FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 06-50485

EARL ANTHONY NEVILS, a/k/a EARL D.C. No.

NEVILS, JR., EARL BOWMAN; EARL  CR-03-01269-CBM

JOHNSON, ALFRED JOHNSON,

OPINION “BABYCRIPTOE”, “LILAMIGO” and

“BABY FROG,”

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted

December 3, 2007—Pasadena, California

Filed November 20, 2008

Before: Thomas G. Nelson, Richard A. Paez, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Paez;

Dissent by Judge Bybee

15691
COUNSEL

Elizabeth A. Newman, Assistant Federal Public Defender,

Los Angeles, California, for the defendant-appellant. 

Sandy N. Leal, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee. 

OPINION

PAEZ, Circuit Judge: 

Earl Nevils appeals from a jury conviction for being a felon

in possession of firearms and ammunition in violation of 18

U.S.C. § 922(g)(1). We reverse the conviction because the

evidence offered at trial was insufficient with regard to the

element of knowing possession.1

1Because we reverse Nevils’s conviction, we need not address his challenge to his sentence. 

15694 UNITED STATES v. NEVILS
I. BACKGROUND

On April 14, 2003, LAPD 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 Earl Nevils asleep on a couch in one

of the apartments (Apartment 6). The officers were originally

following another man because he ran away when they

approached him and his friends on the street. As they followed the man into the courtyard of the apartment complex,

he approached Apartment 6, started to enter, and then apparently changed his mind and entered another apartment on the

other side of the courtyard. When the officers approached

Apartment 6 to investigate, their attention was diverted from

the other man to Nevils. 

The wooden door of Apartment 6 was off its hinges and

leaning against the interior wall, and the metal security door,

or screen door, was ajar. Inside, the officers could see Nevils

asleep on a couch. Leaning against Nevils’s body were two

firearms—one on his lap and another leaning against his leg.

There was a coffee table approximately one foot from the

couch. On the table were several items that the police later

determined to be baggies full of marijuana and ecstasy, a cell

phone, wrist watches, documents, and U.S. currency. 

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. One

officer testified more specifically that, before Nevils’s rolled

or slid onto the ground, “his eyes . . . kind of came full —

fully opened and for a brief second he appeared like he was

going to, you know, grab towards his lap and then he stopped

and put his hands up.” The other officer did not mention any

UNITED STATES v. NEVILS 15695
brief pause; he stated that the events were “very quick” and

“almost immediate,” and that Nevils “jumped up as a startled

jump and rolled over onto the ground.” Some time after the

arrest, a sergeant who had arrived on the scene was questioning Nevils to make sure he was not injured, when Nevils

stated: “I don’t believe this shit. Those motherfuckers left me

sleeping and didn’t wake me.” Nevils was later booked on

charges of possession of marijuana for sale. 

Nevils was later charged and tried in federal court on a single count of being a felon in possession of a firearm and

ammunition. The Government’s case consisted primarily of

the testimony of the two arresting officers setting forth the

incriminating circumstances surrounding Nevils’s arrest. In

his defense, Nevils presented evidence that he had been at a

party in a neighboring apartment all day, had become so

drunk that he could not stand, and was taken by friends to

Apartment 6 and laid on the couch (on his side “[s]o he

wouldn’t throw up”) to sleep it off. Jonnetta Campbell, who

helped take Nevils to Apartment 6, testified that at the time

she left Nevils on the couch and closed the door behind her,

there were no other people in Apartment 6, and no guns or

drugs were visible. It was undisputed at trial that Nevils did

not live in Apartment 6 and that many other people had access

to the vacant apartment, although Nevils was the only person

present when the police entered. 

At the close of the Government’s case and again at the

close of all the evidence, Nevils moved under Federal Rule of

Criminal Procedure 29 for a judgment of acquittal on the basis

of insufficiency of the evidence. The district court denied both

motions, and the jury found Nevils guilty. 

Nevils timely appealed.2 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

2We have jurisdiction under 28 U.S.C. § 1291. 

15696 UNITED STATES v. NEVILS
witness offered unrebutted testimony that he had gotten drunk

at a nearby party and had been taken to Apartment 6 to lie

down; and (3) no 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). 

