## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 12 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOHN R. TAYLOR, Defendant-Appellant. No. 96-6173

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CR-95-158-T)
Vicki Mandell-King, Assistant Federal Public Defend er (Michael G. Katz, Federal Public Defender with her on the briefs), Denver, Co lorado, for Plaintiff-Appellee. Frank Michael Ringer, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with him on the brief), Oklahoma C ity, Oklahoma, for Defendant-Appellant.

Before BRORBY, HOLLOWAYand EBEL , Circuit Judges.

BRORBY , Circuit Judge.

An Oklahoma federal jury convicted John R. Taylor o f possession with-2-

intent to distribute cocaine base, conspiracy to po ssess with intent to distribute and to distribute cocaine base, and possession of afirearm by a convicted felon. The United States District Court for the Western Di strict of Oklahoma sentenced Mr. Taylor to 360 months imprisonment for each offe nse. Mr. Taylor appeals his convictions, arguing: (1) the district court violated his Sixth Amendment right to counsel by failing to ensure he voluntarily, knowin gly and intelligently waived that right, and (2) his conviction for possession o f a firearm by a convicted felon was not supported by sufficient evidence. We rever se and remand to the district
court.

I. FACTUAL AND PROCEDURAL BACKGROUND On October 26, 1995, Mr. Taylor was arrested for po ssession with intent to distribute cocaine base. Mr. Taylor appeared befor e a United States magistrate judge who appointed counsel, Joseph Wells, to repre sent Mr. Taylor. The magistrate judge also advised Mr. Taylor of his rig hts and the charges against him.

In November 1995, a grand jury returned an indictme nt against Mr. Taylor and three other named defendants. The indictment c harged Mr. Taylor with the following four offenses: (1) conspiracy to possess with intent to distribute and to-3-

distribute cocaine base, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute cocaine base, in violation of 21 U.S. C. § 841(a)(1); (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and (4) receipt of a firearm, in violation of 18 U.S.C. § 9 22(k).

On December 14, 1995, Mr. Wells moved to withdraw a s counsel of record for Mr. Taylor. Mr. Wells informed the court Mr. T aylor intended to represent himself pro se . On that same date, Mr. Taylor filed an appearanc e form indicating himself as counsel.

Thereafter, on December 18, 1995, the court enteredthe following order: The motion to withdraw of court appointed counsel, Joseph L. Wells, is denied. Counsel is requested to serve ina stand-by advisory capacity only, in the event the defendant elects to represent himself, pro se. The defendant is directed to decl are his intentions in this regard by written statement filed with the cle rk of court within ten (10) days to that effect, acknowledging his ass umption of all matters related to his defense and preparation for trial. If defendant elects to continue to avail himself of the services of his court appointed counsel he shall so state bywritten statement within ten (10) days hereof. Notwithstanding the court's explicit directive, Mr. Taylor never responded to the December 18 order. However, Mr. Taylor did draft, sign and file a "Motion to Demurrer" and a "Writ of Mandamus" with the court p rior to trial. On January-4-

24, 1996, the district court denied the "Motion to Demurrer" and "Writ of Mandamus."

Mr. Taylor's trial began on March 11, 1996. Prior to jury selection, the district judge encouraged Mr. Taylor to use the services of Mr. Wells. The court stated: Mr. Taylor, as someone appearing on his own behalf, it's your right to do that, and we'll try the case just as we ll as we can under these circumstances. I do want to encourage you, however, to utilize Mr. Wells and get his guidance on matters that might not be famil iar to you. It's very technical, it's not a simple matter, federal c riminal procedure, and I want to make sure that this trial is fair to you and fair to your co-defendant as well as to the government. So he's there as a resource to you, and I do encourage you to use him as much as you can in order to facilitate the trial.
Although Mr. Taylor made no opening statement at tr ial, he cross-examined some of the government's witnesses. Mr. Taylor all owed Mr. Wells to crossexamine one government witness, and Mr. Taylor did not resist when Mr. Wells objected to certain testimony. In addition, Mr. Taylor relied on Mr. Well's advice with respect to certain matters. Mr. Taylor delive red a closing argument to the jury.

