The opinion of the court was delivered by: Herndon, District Judge
This matter comes before the Court on Defendant Johnnie Taylor's motion for new trial submitted on July 18, 2007. (Doc. 133.) The Government filed a response in opposition to the Motion on July 20, 2007. (Doc. 134.) Defendant filed a memorandum of law in support of post-trial motion for new trial on August 2, 2007. (Doc. 135.) The Government filed a second response in opposition on August 8, 2007. (Doc. 136.) Having reviewed the motion and all of the briefs in support and in opposition, the Court, in its discretion, has determined that a hearing on Defendant's motion (Doc. 133) is unnecessary. See United States v. Hedman, 655 F.2d 813, 814 (7th Cir. 1981).
On August 18, 2006, Defendant was indicted for being a felon in possession of a firearm. There were two trials in the case. The first trial, beginning on June 18, 2007, ended with a deadlocked jury. During that trial, the Government put on two witnesses, Mario Dowell and Mary Weaver, who each gave testimony that they had witnessed Defendant in possession of the firearm. On July 10, 2007, a second jury found Defendant guilty of the charge of being a felon in possession of a firearm. During that trial, the Government put Mario Dowell on the stand. Mary Weaver did not testify.
In reviewing a motion for new trial, a court must weigh the evidence and grant a new trial if the evidence "preponderates heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand." United States v. Reed 875 F.2d 107, 113 (7th Cir. 1989).
Defendant argues that a new trial should be granted on the following grounds:
A. The Government Failed to Prove Defendant Guilty Beyond a Reasonable Doubt
1. Defendant was not in physical possession of the weapon when arrested. The Government responds that the law does not require physical possession of the weapon at the time of arrest. Instead, the Government argues, the law merely requires that the Government prove that the Defendant knowingly possessed the firearm on the date in question. (Doc. 134.) Defendant seems to concede this point, while still maintaining that it would have been a "drastically" different case had Defendant been found in possession of the weapon. Obviously that is true. But the law supports the jury's guilty verdict, even though Defendant was not arrested while in possession of the gun.
2. Mario Dowell's testimony was not sufficiently credible to overcome reasonable doubt. Mario Dowell testified that on September 12, 2005, Defendant asked Dowell to put up a firearm that Defendant had because he and his girlfriend, Mary Weaver, had "got into it." Dowell further testified that he and Defendant walked around to the back of the apartment complex and that Defendant then handed him the firearm, which Dowell subsequently hid in a nearby apartment. Dowell admitted to using a small amount of heroine on September 12, 2005. Defendant argues that there were "pervasive" inconsistencies between Dowell's testimony and prior statements that he had made.
"It is axiomatic that, absent exceptional circumstances, issues of witness credibility are to be decided by the jury, not the trial judge." United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). The Seventh Circuit has held that a court may overturn "a conviction based on a credibility determination only if the witness' testimony was incredible as a matter of law. That is an exacting standard, and can be met, for instance, by showing 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.' " United States v. Hayes, 236 F.3d 891, 896 (7th Cir. 2001) (quoting United States v. Alcantar, 83 F.3d 185, 189 (7th Cir.1996)). "In general, conflicting testimony or a question as to the credibility of a witness are not sufficient grounds for granting a new trial." Kuzniar, 881 F.2d at 470.
If anything, Mario Dowell's testimony is an example of minor inconsistencies rather than glaring impossibilities. As such, the Court will not disturb the credibility determination made by the jury ...