In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2341

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRANCE L. KATZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 07-CR-40053—Michael M. Mihm, Judge.

ARGUED FEBRUARY 13, 2009—DECIDED SEPTEMBER 22, 2009

Before KANNE, ROVNER, and EVANS, Circuit Judges.

ROVNER, Circuit Judge. The defendant, Terrance Katz,

was indicted on multiple counts, including unlawful

possession of a firearm by a convicted felon, unlawful

possession of ammunition by a convicted felon,

possession with intent to distribute marijuana, and unlawful possession of a firearm in pursuance of a drug

trafficking crime. A jury convicted him on only one of

those counts—unlawful possession of a firearm by a
2 No. 08-2341

convicted felon—and failed to reach a verdict on the

remaining counts. On that felon-in-possession count, the

jury convicted only as to Katz’s possession of a Remington

12-gauge shotgun, not as to the other firearm in the

count which was a Sturm Ruger Super Blackhawk

.44-caliber pistol. The district court denied Katz’s

motions for judgment of acquittal and his motion for

a new trial pursuant to Federal Rule of Criminal Procedure 29 and 33 respectively.

Katz argues on appeal that the evidence was insufficient for a jury to find him guilty beyond a reasonable

doubt on the felon-in-possession charge under 18 U.S.C.

§ 922(g), and that the district court abused its discretion

in failing to grant him a judgment of acquittal. We agree

and reverse.

In determining whether the evidence is sufficient to

support the verdict, we consider the evidence in the

light most favorable to the prosecution and determine

whether any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt. United

States v. McLee, 436 F.3d 751, 757 (7th Cir. 2006). The

evidence at trial consisted of testimony from several

law enforcement agents, a forensic technician, and tapes

of two 911 calls, as well as stipulations by the parties. The

sequence of events leading to the arrest of Katz began

with two 911 calls made by Dawnya Grice on the

morning of February 15, 2007. In the first call, Grice

informed the dispatcher that her boyfriend, Katz, was

threatening her with bodily harm, that he had previously

hit her, that she was in a car outside the house because
No. 08-2341 3

he had finally allowed her to leave her home, and that

she wanted him removed from her home. The dispatcher

asked Grice if Katz had any weapons and she stated that

he did not. Grice then called 911 again and reported that

Katz was now outside her home and that he had a

weapon, which she described as a big revolver. She

stated that she had initially lied about his possession of

a weapon because she assumed he would get rid of it

before the police arrived. She then declared that she

was unsure whether he currently had it but it appeared

that he might be carrying it in his pants. Approximately

three minutes into this call, the dispatcher told Grice

that the police had stopped Katz as he was walking down

the street and that she should return to her home. The

police detained Katz a few blocks from Grice’s home. A

search of Katz revealed no weapons, but the police did

find over $1,800 in cash on him. Grice reported to the

police that she believed he had also taken her house

keys which were on a Nascar keychain, and the police

recovered keys matching that description in their search

of Katz.

The officers subsequently proceeded to Grice’s home

and sought her consent to search the home, which she

provided. As they were obtaining her consent, one of the

detectives saw an unidentified black male descend from

the upstairs of the home and quickly exit through the

front door. Neither the detective nor any of the officers

at the scene were able to detain him, and his identity

was never discovered. The subsequent search of the

home revealed the following items of interest:
4 No. 08-2341

- a box of .44-caliber ammunition, a small mirror with

cocaine residue on its surface, and a razor blade above

the kitchen cupboard;

- a box containing 75.4 grams of marijuana in 56 individual baggies in the kitchen;

- a Remington 12-gauge shotgun with an attached scope

between the mattress and the box springs in an upstairs

bedroom;

- a black zippered bag containing 2.2 grams of crack

cocaine and “female products” such as makeup and

possibly feminine hygiene products in an upstairs

bedroom closet;

- a black nylon coat containing .8 grams of crack cocaine

in the dining room closet;

- a camouflage backpack containing 4 plastic baggies

of marijuana totaling 19.42 grams on a chair in the

living/dining room area;

- a loaded .44-caliber Sturm Ruger Super Blackhawk

pistol concealed in the ceiling rafters of the basement.

A forensic evidence technician concluded that Katz’s

fingerprints were on the Remington 12-gauge shotgun

and detachable scope found in the mattress of the

upstairs bedroom, and on the small mirror found on top

of the kitchen cupboard. The technician testified that

there was no way of determining how old a fingerprint

was, or when a fingerprint was transferred to an object.

