This case before the  U.S. District Court for the Northern District of Illinois, Eastern Division, was tried before a jury, and the Defendant moved for a new trial subsequent to his felony conviction of unlawfully possessing a firearm.(18 U.S.C. 922(k)) .Defendant’s filed a motion for acquittal under Federal Rule of  Procedure 29(c) , and in the alternative for a new trial pursuant to Rule 33. Defendant challenged the sufficiency of the evidence presented at trial. Although not an appellate case, and categorized among those mundane cases dealing with a felon  found to be in possession of a firearm, this case states  numerous case authorities that clearly demonstrate the 7^th Circuit’s hard-nose position regarding firearm cases. .

The Court  had this to say, in pertinent part, regarding Defendant’s challenge to the sufficiency of the evidence:

 " The testimony of the officers regarding discovery of the gun [under defendant's thigh] did not include facts that were physically impossible or that could be deemed incredible as a matter of law.  See U.S. v. Griffen, 194 F. 3d 808, 817 [7^th Cir. 1999] (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 law of nature for those events to have occurred at all'" ) (quoting United States v. Alcantar, 83 F. 3d 185, 189 (7^th Cir. 1996). Therefore, Guice has failed to show that no rational jury could have found all the elements of the charge in Count One were proven against him beyond a reasonable doubt and we deny the motion for judgment of acquittal on the jury verdict on count one."   

Defendant also objected to the Court’s refusal to give a "mere presence instruction” by which the jury would be instructed that “[a] defendant’s mere presence in the proximity of firearms without more is insufficient to show possession of those firearms.  A defendant’s mere association with those who may have possessed firearms without more is insufficient to show possession of firearms."

Addressing this issue the Court stated that  " . . . in the instant action, the mere presence instruction was not applicable because there was ample evidence, besides Guice's proximity to the [firearms], to show constructive possession of the [firearms]. Not only were the firearms found in Guice's  presence, but evidence was presented that Guice owned the car in which the firearms were found. The Government also presented evidence showing that Guice had the gun concealed under his thigh and evidence showing that Guice gave implausible statements to the arresting officers when they approached the car. Thus, the mere presence instruction did not reflect a theory in the case that was applicable in light of the evidence presented at trial .

". . .  In addition, Guice’s instruction is not supported by the law .The Seventh Circuit has specifically ‘rejected the contention that possession instructions must includes a qualifier that mere proximity is not possession'  and has held that a District Court's instructions coupled with the defendant’s ability to argue his theory to the jury adequately  presented his theory of defense. U.S. v. Hendricks, 319 F. 3d 993,1005-06 (7^th Cir. 2006) (quoting U.S. v. Rice, 995 F. 2d 719,725 (7^th Cir. 1993)). 

". . .   See U.S. v. Lee, 439 F. 3d 381, 387 (7^th Cir. 2006) (stating that a 'district court is afforded substantial discretion with respect to the precise wording of instructions so long as the final result, read as a whole, completely and correctly states the law'). . . . Based on the  foregoing analysis, we deny Guice’s motion for judgment of acquittal notwithstanding the jury verdict and we deny Guice’s motion for a new trial."