A jury convicted defendants Khadir Gha-' nayem and Christ Theodosopoulos of conspiracy to possess with intent to distribute, cocaine in violation of 21 U.S.C. §§ 841(a)(1), *1441 846, and 18 U.S.C. § 2. After trial, the district court granted both defendants’ motions for judgment of acquittal pursuant to' Fed.R.Crim.P. 29, concluding that the government had entrapped Ghanayem and had failed to prove that Theodosopoulos was a knowing participant in the conspiracy. The district court also .denied Ghanayem’s motion for a new trial pursuant to Fed.R.Crim.P. 38. The government appeals the district court’s judgment of acquittal and Ghanayem appeals the denial of his motion for a new trial. We now reverse the judgments of acquittal, affirm the denial of Ghanayem’s hew trial motion, reinstate the jury verdicts, and remand for sentencing.
I.
In March, 1993, as part of a Drug Enforcement Administration (“DEA”) investigation, an individual cooperating with the DEA initially identified several people' who were allegedly known drug dealers, and a location— the One, Two, Three Lounge in Chicago— where these persons congregated. On March 30, 1993, undercover DEA Special Agent William Grant and the informant went to this lounge and met defendant Khadir Ghanayem. The informant recognized Gha-nayém as a cousin and drug associate of Mazen Shunnarah, one of the targets of the investigation. During the course of their conversation, Ghanayem handed the informant his business card and told him to contact him at his work at George’s Auto Shop (“George’s”) if he needed ánything.
On April 22,1993, the. informant and Grant met Ghanayem at George’s. Althodgh Grant attempted to make' an audio tape of the conversation, the recording was virtually inaudible. Grant testified that they first discussed replacing a windshield on Grant’s Mercedes Benz. During the conversation, the informant asked Ghanayem if he was interested in “buying anything,” apparently alluding to drugs. When Ghanayem asked what Grant had available, Grant responded that he had “five keys” — referring to five kilograms of cocaine. Grant testified that Ghanayem asked about the price and that Grant told Ghanayem that he could purchase cocaine for $20,000 per kilogram. Grant also testified that Ghanayem stated that he would call the informant the next day, although no such call was made. In contrast to Grant’s version of the events, Ghanayem testified that Grant brought up the cocaine and a potential deal, to which Ghanayem responded, that he did not buy, sell, or do drugs.
The next contact occurred on May 7,1993, when Grant again went to George’s. Grant testified that along with discussing his car windshield, Ghanayem stated that he had not yet reached his cocaine contact, who he referred to as “Mazen.” Grant gave Ghanay--em his pager number and agreed on the code “111” for future contacts. Records indicate that calls were placed using Ghanayem’s cellular telephone to Shunnarah’s tavern in Lexington, Kentucky on May 11, 1993.
On May 12, 1993, Grant and Ghanayem met again at George’s. Grant testified that Ghanayem informed him that he had a purchaser who wanted three kilograms of cocaine at $20,000 per kilogram. Grant also testified ■ that when asked when his contact would be ready, Ghanayem made a long distance telephone call to area code 606 — which includes Lexington — asked for “Mazen,” and then had a brief conversation with Mazen Shunnarah. Ghanayem then told Grant that he (Ghanayem) would purchase one kilogram of cocaine, that Mazen would purchase three more, and that they would contact Grant when they were ready to make the purchase.
The next meeting between Ghanayem and Grant took place on May 17, 1993. After discussing arrangements for fixing the Mercedes Benz, Ghanayem informed Grant that he had been having trouble reaching his contact and that he would continue to try to call him. Ghanayem’s cellular telephone records indicate that telephone calls were again placed to Shunnarah’s tavern in Lexington on May 18, 1993. On the morning of May 20, 1993, Grant dropped off his car at the shop. He testified that later that afternoon Gha-nayem paged him, using the agreed-upon “111” code. Grant testified that he returned to the auto shop, where he observed a fight blue Audi, and met with Ghanayem and Shunnarah. Grant then testified that Gha-nayem told him that he did not want to be involved in the negotiations with Shunnarah *1442 but that he wanted Grant to add $1,000 to the purchase price for him. Grant, Ghanay-em and Shunnarah then drove around the area in Shunnarah’s Audi, discussing Gha-nayem’s search for a consistent source of .cocaine. Shunnarah' and Grant agreed on a price of $21,000 per kilogram and on meeting at the auto shop to complete the deal.
