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September 12, 1991


The opinion of the court was delivered by: RICHEY


 A jury trial was held in this Court on July 18, 1991 on a two-count Indictment charging the defendant, Joe L. Thomas, with possession of a firearm which had not been registered with the National Firearms Registration and Transfer Record in violation of 21 U.S.C. §§ 5861 (d) and 5871, and possession of cocaine base in violation of 21 U.S.C. § 844 (a). The jury found the defendant guilty of possession of the firearm only.

 Before the Court is the defendant's Motion for Judgment of Acquittal or, in the Alternative, for New Trial, and the government's Opposition thereto. For the reasons set forth below, the Court shall deny the defendant's motion.

 I. Background

 On April 24, 1991, members of the Metropolitan Police Department and the Alcohol, Tobacco and Firearms Task Force ("ATFTF") executed a search warrant on the premises of 405 Newcomb St., S.E., in apartment two, a one-bedroom apartment. The government introduced evidence that the defendant and his mother attempted to refuse the entry of the ATFTF agents by pushing the front door to the apartment closed. *fn1" After the officers successfully gained entry, they observed defendant Thomas retreat and attempt to run toward the sofa where he was eventually stopped. An immediate search of the sofa recovered a fully loaded 9 mm. handgun, and a 9 mm. clip containing ammunition, as well as a bottle containing a small amount of crack cocaine. Additional ammunition was found in other parts of the living room.

 The agents searched the bedroom and located a safe on a shelf in a closet. The defendant stated that he neither owned nor knew the combination to the safe. The police forced the safe open and recovered a 12 gauge sawed-off shotgun. This shotgun is the subject of the possession of a firearm count at issue in this case. Also found in the safe was a fully-loaded .22 calibre handgun, ammunition including some identical to that recovered from the 9 mm. semi-automatic gun that was seized from the sofa, and a bottle containing phencyclidine (PCP) residue.

 It is undisputed that only the defendant and his mother resided in the apartment, and personal papers bearing the defendant's name and the apartment's address were found therein. Also found were photographs of the defendant with firearms, one of which, according to the government, was a .22 calibre Arminius 8-shot revolver, the same type of handgun found in the safe along with the sawed-off shotgun. The other firearm pictured was identified by ATFTF agents as a high capacity semi-automatic pistol. A loaded magazine for a semi-automatic pistol was found in the safe.

 II. Analysis

 A. Motion for New Trial

 When ruling on a Motion for New Trial, the Court considers whether "the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred." United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980). This authority should be exercised sparingly and with caution. Id. The defendant must show that the weight of the credible evidence against a guilty verdict was greater than the weight of the credible evidence supporting such a verdict. See Tibbs v. Florida, 457 U.S. 31, 37-38, 72 L. Ed. 2d 652, 102 S. Ct. 2211 (1982).

 In United States v. Pardo, 204 App. D.C. 263, 636 F.2d 535, 549 (D.C. Cir. 1980) the court held that "mere proximity" to contraband is insufficient to establish constructive possession. There "must be some action, some word, or some conduct" linking the individual to the contraband in question, and indicating that the defendant had some stake in it and some power over it. Id. Evidence has been deemed sufficient to establish constructive possession where a defendant lived in an apartment and used the bedroom in which a shotgun was found. United States v. Anderson, 881 F.2d 1128 (D.C. Cir. 1989). A finding of constructive possession of drugs was upheld where the defendant was found in a townhouse where drugs were sold, and upon police entry was observed pitching things into another room where drugs and a gun were found. United States v. Dunn, 269 App. D.C. 373, 846 F.2d 761, 764 (D.C. Cir. 1988). A defendant's gesture toward a weapon when confronted by police can be evidence of constructive possession. Hernandez, 780 F.2d at 120. Moreover, the fact that a defendant took evasive action in response to the presence of police can be considered in inferring constructive possession. Id. at 117, citing United States v. Reese, 183 App. D.C. 1, 561 F.2d 894, 898 (D.C. Cir. 1977).

 Evidence has been held insufficient to establish possession where a gun was found hidden (but partly visible) in a couch, and there was no evidence that the defendant lived in or leased the premises, or that he headed for the gun in question or knew of its existence. United States v. Long, 284 App. D.C. 405, 905 F.2d 1572, 1576 (D.C. Cir. 1990). Similarly, evidence of drug possession was insufficient where the defendant was present in a confined area where a drug transaction was occurring, but there was no other ...

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