The parties stipulated that “Prior to February 15, 2007,

the defendant, Terrance L. Katz, had been convicted of a
No. 08-2341 5

crime that was punishable by a term of imprisonment of

more than one year under the laws of the State of Illinois.”

The parties also stipulated that Grice had entered into a

lease for the property and that she first took possession

of the rental property on January 3, 2007. Neither Grice

nor Katz testified at the trial.

The felon-in-possession count, 18 U.S.C. § 922(g),

on which Katz was convicted prohibited the knowing

possession of a Remington 12-gauge shotgun, which had

previously traveled in interstate commerce, by a

person who had previously been convicted of a crime

punishable by imprisonment for a term exceeding one

year. In order to convict Katz of that charge, the government was required to prove three elements: (1) Katz

had a previous felony conviction; (2) he possessed the

Remington 12-gauge shotgun after that conviction; and

(3) the firearm had traveled in or affected interstate

commerce prior to the time Katz possessed it. The third

element and first elements are not contested. Therefore,

the issue on appeal is whether there was sufficient evidence for a jury to find beyond a reasonable doubt that

Katz possessed the shotgun on February 15, 2007, which

was the date of the incident here. That date is the

relevant focus because the parties’ stipulation only provided that prior to February 15, Katz had been convicted

of a crime punishable by imprisonment of more than

one year. Accordingly, possession of the shotgun on an

earlier date would not establish the second element of

the offense.

There is absolutely no evidence, however, that Katz was

in physical possession of the shotgun on February 15. The
6 No. 08-2341

911 call mentions possession of a revolver, not a 12-gauge

shotgun. The only other evidence of physical possession

is the testimony of the forensic evidence technician

that Katz’s fingerprints were found on the shotgun. But

the technician also testified that it was not possible to

determine how long the fingerprints had been on the

shotgun. The prints could have been transferred that

day, a month earlier when moving Grice into her new

place, or years earlier. The point is that we have nothing

but pure speculation as to when Katz was in physical

contact with the shotgun. A jury cannot speculate its

way out of reasonable doubt. United States v. Groves,

470 F.3d 311, 324 (7th Cir. 2006) (“Speculation cannot be

the basis for proof in the civil context much less the

basis for proof beyond a reasonable doubt.”).

We are left, then, with the alternative means of establishing possession—constructive possession. Constructive

possession may be established by demonstrating that the

defendant knowingly had the power and intention to

exercise dominion and control over the object, either

directly or through others, thus establishing a nexus

between himself and the object. United States v. Irby, 558

F.3d 651, 654 (7th Cir. 2009); United States v. Rogers, 542

F.3d 197, 202 (7th Cir. 2008); United States v. Castillo, 406

F.3d 806, 812 (7th Cir. 2005). “If a person exercises

exclusive control over a premises, then constructive possession of a weapon found therein can be inferred.”

Castillo, 406 F.3d at 812. The control over the premises

allows the jury to infer the knowledge and intent to

control the objects within those premises, and accordingly

we have held that constructive possession can be estab-
No. 08-2341 7

lished by demonstrating that a firearm was seized at the

defendant’s residence. United States v. Caldwell, 423

F.3d 754, 758 (7th Cir. 2005); United States v. Kitchen, 57

F.3d 516, 521 (7th Cir. 1995). Even where a defendant

jointly occupies a premise, it is possible to find constructive possession, but the government must provide

evidence supporting a nexus between the weapon and

the defendant. Castillo, 406 F.3d at 813. “ ‘Mere proximity

to the [object], mere presence on the property where it is

located, or mere association, without more, with the

person who does control the [object] or property on

which it is found, is insufficient to support a finding of

possession.’ ” Irby, 558 F.3d at 654, quoting United States

v. DiNovo, 523 F.2d 197, 201 (7th Cir. 1975).

Here, we have nothing more than presence on the

property and the fingerprints. There is no evidence whatsoever that Katz resided at the premises, or even that

he had ever stayed at the home for any period of time.

The only evidence presented indicates that the home

belonged to Grice exclusively: the lease was in her

name; she did not want to leave him in the home when

she left for work; she called police to have him removed

from her home; and she possessed the keys. He apparently did not have keys because he took hers when

he left the premises. There are none of the indicia of

joint possession of the premises that we have found in

other cases.

