United States v. Thompson (561 F. Supp. 2d 938, 2008)

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

A jury convicted Darnell Thompson of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Thompson, now represented by new counsel, has moved for entry of a judgment of acquittal, to arrest judgment, or for a new trial. For the reasons stated below, the Court denies Thompson’s motions for a judgment of acquittal and to arrest judgment but grants his motion for a new trial.

Background

On January 21, 2006, a Chicago police officer arrested Thompson at a 7-Eleven store on the north side of Chicago after the officer claimed to see Thompson exceeding the speed limit and driving erratically. Officers searched the Isuzu sport utility vehicle that Thompson had been driving and found a handgun on the floor beneath or behind the driver’s seat. A grand jury indicted Thompson, who had a prior felony conviction, for -violating section 922(g)(1).

1. Hearing on defendant’s motion to suppress evidence

Thompson was initially represented by appointed counsel, who filed a motion to suppress the firearm on the ground that the police had obtained it as the result of an unlawful search of the Isuzu. Thompson thereafter retained a new attorney. On February 4, 2008, the Court conducted an evidentiary hearing on the motion to suppress.

At the hearing, Chicago police officer Timothy Walter testified that on the night of January 20-21, 2006, he was assigned to traffic enforcement duty in the 19th police district and was working the 10:00 p.m. to 6:30 a.m. shift. Around 4:00 a.m., he was on DUI (driving under the influence) enforcement patrol, driving a marked squad car north on Kedzie Avenue approaching Irving Park Road, when he saw Thompson’s Isuzu driving south on Kedzie Avenue in excess of the thirty mile-per-hour speed limit and driving to the left of the center line. Walter turned and followed the Isuzu; he was traveling forty-five miles per hour. In the 3900 block of North Kedzie Avenue, the Isuzu drove completely into the oncoming lane of traffic and then drove through a stop sign at Byron Street at the same rate of speed. Walter activated the lights and siren on his car, and the Isuzu came to a stop in the parking lot of a 7-Eleven store on the northwest corner of Kedzie Avenue and Grace Street. About thirty to forty-five seconds had passed since Walter had first seen the Isuzu.

Walter got out of his squad car and approached the driver’s side of the Isuzu. At this point, Walter said, he called Chicago police officers John Maclaren and Chris Fraterrigo, knowing Maclaren to be certified to conduct breathalyzer tests.

As he approached the Isuzu, Walter observed Thompson sitting in the driver’s seat with the window open. Walter asked Thompson for his driver’s license, vehicle registration, and proof of insurance; Thompson picked up some papers, fumbled them, and dropped some, and then told Walter that he was “driving on a ticket” and did not have his license and that his insurance card was at his home. Walter testified that he smelled a strong odor of alcohol coming from Thompson’s breath and that Thompson had bloodshot, glazed, and glassy eyes, spoke with slurred and mumbled speech, and appeared disoriented.

Walter asked Thompson to get out of the car, and Thompson complied. Walter observed that Thompson appeared unsteady. Walter guided Thompson into the store to conduct field sobriety tests on a flat and dry surface, as the parking lot was slushy from snow that was still falling. Walter described his training to conduct field sobriety tests and stated that he administered several such tests, all of which Thompson failed. Walter stated that he then placed Thompson under arrest for driving under the influence of alcohol and the other traffic offenses he had observed, advised Thompson of his rights, and placed him in handcuffs. Walter then walked outside the store with Thompson and put him in the rear seat of the squad car.

Walter stated that while he was sitting in his squad car after arresting Thompson, he saw officer Maclaren walk up to Thompson’s Isuzu and open the driver’s door. Shortly thereafter, Maclaren signaled Warren to come over to the Isuzu. Walter directed Fraterrigo to stand at the squad car where Thompson was seated and then approached the passenger side of the Isuzu and looked in through the back door, which he opened or was already open. Maclaren shone his flashlight through the driver’s front window onto the rear floor of the Isuzu and pointed; Walter observed the handle of a pistol that he could see protruding from under the rear of the driver’s seat. Walter instructed Maclaren to seize the gun, which Walter identified in court.

Walter testified on cross examination that he had transported Thompson to the 19th district police station but stated on redirect that he followed the vehicle in which Thompson was transported. At the station, Walter performed a custodial search of Thompson. Walter signed off on papers allowing the Isuzu to be towed and impounded, and he believed the ear was then towed and impounded as a result. He identified a report stating that the Isuzu had been towed from the police station. Walter stated that to retrieve a vehicle that has been towed by the Chicago Police Department in connection with a DUI arrest, the owner must request an administrative hearing and pay a fine and a fee and cannot obtain the vehicle the same day it is towed. Walter said he understood that Maclaren had driven the Isuzu to the police station, as Maclaren gave the keys to Walter there. When asked directly, however, Walter said he had not seen what happened to the Isuzu. Walter denied returning the car keys to Thompson’s wife that morning.

Officer John Maclaren testified that at 4:00 a.m. on January 21, 2006, Walter called him to the 7-Eleven store at Grace and Kedzie, and Maclaren drove there with his partner, Chris Fraterrigo. He observed Walter’s car and the Isuzu in the store’s parking lot. Maclaren entered the store, where he saw Walter conducting a field sobriety test on Thompson. After Walter finished, Maclaren said, “[w]e escorted Officer Walter with the subject back to Officer Walter’s car .... ” Feb. 4, 2008 Tr. 39. Walter patted Thompson down, handcuffed him, and put him into the rear of the squad car. Once Thompson was handcuffed, Maclaren went to Thompson’s car and searched it. Maclaren stated that using his flashlight, he observed a pistol on the floorboard behind the driver’s seat. He first saw the gun while looking in through the rear passenger door. In contrast to Walter, Maclaren said he could see the entire gun on the floor behind the seat; it was not under the seat. He motioned to Walter to come to the car and then showed Walter the pistol, pointing to it with his flashlight. Maclaren stated, in contrast to Walter, that when he showed Walter the pistol, he (Maclaren) was still standing near the rear passenger door; he did not recall where Walter was standing. Maclaren then retrieved the pistol and unloaded it. At 5:27 a.m., at the police station, he administered a breathalyzer test to Thompson, which showed a blood alcohol concentration of .166.

