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May 07, 2004.


The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


On January 16, 2004, following a two-week jury trial, Defendant Jeffrey McDaniel was convicted of possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Invoking Federal Rules of Criminal Procedure 29 and 33, Defendant now moves for an order setting aside the jury verdict and entering a judgment of acquittal, or, in the alternative, ordering a new trial.

The Court has considered carefully the Defendant's and the Government's respective submissions on the post-trial motion. For the following reasons, Defendant's motion is denied.

  Rule 29 Motion

  Defendant argues that the Court should enter a judgment of acquittal pursuant toFederal Rule of Criminal Procedure 29 because the warrant authorizing the search in which the ¶ was seized was defective and improperly obtained, and because the ¶ to prove what Defendant contends are elements of the crime charged. Neither Government failed to prove what Defendant contends are elements of the crime charged. Neither argument is meritorious.

  The warrant-related element of Defendant's application is essentially an effort to relitigate Defendant's pre-trial suppression motion on the same grounds. The pre-trial motion was denied for the reasons detailed in the Court's August 29, 2003 Memorandum Opinion and Order. The Court also denied a defense application to reopen the search warrant proceeding for reasons detailed on the record of the pre-trial conference held in this case on December 2, 2003. (Dec. 2, 2003 Conf. Tr. at 8-10.) As in his prior attacks on the search warrant, Defendant argues here that the inconsistency between the warrant application's reference to a "handgun" and the nature of the weapon actually seized, as well as inconsistencies between statements and testimony of the officer who signed the complaint and testimony of the confidential informant upon whose information the warrant application was based in part, are indicative of a lack of probable cause for issuance of the warrant and of deliberate falsification by the law enforcement officers who obtained the warrant.

  Rule 29 of the Federal Rules of Criminal Procedure authorizes motions challenging the sufficiency of the evidence presented at trial. The warrant-related aspect of Defendant's motion thus is not properly asserted under Rule 29, and, having previously been addressed by the Court on more than one occasion, is properly denied on that basis alone. Furthermore, even if the Court were to reconsider its prior determinations regarding the sufficiency of the warrant to support probable cause in light of the evidence presented at trial and falsification of the information therein, the Court's prior determinations upholding the warrant would not change. Defendant focuses principally on the statement in the warrant application, signed by NYPD Sergeant Daniel Fraser and presented to the Magistrate Judge in support of the warrant application, that a confidential informant had seen the defendant display a ".22 caliber handgun."*fn1 The weapon ultimately found and seized was a .22 caliber rifle. At trial, Fraser testified that he had assumed that the weapon was some sort of handgun because the informant had told him that the weapon was a "Calico" and he had previously seen only large handguns manufactured by that company. (Trial transcript ("Tr.") at 181.) The confidential informant, Clevon Edge, testified that he had told the police that the weapon was a "Calico." (Tr. at 529-30.) Defendant also cites discrepancies between the assertion in the warrant application that the informant claimed to have been in Defendant's residence on a number of occasions, and Edge's trial testimony as to the number of times he had been in the residence, arguing that those discrepancies are indicative of deliberate falsification. At the December 2003 proceeding before the Court. Defendant argued that the use of "handgun" in the affidavit rather than "rifle" was likely the product of a deliberate falsification intended to increase the likelihood that a search warrant would be issued.

  Under the rules enunciated by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-5C) (1978), a search warrant may be challenged on the ground that the affidavit supporting the warrant application presented deliberately or recklessly falsified information where the allegedly false information was necessary to the finding of probable cause. Even where. however a defendant makes a substantial preliminary showing that the affiant knowingly and intentionaily. or with reckless disregard for the truth, included a false statement in the ¶ no evidentiary hearing is required if, setting aside the allegedly false material, the affidavit still contains information sufficient to support probable cause. Id. at 155-56, 171-72.*fn2 The Court denied Defendant's December 2003 application for a Franks hearing because Defendant had failed to make the requisite substantial preliminary showing and because, in any event, even if the word "handgun" were removed from the affidavit, the reference to ".22 Caliber" would still have been sufficient in the context of the information presented to support probable cause to believe that the Defendant was or had been in illegal possession of a firearm.*fn3 The trial testimony does not change this conclusion. Both witnesses confirmed that Edge had told the police that Defendant had shown him a firearm and had described characteristics of the weapon retrieved pursuant to the warrant. The inaccuracy at issue here, namely the statement that Edge was shown a handgun, when claims that he actually was shown a rifle, at Defendant's residence in no way undermines the Magistrate Judge's probable cause determination. Nor would excision of the affidavit's specific representations as to the frequency of Edge's prior visits to Defendant's residence have vitiated the factual basis presented in the affidavit for probable cause to believe that evidence of a section 922(g)(1) violation could be found in the residence.