Later that evening, Grant and Ghanayem changed the transaction meeting location to the Plush Pup restaurant at 8:80 p.m. Grant drove to the restaurant with Special Agent Bernie Bolf, who had brought the 5 Idlo-grams of cocaine in the trunk of his car. Shunnarah told Grant that he had the money but that he first wanted to see the cocaine. Grant and Shunnarah walked to Bolf s trunk, where Shunnarah examined one of the kilogram packages of cocaine and concluded “that would be fine.” Shunnarah told Grant that he would return in ten minutes with the money. While Grant and Ghanayem waited inside the restaurant for Shunnarah to return, they received a phone call from Shun-narah stating that the person with the money for the cocaine would not give him the money until he saw the cocaine. Grant, Ghanayem, and Shunnarah agreed that they would go to the A to Z Auto Body in River Grove where they could meet the money source.
At the Body Shop, Grant testified that he saw Shunnarah and fifteen unknown males. Grant indicated that Shunnarah told him that the purchaser of the cocaine, who he pointed to and identified as “Chris,” would not deliver the $21,000 purchase money until he saw the cocaine. 1 Grant, saying that he did not do business this way, refused to show the cocaine, and left the shop. As Grant was leaving, Shunnarah approached him and told him that he would drive to Lexington and get his own money to purchase five kilograms of cocaine. The following day, Grant met with Ghanayem at George’s to discuss' the repair of Grant’s windshield and paid Ghanayem $450 for the repairs. During that meeting, Grant testified that he complained about the dealings the previous evening.
On May 22, .1993, Ghanayem called Grant and told him that they were ready to complete the deal. Grant stated that he could not do it until the next day;. The following day, May 23, 2 Ghanayem contacted Grant and told the agent to meet him in the parking lot of Chicago Billiards on Irving Park Road at 10:30 a.m. At approximately 11:00 a.m., Grant met Ghanayem and Shunnarah, who told the officer that he was having a difficult time waking up the individual with the money, who Shunnarah identified by the name “Chris.” Telephone records from Gha-nayem’s cellular phone indicate that .two one-minute calls were made to Theodosopoulos’s residence at 11:46 a.m. and 12:13 p.m. A single call was placed at 12:30 p.m. from Theodosopoulos’s phone to Ghanayem’s cellular phone.
After this meeting, Ghanayem and Shun-narah drove from the parking lot to the Resurrection Hospital, where Ghanayem had a foreign object removed from his eye. Gha-nayem and Shunnarah then drove to an alleyway, where they stopped at a garage behind Theodosopoulos’s residence. Here, Special Agents Jeff Hall and William Krieg observed Ghanayem and Shunnarah speaking with a number of individuals, one of whom matched the physical description of Theodo-sopoulos. Ghanayem testified that he took each of these actions only after repeated pressure from Grant.
At approximately' 1:00 p.m., Shunnarah paged Grant, told him that the individual with the money was ready to complete the deal and that they would once again meet him at the Chicago Billiards’s parking lot. When Grant arrived; he observed Shunna-rah’s car (containing both Ghanayem and Shunnarah) parked next to a gray Nissan 300 ZX. Grant parked next to Ghanayem and asked to see the money. At that moment, the gray Nissan drove in front of Grant’s car. Grant recognized the. car’s passenger as *1443 Theodosopoulos. Theodosopoulos held up a stack of money and waved it so Grant could see it. Theodosopoulos then drove out' of the parking lot and Shunnarah asked for the cocaine. Grant contacted undercover Agent Hall who, upon arrival, asked Shunnarah to have his people return with the. money so they could count it. Shunnarah refused and told Grant that he would instead get his own money from Kentucky and purchase the cocaine himself.
