UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. )

) Case No. 11-cr-779-6

TRACY CONLEY, )

)

Defendant. ) Judge Sharon Johnson Coleman

)

MEMORANDUM OPINION AND ORDER

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].

1 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.

Background

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 

1 Conley’s trial counsel filed two post-trial motions on Conley’s behalf [270, 271]. Subsequently, Conley filed a motion for 

new counsel, which was granted based on the Court’s understanding that trial counsel and Conley were unable to continue 

an attorney-client relationship due to differences of opinion as to Conley’s defense. The Court appointed Preston Pugh of 

Pugh, Jones & Johnson, P.C., later substituted by Stephen H. Pugh, to represent Conley and thanks Mr. Pugh and his law 

firm for their service and thorough advocacy on behalf of Conley. The Court granted Mr. Pugh leave to supplement the 

post-trial motions. Throughout the post-trial proceedings, Conley has filed letters in his own defense.

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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.

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Legal Standard

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).

Discussion

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 

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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 States v. Walls, 225 F.3d 858, 

864 (7th Cir. 2000). Conley argues that the government failed to present sufficient evidence to establish 

the possession element of each charge. 

Possession of a weapon may be demonstrated through either actual or constructive possession. 

United States v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995). Actual possession is demonstrated if a person 

knowingly has direct physical control over a thing at a given time. Id. at 524 n.2. “Where that direct 

physical contact is lacking, a defendant may nevertheless have constructive possession if []he 

‘knowingly has the power and the intention at a given time to exercise dominion and control over an 

object, either directly or through others.’” United States v. Walls, 225 F.3d 858, 864 (7th Cir. 2000)

(quoting United States v. Hunte, 196 F.3d 687, 692 (7th Cir. 1999)).

Here, the evidence that Conley had actual or constructive possession of the weapons is meager. 

The government presented no evidence that he handled any weapons or was in a position to see any 

weapons. The testimony at trial from Anwar Trapp indicated that Conley was present for a discussion 

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of the robbery. Anwar Trapp and David Flowers dropped Conley off before going to collect supplies. 

Trial Tr. at 311-12. On November 1, 2011, when the would-be conspirators arrived at 6317 S. Mozart, 

David Flowers had hidden a gun inside a white work van. Anthony Adams also provided a gun. Id. at 

472. Trapp testified that after Adams, Conley, and Rudy Space, got in the back of the white work van, 

Trapp wrapped a gun that he had obtained from a friend in his sweatshirt and handed it to Myreon, 

who was sitting in the drivers’ seat of the van. Myreon took the gun and returned the sweatshirt. Id. at 

316-18, 473, 74. All three guns were retrieved from the bottom of a tool box. There was no testimony 

or evidence presented establishing how the guns came to be in the tool box or whether Conley’s 

vantage point in the back of the van permitted him to see the gun(s). Even the government’s expert, 

Kathryn Knorr’s testimony established that Conley’s fingerprints were not found on any of the 

weapons. Without evidence establishing that Conley had a means of knowing of the presence of the 

weapons, his mere proximity to a closed tool box in a work van containing other tools and sundry 

items, would not sufficiently establish the requisite knowledge. See United States v. Chairez, 33 F.3d 823, 

825 (7th Cir. 1994).

The only connection to the weapons that the Government is able to draw is under a Pinkerton

theory. Conspiracy liability as defined in Pinkerton encompasses the criminal conduct of co-conspirators 

only to the extent that conduct was both (1) reasonably foreseeable to the defendant and (2) in 

furtherance of the criminal activity that the defendant agreed to jointly undertake. See United States v. 

Salem, 597 F.3d 877, 884-85 (7th Cir. 2010); United States v. Jackson, 527 Fed. Appx. 575, 577 (7th Cir. 

2013). Trapp testified that Conley was present at a meeting where the robbery was discussed including 

the need for weapons based on the fact that Myreon expected three armed guards at the stash house. 

Trial Tr. at 308. Trapp’s credibility as a witness, or lack thereof, as a co-conspirator and co-defendant 

was put before the jury, and the jury chose to believe him. As discussed below, the government met 

their burden on the conspiracy charges. Therefore, Conley can be held accountable for the guns 

acquired by his co-conspirators and put in the van with the intention that they be used in furtherance of 

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the armed robbery to obtain the cocaine regardless of the lack of direct evidence of Conley’s knowledge 

of the presence of the weapons. See United States v. Walker, 673 F.3d 649, 655 (7th Cir. 2012).