Thompson testified at the hearing that after he was pulled over by Walter into the 7-Eleven parking lot, Walter asked for his driver’s license and insurance. He replied that he did not have his license because he was driving on a ticket. Walter took the ticket and returned to his squad car. He later came back and asked Thompson to turn off the car and give him the keys; Thompson complied. Walter asked Thompson to step out of the car so that Walter could conduct a field sobriety test. Walter directed him to go inside the store for the test because it was snowing and the parking lot was slushy.

Thompson said that after conducting the sobriety test, Walter handcuffed him while they were still inside the store and walked him to the squad car. Thompson said he had not seen any of the other officers enter the store. As they were exiting the store, Thompson saw two officers at his car. Thompson could tell they had already conducted a search, because the Isuzu’s driver’s side doors were open, and one of the officers, who was standing on the driver’s side of the car, was saying “look what we have here” and was holding what appeared to be a firearm. The other officer was on the passenger side of the Isuzu. Thompson was placed into Walter’s squad car, and Walter then returned to the Isuzu and spoke with the other officer. He observed officers continuing to look into his car with flashlights. He was taken to the police station; his Isuzu remained in the parking lot.

At the police station, Thompson tried unsuccessfully to contact his wife and then contacted a friend and asked the friend to call his wife to let her know he was at the Belmont and Western police station. He remained in jail for a little over two days— from early Saturday morning, when he was arrested, until Monday evening. His wife picked him up at the jail in the Isuzu. Thompson stated that he never received any notice indicating the car had been impounded and that to his knowledge, his wife did not have to go to an auto pound to retrieve the car.

On cross examination, Thompson denied he was driving forty-five miles per hour. He admitted he had been drinking earlier in the evening. He also admitted that he had been convicted of several felonies.

Mrs. Thompson also testified at the hearing. She stated that on the morning of January 21, she received a call from one of Thompson’s friends who said Thompson had been arrested, and then she received a call from Thompson. A relative drove her to the Belmont and Western police station. She went to the desk and inquired about her husband; an officer came out and told her what Thompson was being charged with. The officer gave her the car keys and told her the car was at the 7-Eleven at Kedzie and Grace. She never got a notice of impoundment or of an administrative hearing, and she did not have to pay any fees or fines or fill out any forms. She believed the officer who gave her the keys was named Walter but identified the officer as having gray hair — which Walter did not appear to the Court to have.

The government argued that the search of Thompson’s car was justified as a proper search incident to arrest or as a probable cause-based search of an automobile. The defense argued that there was no probable cause to search the Isuzu because there was no indication that the vehicle might contain evidence of the DUI offense for which Thompson was arrested (or, for that matter, the other traffic charges) and that the search was not incident to arrest because it took place before the arrest. In that regard, the Court noted the possibility of an inevitable-discovery claim if the search happened too soon to be considered incident to Thompson’s arrest. Defense counsel responded that there was no evidence that the car inevitably would have been searched following an arrest of this type and that the inevitable discovery doctrine could not be used to make good an improper search. Counsel also argued that there was no evidence that the car was impounded, which if true might have provided a proper basis for a search. In rebuttal, the government argued that a search incident to arrest was, in fact, inevitable. The government stated that it was not relying on the inevitability of an inventory search pursuant to an impoundment, as there was no indication the car had been impounded. Finally, the government argued that the Court did not need to make credibility findings to decide the motion and asked the Court not to make such findings unless absolutely necessary.

2. The Court’s ruling on the motion to suppress evidence

The Court denied the motion to suppress in an oral ruling. The Court noted that Thompson had not disputed the propriety of the stop of his vehicle or the propriety of his arrest for driving under the influence. The Court also noted that it was undisputed that the Isuzu had never actually been impounded. In addition, the Court noted the inconsistencies in the officers’ testimony regarding where they saw the gun and where they were when they saw the gun.

The Court noted that Walter had testified that Maclaren was present in the store when he placed Thompson under arrest and handcuffed him; the Court indicated that it found that testimony “a little bit problematic.” Feb. 4, 2008 Tr. 101. The Court further stated that it found Maclaren’s testimony “somewhat problematic” due to his lack of recall. Id. For purposes of the motion, however, the Court determined — without making specific credibility findings — to credit Thompson’s testimony regarding the sequence of events: he was taken into custody and handcuffed inside the store, and as he exited the store, Ma-claren was already standing there holding the gun. If that was so, the Court stated, it was a strong indication that the search had taken place prior to Thompson’s arrest.

The Court stated that “there was likely a showing that there was probable cause to believe that the car could contain contraband based on the evidence of the erratic driving and smell of alcohol on [Thompson’s] breath” but declined to make a definitive decision on that point. Id. 104. Rather, the Court concluded, the government had shown that “a search incident to arrest was an inevitable result of this type of arrest and that the gun would have been found in that type of a search.” Id. The Court acknowledged that the inevitable discovery doctrine requires “an appropriate showing that the search would have been done, and I think there is enough evidence here for the government to have established that a search incident to arrest would have happened maybe two minutes later than it did happen, but that it would have happened.” Id. 105.

3. Pretrial colloquy regarding certain evidentiary issues

Following the Court’s ruling, there was a discussion about certain evidentiary matters. The government made an oral motion to preclude the defense from questioning Walter at trial regarding a disciplinary finding in 1993 that he had made a false statement in an internal police investigation. Upon inquiry whether he intended to go into this issue, defense counsel initially said, in effect, that he did not know:

DEFENSE COUNSEL: Well, your Honor, quite frankly, I have not spoken to my client about that. I don’t imagine that it is something that we did [sic] make a big part of the cross-examination.

