The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
On May 27, 2011 a jury convicted defendant Marvin Chapman ("Chapman") of possessing with the intent to distribute a controlled substance, namely a quantity of mixtures and substances containing a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1) ("Count I") and acquitted Chapman of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) ("Count II") and of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) ("Count III"). Chapman now moves for an acquittal notwithstanding the verdict pursuant to Rule 29 of the Federal Rules of Criminal Procedure and for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. For the following reasons, the Court denies Chapman's motions.
A motion for judgment of acquittal under Rule 29 challenges the sufficiency of the evidence against a defendant. See Fed. R. Crim. P. 29 (requiring the Court to "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction"). In challenging the sufficiency of the evidence, Chapman "bears a heavy, indeed, nearly insurmountable, burden."
United States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010). Such a motion should be denied if, after viewing the evidence in the light most favorable to the Government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Hicks, 368 F.3d 801, 804 (7th Cir. 2004); see also United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003) (citing United States v. Menting, 166 F.3d 923, 928 (7th Cir. 1999) and finding that a conviction entered after trial by jury should not be overturned unless "the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.").
A motion for a new trial under Rule 33(a) should be granted only if required "by the interest of justice." Fed. R. Crim. P. 33(a). Such motions should be granted sparingly and are only appropriate 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).
I. Motion for Judgment of Acquittal on Count I
Chapman asserts that the Court should reverse the jury's verdict in Count I because the Government presented insufficient evidence that Chapman knowingly possessed heroin with the intent to distribute on March 8, 2010. Specifically, Chapman contends that the Government did not present any physical evidence connecting him to the charged heroin and that the testimony of the witnesses did not prove his guilt beyond a reasonable doubt. Chapman notes that he is not attacking the conviction because it was inconsistent with the jury's verdicts on Counts II and III, but also argues that the verdicts reached in this case were "materially inconsistent, and the inconsistency establishes that the evidence supporting the heroin conviction" of Count I was "insufficient." (Doc. 60 at 5-6.)
At trial, the Government presented four law enforcement officers-Brian McHale ("McHale"), John Lipka ("Lipka"), Matthew Bouch ("Bouch"), and Matthew McGrory ("McGrory")-who testified that, on the night of March 8, 2010, they saw Chapman holding a blue bag as he walked down the street with a dark object sticking out of it. They further testified that they saw Chapman either going towards or into the residence at 619 N. Ridgeway while still holding the bag. McHale and Lipka testified that they pursued Chapman up the stairs of the residence while Chapman was still holding the bag. Lipka testified that he followed Chapman into the living room, heard a thud, and saw Chapman attempt to escape through a window. Lipka testified that he recovered the bag and found 28 tinfoil packets of suspect heroin as well as a rifle.
Allison Rees ("Rees"), a fingerprint specialist with the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"), testified that two prints were found on the tinfoil packaging but that neither print belonged to Chapman. Rees clarified that that finding did not indicate that Chapman had not touched the packages. Chris Labno ("Labno"), a Special Agent with the ATF, testified that drug dealers typically package user quantities of heroin in tinfoil packages into plastic baggies for later distribution.*fn1
The Government also presented the stipulated testimony of Chicago Police Department Officer Jason Brown ("Brown"). The stipulated testimony concerned a June 14, 2005 incident where Brown observed Chapman engaged in a hand-to-hand transaction; Chapman's subsequent attempted escape; and Chapman's possession of 13 packets of suspect heroin packaged in tinfoil. The stipulated testimony also noted that Chapman pled guilty to the June 14, 2005 offense and was convicted for possession of controlled substances.
Chapman testified at trial and denied possessing heroin on March 8, 2010 but did admit to possessing and selling heroin on other occasions. Damurile Collier ("Collier") testified for the defense that Chapman did not possess heroin the night of March 8, 2010.
Chapman now challenges his conviction because none of the officers actually saw him "directly holding any suspect heroin." (Doc. 60 at 5.) Chapman's argument, however, fails to take into account that possession can be either actual or constructive. See United States v. Irby, 558 F.3d 651, 654 (7th Cir. 2009) (citation omitted). Actual possession "exists when the thing is in the immediate occupancy and control of the party." United States v. Davis, 15 F.3d 1393, 1398 (7th Cir. 1994). "Constructive possession is a legal fiction whereby an individual is deemed to 'possess' contraband items even when he does not actually have immediate, physical control of the ...