2. Conspiracy Charges

The government also charged Conley with conspiracy to possess with intent to distribute five 

kilograms or more of mixtures containing cocaine, and attempt to possess with intent to distribute five 

kilograms or more of mixtures containing cocaine. Conley argues that the evidence was insufficient to 

support his conviction on these charges. This Court disagrees. 

To convict a defendant of conspiracy to possess (or attempt to possess) with intent to distribute 

cocaine under 21 U.S.C. § 846, the government must establish: (1) the existence of an agreement 

between two or more persons to possess with intent to distribute cocaine; (2) that the defendant knew 

of the agreement; and (3) the defendant intended to join the agreement. United States v. Taylor, 600 F.3d 

863, 868 (7th Cir. 2010) (citing United States v. Billops, 43 F.3d 281, 284 (7th Cir. 1994)). 

The record evidence at trial showed that Conley was present at a meeting in Anthony Adams’ 

basement at which a robbery was discussed. Anwar Trapp testified that at this meeting on November 1, 

2011, Myreon told them about the robbery and explained that Adams and Conley would commit the 

actual robbery. Conley’s own statement placed him at this meeting, even though he disputed the 

substance of the conversation. Trapp testified that at this meeting Myreon explained that a guy he knew 

had told him about a garage where 50 kilograms of cocaine were being stored by members of a Mexican 

cartel. Trial Tr. at 308. According to Trapp, Myreon explained that there would be three armed guards 

at the garage. Id. They decided that another person (Rudy Space) would be needed to carry out the 

robbery. Id. Although “mere association with conspirators, knowledge of a conspiracy and presence 

during conspiratorial discussions is not sufficient to convict a person of conspiracy,” the government 

has to show that “the defendant was aware of the essential nature and scope of the enterprise and 

intended to participate in it.” United States v. Useni, 516 F.3d 634, 646 (7th Cir. 2008). The evidence at 

trial showed that Conley took steps in apparent furtherance of the conspiracy. Conley showed up at the 

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house at the designated meeting time and entered the white work van. When the van arrived at the 

forest preserve, Conley got out of the white work van wearing blue gloves and walked towards the 

undercover van, whereupon he and the others were apprehended. Accordingly, this Court finds this 

evidence sufficient when viewed in the light most favorable to the government to support the 

conspiracy charges. In so finding this Court acknowledges the “nearly insurmountable hurdle” facing 

Conley. See United States v. Spagnola, 632 F.3d 981, 986 (7th Cir. 2011).

II. New Trial

Alternatively, Conley moves for a new trial, arguing that verdict was so contrary to the weight 

of the evidence, taking into account the credibility of the witnesses, that the interests of justice require a 

new trial. See United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999). Having already determined 

that there was sufficient evidence to support the conviction this Court turns to Conley’s argument that 

judicial errors substantially affected his rights. See United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 

1989).

1. Trial Errors

First, Conley argues that it was error to deny Conley’s request for discovery concerning selective 

prosecution of similar stash house type cases. This Court notes that the Seventh Circuit Court of 

Appeals has referred to these stash house cases as “tawdry” “because the tired sting operation seems to 

be directed at unsophisticated, and perhaps desperate, defendants who easily snap at the bait put out 

for them by [the government].” United States v. Lewis, 641 F.3d 773, 777 (7th Cir. 2011). The Seventh 

Circuit’s observation rings especially true since the “bait” involves robbing a drug cartel as opposed to 

robbing innocents. The instant case seems no different. The questions Conley raised are valid. 

However, this Court denied Conley’s request for discovery concerning selective prosecution because he 

was not recruited by any government agent. He was not even recruited by the apparent spearhead of 

the conspiracy – Myreon Flowers, but instead by another recruit. Thus, there are no facts from which 

this Court can infer that Conley was a target of the government’s sting operation and nothing to 

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indicate he was the subject of racial profiling. See United States v. Barlow, 310 F.3d 1007, 1010 (7th Cir. 

2002).

Next, Conley asserts that Anwar Trapp’s testimony was inadmissible hearsay for two reasons: 

that the government’s proffered Santiago proffer did not refer to Anwar Trapp, and the government 

failed to meet their burden to show conspiracy. The Santiago proffer set forth the expected testimony of 

co-conspirators, that it was David Flowers instead of Anwar Trapp that the government expected to 

call is harmless because the testimony offered through Anwar Trapp was not materially different. There 

was evidence of the conspiracy and the statements were made in furtherance of the conspiracy. See 

United States v. Leonard-Allen, 739 F.3d 948, 955 (7th Cir. 2013). Moreover, there was no objection at trial 

to Anwar Trapp’s testimony.