The government's evidence at trial revealed Mr. Tay lor came to Oklahoma-5-

City, Oklahoma, from California in June 1995. Mr. Taylor brought two ounces of cocaine with him and Mr. Taylor and Ahmad Jamal Dav is sold the cocaine to individuals in Oklahoma City. In July 1995, Mr. Taylor flew back to California, and returned with nine ounces of powder cocaine. T he cocaine was "cooked" and half of it was sold.

In August 1995, Abdoulia Wallace, Mr. Davis, and Mr . Taylor were staying in apartment 120 at the Silvercrest Apartments in O klahoma City. Apparently, Jimmy D. Reed had rented the apartment for Mr. Tayl or and Mr. Wallace.

On or before August 2, 1995, the Oklahoma City Poli ce Department obtained a search warrant permitting the police to search Silvercrest apartment 120. The police executed this search warrant on th e afternoon of August 2, 1995. Mr. Taylor, Mr. Wallace, and Dominique Banks were i n apartment 120 at the time of the search. When the officers entered the apartment, Mr. Taylor was "by the couch" near the front door, Mr. Banks was seated ata nearby table, and Mr. Wallace was situated in the northeast bedroom. Mr. Taylor consented to a police search of his person. Officer Mike Kelly, who cond ucted the search of Mr. Taylor, found no guns or weapons on Mr. Taylor.-6-

Officer Kelly also participated in the search of th e northeast bedroom. In the closet in the northeast bedroom, Officer Kelly uncovered approximately 22.6 grams of crack cocaine, a Jennings Bryco nine milli meter handgun, and some bullets. Officer Kelly found a Davis .380 handgun under the mattress in the northeast bedroom. In an entertainment center located in the northeast bedroom, Officer Kelly discovered more crack cocaine along w ith digital scales and plastic baggies. Also in the entertainment center, OfficerKelly found Western Union money transfers in the name of John Taylor and Joan ne Taylor, and pawn shop tickets from A & V Pawn Shop in Long Beach, California. At trial, Stanley Zuckerman, the president of A & V Pawn Shop, testif ied his records established the pawn tickets found in the entertainment center belonged to Mr. Taylor.

Also at trial, Mr. Davis, Mr. Reed, and Rhonda Moor e each testified they had never seen Mr. Taylor carry a gun. However, Bu rgundy Pierce testified she had seen Mr. Taylor with a gun on one or two occasi ons. Although her description of the gun she saw Mr. Taylor carrying was vague, Ms. Pierce stated it was a small handgun, and she believed it was a revo lver, not an automatic.

On March 13, 1995, the jury returned a verdict of g uilty against Mr. Taylor on the following three charges: (1) conspiracy to possess with intent to distribute-7-

and to distribute cocaine base; (2) possession withintent to distribute cocaine base; and (3) possession of a firearm by a convicte d felon. The jury acquitted Mr. Taylor on the charge of receipt of a firearm.

At sentencing, the court asked Mr. Taylor if he wis hed to continue to represent himself, and Mr. Taylor responded it did not matter to him. The court complimented Mr. Taylor on his intelligence and exp ressed its wish it had been put to "more constructive use." The court then sentenced Mr. Taylor to 360 months imprisonment for each drug count and 120 months imprisonment for the possession of firearm count. The court ordered the sentences to run concurrently.

II. ISSUES RAISED ON APPEAL Mr. Taylor raises the following two issues on appea l: (1) whether the district court violated Mr. Taylor's Sixth Amendment right to counsel by failing to adequately ensure Mr. Taylor's decision to waive hi s right to counsel was made voluntarily, knowingly, and intelligently; and (2) whether Mr. Taylor's conviction of possession of a firearm by a convicted felon sho uld be reversed for insufficient evidence.-8-

III. ANALYSIS A. Sixth Amendment Right to Counsel Mr. Taylor first contends the district court violat ed his Sixth Amendment right to counsel by failing to adequately determine his decision to waive counsel and represent himself was made voluntarily, knowing ly, and intelligently. We review de novo the question of whether a waiver of counsel is voluntary, knowing, and intelligent. Brewer v. Williams , 430 U.S. 387, 403-04 (1977); United States v. Burson , 952 F.2d 1196, 1199 (10th Cir. 1991), cert. denied, 503 U.S. 997 (1992); United States v. Silkwood, 893 F.2d 245, 248 (10th Cir. 1989), cert. denied, 496 U.S. 908 (1990).

