MEMORANDUM AND ORDER
CARLOS MURGUIA United States District Judge
After a ten-day trial, a jury found defendants Steven Hohn and Michael Redifer guilty of conspiracy to distribute and possess with intent to distribute methamphetamine. The jury also found defendant Hohn guilty of a number of firearms charges, but the main focus of the motions now before the court is the conspiracy convictions. After trial, both defendants filed motions for judgment of acquittal and/or a new trial (Docs. 322 and 323). Defendant Redifer requests relief on ten different grounds:
(1) The trial court erred in admitting exhibits #124 and #138, photographs of Mr. Redifer with 3 other co-defendants holding guns;
(2) The trial court erred in allowing government expert witness Deputy Perry Williams to testify that guns and violence are a part of the drug trade;
(3) The trial court erred in failing to declare a mistrial when a government witness testified to a “shoot-out” in Kingdom City;
(4) The trial court erred in failing to declare a mistrial when a government witness testified to defendant’s arrest in Garnett, Kansas;
(5) The trial court erred in admitting evidence of Mr. Redifer’s conviction for Possession with Intent to Sell Methamphetamine;
(6) The trial court erred in not giving defendant’s proposed instruction nos. 3, 4, 7, 8 and an instruction that there can be no conspiracy between a defendant and a government agent;
(7) The trial court erred in giving instruction no. 21, aiding and abetting;
(8) There was insufficient evidence of defendant’s participation in the conspiracy alleged by the government[, ] and the evidence did not support the government’s assertion there was one single overall conspiracy;
(9) The indictment varied in the duration of defendant’s alleged involvement in the conspiracy and the quantities of drugs;
(10) The accumulation of error should result in the Court’s order granting a judgment of acquittal and/or new trial.
(Doc. 322 at 1–2.) Defendant Hohn filed a motion joining in all of defendant Redifer’s arguments, and added one more ground for relief: that the court erred when it admitted evidence resulting from warrantless GPS tracking of defendant Hohn’s vehicle.
In reviewing a motion for judgment of acquittal, the court views the evidence in the light most favorable to the government. United States v. Hughes, 191 F.3d 1317, 1321 (10th Cir. 1999) (citation omitted). The court must grant a motion for judgment of acquittal when the evidence is insufficient to sustain a conviction. Fed. R. Crim. P. 29(a). On the other hand, the court must uphold the jury’s guilty verdict if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Haber, 251 F.3d 881, 887 (10th Cir. 2001) (citation and quotation marks omitted). The court considers both direct and circumstantial evidence, plus reasonable inferences drawn from that evidence. United States v. Davis, 1 F.3d 1014, 1017 (10th Cir. 1993) (citation omitted).
In considering a motion for new trial, the court has broad discretion. United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir. 1987) (citation omitted). The standards for granting a new trial are not as strict as the standards for granting judgment of acquittal. Federal Rule of Criminal Procedure 33 provides that a court may grant a new trial “if the interest of justice so requires.” Additionally, any error that would require reversal may justify a new trial. United States v. Walters, 89 F.Supp.2d 1206, 1213 (D. Kan. 2000) (citation and quotation marks omitted). The court may weigh the evidence and assess witness credibility. United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir. 1999) (citation omitted). A new trial is warranted if, “after weighing the evidence and the credibility of the witnesses, the court determines that ‘the verdict is contrary to the weight of the evidence such that a miscarriage of justice may have occurred.’” United States v. Gabaldon, 91 F.3d 91, 93–94 (10th Cir. 1996) (quoting United States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994)). But courts disfavor new trials, United States v. Gleeson, 411 F.2d 1091, 1093 (10th Cir. 1969) (citation omitted), and exercise great caution in granting them, United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997) (citation omitted).
With these standards in mind, the court now turns to defendants’ arguments.
I. Admission of Exhibits # 124 and # 138
Defendant Redifer first argues that the court erred in admitting photographs showing defendant Redifer on a couch with three co-defendants (including defendant Hohn), all holding guns. Before trial, the court held the photographs inadmissible. But after defendant Redifer’s counsel made an opening statement suggesting that defendant Redifer was not involved with most of his co-defendants and made similar suggestions through cross-examination, the government renewed its request for admission and offered a different basis for relevance. At that time, the court ruled that the exhibits were admissible.
Defendant Redifer contends that admission was not needed to contradict counsel’s statements in opening argument because counsel’s statements are not evidence. Further, there was ample evidence to show a relationship between defendant Redifer, Tracy Rockers, Michael Quick, and Kerry Randall without the photos. Defendant Redifer argues that the ...