Ghanayem and Theodosopoulos were subsequently arrested and charged in a two-count indictment for conspiracy to possess with intent to distribute cocaine and attempt to possess with intent to distribute cocaine. A jury trial began on October 13, 1993. At the close of the government’s case, both defendants moved for directed findings of not guilty and judgments.of acquittal. The district court denied both defendants’ motions. Theodosopoulos then rested without testifying or presenting any evidence. Ghanayem presented a defense, including testifying on his own behalf.
After Ghanayem rested, he sought to enter into evidence a plea agreement between Shunnarah- and the United States. Mazen Shunnarah had been indicted in Lexington, Kentucky and charged with conspiring to possess cocaine with intent to distribute. Pursuant to a written plea agreement with the United States Attorney’s Office in Lexington, he had entered a guilty plea. Under the terms of this agreement, which did not expressly bind the United States Attorney’s Office in the Northern District of Illinois, Shunnarah was obligated to cooperate with the United States. The government did not call Shunnarah as a witness in the trial. When Ghanayem called Shunnarah to the stand, however, Shunnarah exercised his Fifth Amendment right not to testify. The government informed the court that Shunna-rah had made statements that were favorable to the defense-specifically, that Ghanayem had never been involved in a drug deal before. As a result, the court ordered a missing witness instruction. The court advised the jury: (1) that. Shunnarah had entered a guilty plea in Lexington, Kentucky; (2) that' he was obligated under the terms of that plea agreement to cooperate with the government and tell the truth; and (3) that Shunnarah was in the exclusive control of the government and that the failure to call Shunnarah to the witness stand permitted the jury to infer that his testimony would have been unfavorable to the government. In his closing argument, Ghanayem argued this inference to the jury and suggested that Shunna-rah, the sole wrongdoer, would have exculpated Ghanayem. The defendants renewed their motions for judgments of acquittal at the close of all the evidence.- The district court expressly reserved ruling on the motions, under Fed.R.Crim.P. 29, until after the jury reached verdicts.
On October 20, 1993, the jury found Gha-nayem and Theodosopoulos not guilty of the attempt count and guilty of the conspiracy charge. The district court initially denied-Ghanayem’s oral motion for a new trial and for acquittal; after consideration of written motions, however, the district court granted Ghanayem’s post-trial motion for acquittal under Fed.R.Crim.P. 29,
United States v. Ghanayem,
The government now appeals both judgments of acquittal. Ghanayem- challenges the district court’s denial of his motion for a new trial.
II. Khadir Ghanayem
A.
With regard to Ghanayem’s directed judgment óf acquittal, the government raises only one issue on appeal: the sufficiency of the evidence to support the jury’s conclusion that Ghanayem was a knowing member of the charged conspiracy and was not entrapped as a matter of law. The standard
*1444
for appellate review of a trial court’s post-verdict judgment of acquittal is the same as that applied by the trial court.
United States v. Beck,
In entrapment cases, the government must prove beyond a reasonable doubt that a defendant who raises a colorable defense of entrapment, as Ghanayem did, has not in fact been entrapped.
United States v. Hollingsworth,
“Predisposition focuses on whether the defendant was an unwary innocent or, instead, an unwary criminal who readily avails himself of the opportunity to peipetrate the crime.”
Johnson,
“Generally ... the question of entrapment is one for the jury, rather than for the court.”
Johnson,
The district court, however, concluded that the evidence introduced at trial established beyond a reasonable doubt, as a matter of law, that the government had entrapped Ghanayem. In granting Ghanayem’s Rule 29 motion, the district court stated:
Taking [Grant’s] testimony in a vacuum, the jury was presented with sufficient evidence upon which to find that Ghanayem was predisposed to arrange a cocaine deal. However, the testimony of agent Grant and Ghanayem must be considered together with the unimpeached taped recorded conversations introduced by the government. These tapes, which the government introduced as authentic representations of later recorded conversations, effectively undercut the weight and reliability of agent Grant’s testimony about Ghanayem’s behavior at the earlier meetings. In light of the tapes, the government’s evidence was insufficient to support a finding of predisposition.