An accused has a Sixth Amendment right to waive his right to counsel and conduct his own defense in a criminal case. Faretta v. California , 422 U.S. 806, 821, 832 (1975); United States v. Willie , 941 F.2d 1384, 1388 (10th Cir. 1991), cert. denied, 502 U.S. 1106 (1992). However, a waiver of couns el will not be valid unless it is "'an intentional relinquishment or abandonment of a known right or privilege.'" Willie , 941 F.2d at 1388 (quoting United States v. McConnell , 749 F.2d 1441, 1450-51 (10th Cir. 1984)). In determini ng whether a defendant has effectively waived his right to counsel we must con duct two distinct inquiries. First, we must determine whether the defendant volu ntarily waived his right to-9-

counsel. See United States v. Padilla , 819 F.2d 952, 955-56 (10th Cir. 1987). Second, we must determine whether the defendant's w aiver of his right to counsel was made knowingly and intelligently. See id. at 956. The defendant's waiver will be deemed effective only if it was made volunt arily, knowingly, and intelligently. This court "will indulge in every r easonable presumption against waiver." Baker v. Kaiser , 929 F.2d 1495, 1500 (10th Cir. 1991).

Applying the two-part inquiry to the case at bar, w e first review whether Mr. Taylor voluntarily waived his right to counsel. The question of whether a defendant's waiver of counsel is voluntary turns onwhether the defendant's objections to his counsel are such that he has a ri ght to new counsel. Padilla , 819 F.2d at 955. In other words, for the waiver to be voluntary, this court must be confident the defendant is not forced to make a "ch oice" between incompetent counsel or appearing pro se. Silkwood, 893 F.2d at 248. However, "a refusal without good cause to proceed with able appointed c ounsel is a 'voluntary' waiver." Maynard v. Meachum , 545 F.2d 273, 278 (1st Cir. 1976). Thus, unless a defendant establishes good cause entitling him to the appointment of new counsel, the defendant's decision to waive counsel will be deemed voluntary. See Padilla , 819 F.2d at 955.-10-

In the present case, Mr. Wells moved to withdraw fr om his representation of Mr. Taylor on the grounds Mr. Taylor intended to represent himself pro se . Following the motion to withdraw, Mr. Taylor did no t seek the appointment of substitute counsel. Rather, Mr. Taylor filed a not ice of appearance indicating himself as counsel of record. The record does not indicate Mr. Taylor ever complained that Mr. Wells was incompetent or unprep ared to provide adequate representation for Mr. Taylor. It appears Mr. Tayl or simply decided to represent himself because he wanted to do so, not because he believed he was entitled to new counsel. Because Mr. Taylor never even argued Mr. Wells was unqualified to represent him or that Mr. Taylor was entitled to substitute counsel, we find his waiver of counsel to be voluntary.

Next, we must decide whether Mr. Taylor knowingly and intelligently waived his right to counsel. In determining this i ssue, we look to the record and the entire circumstances of the case, including the defendant's age and education, the defendant's previous experience with criminal trials, and the defendant's background, experience, and conduct. Id. at 958. The Supreme Court has stated the trial judge "can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which su ch a plea is tendered." Von-11-

Moltke v. Gillies , 332 U.S. 708, 724 (1947). "Ideally, the trial ju dge should conduct a thorough and comprehensive formal inquiryof the defendant on the record to demonstrate that the defendant is aware o f the nature of the charges, the range of allowable punishments and possible defense s, and is fully informed of the risks of proceeding pro se." Willie , 941 F.2d at 1388. The record should establish the defendant had a sense of the magnitud e of the undertaking and the inherent hazards of self-representation at the time of his decision to proceed pro

se . Padilla , 819 F.2d at 956.

