I love to check out the "Case o the Week" over at the 9th Circuit Blog to see just what little gem of a case makes the grade – and this week the Court did not let me down. At issue – what does possession mean? In United States v. Nevils, __ F.3d __, 2008 WL 4937030 (9th Cir. Nov. 20, 2008), the Court of Appeals had to decide whether the Appellant’s conviction for possession of a gun would stand in the face of his claim that he had not knowingly possessed the firearms. Sounds like the usual stuff – cops chase some other guy into an apartment complex in a high crime area. They see Nevils through an open door, sleeping on a couch. Leaning against his leg – a gun. In his lap – another gun. Also present and unaccounted for – baggies of dope and ecstasy. Only weeks before Nevils had unfortunately been arrested for a parole violation, associating with known gang members. Hey, these things happen! Once Mr. Nevils awoke (surrounded by the cops), he protested his innocence: “I don’t believe this sh.. Those m….rf….rs left me sleeping and didn’t wake me.” At his trial, Nevils produced evidence (including a witness other than himself) that he had gone to a party, got so drunk he passed out, and his "friends" had taken him home and left him on a couch to sleep it off. The witness testified that the drugs and guns were NOT there when they left Nevils, passed out in the apartment. Implication? The SODI defense (Some Other Dude Did It) – which the jury rejected in favor of a finding of guilt. Not so fast Tonto – that possession of the gun has to be knowing and voluntary. This is no big surprise really, but put this case in context. A trial judge gets reversed for not granting that Rule 29 motion. (For a description of one of my cases last summer in which a judge GRANTED a Rule 29 motion for judgment of acquittal go here). The decision puts it this way:
“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.”
Think about this decision in the context of other cases charging possession – like possession of drugs, or stolen property. The case reminds us that innocent possession is not enough, the proof that is required for conviction goes beyond allowing for the probability that you knew, there must be proof that you knew what you possessed. As our friends at the 9th Circuit Blog remind us:
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!)
So go check it out here! Read it and weep prosecutors – we shall not go quietly into that dark night.