Id. 108. The Court thus deferred ruling on the matter but precluded defense counsel from going into it in opening statement until the Court had a chance to rule. Defense counsel went on to state that he though he did not think it would be “that big of a deal” in cross-examining Walter, he believed he should have the right to inquire regarding the adverse finding because Walter’s credibility would be a significant issue in the case. Id. 109. The Court discussed some of the potential issues and determined to table the topic until later.

Before counsels’ opening statements were delivered two days later, the government told the Court that Walter had advised them that he had appealed the adverse credibility finding and prevailed, and that the disciplinary action against him was vacated. Though the prosecutor had not obtained written confirmation of this, he made a record of the point to give defense counsel fair warning that he would elicit this testimony from Walter if defense counsel cross examined him on this issue.

4. The trial

a. The government’s case

A jury was selected on February 5, 2008, and the trial began the next day. Prior to calling its first witness, the government introduced a stipulation that prior to January 21, 2006, Thompson had been convicted of a crime punishable by a term of imprisonment of more than one year.

Officer Walter, who testified as the government’s first witness, essentially repeated his testimony from the suppression hearing regarding his observation of Thompson driving on the early morning of January 21, 2006, his initial encounter with Thompson when he approached the Isuzu in the 7-Eleven parking lot, his summoning of the other officers, and his conduct of the field sobriety tests. Walter testified that while finishing up the third of four field sobriety tests, he saw Maclaren and Fraterrigo pull into the parking lot. After completing the final field sobriety test, Walter testified, he placed Thompson under arrest, handcuffed him, and advised him of his rights, and he and Maclaren walked Thompson to the squad car and placed in the rear seat. At that point, Walter said, Maclaren walked to the Isuzu and opened the door, while Walter sat in his car and ran a search of Thompson’s license plate.

After a short interval, Maclaren signaled Walter to come to the Isuzu. Walter got out of the squad car and asked Fraterrigo to stand by the car and watch Thompson and then walked to passenger side of the Isuzu and looked inside. Maclaren was shining his light inside the car toward the rear of the driver’s seat. Walter said that he, too, shone his light in that area and saw “the butt of a semiautomatic pistol underneath the driver’s seat.” Feb. 6, 2008 Tr. 35. He directed Maclaren to take custody of the weapon; Maclaren did so and brought the weapon to Walter, who examined it and then handed it back to Maclaren, who unloaded it. Walter identified as an exhibit the gun recovered from the Isuzu.

On cross examination, defense counsel elicited that Thompson was cooperative after Walter stopped him and that he had pulled over within thirty seconds after Walter turned on his siren. Walter stated that he pulled Thompson over because he was speeding and had driven into the oncoming lane of traffic. Asked if he had ticketed Thompson for those offenses, Walter said that he “gave [Thompson] many tickets for each and every offense, yes.” Id. 41. When shown an abstract of Thompson’s driving record that did not identify any such tickets, Walter said he believed state prosecutors had dropped those charges.

Walter further testified that he handcuffed Thompson while inside the 7-Elev-en store and that Maclaren was “in the doorway” of the store when Walter walked Thompson out and opened the door for them. Asked whether Maclaren had ever entered the store, Walter said “[h]e was standing in the doorway as I finished the standard field sobriety test.” Id. 42. Walter stated that when he later looked inside the rear of the Isuzu after Maclaren summoned him to the car, Maclaren was standing at the driver’s side of the car, with the driver’s door open, and Walter approached the rear passenger door. Walter repeated that what he saw was a gun underneath the back of the driver’s seat and that he “could see the handle sticking out”; the gun was “underneath the rear of the seat,” not on the floor behind the seat. Id. 44-45. Walter stated that he had not seen a gun in the car, on the front seat, or on the front floor when he first approached Thompson’s car. He also stated that he never saw Thompson reach behind the driver’s seat.

Officer Maclaren, the government’s second witness, testified that after being summoned by Walter, he drove with his partner to the 7-Eleven. After parking, he walked toward the door of the store, where he observed Walter conducting a field sobriety test. He waited inside the store near the doorway and then saw Walter escort Thompson toward the door. Ma-claren and his partner followed Walter to his squad car, where Walter patted Thompson down, put him in handcuffs, and placed him in the back of the car. After Thompson was handcuffed, Maclaren and his partner did a “custodial search” of the car and found a pistol. Id. 50. The pistol was located “behind the driver’s seat on the floor.” Id. 51. He identified the gun in court. Maclaren stated that he later inventoried the pistol and the ammunition it had contained.

On cross examination, defense counsel again elicited from Maclaren that he had, in fact, entered the 7-Eleven store. Ma-claren said he had begun to search Thompson’s car while Walter was putting Thompson into Walter’s squad car. According to Maclaren, the pistol was not underneath the driver’s seat; rather, it was on the floor behind that seat. When he saw the gun, Maclaren said, he was standing outside the rear passenger side door, with the door open, looking in. That is when he asked Walter to come over to the car. Maclaren did not recall where Walter stood when he came to the car to look inside.

Herbert Keeler, a Chicago police department evidence technician, testified that he had tested the pistol for fingerprints and found none. He explained the properties of the pistol and other factors that decreased the likelihood that fingerprints would be left by someone handling the gun. Keeler stated that when he does testing on weapons that are handled in a conventional manner, he never recovers identifiable fingerprints. Keeler testified, on both direct and cross examination, that he had tested the weapon on May 3, 2006; defense counsel elicited that this was about three and one-half months after it was recovered.

Hamilton Beal, an agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, identified a certified copy of the title for the Isuzu, showing Thompson as the registered owner. Beal demonstrated how the pistol is loaded and how a round is chambered.

b. Colloquy prior to the defense case

After Beal’s testimony was completed, the government rested its case. After the Court denied Thompson’s motion for a judgment of acquittal, the government sought to preclude testimony by Mrs. Thompson, and the Court inquired what topics Mrs. Thompson’s testimony would involve. Defense counsel stated that the testimony would concern how the interior of the Isuzu is structured and, in addition, the fact that she had picked up the car and then picked up Thompson at the Cook County Jail. When the Court inquired why the latter topics were relevant, defense counsel stated that he intended to recall the police officers as witnesses to establish the procedures for impounding the car and to show their lack of credibility by questioning them with regard to the impoundment issue. The Court noted that typically it is inappropriate to call a witness simply to set up impeachment of that witness. Defense counsel stated that because the government had not inquired of these witnesses regarding the events following Thompson’s arrest, he had believed that inquiry on cross examination would be outside the scope of the direct examination. The Court indicated that it did not agree with that assessment.