In Padilla , the defendant, who proceeded pro se at trial, appealed his convictions for unlawful possession of a firearm, arguing, inter alia , his Sixth Amendment right to counsel was violated because the record failed to establish he knowingly and intelligently waived his right to competent representation. Id. at 954-55. Although we stated the question of a knowi ng and intelligent waiver turns on the entire circumstances of the case, id. at 958, we noted, relying on Supreme Court precedent, The task of ensuring that defendant possesses the r equisite understanding initially falls on the trial judge, w ho must bear in mind the strong presumption against waiver....

To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowab le punishments thereunder, possible defenses to the ch arges-12- and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the who le matter.

.... This court has reiterated that the factors articulated must be conveyed to the defendant by the trial judge and mu st appear on the record so that our review may be conducted without speculation. Id. at 956-57 (emphasis omitted) (quoting Von Moltke , 332 U.S. at 723-24). Because the record in Padilla did not indicate the trial court conducted a thorou gh and comprehensive examination to determine whether the defendant's waiver was knowingly and intelligently made, we concluded it w as impossible to determine whether the defendant made his choice with his "eye s open." Id. at 957, 959. Consequently, we reversed the defendant's convictio ns. Id. at 964.

In the present case, the trial court warned Mr. Tay lor on the first day of trial that federal criminal procedure was "very tec hnical" and "not a simple matter." The court encouraged Mr. Taylor "to utili ze Mr. Wells and get his guidance on matters that might not be familiar to [ him]." Yet, other than these general advisements, the court did nothing to ensur e Mr. Taylor's waiver of his right to counsel was knowing and intelligent. Simi lar to the trial court in Padilla , the court in the present case never advised Mr. Tay lor of the dangers and disadvantages of self-representation. Nor did the court ever ask Mr. Taylor his-13-

reasons for proceeding pro se or whether Mr. Taylor actually understood the consequences of his decision.

Although the magistrate judge informed Mr. Taylor o f the charges against him at his arraignment, this was done outside the c ontext of his waiver of the right to counsel. At no time did the trial court d iscuss with Mr. Taylor any possible defenses to the charges against him or cir cumstances that might serve as mitigating factors. Furthermore, the record does n ot indicate the trial court ever informed Mr. Taylor that he would be expected to fo llow the intricate rules of evidence and criminal procedure. See id. at 957.

Notwithstanding the trial court's failure to "make a comprehensive and probing formal inquiry into the knowingness and int elligence of [Mr. Taylor's] waiver," see Willie , 941 F.2d at 1391, the government contends the tot ality of the circumstances in the case establish Mr. Taylor know ingly and intelligently waived his Sixth Amendment right to counsel. The governme nt contends Mr. Taylor is an intelligent individual who provided sound represent ation for himself. According to the government, because Mr. Taylor filed "skillf ully written" pretrial motions, cross-examined witnesses with "the skill of a trial lawyer," and "professionally argued his case to the jury," he understood his rig ht to counsel and effectively-14-

waived that right.

The government cites Willie in support of its argument that the record as a whole establishes Mr. Taylor effectively waived his right to counsel. 941 F.2d at 1388-91. In Willie , the defendant, who was charged with failure to fi le income tax returns, informed the court that he would not a ccept any court-appointed attorney and he objected to any attempt by the judg e to violate his right of selfrepresentation. 941 F.2d at 1389. Prior to trial, the defendant filed ten pro se petitions with the court, including amended pleadin gs, two motions to dismiss, and jury instructions. Id. The defendant represented himself at trial and was convicted on four counts of failure to file income tax returns. Id. at 1387.

Thereafter, the defendant appealed his convictions to this court, arguing, inter alia , he did not make a knowing, voluntary, and intelli gent waiver of his right to counsel. Id. at 1387-88. Although we found the trial court fai led to conduct a thorough inquiry of the defendant on the record to ensure the defendant was aware of the dangers and disadvantages of self- representation, we concluded the surrounding facts and circumstances demonstrate d the defendant understood and effectively waived his right to counsel. Id. at 1388-90. Specifically, we held "Willie's repeated and unequivocal assertions of hi s right to self-representation,-15-

his continuous stubborn refusal to accept the servi ces of admittedly competent and available counsel, his numerous pro se petitions and his clear expression that he could only work with an attorney who shared his views on taxation, constitute[d] a valid implied waiver of his right t o counsel." Id. at 1390.