The Government argues that the evidence of knowing possession was sufficient because: (1) Nevils had “actual possession” of the firearms due to his physical contact with them;

(2) there was evidence that Nevils had been in Apartment 6

at least once before; (3) Nevils’s “gang affiliation . . . support[ed] the jury’s finding that [he] knowingly possessed the

firearms”; (4) Nevils “appeared like he was going to . . . grab

towards his lap” when he was awakened by the police; and (5)

Nevils made statements showing consciousness of guilt. 

II. DISCUSSION

We review de novo the denial of a Rule 29 motion. United

States v. Esquivel-Ortega, 484 F.3d 1221, 1224 (9th Cir.

2007). In considering a challenge to the sufficiency of the evidence, we review the entire record, “[v]iewing the evidence

in the light most favorable to the government,” and “must

determine whether any rational jury could have found [the

defendant] guilty of each element of the crime beyond a reasonable doubt.” Id. We do not “question [the] jury’s assessment of witnesses’ credibility, and must presume that the trier

of fact resolved any conflicting inferences in favor of the

prosecution.” United States v. Johnson, 229 F.3d 891, 894

(9th Cir. 2000) (internal quotation marks and footnote omitted). Applying this standard, as we explain below, the evidence was insufficient as a matter of law to support Nevils’s

conviction, and we therefore reverse and remand for entry of

a judgment of acquittal. 

UNITED STATES v. NEVILS 15697
A. Elements of an 18 U.S.C. § 922(g)(1) offense

[1] The crime charged, being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), requires 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.” United States v. Beasley, 346 F.3d 930, 933-34 (9th

Cir. 2003). The first element was conceded by stipulation, and

the third was not contested. The only disputed element at trial

was Nevils’s knowing possession of the firearms.3

[2] Proof of knowing possession in the context of 18 U.S.C.

§ 922(g)(1) requires “that the defendant consciously possessed what he knew to be a firearm.” Id. at 934. “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.”

4 United States v. Cain, 130 F.3d

381, 382 (9th Cir. 1997) (emphasis in original) (internal quotation marks omitted); see also United States v. Ruiz, 462 F.3d

1082, 1088 (9th Cir. 2006) (“Possession of an item includes

the ability and intent to exercise control over that item.”). 

[3] “[T]he element of control necessary for possession [is

not] satisfied if it [i]s shown that the defendant was merely ‘in

the presence of the contraband and could reach out and take

it’ if he so desired.” United States v. Chambers, 918 F.2d

1455, 1459 (9th Cir. 1990) (quoting United States v. Terry,

3The indictment also alleged possession of ammunition, but it was

undisputed that the ammunition in question was loaded inside the firearms. The sufficiency analysis is thus identical with regard to both the

ammunition and the firearms. 

4This formulation is almost identical to that provided by our Circuit’s

model jury instructions. See Ninth Circuit Manual of Model Jury Instructions, Criminal § 3.18 (“Possession—Defined”) (2003 ed.) (“A person has

possession of something if the person knows of its presence and has physical control of it, or knows of its presence and has the power and intention

to control it.”). 

15698 UNITED STATES v. NEVILS
911 F.2d 272, 280 (9th Cir. 1990)). Rather, “[w]e have held

repeatedly that 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.” Id. (collecting cases).

“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.” Id. (emphasis in

original) (internal quotation marks omitted). 

[4] Possession can be either actual or constructive. See,

e.g., Chambers, 918 F.2d at 1457-58. The Government argues

that this case is an “actual” or “physical” possession case, and

that “constructive” possession cases discussing “mere proximity” therefore do not apply. The tenuous distinction between

“actual” and “constructive” possession, however, is not analytically useful in this case. See Ninth Circuit Manual of

Model Jury Instructions, Criminal § 3.18 (“Possession—

Defined”), cmt. (2003 ed.) (stating that instruction quoted

above at note 4 is “all-inclusive” and that “[t]here is no need

to attempt to distinguish further between actual and constructive possession”); cf. Nat’l Safe Deposit Co. v. Stead, 232

U.S. 58, 67 (1914) (“[A]ctual possession and constructive

possession . . . often so shade into one another that it is difficult to say where one ends and the other begins.”). Ultimately,

possession—of whatever type—requires a showing that

Nevils had knowledge of the firearms and the ability and

intention to control them. Accordingly, rather than attempting

to sort this case as an “actual” or “constructive” possession

case, we focus on the dispositive requirements of knowledge

and ability and intention to control. 