Following further discussion, however, the Court concluded that

the circumstances that [Mrs. Thompson] went to the police station, was given the car keys, went to the 7-Eleven, picked up the car and drove it home, I don’t think that is unfairly prejudicial to the government. I mean, it’s sort of a nonevent in the scheme of things standing by itself, okay. So I am not going to preclude [the defense] from doing that.

Feb. 6, 2008 Tr. 97-98. On the topic of recalling the police officers to set up impeachment regarding the impoundment of the car — a topic the government had not addressed in its questioning of the officers — the Court stated that the government had

rested its case. The witnesses weren’t questioned about the subject of the im-poundment or what happened to the car by either lawyer during the testimony of either Maclaren or Walter. To call them back now simply to establish that Walter says ... [that] the car was driven back to the police station and simply to set up than impeachment him by Mrs. Thompson ..., I don’t think you can appropriately do that now. That is, as [the prosecutor] says, basically calling a witness simply to set up impeachment of that witness. So I am not going to permit you to do that.

Id. 98-99.

Following the Court’s ruling, Thompson himself expressed an objection, stating, “Your Honor, I feel like I was ineffectively represented then. This was established yesterday. Not one time did my attorney presented [sic] evidence to that, not one time.” Id. 100. The Court understood this objection to concern defense counsel’s failure to impeach the police officers during their testimony in the government’s case in chief.

Discussion ensued concerning other evi-dentiary issues the government raised regarding potential defense witnesses. The Court then took a break. After the break, the Court stated:

The reason I took that break is I wanted to do a little bit further [sic] thinking about this issue that was discussed before that prompted Mr. Thompson’s comment. Obviously, the witnesses are not here, and, you know, as I said before, ... I am not going to make any kind of a judgment regarding the significance or materiality of the cross-examination or the potential cross-examination that I think probably could have been done during the cross of Walter and Maclaren.

But I will tell you I am a little bit concerned. Mr. Thompson’s comment gives me, I think, some legitimate concern about issues that could be remedied now, I think potentially, as opposed to having to deal with them at some later point down the road either in appeals of this proceeding or in some other form of a proceeding.

And I guess my inclination would be to permit [defense counsel] to, I think what I would call it is, reopen his cross of Officer Maclaren and Officer Walter for the limited purpose of establishing what happened to the car. And he then either will or will not get the contradiction into evidence, but that is it because that is all I have been told about, is establishing this contradiction regarding what happened to the automobile afterwards. I think it probably was and in all likelihood was within the scope or would have been within the scope.

Id. 108-09.

c. The defense case

Mrs. Thompson was the first defense witness. She testified that she received a call from a friend of Thompson, and then a call from Thompson himself, advising her that he had been arrested. Thompson remained in custody over the weekend and was released a couple days later. She picked him up in the Isuzu after he made bail. Mrs. Thompson testified that she had picked up the Isuzu at the 7-Eleven on January 21, after an officer at the police station gave her the keys and told her where the car was. She was not required to fill out any forms or pay a fee and was never told the car had been impounded. She said the name of the officer who gave her the keys began with a “W” and that she believed it was officer Walter — as the officer told her that he had Thompson in a back room and also told her what he had been charged with.

Mrs. Thompson testified that she drove the Isuzu on a daily basis. She described the car generally and then testified that it is impossible for the driver to place an object under the driver’s seat because of non-removable electrical or other equipment that is part of the car and is located there. Mrs. Thompson identified several photos of the area under the driver’s seat of the Isuzu that illustrated her testimony. She stated that this was the condition of the Isuzu on January 21, the date Thompson was arrested.

On cross examination, Mrs. Thompson said she did not remember the time on January 21 when she picked up the car keys. She also stated that the only space under the driver’s seat of the Isuzu is the space needed for the equipment she had previously identified; there is no additional space. Mrs. Thompson testified that her husband drives the car and is the owner of the car.

The prosecutor then showed Mrs. Thompson the gun and asked, “[I]s this your gun?” Id. 132. Defense counsel objected and requested a sidebar. The following colloquy occurred at sidebar:

DEFENSE COUNSEL: Mrs. Thompson is not being represented by counsel right now. She is being asked to admit potentially to a crime. She has a Fifth Amendment right not to be compelled, and she has not been advised of that right.

THE COURT: What is the crime? Is the gun not registered or something? Is she a felon?

DEFENSE COUNSEL: No, your Hon- or. However, no evidence has been— she has not testified as to whether or not she owns a FOID card or a gun card. And if I am not mistaken, it is still a crime, even if you do own a gun card, to carry a loaded gun.

THE COURT: You’re right about that.

DEFENSE COUNSEL: It is a felony in the state of Illinois.

THE COURT: It would seem to me that a way to handle this would be to let the jury go out and explain to her that she has a Fifth Amendment privilege and then find out if she wants to assert the Fifth Amendment privilege in response to that question, and we will find out what she is going to do, and then we will take it from there.

Id. 132-33.

After excusing the jury, the Court advised Mrs. Thompson as follows:

THE COURT: Mrs. Thompson, I need to speak with you for a second.

The reason we had this discussion over at the sidebar and the reason that [defense counsel] made the objection was that the last question you were asked is whether it’s your gun.

There is a potential that a yes answer to that question could incriminate you. What I mean by that is that I believe— and it’s my recollection — I don’t think the law has changed in this regard — it’s my recollection, from the days that I was practicing law, that it’s illegal under Illinois law, not federal law, for anybody, whether they have been convicted of a crime or not, to carry a gun in a car, maybe even have a loaded gun on their person.

