Metropolitan News-Enterprise


Friday, November 21, 2008


Page 3


Ninth Circuit Reverses Sleeping Felon’s Firearm Possession Conviction


By STEVEN M. ELLIS, Staff Writer


A divided panel of the Ninth U.S. Circuit Court of Appeals yesterday reversed a man’s felon-in-possession-of-firearms conviction because he was asleep when police officers found him on a couch in an abandoned apartment with one gun on his lap and another leaning against his leg.

Noting the lack of any corroborating details connecting Earl Nevils to the guns, drugs or other items found in the apartment in which he claimed to have passed out after a day of drinking, and that the premises were “essentially accessible to the public,” Judge Richard A. Paez, joined by Senior Judge Thomas G. Nelson, concluded that the evidence was insufficient to show Nevils knowingly possessed the weapons, despite their physical proximity to him.

Judge Jay S. Bybee wrote in dissent, however, that the majority’s “innocent explanation” that Nevils remained unconscious for seven hours while the firearms’ real owners came and went, leaving their property behind, was “extraordinarily implausible,” and criticized the majority for attempting to make its theory plausible “just because those events took place in a drug-infested area.”

Los Angeles Police Department officers specializing in anti-gang enforcement were investigating unrelated criminal activity at an apartment complex in a high-crime area when they encountered Nevils after following another man who initially ran to the apartment before entering another after officers had approached him on the street.

The apartment’s wooden door was off its hinges and leaning against the interior wall, and the metal screen door ajar, and inside officers could see Nevils—who had been arrested there weeks earlier for violating parole by associating with other gang members—asleep with the weapons on a couch in front of a coffee table on which marijuana, ecstasy, a cell phone, wrist watches, documents and U.S. currency were located.

Two officers entered the apartment with guns drawn and were conducting a sweep when Nevils awoke and the officers ordered him onto the ground. Both testified that Nevils “startled” awake, but one contended that Nevils paused briefly and appeared like he would grab towards his lap before ultimately putting his hands up.

Cursing, Nevils told another officer who arrived on the scene, “I don’t believe this…. [They] left me sleeping and didn’t wake me.”

Nevils was charged and tried before U.S. District Judge Consuelo B. Marshall of the Central District of California on a single count of being a felon in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1), and in his defense he presented evidence that he had been partying in a neighboring apartment that day, and had been taken to the apartment after becoming too drunk to stand by friends who did not observe the guns or drugs.

The government did not dispute that Nevils did not live in the apartment and that many other people had access to it, but focused on his proximity to the weapons, his previous presence in the apartment and gang affiliation, and his actions and statements to the police officers.

A jury found Nevils guilty after Marshall denied his motion to acquit for lack of sufficient evidence, but Paez wrote on appeal that the fact that the firearms were touching Nevils’s body was not enough to show he had consciously possessed what he knew to be a firearm.

“[T]he Government did not produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that Nevils was guarding the drugs or otherwise consciously in possession of the guns, as opposed to being passed out at the wrong place, at the wrong time,” he opined.

But Bybee countered that the government needed only to prove a “sufficient connection” between Nevils and the guns, and said that it had done so through “ample circumstantial evidence” tying him to the 9mm Luger semiautomatic handgun on his lap, including Nevils’ reaction to the officers and his failure to express “amazement about finding guns on his person.”

The judge then took the majority to task over its theory of events, writing:

“No one—not even drug dealers, and maybe especially drug dealers—are going to go off and abandon their loaded weapons, drugs, cash and cell phones with a man sleeping off a drunken binge. It makes no sense whatsoever.”

The case is United States v. Nevils, 06-50485.


Copyright 2008, Metropolitan News Company