The facts of the present case are distinguishable f rom Willie . Unlike the defendant in Willie , see id. at 1390, Mr. Taylor did not make "repeated and unequivocal assertions of his right to self-represe ntation." Mr. Taylor merely filed a notice of appearance indicating himself as counsel of record. Mr. Taylor did not even respond to the court's order directing Mr. Taylor to "declare his intentions [concerning self-representation]" in a w ritten statement. In contrast to the defendant in Willie , see id. at 1388, Mr. Taylor never stated he would not accept any court-appointed attorney or "object[ed] to any attempt by the judge to violate that right." Id. at 1389.

Nor did Mr. Taylor stubbornly refuse to accept the services of counsel, as did the defendant in Willie

. See id. at 1390. Mr. Taylor permitted Mr. Wells to cross-examine a government witness and Mr. Taylor d id not complain when Mr. Wells lodged certain evidentiary objections at tria l. Mr. Taylor also relied on the advice of Mr. Wells at times during the trial.1 The record is unclear as to whether Mr. Taylor is a high school graduate.

Although Mr. Taylor claimed to have graduated from Rodia High School in Los Angeles, California, Rodia High School reported no record of Mr. Taylor's enrollment at the school.

-16- In addition, Mr. Taylor did not file numerous pretr ial motions with the district court. While the defendant in Willie filed at least ten pretrial petitions, id. at 1389, Mr. Taylor only filed a pro se "Motion to Demurrer" and a "Writ of Mandamus" with the district court prior to trial. Mr. Wells assisted in the filing of these two motions. Although the government alle ges these motions were "skillfully written", we believe this to be of no m oment. The trial court denied the motions in a three-page order without a hearing

.
In light of the strong presumption against waiver, see Padilla , 819 F.2d at 956, and the significant differences between the fa cts in the present case and those in Willie , we do not believe we can infer a knowing and inte lligent waiver from the record in this case. At the time of trial , Mr. Taylor was an intelligent twenty-nine-year-old man. 1 However, even assuming Mr. Taylor's pro se representation was exemplary, as the government contends, we do not believe we can conclude Mr. Taylor knowingly and intelligentlywaived his right to counsel without engaging in impermissible speculation. See Padilla , 819 F.2d at 957. The district court utterly failed in its responsibi lity to advise Mr. Taylor of the-17-

perils and risks of self-representation, and to ens ure Mr. Taylor's waiver was "understandingly and wisely made." See id. at 957. Unlike Willie , Mr. Taylor's conduct and the surrounding circumstances in the pr esent case fail to demonstrate a knowing and intelligent waiver of Mr. Taylor's ri ght to counsel. Consequently, we conclude the trial court violated Mr. Taylor's S ixth Amendment right to counsel by failing to obtain an effective waiver of that right.

Notwithstanding our conclusion, the government argu es in the alternative that because Mr. Taylor did not unequivocally waive his right to counsel, Mr. Taylor received a hybrid form of representation. T he government claims the trial court was under no obligation to ensure Mr. Taylor intelligently and knowingly waived his right to counsel because the representat ion was hybrid.

The government cites United States v. Leggett , 81 F.3d 220 (D.C. Cir. 1996) in support of its hybrid representation argum ent. In Leggett , the defendant was indicted and tried on charges of bribery conspi racy and bribery. Id. at 222. On the second day of trial, the defendant complaine d to the court concerning his counsel's lack of knowledge on issues the defendantdeemed important to his defense. Id. at 224. When the court advised the defendant of h is constitutional right to represent himself, the defendant informed the court "he was 'not-18-

interested in representing [himself]' and was 'not interested in taking the lead,' but rather 'wanted clarification as to whether' he coul d 'interject certain questions' of a technical nature [to witnesses]." Id. at 225. Thereafter, the defendant crossexamined three government witnesses, posed question s to two defense witnesses, and made a closing argument to the jury following h is counsel's closing argument. Id. at 226. Although the jury found the defendant gui lty on the bribery conspiracy count, it did not reach a verdict on the bribery co unt. Id. at 223.