And I believe it’s a crime under Illinois law for a person to — certainly a crime in the City of Chicago for a person to possess a gun that is not registered, and it is a state crime if you possess a gun if you don’t have a firearm owner’s identification card. So there’s various criminal offenses that could arise from you saying that this was your gun.

And what that means is that you have, under what is called [the] Fifth Amendment to the Constitution, the privilege against self-incrimination. You can’t be required to incriminate yourself in response to a question.

So the reason we took the break is I wanted to make sure that you were aware that you have the right to remain silent with regard to this. As you have heard people say before on the t.v. or elsewhere, anything say can and will be used against you in a court of law. And, frankly, I guess — and I’m willing to give you a couple minutes to just kind of think about this, but I am going to need to know before the jury comes out whether you are going to answer the question or whether you are going to assert the Fifth Amendment because, depending on what you are going to do, I might have to have some further discussions with the lawyers.

Id. 133-35.

The Court then inquired of the lawyers whether they thought Mrs. Thompson should be told anything more. Defense counsel stated:

DEFENSE COUNSEL: Yes, your Honor. Just for the record, it’s actually our position that Mrs. Thompson should not be required to answer that question. And the reason for that is, even if she chooses to answer the question and says — let’s say she says, “no, it wasn’t my gun,” still, if that very issue in this Court right now could — potentially I will say if my client is acquitted and for whatever reason the state decides to pursue a gun case against Mr. Thompson or—

Id. 135. Based on defense counsel’s comments, the Court then gave Mrs. Thompson the following additional caution:

THE COURT: Let me just add one thing to what I said. When I said “anything you said can and will be used against you,” even if you said “no,” it could somehow be used against you at some point in time. In other words, somebody could try to — if [sic] they could try to prove that it was your gun and then try to prosecute you for perjury, or they could — if they were able to prove that it was your gun in some other way, you could be prosecuted for having the gun, and your answer here could use used against you to show that you had tried to cover it up or things along those lines. I think that is essentially what [defense counsel] is trying to get across.

Id. 135-36.

The Court then asked Mrs. Thompson whether she would like a few minutes to think, but she immediately stated, “I think I will plead the Fifth.” Id. 136. Following this response, the lead prosecutor stated that the government would withdraw the question that had led to the extended colloquy. The Court then asked defense counsel whether he intended to pursue the issue on redirect. Despite having objected to the inquiry by the government, defense counsel stated, “Yes, your Honor. The government opened [it] up.” Id. 137. The Court replied that because the question was being withdrawn, and the Court intended to instruct the jury to disregard the question, the door would be closed, and because defense counsel had not inquired about the topic on direct examination, any such inquiry on redirect would be outside the scope of both the direct and the cross.

The Court then had the jury brought back into the courtroom and stated,

Okay, I need to speak to the jurors a second. The last question that was asked right before you took the break has been withdrawn by the government. You are directed to completely disregard that question, wipe it from your mind. You are not to consider it in any way, shape, or form.

Id.

The government completed its cross examination of Mrs. Thompson by establishing that she was not with her husband at 3:30 a.m. or 4:00 a.m. on the early morning when he was arrested. On redirect, defense counsel elicited that she had been with him earlier that night, before he left for a party, and that before he left she did not see Thompson with a gun and did not see a gun in the Isuzu. Counsel then asked her, “Have you seen a gun in your STJV?” Id. 139. This question prompted the Court to request a sidebar on its own motion. At the sidebar, the Court advised counsel that in its view, this was simply another way of asking Mrs. Thompson whether the gun was hers. The Court indicated that if the question were pursued, the Court would have to take another break and advise Mrs. Thompson that if she had seen a gun in the Isuzu, that could constitute an admission that she had a gun. The Court went on to state that it believed the question was outside the scope of the cross examination and thus would strike the question. Id. 140. The Court then directed the jury to disregard the question.

Defense counsel next called Craig Lewis, who said that Thompson was a family member of his best friend and that he had known Thompson for about fifteen years. He stated that on January 20, 2006, Thompson picked him up about 9:15 p.m. in the Isuzu. They stayed at Lewis’s house for an hour or more and then left in the Isuzu to pick up two other people. Lewis sat in the front seat on the passenger side. On the way home, Lewis drove “because I wanted to leave” the party they attended. He said that he did not see Thompson with a gun that evening and did not see him place a gun in the Isuzu. He said he had not been in the back seat. There were a total of four people in the car when they left the party. On cross examination, Lewis stated that he last saw Thompson about 2:30 a.m. and that there were three people left in the Isuzu when he was dropped off. He also stated they were at the party about two and one-half hours. On redirect, Lewis stated that at the time, he lived in the Humboldt Park neighborhood of Chicago and that the other two people were picked up in the vicinity of Division Street and Laramie Avenue. The other two men sat in the back seat both going to and coming from the party.

The defense next called Lorese Howery, who testified that Thompson is the cousin of her former boyfriend and that the party Thompson attended on the early morning of January 21 was a birthday party for her former boyfriend’s brother. The party lasted until about 5:00 a.m. and was held at the Windy City Lounge at Cicero and North Avenues. She said she had seen Thompson that evening and did not see a gun on him. She believed Thompson left the party around 1:30 or 2:00 a.m., but she was not certain. On cross examination, Howery stated that she had not seen Thompson after he left the party and that she was not paying attention to him the entire time he was at the party.

At the conclusion of proceedings (outside the jury’s presence), the prosecutor asked to put on the record what the scope of defense counsel’s re-examination of officers Walter and Maclaren would be. The Court stated that it had ruled that defense counsel could elicit testimony regarding what happened to the Isuzu after they left the 7-Eleven following Thompson’s arrest, regarding whether the car was impounded, and regarding the return of the car keys. Defense counsel did not raise any objection or indicate any concern regarding this scope of examination. Id. 170-71.