B. Sufficiency of the evidence of possession

[5] Noting that Nevils was alone in Apartment 6 when he

was arrested, the Government argues that “a rational trier of

fact could find that the physical location of the firearms on

defendant’s lap and leaning against his leg, as well as the

UNITED STATES v. NEVILS 15699
presence of packaged drugs, a cell phone, and money within

a foot from where defendant lay, constituted possession of the

firearms. In short, the jury was entitled to rely upon his actual

possession of the firearms to infer that his possession was

knowing.” The Government argues that the “mere proximity”

cases cited above are irrelevant because here the firearms

were actually touching Nevils’s body. But the pivotal circumstance in this case is the undisputed fact that Nevils was

asleep (or passed out). Thus, the fact that the firearms were

physically touching him is not sufficient to show that he was

conscious of their presence, and the “mere proximity” cases

are quite relevant. 

[6] The Government is correct that, had Nevils been caught

running with a gun in his hand—or sitting on top of a gun

(while awake), see United States v. Gutierrez, 995 F.2d 169

(9th Cir. 1993)—the jury would be entitled to make an inference of knowledge, and the mere proximity cases would be

superfluous. Because Nevils was asleep, though, this is not a

paradigmatic “actual” possession case, and additional evidence is necessary to allow an inference of knowledge. That

the weapons were touching Nevils is a factor tending to make

knowing possession more likely, but without evidence that

Nevils was aware of their presence, this fact is not enough.

See Chambers, 918 F.2d at 1459 (“[P]roximity . . . go[es] only

to the contraband’s accessibility, not to the dominion or control which must be proved to establish possession.” (emphasis

in original) (internal quotations omitted)). 

In Gutierrez, for example, proximity was coupled with the

facts that: (1) the defendant—who was awake—was “sitting

on top of a pistol” in the back seat of a car; (2) the police testified that the car’s occupants appeared to be hiding things as

they approached; and (3) the corner of the back seat appeared

to have been “hastily” torn back to conceal the weapon. 995

F.2d at 171-72 (noting that “testimony that the defendant may

have placed something in the spot where the police later

15700 UNITED STATES v. NEVILS
found the weapon can support a finding of possession” (internal quotation marks omitted)). 

Similarly, in United States v. Taylor, 154 F.3d 675 (7th Cir.

1998), the court affirmed a conviction for possession of a firearm where evidence that the defendant was sleeping in the

same room as the firearm was accompanied by additional evidence tying him to the apartment. There was “overwhelming”

evidence that Taylor lived in the apartment, and “[t]he weapons were found in a padlocked closet near the bed in which

he slept, and the closet contained only men’s clothing and

cologne, as well as a receipt with his name on it.” Id. at 682.

Moreover, “[t]he record reveal[ed] no evidence of any other

man residing at the house.” Id. See also United States v. Castillo, 866 F.2d 1071, 1086-88 (9th Cir. 1988) (affirming conviction for possession of cocaine on similar facts, where

defendant had keys to apartment, defendant was sleeping in

locked bedroom where cocaine was found, and defendant’s

clothes were found in bedroom closet). 

On the other hand, in Ruiz, we reversed convictions under

§ 922(g)(1) because the defendants’ ties to the firearms and

the premises where they were found (a methamphetamine lab

operated on property on which several buildings stood) were

too undefined. 462 F.3d at 1090. Ruiz and codefendant

Noriega—both of whom admitted participating in a criminal

drug conspiracy on the property—were observed fleeing the

premises during a police raid, and “firearms were found in the

loft area, in the main part of the residence, in the garage and

in the stairwell of the main part of the residence.” Id. at 1088.

In reversing the convictions, we stated: “The most that can be

said in favor of a finding of possession of the firearms is that

Diaz, one of the co-conspirators, resided on the premises

where the drugs were found, and that Noriega and Ruiz both

had access to the residence. However, access to the premises

does not equate to possession.” Id. at 1089. We noted that

“there was no evidence . . . regarding a finite number of identified individuals who had access to the subject premises.” Id.

UNITED STATES v. NEVILS 15701
We also rejected “the [Government’s] argument that ‘somebody must have possessed the weapons because they were

there’ [as] insufficient evidence of control or intent to control

the weapons by one or more identified individuals.” Id.

[7] None of the above cases is precisely on all fours with

our case, because of the special circumstance that the guns

were actually on or leaning against Nevils’s body as he slept.