Conley also asserts that it was error to allow the expert testimony of Kathryn Knorr because her 

testimony is irrelevant and unduly prejudicial. The Seventh Circuit has expressly rejected the argument 

that testimony from a fingerprint expert on the lack of fingerprints is irrelevant, United States v. Glover, 

479 F.3d 511, 517-19 (7th Cir. 2007). However, even if this Court found the testimony prejudicial, the 

government connected Conley to the weapons through a Pinkerton theory and thus any error in the 

admission of the testimony would be harmless. 

2. Ineffective Assistance of Counsel

Additionally, Conley argues that his trial counsel was ineffective for several reasons: counsel 

urged Conley to waive his right to testify; counsel failed to file a motion in limine to exclude Raschke’s 

expert testimony; and, that counsel improperly alleged that Conley had knowledge of and participated 

in the conspiracy in his closing argument. In order to prevail on an ineffective assistance of counsel 

claim, a defendant must show that his attorney’s performance was deficient and that he was prejudiced 

by that deficient performance. Kitchen v. United States, 227 F.3d 1014, 1019-20 (7th Cir. 2000). “To 

reflect the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, our 

review of an attorney’s performance is highly deferential and reflects a strong presumption that 

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counsel’s conduct falls within the wide range of reasonable professional assistance.” Groves v. United 

States, 755 F.3d 588, 591 (7th Cir. 2014) (quoting Yu Tian Li v. United States, 648 F.3d 524, 527-28 (7th 

Cir. 2011)).

Conley’s trial counsel urged him not to testify in an effort to keep Conley’s criminal history out 

of evidence, but agreed to a stipulation that Conley had been convicted of a felony prior to November 

1, 2011. The decision whether to testify is ultimately the defendant’s alone. Jones v. Barnes, 463 U.S. 745, 

751 (1983). The Court admonished Conley of his right to testify on his own behalf as well as his right 

not to testify. Trial Tr. 670-71. Furthermore, courts generally do not second-guess trial tactics so long 

as they are rationally based. Mertz v. Williams, 771 F.3d 1035, 1042 (7th Cir. 2014). “[T]he decision not 

to place the defendant on the stand is a classic example of what might be considered sound trial 

strategy.” United States v. Norwood, 798 F.2d 1094, 1100 (7th Cir. 1986).

Here, the Court granted the government’s motion in limine seeking to allow cross-examination 

of Conley on certain felony convictions, including weapons and narcotics offenses if Conley chose to 

testify. Accordingly, this Court finds that it was sound trial strategy for trial counsel to advise Conley 

not to testify thereby keeping out the detail and substance of his criminal history. 

Conley’s next argument regarding the expert testimony of Joseph Raschke is equally within the 

realm of trial strategy. The government offered the testimony regarding the cell site evidence to 

demonstrate the locations of various conspirators at particular times. Conley’s records were never 

collected or analyzed. The fact that Conley’s cell records were never sought or analyzed could have 

benefitted Conley, therefore the failure to seek to exclude has a rational basis in trial strategy. 

Lastly, the issue of whether trial counsel insinuated that Conley was part of the conspiracy 

during closing argument belied by the trial record. Counsel argued that Conley was not a part of the 

conspiracy of the Flowers brothers, Anwar Trapp, Duane Jones, Anthony Adams, and Rudy Space. The 

record shows that he tried to argue that the conspirators considered Conley an effective dupe, who they 

could use as a human shield with the secure knowledge that he would be afraid to talk because they 

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knew where he lived and could harm him. See Trial Tr. at 719. Defense counsel’s argument does not 

necessarily support a conclusion that Conley joined a conspiracy. Accordingly, this Court finds that 

Conley fails to meet the burden under Strickland to demonstrate ineffective assistance of trial counsel. 

Conclusion

Conley asserts that justice demands acquittal or a new trial. Indeed, the Court questions the 

wisdom and purpose of expending the level of law enforcement resources and judicial time and effort

in this prosecution. Not only does this Court agree with the Seventh Circuit’s opinion that the fictional 

stash house stings are tawdry, this Court would go further and say the stash houses are, in most cases, 

an unproductive set up targeting poor people of color. While the Court may find the government’s 

tactics of questionable value, they do not rise to the level necessary to overturn the jury’s verdict in this 

case. After much consideration, time, reflection and review of the parties’ arguments and the trial 

record, this Court denies defendant Tracy Conley’s Motion for Acquittal or a New Trial.

IT IS SO ORDERED.

Date:

Entered: _______________________________

 SHARON JOHNSON COLEMAN

 United States District Judge

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