Sunday, June 21, 2009

Evidence in Plain Sight Indmissible: Rehearing Ordered: U.S. Nevils, 548 F.3d (9th Cir. 2009)

U.S. v. Nevils, 548 F.3d 802 (9th Cir. 2008) Rehearing ordered, June 16, 2009; 570 F.3d 1123 (9th Cir. 2009) Only in the Ninth Circuit could an appellate court decide a case like this. The result is so inconceivable the court has ordered a rehearing en banc. Police officers entered an apartment and found Nevils asleep with a loaded automatic weapon in his lap and a loaded handgun by his side. Drugs and money were in plain sight on a nearby nightstand. Needless to say the jury convicted Nevils. The court majority (2-1) did not think Nevils knowingly possessed the weapons, and some unknown party had left all these items in plain sight. Aside from ignoring the fact the jury heard all the evidence and obviously disbelieved the defendant, the Ninth Circuit majority reversed. From the dissent to a reversal on appeal of a defendant convicted or possessing firearms: "Earl Nevils [defendant] was surprised when two LA police officers with guns drawn ordered him not to move [from a sleeping position in bed]. 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 [2-1] majority panel overturns his conviction because it finds the evidence insufficient to show that Nevils knowingly possessed the weapons. 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. I respectfully dissent."

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