The district court relied heavily on what it considered conflicting testimony regarding Ghanayem’s responses to Grant’s contact with him. The court determined that the taped conversations introduced by the government not only showed Ghanayem as unwilling to participate 4 but also showed Grant’s testimony to be of “questionable reliability and accuracy.” 5
Examining all the evidence in the record in the light most favorable to the government, we conclude that the government presented sufficient evidence to permit a jury to determine beyond a reasonable doubt that Gha-nayem had the requisite predisposition. By
*1446
reason of Ghanayem’s previous experiences and acquaintances, it is “likely that if. the government had not induced him to commit the crime, some criminal would have done so.”
Hollingsworth,
First, the government proffered evidence that Ghanayem’s character and reputation predisposed him to being involved in a drug transaction. The district court concluded that “[t]he government presented no evidence that Ghanayem had ever been involved in, arrested for, or convicted of any drug offense.”
The second factor is not in dispute. The government concedes that on April 22, 1993, it approached Ghanayem, made the initial contact and suggested the drug deal. While this factor does support Ghanayem’s case, “mere solicitation by a government agent is insufficient to establish entrapment.”
Johnson, 32
F.3d at 308;
Cervante,
The third factor favors the government in that the record reflects that Ghanayem engaged in criminal activity for a profit. In fact, it appears that the singular purpose of Ghanayem’s involvement in the drug transaction was to profit. Grant testified that from the outset, Ghanayem maintained a “what’sin-it-for-me” attitude and 'insisted ■ on his piece of the action.' As discussed above, Ghanayem wanted $1,000 per kilogram of cocaine as a profit on sales to Shunnarah. Record testimony also indicates that Ghanay-em repeatedly stressed the importance of the $1,000 and wanted to prevent any direct contact between him (Ghanayem) and Shunna-rah in order to insure he received this broker’s fee. Viewing the evidence in the light most favorable to the government, we recognize that a jury could reasonably have concluded that “a person who operates in a chain of cocaine distribution does not do so at a financial loss,”
Beverly,
The fourth, and most important factor, also favors the government. It was reasonable for the jury to conclude that the defendant did not express reluctance which government persuasion overcame. While Ghanayem *1447 maintains that he informed Grant that he did not buy, sell or deal in drugs, Grant testified that Ghanayem did not express any reluctance at becoming involved and serving as a middleman. Furthermore, the record is void of any evidence that Ghanayem was cajoled into the conspiracy. Rather, Grant approached Ghanayem with the opportunity not only to provide Shunnarah with a source of cocaine, but also to make a considerable profit (for minimal effort). Grant’s testimony concerning his contacts with Ghanayem demonstrates that Ghanayem was willing and eager to participate in a drug transaction and, with the exception of Ghanayem’s own testimony, the record is devoid of any evidence suggesting that Ghanayem was reluctant to participate.
Ghanayem remained an enthusiastic and active participant in the conspiracy. Throughout the course of the dealings, Gha-nayem did not abandon the transaction when it encountered trouble spots; to the contrary, Ghanayem expressed his willingness to pursue the transaction. On May 7, 1993, Gha-nayem informed Grant that he could not reach his contact, but that he would continue to try to reach him that evening. ' On May 12, when Grant inquired as to when Ghanay-em’s contact would be ready, Ghanayem told Grant that he would find out right away. On May 17, Ghanayem told Grant that although he had been unable to reach his contact, he would continue his communication efforts. Again, on May 19, Ghanayem noted his difficulty in reaching his contact but reassured Grant that he would try to call him later.
Once the transaction was off and running, Ghanayem expressed in his. numerous meetings with Grant neither reluctance at being involved nor the desire to get out. On May 20, Ghanayem drove around with Grant and Shunnarah, working out the details of the transaction. He was directly involved in setting up the time and place for the deal to be fully completed. On May 21, even after Grant had direct contact with Shunnarah, Ghanayem was instrumental in attempting to complete the deal. On May 23, Ghanayem again was the pivotal figure in setting up each aspect of the deal. He remained in constant contact with Grant and, with Shun-narah, communicated with Theodosopoulos. Ghanayem was present in the Chicago Billiard’s parking lot when the cocaine for money transaction was to occur and when Theo-dosopoulos flashed the money at Grant.