The defendant in Leggettappealed his conviction for bribery conspiracy, arguing, inter alia , the district court violated his Sixth Amendment r ights by allowing him to proceed pro se without first determining he had knowingly and willingly waived his right to counsel. Id. at 222. In reviewing the defendant's claim, the D.C. Circuit noted the trial court is on ly obligated to make the defendant aware of the dangers and disadvantages of self-representation where the defendant has chosen to proceed pro se . Id. at 224. According to the court, "[t]he law presumes that a defendant has not exerci sed his right to represent himself nor waived the right to counsel in the abse nce of an articulate and unmistakable demand by the defendant to proceed pro se ." Id. With respect to the defendant in Leggett , the court found the record clearly indicated he n ever waived his right to the assistance of counsel or invoked his right of self--19-

representation. Id. at 226. Consequently, the court held the Sixth Am endment did not require the district court to caution the d efendant concerning the perils and risks of self-representation. Id. at 226.

In the present case, as in Leggett , Mr. Taylor participated in his defense at trial along with the help of counsel. However, unl ike the defendant in Leggett who never invoked his right of self-representation, Mr. Taylor clearly elected to waive his right to counsel and proceed pro se . Prior to trial, Mr. Taylor filed an appearance form indicating himself as counsel and M r. Wells moved to withdraw as counsel of record, stating Mr. Taylor intended t o represent himself. Although the court never granted Mr. Wells' motion to withdr aw, the court informed Mr. Taylor on the first day of trial that "as someone [ a]ppearing on his own behalf, it's your right to do that, and we'll try the case just as well as we can under these circumstances." The court went on to encourage Mr. Taylor to seek Mr. Wells advise on unfamiliar matters. Thus, we believe the record establishes Mr. Taylor unequivocally invoked his right of self-representat ion and the court recognized such invocation. Mr. Wells' role in Mr. Taylor's d efense was purely as an advisory counsel. Because Mr. Taylor made an "arti culable and unmistakable" demand to proceed pro se , the trial court was obligated to ensure Mr. Taylo r's waiver of counsel was knowingly and intelligently m ade. See Leggett , 81 F.3d at2We note neither the appointment of advisory couns el nor the defendant's

reliance on such counsel can relieve the trial court of its duty to ensure a defendant's waiver of counsel is knowingly and inte lligently made. See Padilla , 819 F.2d at 959-60 ("the presence of advisory couns el in the courtroom or the defendant's acquiescence in counsel's participationdoes not, by itself, relieve the district court of its responsibility to ensure thatdefendant's waiver of counsel is knowingly and intelligently made. Anything less th an full representation by counsel raises the question of valid waiver of the right to counsel.").

-20- 224. The trial court's failure to secure such a wa iver violated Mr. Taylor's Sixth Amendment right to counsel. 2 Having determined the district court violated Mr. T aylor's right to competent counsel, we must next consider whether th is violation is subject to harmless error review. In Allen , we interpreted the Supreme Court's decision in Penson v. Ohio , 488 U.S. 75 (1988), to preclude the application o f harmless error analysis to waiver of counsel cases. Allen , 895 F.2d at 1579-80. "'[T]he right to counsel is "so basic to a fair trial that [its] inf raction can never be treated as harmless error."'" Id. at 1580 (quoting Penson , 488 U.S. at 353-54.) Thus, the violation of Mr. Taylor's Sixth Amendment right to counsel in the case at bar was not harmless error.

B. Sufficiency of the Evidence3 Although we have determined Mr. Taylor's Sixth Am endment right to

counsel was violated and Mr. Taylor is entitled to a new trial on all the charges against him, we must still determine whether the ev idence was sufficient to support his conviction for possession of a firearm by a convicted felon. See United States v. Morris , 612 F.2d 483, 491-92 (10th Cir. 1979) (considerin g appellants' sufficiency of the evidence argument af ter determining appellants were entitled to new trial because of violation of appel lants' right to unanimous verdicts). If the evidence was not sufficient to s upport that charge, as Mr. Taylor contends, the government would be precluded from re trying Mr. Taylor on that charge under the Double Jeopardy Clause of the Fifth Amendment. Id.