The following morning, the Court advised the jury that it had permitted the defense to reopen its questioning of officer Maclaren. Defense counsel elicited from Maclaren that it is Chicago Police Department policy to impound the car of a person arrested for driving under the influence. Maclaren stated that Thompson’s car was impounded and that when a car is impounded it is towed to a police pound. He did not know where Thompson’s car was towed from, but when shown an impoundment form concerning the Isuzu, he stated that according to the form, the car was towed from 2452 West Belmont (the Belmont and Western police station). Asked how the car got there, Maclaren said “[i]t was driven” but did not recall if he had driven it. Feb. 7, 2008 Tr. 178. He said it was unlikely that Walter had driven the car; Maclaren did not recall if his partner, officer Fraterrigo, had driven it. Maclaren said he was unfamiliar with the procedures for an owner to retrieve an impounded car.

On cross examination, the government showed Maclaren one of the photographs of the Isuzu interior introduced by the defense; he identified where he had first seen the gun — indicating a spot approximately straight down from the lower rear edge of the front seat structure. On redirect by defense counsel, Maclaren again said that he saw the gun behind the seat, not underneath the seat. Defense counsel then attempted to impeach Maclaren with his earlier testimony regarding where he had seen the gun.

The defense next recalled Walter, after the Court gave a similar instruction to the jury regarding the reopening of his cross examination. Walter stated that it is police policy to impound a car once a person is arrested for driving under the influence or if a gun is found in the car. He stated that Thompson’s car was impounded and that when a car is impounded it is towed to a police auto pound. Walter testified that Thompson’s car was towed to the police pound from the Belmont and Western police station. He said he did not see who drove the car from the 7-Eleven to the police station. Defense counsel impeached Walter with his testimony from the suppression hearing that Maclaren had driven the car. Walter further testified — similar to his testimony in the suppression hearing&emdash;regarding the procedures for an owner to retrieve an impounded car.

Defense counsel then asked Walter, “Officer Walter, have you ever given a false statement?” Id. 190. The Court sustained the government’s objection to this question and then called counsel and the defendant to sidebar. The Court noted that defense counsel had asked to reopen the cross examination for the limited purpose of dealing with questions regarding who had driven the car and the impound-ment and that it had been made clear twice the previous day that those were the subjects that would be permitted. The Court stated that counsel had now gone into a different topic and that “I am not going to permit that at this point.... The point has been forfeited. If there is any remedy for that, it is going to be at another place and another time.” Id. 191. Mr. Thompson demurred, but the Court rejected his objection. The Court then instructed the jury to disregard defense counsel’s question. or

The defense rested its case after reading a stipulation that a federal agent would testify that on April 21, 2006 she submitted a request to the Chicago Police Department’s forensic section asking for the gun to be examined for the presence of fingerprints; between September 2006 and June 2007, she made a series of calls inquiring about the status of this; and on June 11, 2007, a Chicago Police Department technician advised that he had test fired the gun on January 24, 2006 and had never gotten a request to examine the gun for fingerprints..

The jury convicted Thompson on the section 922(g)(1) charge. Following trial, Thompson retained new counsel, who has filed an admirably thorough set of post-trial motions.

Discussion

1. Motion for judgment of acquittal

Thompson seeks entry of a judgment of acquittal on the ground that the evidence was insufficient to prove he possessed the gun. In deciding this motion, the Court considers the evidence in the light most favorable to the government and may enter a judgment of acquittal only if no reasonable jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Thompson did not have the gun on his person, but a person need not be in physical contact with an object to possess it. See, e.g., United States v. Moses, 513 F.3d 727, 733 (7th Cir.2008). Possession exists when a person knowingly has the power and intention to exercise direction or control over an object. Id. Evidence that a person owns the property (in this case an automobile) where an object is recovered, actually occupies that property, and controls access to the property, is sufficient to prove possession. See id.

On the other hand, a person’s mere presence in a location where an object is found is insufficient, without more, to establish constructive possession. See, e.g., United States v. Quilling, 261 F.3d 707, 712 (7th Cir.2001). The government must establish “ ‘a nexus between the accused and the contraband, in order to distinguish the accused from a mere bystander.’ ” Id. (quoting United States v. Richardson, 208 F.3d 626, 632 (7th Cir.2000)).

The evidence showed that Thompson owned the vehicle, was driving the vehicle when the gun was found there, and, as the owner and sole occupant of the vehicle, controlled access to it at that time. That was sufficient to prove his constructive possession of the gun. Thompson argues that the government failed to prove that he knowingly possessed the gun, and the Court acknowledges that there was no direct evidence of Thompson’s knowledge. But the jury reasonably could have inferred from the evidence the government introduced, taken in the light most favorable to the government, that the gun was visible on the floor behind the driver’s seat and that Thompson, as the owner and driver of the car, had to be aware it was there.

The Court acknowledges Thompson’s contentions regarding inconsistencies and arguable improbabilities in Walter’s testimony. These contentions, taken together, are insufficient to make Walter’s testimony unreliable as a matter of law. A witness’s testimony is incredible as a matter of law only if it is physically impossible for the witness to have observed what he claims to have observed or it is impossible under the laws of nature for the matters he described to have occurred. See, e.g., United States v. Bailey, 510 F.3d 726, 733 (7th Cir.2007). Such was not the case with regard to Walter’s testimony. Rather, the believability of his testimony was a matter appropriately determined by the jury, not the Court.

For these reasons, the Court denies Thompson’s motion for a judgment of acquittal.

2. Motion to arrest judgment

Thompson moves to arrest judgment on the ground that the government constructively amended the indictment by seeking a conviction on the basis of constructive and/or joint possession even though the indictment did not refer to either theory. The Court denies the motion. As a general rule, if the indictment tracks the language of the pertinent statute&emdash;in this case by alleging possession&emdash; that is sufficient. See, e.g., United States v. Smith, 230 F.3d 300, 305 (7th Cir.2000). The Court is unaware of any case, and Thompson has cited none, supporting the proposition that an indictment in a case involving possession must set forth the particular theory (actual or constructive, sole or joint) on which possession is claimed. In any event, “there is no legal difference here between actual and constructive possession.” Moses, 513 F.3d at 733. Because the indictment simply alleged possession, it was not constructively amended by the government’s reliance on a theory of constructive possession rather than actual possession.