Nevertheless, despite the close physical proximity of the guns

to Nevils, the fact remains that the circumstantial evidence of

knowledge and intent to control here falls far short of that

found sufficient in cases like Castillo or Taylor. The Government did not offer evidence tying Nevils to any of the other

personal items in the apartment,5 as in Taylor, and it did not

offer any evidence that Nevils’s access to Apartment 6 was

exclusive. Not only did the Government fail to offer “evidence . . . regarding a finite number of identified individuals

who had access to [Apartment 6],” Ruiz, 462 F.3d at 1089, it

was unable to rebut evidence that there was open access to

Apartment 6. Nor did the Government establish suspicious

behavior by Nevils similar to the defendants scrambling to

hide the guns in Gutierrez. See Gutierrez, 995 F.2d at 171.6

The Government argues that “[h]ere, unlike Ruiz, witness

testimony not only links defendant to the firearms and [Apart5A forensic officer testified that it was not possible to lift fingerprints

from the guns, and that the items on the coffee table were not tested for

fingerprints. The arresting officers testified that they did not recover

ammunition, drugs, money, or keys to Apartment 6 from Nevils’s person.

6As noted above, here one officer testified that, immediately after being

awoken from a drunken stupor by screaming officers, Nevils “for a brief

second . . . appeared like he was going to, you know, grab towards his

lap.” On appeal, the Government cites this testimony as evidence that

Nevils was aware of the firearms’ presence. At trial, the Government did

not make any similar argument to the jury. In any case, unlike the specific

evidence of “ ‘furtive’ movements” in Guttierez, the officer’s speculative

and diffident testimony here is not the type of consciousness-of-guilt evidence on which a reasonable juror could rely. 

15702 UNITED STATES v. NEVILS
ment 6], but defendant was in actual possession of both

loaded firearms, and he was the only person in the apartment.” First, this argument bootstraps by assuming the

proposition—actual possession—that it must prove. Second,

the Government fails to acknowledge that the defendants in

Ruiz were also directly linked to the subject premises. Among

other things, the Ruiz defendants were observed fleeing the

premises, admitted participating in a meth-production conspiracy on the premises, and admitted having access to the

premises. Finally, the Government fails to acknowledge that,

although Nevils was the only person in Apartment 6 when the

police entered, the evidence (1) established that other people

generally had access to the apartment, and (2) strongly

suggested—based on the various personal effects found on the

coffee table—that other people had been in the apartment

before the police arrived. 

In Ruiz, there was no question that the defendants were at

the subject premises, frequently, and were up to no good. The

relevant question was whether there was specific evidence to

show that they were aware of the weapons’ presence and had

the intent and ability to control the weapons. Similarly, here

there is no doubt that Nevils was in Apartment 6, or that he

had been there once before, allegedly up to no good (he was

arrested there several weeks earlier for violating his parole by

associating with gang members). The question was whether

there was sufficient evidence to allow a finding that he had

knowledge of, and the intent and ability to control, the firearms. The Government claims that the officers’ observation of

Nevils—admittedly, asleep—with one gun on top of him and

the other next to his leg was sufficient to support a finding of

possession. But this argument amounts to little more than the

argument rejected in Ruiz—that “somebody must have possessed the weapons because they were there.” 462 F.3d at

1089. 

The Government did not present any other evidence linking

Nevils to the guns or to the other items in Apartment 6 (the

UNITED STATES v. NEVILS 15703
drugs, the phones, etc.). Further, Nevils was only slightly

linked to the apartment itself, having been there at least one

other time. Finally, as in Ruiz, and unlike in Taylor, there was

no reason to believe that Nevils regularly stayed in Apartment

6, much less that he had exclusive access to the apartment. To

the contrary, there was every reason to believe that the apartment was open to all comers. 

[8] Nor does Nevils’s gang affiliation, familiarity with the

apartment complex, or Nevils’s prior experience with drugs

provide sufficient evidence to support an inference that he

was in knowing possession of a firearm on April 14, 2003.

Nevils’s mere presence at the scene and his general character

and history as a gang member are insufficient evidence of the

required mental state. See Spivey v. Rocha, 194 F.3d 971, 978

(9th Cir. 1999). 

In short, there is little to distinguish this case from cases

like Ruiz, other than the physical proximity of the firearms to

Nevils. If the firearms in this case had been found on the coffee table—along with the drugs, cell phone, watches, U.S.

currency, and documents—there is no doubt that a judgment

of acquittal would be required, as no other evidence tied

Nevils to the firearms or the apartment, other than his presence in the apartment on one other occasion. See, e.g., Ruiz,

462 F.3d at 1088-89. Indeed, the district court here did not

hesitate at sentencing to find that the Government had failed

to prove—even by a preponderance of the evidence—that

Nevils possessed the drugs on the coffee table. In declining to

make such a finding, the district court emphasized that Nevils

“was asleep at the time.” 