For instance, in Irby, 558 F.3d at 654, the court considered whether the defendant had constructive

possession of crack cocaine in a house. The defendant was
8 No. 08-2341

observed exiting and reentering the house after feeding

a dog there which was some indication that he occupied

the premises. Id. Physical evidence linked him with the

master bedroom in which baggies of marijuana and crack

cocaine were intermingled. Id. Specifically, the master

bedroom contained his state identification card, social

security card, and mail addressed to him. Id. Testimony

also established that he came from the house, walked to

a car, and attempted to sell marijuana. Id. That evidence

provided a nexus between the defendant and the object

he was charged with possessing. See also Rogers, 542 F.3d

at 202 (the defendant spent more than 80% of his time

living with his girlfriend at the apartment where the

firearms were found, he gave the firearms to her, and he

knew precisely where they usually were stored); United

States v. Kelly, 519 F.3d 355, 362 (7th Cir. 2008) (the defendant had keys to the apartment where the drugs and

gun were found, gave the apartment as his address,

mail addressed to him was found in the room with the

contraband, drugs found elsewhere in the apartment

were packaged similarly to that at the scene of his

arrest, and he referred to the gun and the drugs as belonging to him); United States v. Thomas, 321 F.3d 627, 636

(7th Cir. 2003) (constructive possession of firearms based

in part on the close proximity to the defendant can be

proper where the weapon is found in areas over which

the defendant exercised control, but could not be established by mere proximity where it is found in the area

under an apartment building’s entrance stairs—a public

area which the defendant did not control). See also

Caldwell, 423 F.3d at 758; Castillo, 406 F.3d at 813.
No. 08-2341 9

No such nexus has been established here. No bills,

mail or forms of identification in Katz’s name were discovered in the home, nor was there testimony that his

clothes were found there. In short, we have nothing

except his apparently unwelcome visit that day, and

the fingerprints on the shotgun. There is no evidence

that the fingerprints were made on February 15. Therefore, the prints are relevant only in indicating that he

at some point in time had touched the shotgun. There

was no testimony that the shotgun belonged to him at

any point in time, such as might indicate an awareness

of its current location at the house.

The government argues that Katz exercised “dominion

and control” over Grice’s residence because he was in

her house threatening her and for some period of time

refused to allow her to leave, and by swiping the keys

from the home he could return there at will to retrieve

any items. The government further postulates that the

$1,800 in cash as well as the fingerprints on the mirror

with cocaine residue suggests that Katz controlled the

drug business at the home, and that drug dealers

often possess guns to protect their drug stash.

First, we note that the journey from cash-in-hispocket and fingerprints-on-a-mirror to drug-dealeroperating-from-the-house is one that cannot survive

the reasonable doubt standard by any conception of it.

The cash in his pocket could have been obtained

lawfully, could have resulted from drug dealing, or could

have been stolen from Grice’s home—the home in which

the drugs were found. There is simply nothing to
10 No. 08-2341

indicate that Katz was a drug dealer operating from

the house. The drugs were found throughout the house,

not in a central location from which an outsider might

operate, and the bag containing crack cocaine in the

upstairs bedroom contained “female items.” This is

nothing but pure speculation, and is not enough to

support a criminal conviction.

Moreover, the government’s contention that he had

dominion and control over the house and its possessions because he was an unwelcome intruder stands

constructive possession on its head. The constructive

possession standard allows a jury to infer possession

from the defendant’s relationship with the premises

and the objects in it. If it is the defendant’s home and

his posessions are in the home, then it is a reasonable

inference for a jury to attribute the weapons in the home

to the defendant as well. Similarly, where the defendant

stays at least some of the time at another person’s residence and a weapon is found in a room that also

contains the defendant’s belongings, then a jury may

infer possession of the weapon found there as well. That

is fundamentally different from an intruder who seizes

“control” of a home by force. There is no nexus between

the intruder and the home’s possession, and no reason

for a jury to conclude that the intruder has the knowledge that the weapon is in the home or the intent to

exercise dominion or control over it. The constructive

possession standard loses all of its grounding if interpreted as the government would so as to include

intruders such as Katz. The evidence in this case was not

sufficient to support the verdict. Accordingly, the
No. 08-2341 11

decision of the district court is REVERSED and the case

REMANDED for the district court to enter a judgment of

acquittal on that count.

9-22-09