3. Motion for new trial

Thompson has moved for a new trial on the following grounds: the verdict was against the weight of the evidence; the Court should have granted the motion to suppress the gun; the Court’s warnings to Mrs. Thompson improperly chilled her from giving exculpatory testimony; the Court should have allowed counsel to reopen his cross examination of Walter concerning the earlier false statement; the government violated Brady v. Maryland; and trial counsel rendered constitutionally ineffective assistance.

a. Weight of the evidence

A court may order a new trial in a criminal case if the verdict was against the manifest weight of the evidence, even if the evidence was sufficient to convict the defendant. In addressing such a motion, “a court may properly consider the credibility of the witnesses, and may grant a new trial if the verdict is so contrary to the weight of the evidence that a new trial is required in the interest of justice.” United States v. Washington, 184 F.3d 653, 657 (7th Cir.1999). “If the complete record, testimonial and physical, leaves a strong doubt as to defendant’s guilt, even though not so strong a doubt as to require a judgment of acquittal, the district judge may be obliged to grant a new trial.” Id. A court considering such a motion

must consider the weight of the evidence, and must grant a new trial if that evidence “preponderates heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.” In considering the weight of the evidence, the court must necessarily consider the credibility of the witnesses.

Id. at 657-58 (quoting United States v. Reed, 875 F.2d 107, 113 (7th Cir.1989)).

This was not exactly the strongest case of constructive possession that one might imagine. The believable evidence indicated that the gun was found not behind the driver’s seat but partially under the driver’s seat. Given the configuration of the equipment under the driver’s seat, the gun could only have been put there from the rear. There was no evidence suggesting that someone sitting in the driver’s seat could have put the gun were it was found by reaching around while sitting — and in any event, officer Walter did not see the defendant reach or move while following him. For these reasons, it is highly likely that the gun was placed there by someone who was sitting in the back seat or at least had access to that area through one of the rear doors. This, combined with the evidence that Thompson had two passengers in the back seat in the hours preceding his arrest, supported a theory that the gun was placed there by someone other than Thompson. That, of course, does not mean that Thompson did not constructively possess the gun — it did not have to be his gun for him to be deemed to have possessed it — but it lends support to his contention that he had no idea the gun was there and thus could not have knowingly possessed it, constructively, jointly, or otherwise.

That said, the evidence introduced at trial did not “preponderate[ ] heavily against the verdict,” Washington, 184 F.3d at 658 (emphasis added), even after one gives due consideration to the requirement that the government prove each essential element of the crime beyond a reasonable doubt. The case was close, but the jury’s determination was not against the manifest weight of the evidence.

b. Brady v. Maryland

In his motion for new trial, Thompson argued that the government may have failed to disclose evidence regarding the ownership of the pistol and a possible videotape of the stop and arrest from a camera that may have been in Walter’s squad car. The government denies having, knowing about, or suppressing such evidence. Thompson’s contentions find no support in the record. He is not entitled to a new trial on this basis.

c. Reopening of cross examination of Walter

Thompson argues that having permitted defense counsel to reopen his cross examination of officer Walter on the impoundment issue, it should have permitted counsel to question Walter regarding the 1993 disciplinary finding that he had made a false statement to police investigators. Thompson’s counsel made no mention of this point when he first raised the issue of recalling Walter and Maclaren to question them about the impoundment issue. And later that same day, when the government asked the Court to delineate what points defense counsel could cover in the reopened cross examination, the Court made no mention of the false statement issue— as the defense had not brought it up — and neither did defense counsel.

When Walter resumed the witness stand the next day, however, counsel attempted to address the false statement issue during the course of his examination' — without giving any prior indication that he planned to do so. It is relatively clear from the context and from the Court’s observation of the demeanor of Thompson’s counsel at the ensuing sidebar that counsel had forgotten to bring up this point in the two earlier discussions. In other words, there is nothing to suggest that counsel had made a strategic decision to forego the point; rather, he simply forgot about it until Walter was actually back on the witness stand.

If the Court had it to do all over again, it likely would have allowed defense counsel to inquire on this point during the reopened cross examination of Walter. This would not have unfairly prejudiced the government (as it had been aware of the possibility the issue would come up before Walter took the stand in the government’s case in chief) and the amount of additional time the inquiry would have taken would have been minimal.

That said, the Court did not err or unfairly prejudice Thompson by declining to allow defense counsel to bring up the issue after he had bypassed it. Counsel had the opportunity to question Walter in full during his original cross-examination, but he failed to do so. Thompson was not entitled to recall Walter for the sole purpose of impeaching him, see, e.g., United States v. Giles, 246 F.3d 966, 974 (7th Cir.2001), and his entitlement to do so is not affected by the fact that the Court permitted the recalling of Walter for a different purpose.

d. Perjury warning to Mrs. Thompson

Via his new counsel, Thompson seeks a new trial on the ground that the Court’s comments to Mrs. Thompson during her cross-examination improperly chilled her from providing exculpatory testimony. The problem with this argument as a basis for a new trial is that the Court acted as it did at the request of Thompson’s trial counsel. When an error is invited by the defense, not even the plain error rule permits reversal of a conviction. United States v. Hall, 109 F.3d 1227, 1231 (7th Cir.1997); United States v. Fulford, 980 F.2d 1110, 1116 (7th Cir.1992).