The sufficiency of the Government’s evidence thus

depends on the distinction between the guns being found on

the coffee table and their being found on and leaning against

Nevils’s body as he slept. Despite the Government’s insistence that the distinction itself is enough to demonstrate

Nevils’s “actual possession” of the firearms, possession—

15704 UNITED STATES v. NEVILS
whether labeled actual or constructive—requires knowledge

of the object possessed and intent to control that object.

Knowledge and intent obviously require consciousness, at

some point. There was no direct evidence showing that Nevils

was ever conscious in Apartment 6 on April 14, 2003. All of

the evidence presented indicated that he was asleep and/or

passed out. The circumstantial evidence bearing on Nevils’s

mental state was similar to that we have repeatedly rejected

as insufficient. See, e.g., Esquivel-Ortega, 484 F.3d at 1226-

27; Ruiz, 462 F.3d at 1088-89; United States v. CorralGastelum, 240 F.3d 1181, 1184 (9th Cir. 2001). Cf. United

States v. Vasquez-Chan, 978 F.2d 546, 551 (9th Cir. 1992)

(noting that we have held “evidence legally insufficient to

establish possession when the evidence suggested that a

defendant was merely caught in ‘extremely incriminating circumstances’ ”). 

[9] “When there is an innocent[7] explanation for a defendant’s conduct as well as one that suggests that 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.” Vasquez-Chan, 978 F.2d at 549; see also EsquivelOrtega, 484 F.3d at 1227-28. Here, the 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. 

7

Innocence in this instance is used in a narrow sense. The question is

not whether the defendant was innocent of all wrongdoing, but whether

the inference in question renders him legally innocent of the crime

charged. For example, if a defendant was charged with possession of a

shotgun found in the trunk of a car he was driving, evidence that (1) the

defendant had stolen the car only minutes before being pulled over, and

(2) the shotgun was registered to the car’s rightful owner, would support

an “innocent” inference that the defendant lacked the requisite knowledge

to be convicted of possessing the shotgun. 

UNITED STATES v. NEVILS 15705
Although Nevils’s proffered explanation might seem

implausible in many towns and many apartment complexes,

cf. United States v. Perlaza, 439 F.3d 1149, 1177 (9th Cir.

2006) (“[This court] will accept a defendant’s allegedly ‘innocent explanation’ only when that explanation is plausible.”),

it is not implausible given the evidence that this neighborhood, this apartment complex, and Apartment 6 itself, were

neck-deep in gang activity and the illicit drug trade. Further,

the presence of several watches, a cell phone, other personal

items, and drugs packaged for retail sale—none of which

were tied to Nevils—supports the inference that other people

were in Apartment 6 before the police arrived. 

Finally, we reject the Government’s reliance on Nevils’s

post-arrest statement as supporting a jury inference of knowing possession. The statement “[t]hose motherfuckers left me

sleeping and didn’t wake me” is ambiguous and is subject to

multiple interpretations, and the Government did not produce

evidence sufficient to allow a jury to choose an inculpatory

interpretation. The Government argues that “the most reasonable inference . . . from this statement was that defendant was

angry that his friends failed to warn him . . . something he

expected them to do because he knew he was illegally in possession of guns and drugs.” To the contrary, the statement

merely demonstrates Nevils’s mastery of the obvious: some

person or persons (1) had been in Apartment 6, and then (2)

absconded and left him surrounded by the incriminating evidence. The fact that Nevils realized he had been left high and

dry, and was not happy about it, is hardly incompatible with

his innocent explanation of his circumstances (i.e., that he was

asleep), and it does not show that Nevils had knowledge of

the firearms before being arrested. 

[10] Because there was a plausible innocent explanation for

the facts, the Government was required to “produce evidence

that would allow a rational jury to conclude beyond a reasonable doubt that [an inculpatory] explanation [was] the correct

one.” Vasquez-Chan, 978 F.2d at 549. Here—given the lack

15706 UNITED STATES v. NEVILS
of any corroborating details connecting Nevils to the guns or

the other items in the apartment, combined with the very

slight evidence connecting Nevils to Apartment 6, and the

evidence that Apartment 6 was essentially accessible to the

public—the Government has not provided evidence that

would allow a rational jury to conclude beyond a reasonable

doubt that Nevils knew, prior to awaking, of the firearms’

presence and had the intention to exercise control over them.

