The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Edmund Hodges' ("Hodges") motion for the entry of a judgment of acquittal and motion in the alternative for a new trial. For the reasons stated below, we deny both motions.
Hodges and his co-Defendants were charged by indictment in this action. Hodges was charged with conspiracy to commit bank robbery in violation of 18 U.S.C. § 371 (Count I), kidnaping in furtherance of a bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2113(e) and 2(Count II), and brandishing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and (c)(2) (Count IV). A jury trial was held and on May 18, 2006, Hodges was found guilty on all counts brought against him. Hodges now seeks the entry of a judgment of acquittal and moves in the alternative for a new trial.
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. Andrews, 442 F.3d 996, 1001 (7th Cir. 2006)(stating that "[w]hen evaluating the sufficiency of evidence presented at trial to support a conviction," a court "inquires whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'" and that "[t]he record is reviewed in the light most favorable to the government and all reasonable inferences are drawn in the government's favor")(quoting United States v. Tanner, 941 F.2d 574, 586 (7th Cir.1991)(emphasis in original); 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 of a crime by a jury 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)(quoting United States v. Woolfolk, 197 F.3d 900, 904 (7th Cir. 1999)). 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. (quoting United States v. DePriest, 6 F.3d 1201, 1216 (7th Cir. 1993)); United States v. Morales, 902 F.2d 604, 605-06 (7th Cir. 1990)(stating that "[a] jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly," but that "if the judge believes there is a serious danger that a miscarriage of justice has occurred-that is, that an innocent person has been convicted-he has the power to set the verdict aside, . . . even if he does not think that he made any erroneous rulings at the trial").
I. Motion for Entry of Judgment of Acquittal
Hodges moves the court to enter a judgment of acquittal in the instant action, alleging that: 1) there was insufficient evidence to support the findings of guilty entered against him, 2) he cannot be held liable for brandishing a weapon under the aiding and abetting theory, 3) his mere presence at the scene of the crime was not sufficient for a finding of guilty, and 4) certain jury instructions were contradictory and misleading.
A. Sufficiency of Evidence
Hodges argues that "[i]nsufficient evidence supported a conviction on all counts in this case." (Mot. Acqu. 2). It is not clear by such an ambiguous statement whether Hodges is arguing that he should have been found not-guilty on only some of the counts brought against him. If that is the case, Hodges has failed to make clear which counts he contends lack sufficient evidentiary support. Regardless, Hodges has failed to show that any of the counts for which he was convicted lacked sufficient evidence. As is indicated above, if a 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.'" Macari, 453 F.3d at 936. In the instant action, there was ample evidence presented at trial that implicated Hodges in all the counts that were brought against him. That evidence included testimony at trial, such as the testimony of his co-Defendants, that was sufficient to show that he was guilty of all the charges that were brought against him.
To the extent that Hodges is arguing that the jury should not have believed the testimony offered against him at trial, 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. Salter, 60 F.3d 270, 275 (7th Cir. 1995)). Hodges has not shown that any of the testimony offered against him was inherently untrustworthy. 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 witness to observe what he described, or it was impossible under the laws of nature for those events to have occurred at all'")(quoting United States v. Alcantar, 83 F.3d 185, 189 (7th Cir. ...