Even were the alleged error not invited, the Court’s warnings to Mrs. Thompson would not entitle Thompson to a new trial. First, the Court’s statement to Mrs. Thompson that her answer to the question whether the gun was hers could incriminate her was accurate advice and was not unduly heavy-handed. In United States v. George, 363 F.3d 666 (7th Cir. 2004), the defendant, George, faced various counterfeiting and fraud charges. One of his co-schemers, Amin, had entered into a plea agreement and had implicated George in testimony before the grand jury. George wanted to call Amin to testify at trial that he had lied about George’s involvement in the fraud schemes. In court, Amin’s attorney told him that if he so testified, he risked revocation of his plea agreement as well as a charge of perjury. The trial judge confirmed this, as did the prosecutor. Amin declined to testify. After he was convicted, George argued that Amin had been improperly intimidated into refusing to testify, depriving George of exculpatory evidence. On appeal, the Seventh Circuit acknowledged that a defendant’s Sixth Amendment right to present a defense may be violated if governmental interference prevents a defense witness from testifying but also noted the countervailing interest that a witness may have, under the Fifth Amendment, to decline to incriminate himself. Id. at 670-71. The court stated that the issue in George’s case was “whether the prosecutor’s and court’s warnings were appropriate to protect Amin’s right to assert his Fifth Amendment privilege, or whether they were an intimidation tactic employed to interfere with George’s right to call Amin as a witness.” Id. at 671. It concluded that the actions of the prosecutor and the court “were a necessary conveyance of information so as to allow Amin to make an educated decision regarding his Fifth Amendment rights.” Id. The court stated that the trial judge and prosecutor “merely corroborated, in a straight-forward and nonthreatening manner, the information given by Amin’s attorney. Given the plainly incriminatory nature of the proposed testimony, it is evident that Amin’s assertion of his Fifth Amendment privilege was well considered.” Id.

George is consistent with numerous other decisions holding that a trial judge “has the inherent discretion to warn a witness about his constitutional rights, especially if the court perceives that the witness might incriminate himself.” United States v. Valdez, 16 F.3d 1324, 1330-31 (2d Cir.1994) (citing cases from the Third, Fifth, Sixth, and Seventh Circuits). In view of Mrs. Thompson’s testimony that she regularly used the Isuzu and Thompson’s testimony during the suppression hearing indicating his surprise when shown the gun outside the 7-Eleven store, see Feb. 4, 2008 Tr. 64, the Court reasonably perceived that the question the prosecutor asked Mrs. Thompson could implicate her privilege against self-incrimination. The Court’s initial comments to her regarding that privilege, see Feb. 6, 2008 Tr. 133-35, communicated in a straightforward and unintimidating manner the potentially incriminating implications of the prosecutor’s inquiry and the fact that Mrs. Thompson had a privilege against self-incrimination. For these reasons, these initial comments do not entitle Thompson to a new trial.

Thompson argues, however, that the Court’s follow-up warnings regarding the possibility of a perjury prosecution were unnecessary, improper, and intimidated Mrs. Thompson into declining to testify about her knowledge of the gun. Though, as noted earlier, a court has the discretion to warn a witness about the self-incriminating implications of her testimony, the “exercise of this discretion must be carefully tailored to ensure that warnings do not become threats. A district judge warning a witness must be sure that she does not abuse that discretion by intimidating a witness into silence.” Valdez, 16 F.3d at 1331.

The Court’s perjury admonition distinguishes this case from George and others like it, necessitating further analysis. The Court first recaps the sequence of events. After the Court advised Mrs. Thompson that her response to the prosecutor’s question about whether the gun was hers could incriminate her, defense counsel advised the Court in Mrs. Thompson’s presence that she “should not be required to answer [the prosecutor’s] question” because even if she denied the gun was hers, the authorities could seek charges against her if, for example, Thompson were acquitted. Feb. 6, 2008 Tr. 135. The Court in effect adopted counsel’s request and advised Mrs. Thompson that a denial that the gun was hers could be used against her&emdash;for example, to prosecute her for perjury, or by using a false denial in a later prosecution for possession of the gun. Id. 135-36. Upon hearing this warning, Mrs. Thompson immediately advised the Court that she would “plead the Fifth.” Id. 136.

Mrs. Thompson says in her affidavit that when she took the witness stand at trial, she did not expect to be asked about the gun. After she heard the Court’s perjury warning, she decided not to answer the prosecutor’s question. Mrs. Thompson says that she did not fully understand what the Court was saying but that the Court’s statement that her testimony could lead to a perjury charge made her decide not to testify. Mrs. Thompson expresses concern that if asked about the gun, the person she believes is the owner (Paris Fleming) would deny it is his — and she says that this, combined with the Court’s warning, put her in fear of a perjury prosecution.

The Court agrees with the government’s assertion that the Court dealt with Mrs. Thompson politely and gave her an opportunity to consider her choice of action. But advice coming from someone sitting on a judge’s bench and wearing a black robe, even if polite, can carry significant weight with a witness. Cf. Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (per curiam) (noting the “great disparity between the posture of the presiding judge and that of a witness in these circumstances”). Given the sequence of events and the Court’s contemporaneous observation of Mrs. Thompson’s demeanor, the Court has little doubt that it was the perjury-based warning, perhaps combined with defense counsel’s comments, that triggered Mrs. Thompson’s decision to claim her privilege against self-incrimination. That is what Mrs. Thompson says in her affidavit, and her statement on that point is uncontradicted.

The question, however, concerns whether the Court acted improperly, not whether its comments led Mrs. Thompson to claim (properly or otherwise) her privilege against self-incrimination. Having considered the matter, the Court does not believe that its warning about perjury crossed the line of propriety, though it may have come somewhat closer than the government seems to suggest. In this regard, the case is nothing like Webb (which Thompson cites), in which the Supreme Court overturned a defendant’s conviction due to the trial judge’s intimidation of a defense witness regarding the possibility the witness could be charged with perjury if he testified. In Webb, the trial judge, acting without prompting, told the sole defense witness that

you don’t have to testify, that anything you say can and will be used against you. If you take the witness stand and he under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood (sic) is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on. If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when you’re up for parole and the Court wants you to thoroughly understand the chances you’re taking by getting on that witness stand under oath. You may tell the truth and if you do, that is all right, but if you lie you can get into real trouble. The court wants you to know that. You don’t owe anybody anything to testify and it must be done freely an