III. Conclusion

Nevils could not be convicted for his mere sleeping presence in Apartment 6 during criminal activity by others, and he

also could not be convicted of a violation of § 922(g) based

on “mere presence” even if he were, at some point, awake and

aware that others were committing crimes involving guns and

drugs in the apartment. The Government did not produce sufficient evidence beyond evidence of “mere presence” and

gang affiliation. The undisputed evidence established that

Nevils was asleep when the police arrived. 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,” Ruiz, 462 F.3d at 1089, but the Government

did not offer sufficient evidence to prove that that “somebody” was Nevils. 

REVERSED and REMANDED for entry of a judgment

of acquittal.

BYBEE, Circuit Judge, dissenting: 

It is said that the wife of English lexicographer Samuel

Johnson returned home unexpectedly in the middle of the day,

to find Dr. Johnson in the kitchen with the chambermaid. She

UNITED STATES v. NEVILS 15707
exclaimed, “My dear Dr. Johnson, I am surprised.” To which

he reputedly replied, “No my dear, you are amazed. We are

surprised.”

1

Earl Nevils was surprised when two LA police officers

with guns drawn ordered him not to move. But Nevils was not

amazed in the least by the circumstances in which he found

himself: he had a loaded, chambered semiautomatic Tec 9 on

his lap and a loaded, chambered .40 caliber pistol by his leg.

Nor was he astonished by the marijuana, ecstasy, cash and a

cellphone on a table a foot away. Although the unoccupied

apartment was not his, Nevils wasn’t the least bewildered at

finding himself in Apartment #6—officers had found drugs

and guns in the apartment just three weeks earlier and had

arrested Nevils there for parole violation. According to one of

the officers, Nevils first impulse was to “grab towards his lap”

where the Tec 9 lay and “then he stopped and put his hands

up.” He later exclaimed to an officer, “I don’t believe this s---.

Those m------------left me sleeping and didn’t wake me.” The

jury found him guilty of being a felon in possession. 

The majority overturns his conviction because it finds the

evidence insufficient to show that Nevils knowingly possessed the guns. It surmises that it is equally plausible that

someone—anyone, actually, since the defense couldn’t finger

any person in particular—set Nevils up by placing the guns on

him while he was in a drunken stupor. Thus, the majority concludes, no reasonable juror—certainly not the twelve who did

—could have found that Nevils knowingly possessed the

guns. Like Mrs. Johnson, I am both amazed and disappointed.

I respectfully dissent. 

I

To overturn a jury’s conclusion that evidence introduced in

a trial was sufficient to convict the defendant we must, as the

1The story has occasionally been attributed to Noah Webster. 

15708 UNITED STATES v. NEVILS
majority admits, “determine whether any rational jury could

have found [the defendant] guilty of each element of the

crime beyond a reasonable doubt.” United States v. EsquivelOrtega, 484 F.3d 1221, 1224 (9th Cir. 2007). Under this

inquiry, we must not “question [the] jury’s assessment of witnesses’ credibility, and must presume that the trier of fact

resolved any conflicting inferences in favor of the prosecution.” United States v. Johnson, 229 F.3d 891, 894 (9th Cir.

2000). This standard is extraordinarily high. It means that to

overturn a jury conviction based on sufficiency of evidence,

the majority must conclude that no rational jury could have

convicted Nevils under the evidence properly presented at

trial. United States v. Barron-Rivera, 922 F.2d 549, 552 (9th

Cir. 1991). 

In this case, for the purposes of 18 U.S.C. § 922(g), the jury

had to find that the defendant had “knowing possession” of a

firearm; that is, the jury must have concluded that Nevils

“consciously possessed what he knew to be a firearm.” United

States v. Beasley, 346 F.3d 930, 934 (9th Cir. 2003). This

conscious possession can either be actual or constructive, see

United States v. Chambers, 918 F.2d 1455, 1457-58 (9th Cir.

1990), but in either case the government must prove “a sufficient connection between the defendant and the [firearms] to

support the inference that the defendant exercised dominion

and control over the [firearms].” Gutierrez, 995 F.2d at 171

(quoting United States v. Terry, 911 F.2d 272, 278 (9th Cir.