‘ Fifth, the nature of the government’s inducement and persuasion do not support Ghanayem’s entrapment theory. The government' did not threaten, intimidate or coerce Ghanayem. They did not spend over two years pressuring him into this transaction, as in
Jacobson,
nor a year, as in
Holl-ingsworth.
Rather, the government’s interaction with Ghanayem merely stretched over the course of three months and nine meetings. The. government did not offer any special inducements or promises to Ghanay-em. Although Ghanayem contends that the legitimate car repair transaction created pressure on him to continue a relationship, with Grant, when viewed in light of his $1,000 per kilogram profit, it was reasonable for the jury to conclude that this was not actually a coercive factor. Ghanayem stood to make at least $5,000 ($1,000 for each of 5 kilograms) for the cocaine — a far greater profit than he would net from the car repairs. Finally, even if we were to. credit Ghanayem’s testimony, the $450 was not overly large, and “[w]hen a person accepts a criminal offer without being offered extraordinary inducements, he demonstrates a predisposition to commit the type of crime involved.”
Evans,
Thus, it was reasonable for the jury to have concluded that Ghanayem was in a “position without the government’s help to become involved in illegal activity.”
Hollings-worth,
B.
Ghanayem also argues that the district court erred in denying his motion for a new trial. He contends that he was entitled to a new trial based upon newly discovered evidence which demonstrates that he was not predisposed to commit the crime. Specifically, Ghanayem maintains that after the trial, Mazen Shunnarah would have provided testimony, previously unavailable, which would have exculpated Ghanayem.
The government brought Shunnarah to the Northern District of Illinois under subpoena. In Shunnarah’s initial interview with the government, he admitted that he had attempted to purchase the five kilograms of cocaine from Grant, that Ghanayem had arranged the contact, that Ghanayem was to receivé' a percentage of the profits, and that Theodoso-poulos was providing a portion of the purchase money. Closer to the trial date, Shun-narah changed his story and withdrew his statements regarding Theodosopoulos’s involvement. Because of these differing stories, the government did not call Shunnarah as a witness. Ghanayem did call Shunnarah as part of his defense. Although Shunnarah had already pled guilty in Lexington, he had not yet been sentenced. Shunnarah thus refused to testify, exercising his Fifth Amendment right against self incrimination.
We will reverse a district court’s denial of a motion for a new trial based on newly discovered evidence only if the district court has abused its discretion.
Gootee,
Rule 33 of the Federal Rules of Criminal Procedure provides that “[t]he court on motion of a defendant may grant a new trial to that defendant if required in the interests of justice.” To justify a new trial based on newly discovered evidence, Ghanayem must satisfy a stringent multi-stage test.
United States v. Young,
Ghanayem fails to satisfy either of the first two prongs.
7
First, Ghanayem has not established that the evidence came to his knowledge only after trial. To the contrary, Ghanayem and his counsel knew during trial the substance of Shunnarah’s testimony. Prior to the commencement of trial, defense counsel interviewed Shunnarah. At trial, counsel for Ghanayem explicitly stated that “when [Shunnarah] took the stand he would have said that Shunnarah [sic Ghanayem] had nothing to do with the deal, that Chris [Theodosopoulos] had nothing to do with the deal, that he was doing the deal with Grant himself_ I interviewed Mr. Shunna-rah .... he told us those things.”
See United States v. Ellison,
Ghanayem also fails to meet the second prong of the test. In order ,to satisfy this element, Ghanayem would have to show that he could not have discovered the relevant evidence despite the exercise of due diligence.
Kamel,
III. Christ Theodosopoulos
In appealing the district court’s directed judgment of acquittal of Theodosopoulos, the government contends that the evidence introduced at trial was sufficient to support a rational jury’s conclusion that beyond a reasonable doubt Theodosopoulos conspired to possess cocaine with the intent to distribute it. In granting Theodosopoulos’s motion for a judgment of acquittal, the district court concluded:
I find the. evidence is insufficient to establish beyond a reasonable doubt that Mr. Theodosopoulos was’part of the drug conspiracy that is alleged at the indict-ment_ [A]t the close of the govern-merit’s case ... I expressed specific concerns about the lack of evidence as to Mr. Theodosopoulos and the difficulty I had even with respect to drawing all reasonable inferences in the government’s favor after the government rested.
