The opinion of the court was delivered by: Matthew F. Kennelly, United States District Judge
MEMORANDUM OPINION AND ORDER
Defendant Richard Goodwin, a previously convicted felon, was convicted by a jury of possession of a firearm in violation of 18 U.S.C. § 922(g)(1) & 924(e)(1). Goodwin has filed a motion for judgment of acquittal and a motion for new trial. For the reasons stated below, the Court denies both motions.
1. Sufficiency of the evidence
Viewing the evidence in the light most favorable to the government, as the Court is required to do when considering a post-trial motion, there was sufficient evidence for a jury to find beyond a reasonable doubt that the government had established each of the elements of the offense of possession of a firearm by a felon. First, the jury reasonably could find beyond a reasonable doubt that the testifying police officers accurately identified Goodwin as the man they saw with a gun and then chased to the apartment of Margie Madison, where Goodwin was arrested. Second, the jury reasonably could find beyond a reasonable doubt that the gun had been manufactured outside of Illinois and thus necessarily had traveled in interstate commerce.
The Court has previously considered and rejected Goodwin's argument that the indictment did not sufficiently allege the interstate commerce element and if the Court found otherwise, then the felon-in-possession statute exceeds Congress' powers under the Commerce Clause of the Constitution, as well as his argument that the statute violates the Second Amendment. The Court likewise rejected Goodwin's proposed "elements" jury instruction which incorporated his view of the proper scope of the Commerce Clause. Goodwin has now renewed these arguments and challenges the rejection of the proposed instruction. The Court rejects these argument for the reasons previously stated.
3. Cross examination of Officer Steven Sautkus
The Court likewise rejects, for the reasons previously stated on the record, Goodwin's argument that he should have been allowed to cross-examine Chicago Police Officer Steven Sautkus, a government witness, regarding a complaint involving a prior arrest of another individual. The matter had no bearing on Sautkus' credibility.
4. Testimony of Margie Madison
The Court rejects Goodwin's argument that we erred in ruling that Margie Madison could testify that she had seen Goodwin with the firearm in question on an earlier occasion and that she had seen another man, Willie Curry, shoot Goodwin a few weeks before the arrest. In his statement to the police that was admitted in evidence, Goodwin said that he had the gun because he planned to take revenge on Curry for shooting him; Madison's testimony (along with medical records) corroborated this alleged motive as well as the testimony regarding Goodwin's statement, and its probative value significantly outweighed the possibility of unfair prejudice to Goodwin. Madison's testimony about Goodwin's prior possession of the gun was relevant to show his ownership of the weapon, which bore on his possession of the same gun on the date at issue in the felon in possession charge, and it was not unfairly prejudicial to Goodwin.
5. Proposed rebuttal testimony
Goodwin proposed to offer at trial testimony by Curtis Yonker, an investigator for the Cook County Public Defender's Office, that when he interviewed Margie Madison on September 17, 2002, she told him that on the day of the alleged offense, Goodwin had come to her apartment around 3:00 p.m. and was arrested around 5:00 p.m. This was inconsistent with Madison's testimony at trial that Goodwin had arrived at her apartment at 5:00 p.m., out of breath and said that the police were after him.
When it became clear that Goodwin planned to call Yonker to testify, the government announced its intention to call in rebuttal ATF Agent Susan Bray, who would testify that when she interviewed Madison on September 19, 2002, Madison gave a story that was consistent with her testimony at trial. Goodwin argued that Bray's testimony was inadmissible because it amounted to evidence of an prior consistent statement by the witness outside the limited scope of admissibility for such statements under Federal Rule of Evidence 801(d)(1)(B), which provides that a out of court statement is admissible if it is "consistent with the declarant's testimony [at trial] and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." The Court rejected this argument and ruled that if Yonker was called by the defense, Bray could testify in rebuttal. After the Court made this ruling, Goodwin elected not to call Yonker to testify. He now challenges the Court's ruling as an erroneous one that essentially forced him not to call Yonker to avoid the unfair prejudice that he says would have resulted from Bray's rebuttal testimony.
Having decided not to call Yonker, Goodwin is not entitled to challenge this ruling post-trial. In United States v. Wilson, 307 F.3d 596 (7th Cir. 2002), the Seventh Circuit held that the rule of Luce v. United States, 469 U.S. 38 (1984) — that a defendant who loses an in limine challenge to admissibility on cross-examination of his prior conviction but then chooses not to testify cannot raise the issue on appeal — applies in the type of situation present here. In Wilson, the defendant wanted to call an FBI agent to testify about a part of a post-arrest statement by the defendant, specifically the defendant's claim that in connection with a supposedly fraudulent wire transfer, he had been working with an associate on a real estate project that led to the transfer. The trial court ruled that if defendant elicited this testimony, the government would be able to adduce evidence that the defendant had refused to name the associate or provide details. After the court ruled, the defendant decided not to offer the testimony about his statement. On appeal, the Seventh Circuit held that defendant had forfeited the right to challenge the trial court's ruling. It held that the ruling of admissibility of the rebuttal testimony was essentially a "conditional" ruling like the one at issue in Luce and that the rationale of Luce — that ...