No Longer Playing Nevils Advocate: The Ninth Circuit Constricts Appellate Review for Insufficiency of Evidence Claims

IntroductionEarl Nevils was convicted of being a felon in possession of firearms and ammunition, and he appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit.1 He argued that the government did not present enough evidence that he knowingly possessed firearms and ammunition.2 Agreeing with Nevils, a divided panel found that there was insufficient evidence that he had possessed the weapons knowingly, and it reversed the judgment and remanded the case for a judgment of acquittal (Nevils I ).3 Shortly after the panel's decision, the U.S. Supreme Court heard arguments in McDaniel v. Brown, a case in which the Ninth Circuit had affirmed the granting of a habeas petition due to insufficient evidence.4 Finding "ample" evidence of guilt, the Court in McDaniel reversed the Ninth Circuit in January 2010.5 After the Supreme Court heard arguments in McDaniel, the Ninth Circuit reheard Nevils's case en banc, and then following the Court's decision in McDaniel, the en banc court ruled in Nevils's case that the government presented sufficient evidence and affirmed his conviction (Nevils II ).6 The conflicting conclusions of the panel and en banc court stem from different applications of the same legal standard for insufficiency of evidence.7 Which application a court chooses will drastically impact the roles for juries and appellate courts in future appeals.8Part I of this Comment narrates Nevils's crime and follows its journey through the legal system.9 Part II examines how the Ninth Circuit panel and en banc court reached different conclusions from supposedly the same legal standard and examines the divergent effects of each.10 Finally, Part III explores the policy interests in this debate and argues that for reasons philosophical, practical, and constitutional, it is wise to limit an appellate court's role in evaluating the sufficiency of evidence.11I. Nevils's Arrest and AppealsThe Nevils I panel and the Nevils II en banc court both stated essentially the same facts.12 On the night of April 14, 2003, Officers Jason De La Cova and Jason Clauss of the Los Angeles Police Department followed a suspect into an apartment complex in a high-crime neighborhood of south Los Angeles.13 Upon entering the complex, the officers encountered an unlocked apartment, which the man whom they were pursuing had considered entering.14Inside, the officers saw, alone and asleep on a couch, the defendant Earl Nevils.15 A loaded Tec-9 semi-automatic weapon with a round chambered sat on his lap, and a .40-caliber handgun, also loaded, also with a round chambered, leaned against his right leg.16 Only a foot from the couch was "a coffee table, laden with marijuana packaged for sale, ecstasy, over $500 in cash, and a cell-phone."17 Weapons drawn, Officers De La Cova and Clauss swept the room and approached Nevils.18 As they drew near, he awoke and, according to the testimony of Officer Clauss, "appeared like he was going to, you know, grab towards his lap and then he stopped and put his hands up."19 Officer De La Cova, however, mentioned no such pause, instead testifying that the events were "almost immediate" and that Nevils "jumped up as a startled jump and rolled over onto the ground."20 After his arrest, Nevils told a police sergeant: "I don't believe this shit. Those motherfuckers left me sleeping and didn't wake me."21Although Nevils was only booked on the charge of possession of marijuana for sale, he was eventually charged, tried and convicted in federal court on a single count of being a felon in possession of firearms and ammunition.22 The crime has 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."23 Nevils twice sought acquittal due to insufficient evidence under Federal Rule of Criminal Procedure 29.24 Both motions were denied.25Following his conviction, Nevils appealed to the Ninth Circuit. …