I was concerned about the sparsity of the evidence and the equivocal nature of the evidence-I am convinced that a rational jury could not convict Christ Theodoso-poulos of Count I of the indictment beyond a reasonable doubt.
The government first argues that the evidence established the existence of a cocaine conspiracy. Second, the government maintains that Theodosopoulos was a knowing member of that conspiracy who participated in and intended to advance the ends of that conspiracy.
In examining a sufficiency of the evidence claim, we review the record in the light most favorable to the government, and determine whether
“any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia,
To prove Theodosopoulos guilty of a drug conspiracy, the government must prove beyond a reasonable doubt: (1) a conspiracy existed; (2) Theodosopoulos knew of the conspiratorial agreement; and (3) Theodosopou-
*1450
los intended to join it.
United States v. James,
Without question, there .is adequate evidence in the record that a cocaine conspiracy existed. Indeed, the district court did not conclude otherwise; rather the court entered a judgment of acquittal for Theodosopoulos. because of the lack of evidence that he was part of that conspiracy. Neither party has appealed the finding of a conspiracy and we thus accept it.
The record contained sufficient evidence for the jury
to
find that Theodoso-poulos was a knowing member of the conspiracy.
9
To prove that a particular defendant was a mémber of an ongoing conspiracy, the government must present “substantial evidence that [the] defendant knew of the illegal objective of the conspiracy and agreed to participate in its achievement.”
James,
Theodosopoulos’s presence at the automobile body shop garage- on May 20, 1993, at the time set for the first planned exchange of money and cocaine, supports - the government’s contention that the defendant was a knowing member and active participant in the conspiracy. Grant testified that the meeting at the garage on May 20 took-place so that the individual with the money could observe the cocaine and then pay the undercover agent $21,000 for one kilogram of cocaine. It was reasonable for the jury to infer that Theodosopoulos — and not Shunnarah— was the “money man” in that although Shun-narah examined the cocaine in the Plush Pup parking lot, he did not complete the transaction at that time and rather, insisted that the transaction be completed at the automobile shop.
See United States v. Hernandez,
The government also points to Theodoso-poulos’s presence on two separate occasions on May 23,1993, that demónstrate his participation in the conspiracy. The government proffered evidence that Theodosopoulos met and spoke with Ghanayem and Shunnarah in the alley behind Theodosopoulos’s residence just moments after the two left to meet with their “money man” and just prior to Shunna-rah’s planned meeting with the undercover agent to give him the money. Grant and Shunnarah had decided to complete the drug deal on this day. It was reasonable for the jury to infer from the circumstances that since neither Ghanayem nor Shunnarah had money themselves, they were attempting to *1451 obtain purchase money elsewhere, such as from Theodosopoulos.
The government also argues that Theodo-sopoulos’s presence in the parking lot on May 23, 1993, and his subsequent waving of money at Grant, further establish his participation in the conspiracy. Although “mere knowledge of, approval of, association with, or presence at a. conspiracy is insufficient to establish ... participation,”
Durrive,
Theodosopoulos argues that Grant’s testimony that Theodosopoulos, while in the gray car, drove by Grant, Shunnarah and Ghanay-em in the parking lot and flashed the money indicates that, if anything, Theodosopoulos did not intend to be part of any drug transaction. He argues that if he had intended to be a participant, he 'would have remained rather than left. The existence of an alternative explanation for Theodosopoulos’s ac-. tions does not sink the government’s case. “The fact that the government’s evidence might also be consistent with an alternate theory is irrelevant; the law does not require the government to
disprove
every conceivable hypothesis of innocence to sustain a conviction on ah indictment ■ proved beyond a reasonable doubt.” ■
Townsend,
The government'also introduced telephone records that established circumstantially that Shunnarah and Theodosopoulos had several conversations around the time of the planned money-for-cocaine exchange. Viewing this evidence in the light most favorable to the government, it was reasonable for a jury to conclude that the timing and circumstances surrounding the placing of these calls established that Shunnarah and Theodosopoulos were in contact at this time. On May 23, 1993, two one-minute calls — at 11:46 a.m. and 12:13 p.m. — were made from Ghanayem’s cellular telephone (which -was with Shunnarah at the time) to Theodosopoulos’s residence. At 12:30 p.m., a single’ call was made from Theodosopoulos’s home to Ghanayem’s cellular phone. While the telephone calls by themselves are not dispositive, their timing is quite probative. All three calls took place immediately after Shunnarah spoke with. Grant and informed him that they were still waiting for their money source (11:35 a.m.) and before Shunnarah contacted Grant to tell him that they were now ready to complete the drug transaction. (1:10 p.m.). Furthermore, it was immediately after the 12:13 p.m. call that Shunnarah and Theodosopoulos met in person behind the garage at Theodosopou-los’s residence. It was reasonable for the jury, to infer from the telephone calls that the two defendants had contacted each other and had done so for the purposes of furthering the criminal conspiracy.
