The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Reginald D. Guice's ("Guice") motion for a judgment of acquittal notwithstanding the jury verdict and motion for a new trial. For the reasons stated below, we deny both motions.
Guice was charged by indictment in this case with unlawfully possessing a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g) (Counts 1 and 3) and possessing a firearm having an obliterated serial number, in violation of 18 U.S.C. 922(k) (Counts 2 and 4). A jury trial was commenced in this case on April 24, 2006, and on April 28, 2006, the jury found Guice guilty on Counts One and Three and not-guilty on Counts Two and Four. Guice now moves for a judgment of acquittal notwithstanding the jury verdict pursuant to Federal Rule of Criminal Procedure 29( c) and moves in the alternative for a new trial pursuant to Federal Rule of Criminal Procedure 33.
A defendant in a criminal case who has been found guilty by a jury may move for an acquittal under Federal Rule of Criminal Procedure 29( c). Fed. R. Crim. P. 29( c). If the defendant is challenging the sufficiency of the evidence presented at trial, the court must "consider the evidence in the light most favorable to the prosecution, drawing all reasonable inferences in the government's favor," and a "[r]eversal is appropriate only when, after viewing the evidence in such a manner, no rational jury 'could have found the defendant to have committed the essential elements of the crime.'" United States v. Macari, 453 F.3d 926, 936 (7th Cir. 2006)(quoting United States v. Masten, 170 F.3d 790, 794 (7th Cir. 1999))(quoting in addition United States v. Granados, 142 F.3d 1016, 1019 (7th Cir. 1998) for the proposition that a court should "overturn the jury's verdict only if 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. Gougis, 432 F.3d 735, 743-44 (7th Cir. 2005)(stating that a defendant who challenges the sufficiency of the evidence "faces a nearly insurmountable hurdle")(citation omitted).
A court may provide a defendant found guilty by a jury of a crime with a new trial under Federal Rule of Criminal Procedure 33 "if the interest of justice so requires." Fed. R. Crim. P. 33(a). The decision concerning whether a new trial is warranted is "committed to the sound discretion of the trial judge." United States v. Gillaum, 372 F.3d 848, 857-58 (7th Cir. 2004)(citations omitted). In determining whether to grant a new trial, a court should exercise "great caution" and be "wary of second guessing the determinations of the . . . jury." Id. (citing United States v. DePriest, 6 F.3d 1201, 1216 (7th Cir. 1993)).
I. Motion for Judgment of Acquittal Notwithstanding the Jury Verdict
Guice argues that there was insufficient evidence produced at trial to prove beyond a reasonable doubt that he knowingly possessed the firearms in question.
Guice was found guilty in Count One of being formerly convicted of a felony and knowingly possessing a Hi-Point Arms Model C9, 9 mm caliber semiautomatic pistol with an obliterated serial number ("Gun"). (Ind. 1). We first note that although Guice moves for judgment of acquittal notwithstanding the verdict on both Count One and Count Three, (Mot. Par. 2), Guice offers no arguments concerning his conviction on Count One. Guice's sole argument in his motion is that the jury engaged in speculation because there was not sufficient evidence to show that Guice knowingly possessed the firearms that were found in the trunk in which Guice was arrested ("Car"). Guice makes no mention in his motion of the evidence concerning the Gun, which showed that the arresting officers, Officers Mario Acosta ("Acosta") and Steven Ciecel ("Ciecel") (collectively referred to as "Arresting Officers"), found the Gun under Guice's thigh in the Car.
At trial, the Arresting Officers testified that Acosta discovered the Gun concealed under the thigh of Guice during a pat down search in the Car. It was the jury's role at trial to assess the credibility of such testimony. United States v. Griffin, 194 F.3d 808, 817 (7th Cir. 1999). A court may overturn a conviction on the basis that the jury erred in its credibility determination only if "a witness's testimony was incredible as a matter of law." Id. (quoting United States v. Saulter, 60 F.3d 270, 275 (7th Cir. 1995)). Based on the testimony of the Arresting Officers indicating that they discovered the Gun concealed under Guice's thigh, the jury could have reasonably found sufficient evidence to prove beyond a reasonable doubt that Guice knowingly possessed the Gun. The jury has already weighed the testimony of the Arresting Officers and thus, we cannot question the veracity of the Arresting Officer's firsthand account of what they claimed to have done and seen. See United States v. Stevens, 453 F.3d 963, 965 (7th Cir. 2006)(stating that when deciding whether to overturn a jury verdict, "[v]iewing the evidence in the light most favorable to the prosecution means that" a court should not "weigh the evidence or second-guess the jury's credibility determinations'")(quoting United States v. Gardner, 238 F.3d 878, 879 (7th Cir. 2001)). The testimony of the Arresting Officers concerning the discovery of the Gun did not include facts that were physically impossible or that could be deemed incredible as a matter of law. See Griffin, 194 F.3d at 817 (stating also that "[t]o make the necessary showing that certain evidence is 'incredible as a matter of law' or 'unbelievable on its face,' [the defendant] must demonstrate that 'it would have been physically impossible for the ...