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United States v. Nevils - 548 F.3d 802 (9th Cir. 2008)


Proof of knowing possession in the context of 18 U.S.C.S. § 922(g)(1) requires that the defendant consciously possessed what he knew to be a firearm. In general, a person is in possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it. The element of control necessary for possession is not satisfied if it is shown that the defendant was merely in the presence of the contraband and could reach out and take it if he so desired. Rather, neither proximity to the contraband, presence on property on which contraband is recovered nor association with a person having actual possession of the contraband is sufficient proof of possession. Mere proximity, presence, and association go only to the contraband's accessibility, not to the dominion or control which must be proved to establish possession.


Police officers specializing in anti-gang enforcement were investigating unrelated criminal activity at an apartment complex in a high-crime area of Los Angeles when they encountered defendant Earl Nevils asleep on a couch in one of the apartments. The door of the apartment was off its hinges and leaning against the interior wall. Leaning against Nevils' body were two firearms—one on his lap and another leaning against his leg. On a coffee table about one foot away from the couch ther were several items that the police later determined to be baggies full of marijuana and ecstasy, a cell phone, wrist watches, documents, and cash. The police officers entered the apartment with guns drawn, conducted a "sweep," and then began to approach Nevils. As they approached, Nevils began to wake up. At that point, both officers identified themselves and yelled for Nevils to get down on the ground. Nevils either "rolled" or slid onto the ground, and the officers arrested Nevils for drug possession. Both officers testified that Nevils "startled" awake. Nevils was later charged and tried in federal district court on a single count of being a felon in possession of a firearm and ammunition. Nevils appealed, arguing that the evidence was insufficient on the element of knowing possession.


Was the evidence sufficient to support Nevils' conviction for being a felon in possession of a firearm?




The appellate court reversed the trial court's judgment and remanded the case to that court for entry of a judgment of acquittal. The court noted that the crime charged, being a felon in possession of a firearm in violation of § 922(g)(1), required proof of three elements: (1) that the defendant was a convicted felon; (2) that the defendant was in knowing possession of a firearm; and (3) that the firearm was in or affecting interstate commerce. In Nevils' case, the first element was conceded by stipulation, and the third was not contested. The only disputed element at trial was Nevils' knowing possession of the firearms. Proof of knowing possession in the context of § 922(g)(1) required that Nevils consciously possessed what he knew to be a firearm. The pivotal circumstance was the undisputed fact that Nevils was asleep (or passed out). Thus, the fact that the firearms were physically touching him was not sufficient to show that he was conscious of their presence. The "mere proximity" of the weapons to Nevils was insufficient to establish knowing possession.

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