1990)). There is a “sufficient connection” in this case. 

There was ample circumstantial evidence for a rational jury

to conclude that Earl Nevils knew he possessed, at the least,

the 9mm Luger semi-automatic handgun (also referred to in

the record as a Tec 9) on his lap. The gun was loaded with

several live rounds of ammunition, including one in the gun’s

chamber. The jury heard evidence from which it could easily

have inferred that Nevils knew the gun was there. Officer

Clauss, one of the two police officers who apprehended

Nevils, testified that when they came upon Nevils and

UNITED STATES v. NEVILS 15709
announced themselves, “at that point, you know, his eyes, you

know, kind of came full—fully opened and for a brief second

he appeared like he was going to, you know, grab toward his

lap and then he stopped and put his hands up.” A rational

juror could equally infer from Nevils’ behavior that his first

instinct was to reach for his weapon—an instinct that was

suppressed when Nevils realized the officers had already

drawn their guns and one of the officers had flanked him.

Nevil’s subsequent behavior is consistent with the jury’s finding. When he talked to Sergeant Coleman after his arrest,

Nevils did not express any consternation over waking up in a

strange place, or amazement about finding guns on his person.

He didn’t say “Hey, how did I get here?” or “Where did those

guns come from?” Instead, he simply expressed anger over

being left alone, proclaiming, “I can’t believe this s---. Those

m------------ left me sleeping and didn’t wake me.” 

II

The majority rejects these perfectly plausible explanations

because it finds another explanation in equipoise with the

government’s case and relies on the rule that where the evidence presented at trial does not “establish any reason to

believe that an innocent explanation of that evidence was any

less likely than the incriminating explanation advanced by the

government,” it cannot establish the defendant’s guilt beyond

a reasonable doubt. United States v. Vasquez-Chan, 978 F.2d

546, 551 (9th Cir. 1992). The majority’s “innocent explanation” in this case, however, is extraordinarily implausible. The

defense’s theory, adopted by the majority, is that Nevils, after

arriving at the apartment complex for a baby shower, became

drunk, passed out, and was carried into the notorious Apartment #6 by several female friends. He then remained unconscious for some seven hours (from approximately 4:00 or 5:00

p.m., a few hours after the baby shower ended, until around

11:45 p.m., when the police officers entered the apartment

complex). During that period, one or more persons, whose

identities and reasons are unknown, entered Apartment #6,

15710 UNITED STATES v. NEVILS
placed drugs in small baggies, a cell phone, and cash on the

coffee table in front of Nevils and left a loaded semiautomatic

handgun on Nevils’ lap and another loaded pistol leaning

against his leg. This activity, apparently, did not wake the

lethargic Nevils. Instead, the majority believes, he continued

to sleep soundly until the police arrived, was awakened, and

was amazed to find himself surrounded by drugs and guns. 

Even more curious than Nevils’ behavior under the majority’s “innocent explanation” is the behavior of the anonymous

drug dealers. What did the drug dealers do? There are a couple of options, none of them very good. As Mark Twain

wrote, “[i]t would take you thirty years to guess, and even

then you would have to give it up.” MARK TWAIN, Fenimore

Cooper’s Literary Offenses, in IN DEFENSE OF HARRIET SHELLEY

AND OTHER ESSAYS 60, 68 (1918). These drug dealers, according to one version of the theory, were surprised by the presence of a police car outside the apartment complex, got

scared, and ran off. They decided it was best to leave their

drugs and weaponry with the sleeping Nevils, and either

threw or placed the heavy guns unto Nevils’ lap and leg (all

without waking him) as they rushed to leave the premises.

Although ordinary drug dealers might, with an eye towards

profits, stuff the drugs, cash, and cellphones in their pockets

while they were leaving, the majority’s anonymous constructs

are no ordinary drug dealers. Instead, these guys were so

frightened of being caught by the police that they left all their

loot on the coffee table, ran out the front door of the apartment, and disappeared before the police arrived. Ironically,

their haste did not appear to be necessary—the police officers

saw no one leaving Apartment #6 and were only drawn to the

apartment after noticing a person furtively trying to enter it

later. 

