Metropolitan News-Enterprise


Monday, March 22, 2010


Page 3


En Banc Panel Affirms Sleeping Felon’s Firearm Possession Conviction


By STEVEN M. ELLIS, Staff Writer


An en banc panel of the Ninth U.S. Circuit Court of Appeals on Friday upheld the felon-in-possession-of-firearms conviction of a man Los Angeles Police Department officers found asleep on a couch in an abandoned apartment with a gun on his lap and another leaning against his leg.

Reasoning that evidence against Earl Nevils had to be construed in the light most favorable to the prosecution, despite Nevils’ “innocent explanation,” the 11-judge panel unanimously ruled that a rational juror could have concluded beyond a reasonable doubt that Nevils knowingly possessed the weapons.

Police found Nevils in the open apartment in front of a coffee table on which marijuana, ecstasy, a cell phone, wrist watches, documents and U.S. currency were located. He claimed he merely passed out there after a day of drinking and argued that the true owners must have left the firearms after coming and going during a seven-hour period in which he was unconscious.

A divided three-judge panel in 2008 accepted Nevils’ contention that the government failed to show he knowingly possessed the guns. Judge Richard A. Paez, joined by Senior Judge Thomas G. Nelson, cited the lack of any corroborating details connecting Nevils to the items in the apartment and the fact that the premises were “essentially accessible to the public.”

Judge Jay S. Bybee dissented that Nevil’s explanation was “extraordinarily implausible.”

The judges reviewing the case en banc, in an opinion by Judge Sandra S. Ikuta rejected Nevils’ argument that evidence susceptible to an innocent explanation should be construed on review in the light most favorable to innocence.

Pointing to the U.S. Supreme Court’s 1979 decision in Jackson v. Virginia 443 U.S. 307, Ikuta explained:

“Contrary to [Nevils’] argument…, we are obliged to construe the evidence ‘in the light most favorable to the prosecution,’ and only then determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”

Applying that standard, Ikuta said the evidence was constitutionally sufficient to support Nevils’ conviction.

Police officers specializing in anti-gang enforcement encountered Nevils while investigating unrelated criminal activity at an apartment complex in a high-crime area. They had been following another man who ran to the apartment as they approached him, but then entered a second apartment.

The wooden door of the first apartment—in which Nevils was located—was off its hinges and leaning against the interior wall, and a metal screen door was ajar. Through it, officers observed Nevils—who had been arrested in the same apartment weeks earlier for violating parole by associating with other gang members—as well as the guns, drugs and other items.

Two officers entered with guns drawn and were conducting a sweep when Nevils awoke. They ordered him onto the ground and later testified that Nevils “startled” awake.

One also said Nevils paused briefly and appeared to be about to make a move for his lap before raising his hands.

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

He was tried before U.S. District Judge Consuelo B. Marshall of the Central District of California and a jury convicted him on a single count of being a felon in possession of a firearm and ammunition.

In his defense, Nevils presented evidence that he had been partying in a neighboring apartment that day, and had been taken to the abandoned apartment by friends after he became too drunk to stand. Nevils’ friends testified that they did not observe the guns or drugs when they left.

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.

Chief Judge Alex Kozinski and Judges Pamela Ann Rymer, Sidney R. Thomas, Barry G. Silverman, Raymond C. Fisher, Ronald M. Gould, Richard C. Tallman, Johnnie B. Rawlinson, Richard R. Clifton and Milan D. Smith Jr. joined Ikuta in her opinion.

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


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