-21- Mr. Taylor also asserts the evidence at trial was i nsufficient to support his conviction on Count 5, possession of a firearm by aconvicted felon. 3 In reviewing the sufficiency of the evidence in a crim inal case, "'[t]he evidence -- both direct and circumstantial, together with reaso nable inferences to be drawn therefrom -- is sufficient if, when taken in the li ght most favorable to the government, a reasonable jury could find the defend ant guilty beyond a reasonable doubt.'" United States v. Sanders , 929 F.2d 1466, 1470 (10th Cir.) (quoting United States v. Hooks , 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128 (1986)), cert. denied, 502 U.S. 846 (1991). The evidence presented to support a conviction must be substanti al; it must do more than raise a mere suspicion of guilt. Sanders , 929 F.2d at 1470.

The jury in this case convicted Mr. Taylor of violating 18 U.S.C. § 922(g)(1) by possessing a Jennings Bryco nine mil limeter pistol. 18 U.S.C.-22-

§ 922(g)(1) prohibits any person who has been convi cted of a crime punishable by imprisonment for a term exceeding one year from pos sessing "in or affecting commerce, any firearm or ammunition." To obtain a conviction under § 922(g)(1), the government must establish three elem ents beyond a reasonable doubt: (1) the defendant was previously convicted of a felony; (2) the defendant thereafter knowingly possessed a firearm; and (3) the possession was in or affecting interstate commerce. United States v. Capps , 77 F.3d 350, 352 (10th Cir.), cert. denied, 116 S. Ct. 2568 (1996). Here, Mr. Taylor contend s the United States failed to establish beyond a reasonable doub t the second element of this statute -- he knowingly possessed the Jennings Bry co nine millimeter pistol. According to Mr. Taylor, there is insufficient evid ence to prove he actually or constructively possessed the firearm.

It is well settled the required "possession" for pu rposes of § 922(g) includes both actual and constructive possession. See United States v. Mills , 29 F.3d 545, 549 (10th Cir. 1994). Generally, an individual has constructive possession over an object when he or she knowingly has ownership, d ominion, or control over the object and the premises where it is found. United States v. Hager , 969 F.2d 883, 888 (10th Cir.), cert. denied, 506 U.S. 964 (1992); Mills , 29 F.3d at 549. In most cases, dominion, control, and knowledge may be infe rred where a defendant has-23-

exclusive possession of the premises; however, "joi nt occupancy alone cannot sustain such an inference." Mills , 29 F.3d at 549. "In cases of joint occupancy, where the government seeks to prove constructive po ssession by circumstantial evidence, it must present evidence to show some con nection or nexus between the defendant and the firearm or other contraband.'" Id. In order to sustain a conviction based upon constructive possession, the government must present "'some evidence supporting at least a plausible inf erence that the defendant had knowledge of and access to the weapon or contraband ." Id. at 549-50 (quoting United States v. Mergerson , 4 F.3d 337, 349 (5th Cir. 1993), cert. denied, 510 U.S. 1198 (1994)).

In the case at bar, it is undisputed there is no ev idence Mr. Taylor ever actually possessed the Jennings Bryco nine millimet er handgun. However, the government contends it proved Mr. Taylor constructi vely possessed the weapon. The Oklahoma police discovered the pistol in the cl oset of the northeast bedroom of apartment 120. The evidence at trial indicated Mr. Taylor was residing (albeit temporarily) at apartment 120 along with Mr. Wallac e and Mr. Banks on August 2, 1995. Because there was joint occupancy of the premises where the gun was found, the government is required to produce some e vidence to establish a nexus between Mr. Taylor and the firearm. Mills , 29 F.3d at 549.-24-

In support of its argument that Mr. Taylor construc tively possessed the Jennings Bryco nine millimeter pistol, the governme nt points to the testimony of Burgundy Pierce. Ms Pierce testified she saw Mr. T aylor with a small handgun on one or two occasions. However, the date on whic h Ms. Pierce allegedly observed Mr. Taylor carrying a gun is unclear from Ms. Pierce's testimony. Furthermore, her description of the gun is vague an d inconsistent with that of a Jennings Bryco nine millimeter pistol. Ms. Pierce stated she believed the gun she saw was a revolver. She also stated "it was one of those [guns] you have to squeeze the trigger each time [to fire]." Althougha nine millimeter pistol fits the latter description, a nine millimeter is a semiauto matic weapon, not a revolver. Thus, we do not believe Ms. Pierce's testimony suff iciently established Mr. Taylor ever possessed or even had knowledge of the nine mi llimeter Jennings Bryco pistol discovered in apartment 120.