See United States v. Hirschberg,
988. F.2d 1509, 1516 (7th Cir.),
cert. denied,
— U.S. -,
Theodosopoulos argues that the absence of records of telephone calls — for example, between the .Theodosopoulos residence and Lexington — undermines the relevance of the existence of the phone records on the date *1452 and around the time of the proposed money-for-cocaine exchange. The jury, however, had the opportunity to consider this evidence at trial and weigh its importance, and was reasonable in ultimately concluding that Theodosopoulos participated in the conspiracy. ■
We recognize that the government’s case was built in large part on circumstantial evidence, as is often true in conspiracy cases. It is also possible that we may have reached a different result if we had sat as jurors. However, “the mere existence of other possible hypotheses is not enough to remove the case from the jury.”
United States v. Duarte,
For the foregoing reasons, we REVERSE the district court’s judgments of acquittal, AffiRM the denial of Ghanayem’s new trial motion, reinstate the jury verdicts, and ReMAND for sentencing.
Notes
. The individual to whom Grant pointed subsequently was identified as co-defendant Christ Theodosopoulos.
. Ghanayem testified to an entirely different version of the events. He testified that on May 23, Grant again proposed the cocaine deal, to which Ghanayem responded: "I don’t do drugs, I don’t want any drugs, don’t bring no drugs by my business and I wasn't involved in any drugs.”
. We also note that where there is sufficient evidence that a defendant is predisposed to commit the crime, we do not need to inquire into govemment inducement.
Johnson,
. Agent Grant testified that during the meeting on May 7, Ghanayem accepted Grant’s offer to arrange a drug transaction. The district court points to several moments in the taped conversation which, the court opines, indicate Ghanay-em's reluctance to engage in the transaction. First, in response to Grant’s inquiry about Gha-nayem's contact with Shunnarah, Ghanayem stated: "He never called me, I was wanting a ... wasn’t able to get a hold of me, he couldn't get a hold of it.” Later, when asked if he knew anyone else who might be interested in purchasing drugs, Ghanayem replied: "Not off hand only one person. You ... this is the one person that I know that, you know,' he’s a he’s a close friend of mine....” The district court indicates that Gha-nayem’s stammering responses reflect a confused and ambivalent person reluctant to be involved in the cocaine deal, rather than the reactions of an experienced drug dealer.
. The district court, in a footnote, contends that it is not weighing the testimony, which it admits is a jury function, but rather is concluding that the government did not present sufficient evidence to establish predisposition.
. The district court noted that Grant had given' “unsubstantiated” testimony that Ghanayem had a prior marijuana possession arrest.
. Although Ghanayem’s failure to satisfy any., of the prongs precludes his obtaining a new trial, we nonetheless discuss his failure to satisfy the first two. We do not address whether Shunna-rah’s testimony was material and exculpatory nor whether it would probably lead to an acquittal in the event of a retrial.
. The government contends that Ghanayem waived any argument based on newly discovered evidence. Everything that the government identifies as waiver is more appropriately addressed under the “due diligence", prong of the test.
See Kamel,
.
. We reach this .conclusion without relying.on the co-conspirator statements of Ghanayem and Shunnarah and therefore do not address the gov-emment's contention that the district court erred in excluding such evidence under Federal Rule of Evidence 801(d)(2)(E).