Sunday, November 23, 2008

Case o' The Week: Gun in One's Lap Not "Knowing" Possession, Nevils

A baby shower where guests get so drunk they pass out, a respected academic caught by his wife in the kitchen with the chambermaid -- is any field ever as interesting as criminal law? See United States v. Nevils, __ F.3d __, 2008 WL 4937030 (9th Cir. Nov. 20, 2008) (decision available here). In Nevils, Judge Paez gives us a wonderful new decision on the "knowing" possession of a gun, with important language on "mere proximity," "actual possession," and "constructive possession."

Players: Admirable win by CD Ca. AFPD Elizabeth Newman.

Facts: Cops chased dude into an apartment complex in a high-crime area of L.A.. Id. at *1. Their attention was diverted from dude when they came upon Apartment 6, with door ajar. Id. Sleeping on a couch within Apartment 6 was Earl Nevils. Id. A gun was leaning against his leg, another was in his lap. Id. On a nearby coffee table were baggies full of pot and ecstasy, a cell phone, wrist watches, documents, and U.S. currency. Id. Nevils was “startled” awake, said the cops, and they claimed he briefly reached for his lap. Id.

After his arrest, the defendant complained, “I don’t believe this shit. Those motherfuckers left me sleeping and didn’t wake me.” Id. (Several weeks before, Nevils had been arrested in Apt. 6 for a violation of parole – associating with gang members. Id. at *5).

At his trial for being a felon in possession of a gun, Nevils introduced evidence that he had been at a party (a baby shower) in a neighboring apartment all day, had gotten so drunk he couldn’t stand, and had been put on the couch to sleep it off. Id. There were no guns or drugs around him, Nevils’ witness testified, when Nevils was put on the couch. Id. at *5. He was tried and convicted of being a felon in possession of a gun, and the district court denied the Rule 29 motion. Id.

Issue(s): “Nevils timely appealed. He argues that the evidence was insufficient on the element of knowing possession. Nevils points out that: (1) it is undisputed that he was asleep; (2) a witness offered un-rebutted testimony that he had gotten drunk at a nearby party and had been taken to Apartment 6 to lie down; and (3) no other evidence – other than his presence – tied Nevils to the firearms, or to the other items found in the apartment (i.e., the drugs, the cell phone, the watches, and the U.S. currency.”) Id. at *2 (footnote omitted).

Held: “On this record, we hold that the Government failed to produce evidence that would have allowed a rational jury to infer knowing possession beyond a reasonable doubt. It may be natural to assume that somebody must have possessed the weapons because they were there, but the Government did not offer sufficient evidence to prove that the ‘somebody’ was Nevils.” Id. at *8 (internal quotations and citation omitted).

Of Note: Dissenting Judge Bybee is “amazed and disappointed” at this opinion by Judge Paez, joined by Judge T.G. Nelson. Id. at *8 (Bybee, C.J., dissenting). The dissenter complains that the standard to prevail on a Rule 29 motion is “extraordinarily high,” id., and that here there was no plausible explanation for how Nevils ended up with a loaded semiautomatic in his lap and a pistol against his leg, id. at *11. This dissent is a gift, for the opinion’s holding despite the “extraordinarily high” Rule 29 standard makes the lessons of Nevils even more potent defense ammunition.

How to Use: Nevils has value far beyond the narrow fact pattern of the sleeping defendant. In a very thoughtful discussion, Judge Paez surveys case law on “mere proximity,” “actual possession,” and “constructive possession.” Id. at *3. He rejects rigid categorization of these theories, and instead focuses on the “dispositive requirements of knowledge and ability and intention to control.” Id.

The case is a must-read for “knowing” possession drug and gun cases. The decision rejects “mere presence” and Nevils’ “general character and history as a gang member” as sufficient evidence for the “knowing” mental state (despite the fact the gun was in his lap!) Id. at *6. Judge Paez also insists that, “When there is an innocent explanation for a defendant’s conduct as well as one that suggests the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one.” Id. at *7 (quotations and citation omitted). Good stuff.

For Further Reading: Judge Bybee begins his dissent with Samuel Johnson (above right) who was “surprised” to be discovered in the kitchen with the chambermaid by his “amazed” wife. Id. at *8. For other Johnson witticisms, visit the Encarta Book of Quotes here, at page 487.

Here's one such quote: "He did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney." Id.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Blogger Steve Kalar said...

1. US v. Nevils, No. 06-50485 (3-19-10)(en banc)(Ikuta). In an en banc opinion, the 9th affirmed the conviction and sentence of a prohibited possessor defendant found sleeping with guns on and near his body. A panel had reversed, finding insufficient evidence because the evidence was that the defendant had passed out on the couch, and when he did, there were no guns around.
In this unanimous opinion, the 9th emphasized the two part test of Jackson v. Virginia, 443 US307 (1979), which requires an appellate court to determine whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id at 319. The en banc opinion chides the 9th for straying from the "in the light most favorable" in the sense that it cannot reweigh facts. All facts and conflicts must be considered in the most advantageous light for the government. It is only after all facts are resolved in favor of the government, does an appellate court consider whether any rational trier of fact could have found the elements met. In construing the evidence here, given the actual weight of the weapons, the officer saying that the defendant reached for the weapon upon awakening, and the circumstantial evidence, a jury could have found the defendant guilty of being a prohibited possessor. The opinion does cite a line of cases where being just near or around weapons or drugs without a tie has been deemed insufficient.
The 9th also found that the sentence was not unreasonable.

Post by Jon Sands, comment added by Steven Kalar.

Friday, March 19, 2010 11:51:00 AM  

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