The opinion of the court was delivered by: Eduardo C. Robreno, J.
Defendant Jonathan Cobb ("J. Cobb" or "Defendant") was charged in an Superceding Indictment with: (1) conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)B), all in violation of 21 U.S.C. § 846; and (2) possession with intent to distribute, and aiding and abetting possession with intent to distribute, 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)B) and 18 U.S.C. § 2.
The charges arose out of an FBI investigation into J. Cobb's drug organization that revealed that he was a large-scale cocaine dealer in Chester, Pennsylvania. The investigation revealed that co-defendant David Cobb and then co-defendant Darren Macklin were involved in this drug distribution conspiracy.
On June 25, 2010, a jury convicted J. Cobb of both charges. His brother and co-defendant, David Cobb, was also found guilty on both counts. Darren Macklin was acquitted on all charges. At the close of the Government's case, J. Cobb moved under Federal Rule of Criminal Procedure 29(a) for a judgment of acquittal, which the Court denied. J. Cobb now moves for a judgment of acquittal or for a new trial under Rules 29(c) and 33 of the Federal Rules of Criminal Procedure. For the following reasons, the Court will deny the motion.
In deciding a motion for judgment of acquittal pursuant to Rule 29, a court must view all of the evidence introduced at trial in the light most favorable to the Government and uphold the verdict so long as any rational trier of fact "'could have found proof of guilt beyond a reasonable doubt based on the available evidence.'" United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001)). "The court is required to 'draw all reasonable inferences in favor of the jury's verdict.'" Id. (quoting United States v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996)). A court may not "usurp the role of the jury" by weighing the evidence or assessing the credibility of witnesses. United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (citing United States v.. Jannotti, 673 F.2d 578, 581 (3d Cir. 1982) (en banc); and 2A Charles A. Wright, Federal Practice & Procedure (Crim.3d) § 467, at 311 (2000)). Thus, the defendant bears an "'extremely high'" burden when challenging the sufficiency of the evidence supporting a jury verdict, United States v. Iglesias, 535 F.3d 150, 155 (3d Cir. 2008) (quoting United States v. Lore, 430 F.3d 190, 203-04 (3d Cir. 2005)), and the Government "may defeat a sufficiency-of-the-evidence challenge on circumstantial evidence alone." Id. at 156 (citing United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006)). A finding of insufficiency therefore "should 'be confined to cases where the prosecution's failure is clear.'" Smith, 294 F.3d at 477 (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984)).
Pursuant to Rule 33, the Court may grant a new trial upon the defendant's motion "if the interest of justice so requires." Fed. R. Crim. P. 33. "Whether to grant a Rule 33 motion lies within the district court's sound discretion." United States v. Ortiz, 182 F. Supp. 2d 443, 446 (E.D. Pa. 2000) (citation omitted). A court must grant a motion for new trial if it finds that there were cumulative errors during the trial that, "'when combined, so infected the jury's deliberations that they had a substantial influence on the outcome of the trial.'" United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir. 1994) (quoting United States v. Thornton, 1 F.3d 149, 156 (3d Cir. 1993)). In evaluating a Rule 33 motion, the court does not view the evidence favorably to the Government, but rather exercises its own judgment in evaluating the Government's case. United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). "However, even if a district court believes that the jury verdict is contrary to the weight of the evidence, it can order a new trial 'only if it believes that there is a serious danger that a miscarriage of justice has occurred-that is, that an innocent person has been convicted.'" United States v. Silveus, 542 F.3d 993, 1004-05 (3d Cir. 2008) (quoting Johnson, 302 F.3d at 150).
J. Cobb challenges three pre-trial rulings of the Court to support his motion for a new trial. Each issue will be examined in turn.
A. Introduction of Wiretap Evidence
Before trial, the Court denied J. Cobb's motion to bar the introduction of the wiretap evidence (doc. no. 137). The instant motion rehashes the same argument he previously argued to preclude the wiretap evidence, contending the affidavit in support of the wiretap application failed to satisfy 18 U.S.C. § 2518(1)(c)'s so-called necessity requirement. Specifically, Defendant asserted before and argues anew that the affidavit fails to show that normal investigative techniques were warranted in investigating his cocaine enterprise.
Before issuing an order authorizing a wiretap, it is required that "the judge determine[ ] on the basis of the facts submitted by the applicant that . . . normal investigative procedures have been tried and have failed[,] or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c). The Third Circuit has emphasized that the statutory requirement of necessity does not mandate that the government exhaust all other investigative procedures before resorting to electronic surveillance. United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997). Instead, to authorize a wiretap, it is sufficient if there is evidence that "normal investigative techniques . . . reasonably appear to be unlikely to succeed if tried." Id. (quoting 18 U.S.C. § 2518(3)(c)).
To make such a showing, "[t]he government need only lay a 'factual predicate' sufficient to inform the [authorizing] judge why other methods of investigation are not sufficient." United States v. McGlory, 968 F.2d 309, 345 (3d Cir. 1992) (citing United States v. Armocida, 515 F.2d 29, 38 (3d Cir. 1975)). In determining whether this requirement has been satisfied, a court "may properly take into account affirmations which are founded in part upon the experience of specially trained agents." Williams, 124 F.3d at 418 (quoting United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989)). In this regard, "[t]he government's ...