The government also contends it proved constructive possession through the testimony of Jimmy Reed. Mr. Reed testified he saw a .380 handgun laying on the fireplace mantle of apartment 120 on more th an one occasion. We believe the testimony of Mr. Reed is irrelevant to the issu e of whether Mr. Taylor constructively possessed the nine millimeter handgu n. Count 5 of the indictment charged Mr. Taylor with knowingly possessing a Jenn ings Bryco nine millimeter-25-

firearm, not a .380 caliber pistol. Although Count6 of the indictment charged Mr. Taylor with the unlawful receipt of a .380 pist ol in violation of 18 U.S.C. § 922(k), the jury acquitted Mr. Taylor on that charge Hence, we do not believe Mr. Reed's testimony concerning the .380 pistol est ablishes any nexus between Mr. Taylor and the Jennings Bryco nine millimeter h andgun.

The government also contends the fact Western Unionreceipts and pawn shop tickets belonging to Mr. Taylor were found in the northeast bedroom established a sufficient nexus between Mr. Taylor and the Jennings Bryco nine millimeter handgun. While it is undisputed the Wes tern Union receipts and pawn shop tickets found in the northeast bedroom belonge d to Mr. Taylor, these documents were not found in the same location as th e gun. The gun was found in the closet, while the Western Union receipts and pawn shop tickets were found in an entertainment center. The government did not introduce any evidence connecting the Western Union receipts or pawn shop tickets to the gun or any other evidence discovered in the closet. Thus, the Western Union receipts and pawn shop tickets merely established a connection b etween Mr. Taylor and the northeast bedroom, not between Mr. Taylor and the g un.4The Oklahoma police arrested Mr. Reese during a s earch of Silvercrest

Apartment 159 on August 2, 1995. The police appare ntly executed search warrants for apartments 120 and 159 at the same tim e. -26- If the government had established Mr. Taylor was th e sole occupant of the northeast bedroom, we could sustain Mr. Taylor's § 922(g)(1) conviction on the basis of the Western Union receipts and pawn shop t ickets. See United States v. Owens , 70 F.3d 1118, 1127 (10th Cir. 1995) (evidence suf ficient to establish constructive possession under § 922(g) where defend ant was arrested while sleeping in bedroom, a semiautomatic handgun was un der the bed, and there was no indication he shared his bedroom with anyone els e). However, joint occupancy of a bedroom, without more, is insufficie nt to support a commission of constructive possession of a gun found in a bedroom

. United States v. Sullivan , 919 F.2d 1403, 1431 (10th Cir. 1990). The evidence at trial indicated joint occupancy of the northeast bedroom. When the offic ers entered apartment 120 on August 2, 1995, the police found and arrested Mr. W allace in the northeast bedroom, not Mr. Taylor. Furthermore, during the s earch of the northeast bedroom closet, the police seized a jacket containi ng a bus ticket in the name of Eric Reese. 4Because the evidence indicated joint occupancy of the northeast bedroom, we cannot infer Mr. Taylor had constructiv e possession of the handgun from the mere fact Mr. Taylor was one of the bedroo m's occupants.-27-

Based on our review of the entire evidence, which w e conducted in the light most favorable to the government, we do not b elieve a reasonable jury could conclude beyond a reasonable doubt Mr. Taylor actua lly or constructively possessed the Jennings Bryco nine millimeter handgun. Not only did the government fail to present any evidence tending to show Mr. Taylor had any knowledge of the gun, but it also failed to establi sh any nexus between Mr. Taylor and the gun. Consequently, we find Mr. Taylor's co nviction under 18 U.S.C. § 922(g)(1) must be reversed based on insufficient evidence.

IV. CONCLUSION Based on the foregoing reasons, we hereby reverse M r. Taylor's conviction on Count 5, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). We also reverse and remand Mr. Taylor's remaining convictions to the district court for proceedings c onsistent with this opinion.