  Turning to Defendant's remaining Rule 29 argument, it is axiomatic in the Second Circuit that "[a] defendant challenging the sufficiency of the evidence underlying his conviction `bears a very heavy burden." United States v. Gonzalez, 110 F.3d 936, 940 (2d Cir. 1997) (internal citation omitted). The Court must view the evidence in the light most favorable to the Government and construe all inferences in the Government's favor. A judgment of acquittal may only be entered where the Court finds that "no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Id

  Defendant argues that the Court should enter a judgment of acquittal because the Government failed to prove that the firearm was semi-automatic and that it was, in fact, a working firearm. Defendant was charged pursuant to 18 U.S.C. § 922(g)(1) with being a felon in possession of a firearm. Title 18 defines a "firearm" as "any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projecfile by the action of an explosive."*fn4 18 U.S.C.A. § 921(a)(3) (West 2000) (emphasis supplied). The evidence presented at trial was sufficient to enable the jury rationally to conclude that the .22 Calico. rifle is a firearm within the meaning of the statute.

  Defendant asserts that the Government was required to offer proof from a ballistics expert or other witness that the firearm was capable of firing. (Deft. Mem. of Law, at 6-7.) This proposition fails as a matter of law, as "[n]othing in the statute requires such . . . evidence." United States v. Jones, 16 F.3d 487, 491 (2d Cir. 1994) ("The mere possibility that the object seen by witnesses may have been a sophisticated toy or other facsimile does not necessarily create a reasonable doubt, nor is the government required to disprove that theoretical possibility.") The Government was not required to prove that the weapon was operable. The statutory definition includes, on its face, devices "designed to" expel projecfiles by action of an explosive. On the Government's direct case, Charles Mulham, who was tendered and qualified as an expert in the identification and origin of firearms, explained the firing mechanism of firearms, and identified the gun in question as a firearm manufactured by Calico. Industries, a firearms manufacturer, outside New York State. (Tr. 1179-1195.) The Second Circuit has held that even simple eyewitness testimony that a weapon is a firearm is sufficient to meet the Government's burden of proof under 18 U.S.C. § 921(a)(3), "so long as it provides a rational basis for the jury to find that the object observed by eyewitnesses `was, in fact, a firearm . . . No specific type of testimony is required.'" Jones, 16 F.3d at 490-91 (citations omitted). In this case, the officers who recovered the weapon during the search, including Sergeant Fraser and Lieutenant James O'Sullivan, as well as the confidential informant, Clevon Edge, all recognized the weapon to be a firearm. In fact, Edge testified that the Defendant had shown him how to load the rifle, bragged that it could shoot someone from a long distance, and allowed Edge to hold it. (Tr. 519-523.) Finally, the rifle itself was entered into evidence, thereby allowing the jurors to inspect it and draw their own conclusions. A rational trier of fact could certainly have concluded beyond a reasonable doubt, based on the evidence presented on the Government's direct case, that the weapon was a firearm as defined by 18 U.S.C. § 921(a)(3). Defendant's Rule 29 motion on this issue is therefore denied.*fn5 Rule 33 Motion

  Defendant further argues that the Court should vacate the guilty verdict and grant him a new trial, pursuant to Federal Rule of Criminal Procedure 33, to correct "numerous errors and improprieties." (Deft. Mem. of Law, at 8.) Federal Rule of Criminal Procedure 33 provides that, "[u]pon the defendant's motion the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R. Crim. P. 33. As Defendant acknowledges, "[t]he ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 1997); see Def. Mem. of Law at 8. The Second Circuit has stated that a district court should exercise such authority only "in the most extraordinary circumstances." United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993). Because the decisions targeted by Defendant as erroneous alone or in combination, did not work any injustice to Defendant that would warrant a new trial, the Rule 33 aspect of Defendant's motion is denied.

  Defendant cites several alleged errors, which the Court will ...

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