MEMORANDUM-DECISION AND ORDER
Defendant James L. Ford ("Defendant" or "Ford") was charged in a six count Indictment with possession of a firearm and ammunition after being convicted of a felony and possession of numerous short-barreled firearms. Superseding Indictment (Dkt. No. 24). On April 28, 2006, Defendant was convicted by a jury of all six counts charged in the Indictment. See Dkt. Nos. 62, 63. Presently before the Court is Defendant's motion for: (1) judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 on the grounds that the Government failed to prove beyond a reasonable doubt the elements of the offense charged; and (2) a new trial pursuant to Federal Rule of Criminal Procedure 33. Motion (Dkt. No. 66). For the following reasons, the motion is denied.
Because the Court is presented with Defendant's motion pursuant to Federal Rule of Criminal Procedure 29, the following evidence is presented in the light most favorable to the Government. Jackson v. Virginia, 443 U.S. 307, 318 (1979); United States v. Amato, 15 F.3d 230, 235 (2d Cir. 1994); United States v. Artuso, 618 F.2d 192, 195 (2d Cir. 1980).
On June, 9, 2004, patrol officers of the Albany Police Department received information that if Defendant was seen, Defendant was to be approached for questioning. At trial, Officer James Wood testified that he knew Defendant and that he was able to recognize him by sight. Both Officer Wood and Officer James Gallagher testified that while in their patrol vehicle in the vicinity of Lark and Orange Streets in Albany, they observed Defendant standing on Lark Street in front of an apartment. After observing Defendant enter and then exit the apartment, the Officers followed Defendant. As the Officers pulled their car over on Orange Street, Defendant saw them and fled, leaping over a chain link fence in the rear yard of 107 Lark Street.
Officer Wood testified that he was first out of the car and was approximately ten to fifteen feet from Defendant. According to Officer Wood, as Defendant was scaling the fence, he observed what appeared to be a dark, heavy object coming from the area of Defendant's waist and that the object flew away from Defendant out in front of him and to the left. The object landed about ten feet away from the fence. At trial, Officer Wood testified that he could not identify what the object was. Officer Wood stated that he could not see Defendant's hands but that whatever came from Defendant had not dropped down to the ground by the fence but instead went straight out away from Defendant and into the yard.
Officer Wood testified that he continued to chase Defendant through the backyards behind Lark Street while Officer Gallagher testified that he circled to Sheridan Avenue in hopes of heading Defendant off. At one point in the pursuit, Officer Wood observed Defendant stopping momentarily on a porch and talking on his cell phone. After Defendant failed to follow Officer Wood's order to remain where he was, Officer Wood observed another person, apparently already in the yard, get up and run away from him. Officer Wood testified that he did not know this other person and that the unidentified individual did not go the same direction as Defendant and Officer Wood.
By this time, numerous police cars and officers arrived on the scene. Detective Thomas McGraw testified that he was among the officers that had arrived and had gone into an alley between houses along Sheridan Avenue. Defendant ran past Detective McGraw and just before Ford was captured, Detective McGraw observed Defendant throwing something over a fence, but could not identify what had been thrown. A set of keys and a cell phone were later located in the area Detective McGraw saw Defendant throw the unidentified object or objects.
Patrol Officer John Muscatello testified that after arriving on scene less than a minute or so from when the police call was received, he located a 9mm handgun in the backyard behind 107 Lark Street. Officer Muscatello stated that there was no one else in the backyard of 107 Lark Street when he arrived.
Sgt. Brian Greagan testified that after responding to the scene, Officer Wood and Gallagher relayed to him that Defendant appeared to be walking toward a Jeep Cherokee parked on Orange Street. Detective Leonard then provided the keys Defendant had discarded before being captured. Sgt. Greagan stated that an inspection of the vehicle revealed what appeared to be the butt of a long gun on the backseat of the vehicle. Sgt. Greagan confirmed that the keys relayed to him by Detective Leonard opened the vehicle. After a search warrant was obtained for the vehicle, officers recovered a sawed-off rifle, a sawed-off 12-gauge shotgun, and a suitcase containing ammunition.
Defendant was charged in a six count Indictment with possession of a firearm and ammunition after being convicted of a felony and possession of numerous short-barreled firearms. Superseding Indictment (Dkt. No. 24). On April 28, 2006, Defendant was convicted by a jury of all six counts charged in the Indictment. See Dkt. Nos. 62, 63. Defendant now seeks a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, or, in the alternative, a new trial pursuant to Federal Rule of Criminal Procedure 33. The Government opposes Defendant's motion. Response (Dkt. No. 69); Addendum (Dkt. No. 71).
A. The Rule 29 Motion for Judgment of Acquittal
A defendant challenging the sufficiency of the evidence following a conviction bears a heavy burden. United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003); United States v. Stephenson, 183 F.3d 110, 120 (2d Cir. 1999) (citing United States v. Gonzalez, 110 F.3d 936, 940 (2d Cir. 1997)). "A conviction will be upheld if, 'after viewing the evidence in the light most favorable to the prosecution,' the reviewing court finds that 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Ragosta, 970 F.2d 1085, 1089 (2d Cir. 1992) (quoting Jackson, 443 U.S. at 319); see also United States v. Zagari, 111 F.3d 307, 327 (2d Cir. 1997); United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984); United States v. Patel, 98-CR-0484, 1999 U.S. Dist. LEXIS 12529, at *3 (N.D.N.Y. Aug. 2, 1999) (McAvoy, C.J.). The jury's verdict must be sustained if it was supported by "substantial evidence". Ragosta, 970 F.2d at 1089 (citing Glasser v. United States, 315 U.S. 60, 80 (1942)). "If 'substantial evidence' exists to support a verdict, it must be sustained, ... the evidence need not have excluded every possible hypothesis of innocence." United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992) (citations omitted). All reasonable inferences and all issues of credibility must be resolved in favor of the jury's verdict. See United States v. Autuori, 212 F.2d 105, 114 (2d Cir. 2000); United States v. Reyes, 157 F.3d 949, 955 (2d Cir. 1998); United States v. Allah, 130 F.3d 33, 45 (2d Cir. 1997); United States v. Wallace, 59 F.3d 333, 338 (2d Cir. 1995).
In arguing that the evidence presented by the Government was insufficient to support the jury's verdict, Defendant advances three grounds: 1) that no witness testified to seeing Defendant physically possess a loaded Ruger 9mm Model P89 handgun, and no fingerprints were recovered from the handgun; (2) that the testimony of Officer Wood is not credible as a matter of law; and (3) that the testimony of various police ...