Alternatively, the drug dealers deliberately decided to leave

their paraphernalia in the apartment. But rather than leave one

of their number behind to guard the loot, they set up a scarecrow of sorts—arming the unconscious Nevils and propping

UNITED STATES v. NEVILS 15711
him up on the couch to look menacing. This plan, of course,

was foiled by the arrival of the police, who weren’t impressed

with the sleeping Nevils. This theory, like the first, is so farfetched that a rational jury could easily have rejected it in

favor of the far more plausible conclusion that Nevils simply

fell asleep while guarding the drugs. 

The majority recognizes that its theory is implausible “in

many towns and many apartment complexes.” Maj. Op. at

15706. But it finds that its “innocent explanation” is “not

implausible given the evidence that this neighborhood, this

apartment complex, and Apartment 6 itself, were neck-deep

in gang activity in the illegal drug trade.” Id. In other words,

the alternate theory would be implausible if Nevils had been

found in an ordinary apartment complex, but because this was

a notorious drug area, anything can happen. The majority’s

admission that its theory is generally implausible is healthy,

but it can’t make its implausible theory plausible just because

these events took place in a drug-infested area. No one—not

even drug dealers, and maybe especially drug dealers—are

going to go off and abandon their loaded weapons, drugs,

cash and cellphones with a man sleeping off a drunken binge.

It makes no sense whatsoever. If we are to assume, without

any evidence, that people are that irrational, then we are going

to have to revise our “innocent explanation” jurisprudence

and overturn a bunch of our cases. 

III

We don’t have any cases that address precisely how much

the government must prove to show that a sleeping defendant

is a knowing possessor. The two cases that are closest to this

case come to opposite conclusions and each is distinguishable. The majority relies principally on United States v. Ruiz,

462 F.3d 1082 (9th Cir. 2006). In that case, the defendants

were arrested following a raid on a meth lab in a house. The

officers found weapons in a couch in the loft area, in the main

part of the residence, in a stairwell and under a sofa cushion

15712 UNITED STATES v. NEVILS
in the garage. Id. at 1085. Other than the defendants’ mere

presence at the house, nothing linked them to the weapons;

there was no fingerprint evidence and they did not own the

residence. Id. at 1088. Our decision is a model of common

sense: although the men were present in a dwelling where

weapons were found, there is nothing to show that they knowingly possessed the weapons. Like the defendants in Ruiz,

Nevils did not own Apartment #6, nor were his fingerprints

found on the gun. However, unlike in Ruiz, where the defendants were simply present in the same house as the weapons,

here Nevils had the weapons on his person, and they were

loaded and chambered. 

Our decision in United States v. Gutierrez, 995 F.2d 169

(9th Cir. 1993), is closer to this case. In that case, the police

stopped a car on a possible traffic violation. After taking the

driver for a sobriety test and determining that the remaining

two men did not possess a valid driver’s license, the police

decided to tow the car. The officers discovered a loaded firearm under the left rear seat, where Gutierrez had been sitting.

Acknowledging that “ ‘mere presence as a passenger in a car

from which the police recover weapons does not establish

possession,’ ” we found that “there was much more than

‘mere proximity’ or ‘mere presence” in the car. Id. at 171

(quoting United States v. Soto, 779 F.2d 558, 560 (9th Cir.

1986)). Rather, “[i]t would tax credulity to assert that Gutierrez was sitting on top of a pistol without knowing of its presence, or that he just happened to be a passenger in an

automobile equipped with a pistol for each passenger, and the

he knew nothing of that odd coincidence.” Id. If the majority

applied its “innocent explanation” theory to Gutierrez, we

would have deemed the evidence insufficient in that case. In

Gutierrez, we might have easily said that Gutierrez’s explanation sounded implausible, but in this car, in this neighborhood, and with this defendant, anything was possible—

including the possibility that Gutierrez was sitting in the back

seat of a car with a loaded pistol under it and didn’t know it.

UNITED STATES v. NEVILS 15713
If the guns had been found elsewhere in the apartment,

Nevils would have a good claim under Ruiz. If the guns were

found on the table, the case would be a close one. The majority, however, has no plausible explanation—certainly nothing

with a shred of evidence to support it—for how Nevils ends

up with a loaded semiautomatic on his lap and a pistol against

his leg. 

Because the majority’s “innocent explanation” “tax[es] credulity,” Gutierrez, 995 F.2d at 171, a reasonable juror could

find Nevils had control of the guns. I would affirm the district

court’s determination that the evidence was sufficient to convict Nevils of knowing possession of the weapons. Thus, I

respectfully dissent. 

15714 UNITED STATES v. NEVILS