'
726 F.3d at 998 (internal citations omitted) (emphasis in original).
The Government relies on United States v. Avila, 557 F.3d 809 (7th Cir. 2009) and United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993). In Avila, the Seventh Circuit stated, "[a]ll that is necessary to establish a drug conspiracy is an understanding related to the subsequent distribution of narcotics. The government need only show an agreement that goes beyond the individual sale between buyer and seller." 557 F.3d at 816 (internal citation omitted) (emphasis in original). In Lechuga, it was sufficient evidence that the defendant sold drugs with the understanding that the buyer would be reselling the drugs, as contrasted with a "spot seller unaware of what activities [the buyer], or any subsequent occupier of a place in the chain of distribution, might undertake." 994 F.2d at 350-51. In both Avila and Lechuga, factors the court considered to determine whether a conspiracy existed were: "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." Avila, 557 F.3d at 816; see also Lechuga, 994 F.2d at 350. But in Brown, the Seventh Circuit expressed that it had recently become "concerned with that approach." 726 F.3d at 999. It recognized that "most of the factors did not actually distinguish conspiracies from buyer-seller relationships." Id. Noting the difficulties of drawing a line between a mere buyer-seller relationship and a conspiracy, the court set forth the following non-exhaustive list of circumstantial "considerations" that may be taken into account:
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 ...