                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-1951

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

C ORY L. G RIFFIN,
                                          Defendant-Appellant.


            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
        No. 2:08-cr-00195-RTR-1—Rudolph T. Randa, Judge.



       A RGUED M ARCH 30, 2012—D ECIDED JULY 5, 2012




  Before B AUER, P OSNER, and H AMILTON, Circuit Judges.
  H AMILTON, Circuit Judge. A jury convicted Cory Griffin
of intentional possession of a firearm and ammunition
as a convicted felon in violation of 18 U.S.C. § 922(g)(1).
On appeal, Griffin’s principal argument is that the evi-
dence presented at his trial was not sufficient to
support his conviction because there was no evidence
that he actually intended to exercise any control over
his father’s firearms in his parents’ home where he was
2                                              No. 11-1951

living at the time. We agree and therefore reverse
his conviction. Griffin was present in a home where
firearms were present, but the government offered no
evidence that would have allowed a reasonable jury to
find beyond a reasonable doubt that he had construc-
tive possession of the firearm and ammunition for
which he was convicted by intending to exercise con-
trol over them.


I. The Evidence Against Griffin
  Because we are reviewing a conviction for suf-
ficiency of the evidence, we state the facts and review
the evidence in the light most favorable to the govern-
ment, giving it the benefit of conflicts in the evidence
and reasonable inferences from the evidence. Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979). After defendant
Cory Griffin was released from prison in April 2008
under court supervision, he moved into his parents’ single-
family home in Milwaukee. In preparation for that
move, Griffin’s probation officer, LaTasha Perry, con-
tacted his father by telephone to learn whether it would
be suitable for Griffin to move into his parents’ home.
Probation Officer Perry also met with Griffin himself
and reviewed the rules for his community supervision,
which he signed. Rule 12 reads: “You shall not pur-
chase, possess, own or carry any firearm or any weapon
unless you get approval in advance from your agent.”
Approximately two weeks after Griffin moved into
his parents’ home, Perry conducted a home visit, although
she did not inspect the home for contraband because
she was unaccompanied.
No. 11-1951                                             3

  About a week after Perry’s home visit, a police
S.W.A.T. team executed a search warrant on the Griffin
home looking for the defendant’s brother Chauncy. The
S.W.A.T. team did not find Chauncy, but they did find
the defendant, as well as ten firearms and five sets of
ammunition. The firearms and ammunition belonged to
the defendant’s father, Phil Griffin, an avid hunter, and
to three of his friends who regularly hunted together.
We must be specific about the firearms because the de-
fendant was convicted of possessing only one shotgun
and two sets of ammunition. The police found two re-
volvers behind the headboard of the bed of defendant’s
parents, two shotguns and a rifle in their closet, a
shotgun behind the door in the kitchen that leads to
the second floor, and four shotguns behind the kitchen
refrigerator. Ammunition was found in the defendant’s
parents’ nightstand, on the stairs between the first
and second floors, in the basement on top of a pool table,
and in the basement on top of a television. The police
had previously determined that the defendant had a
felony conviction, so they arrested him after they com-
pleted the search of his parents’ home. The federal gov-
ernment charged Griffin with possession of all the fire-
arms and ammunition recovered from his parents’ home
during the search.
  Probation Officer Perry testified at the defendant’s
trial. The prosecution asked Perry what someone under
her supervision should do if he discovers a gun in
the place where he is living. Perry responded that the
supervisee should contact his probation officer immedi-
ately so that the probation officer could find the super-
4                                             No. 11-1951

visee an alternate place to live. She also testified
that during her conversation with Phil Griffin, the defen-
dant’s father, she told him that there could be no
firearms in the home if the defendant lived there, and
that Phil Griffin said he understood. She did not testify,
however, that she had ever told defendant Cory Griffin
the same thing. Father Phil Griffin in his testimony dis-
puted Perry’s account of their conversation, denying
that she ever mentioned firearms. He acknowledged,
however, that police had removed seven of the guns
from the home in 2004 in connection with the de-
fendant’s legal troubles, and the defendant himself also
testified that he knew that his father’s guns had been
removed from the home when he was arrested in 2004.
  The government also called Mario Walker, who was
in jail with Griffin while the felon-in-possession charge
was pending. Walker testified that Griffin told him that
the police had come into his parents’ house and found
ten guns — eight shotguns and two pistols, and that
two of the firearms had been hidden in the back of an
appliance. Walker further testified that the defendant
told him that his father had purchased some of the
shotguns for the defendant and that the two handguns
belonged to the defendant and were hidden behind
the stove.
  The jury convicted Griffin. Because the felon-in-posses-
sion charge covered several firearms and sets of ammuni-
tion, the jurors were properly instructed that they
would need to agree unanimously on Griffin’s posses-
sion of one or more specific firearms or sets of ammuni-
No. 11-1951                                                5

tion to find him guilty. The jury found that Griffin had
possessed only the shotgun found behind the kitchen
door and two sets of ammunition found on the stairs
between the first and second floors. The district court
sentenced Griffin to 60 months in prison and three years
of supervised release. Griffin has appealed.


II. Discussion
   Griffin argues that the evidence was insufficient to
support the jury’s conclusion that he possessed the shot-
gun behind the kitchen door and the ammunition on
the stairs of his parents’ home. A defendant challenging
the sufficiency of the evidence supporting a jury’s verdict
bears a “heavy burden.” United States v. Olson, 978 F.2d
1472, 1478 (7th Cir. 1992). To prevail, Griffin must show
that no rational trier of fact could have found that the
government proved the essential elements of the crime
beyond a reasonable doubt. See United States v. Morris,
576 F.3d 661, 666 (7th Cir. 2009). Both the evidence and
all of the reasonable inferences that can be drawn from
it are viewed in the light most favorable to the govern-
ment. United States v. Garrett, 903 F.2d 1105, 1109 (7th Cir.
1990).
   To convict a defendant on a charge of possessing a
firearm or ammunition after a previous felony convic-
tion, the government must prove that (1) the defendant
has a previous felony conviction, (2) the defendant pos-
sessed the firearm or ammunition, and (3) the firearm or
ammunition had traveled in or affected interstate or
foreign commerce. 18 U.S.C. § 922(g)(1); United States v.
6                                               No. 11-1951

Harris, 587 F.3d 861, 866 (7th Cir. 2009). Griffin stipulated
to the first and third elements. He had a previous felony
conviction, and all the firearms and ammunition had
traveled in interstate commerce. The issue for trial was
whether Griffin knowingly possessed any firearms or
ammunition.
  The government had no evidence that Griffin himself
ever had actual physical possession of the shotgun
behind the kitchen door or the ammunition on the
stairs. There was no evidence of his fingerprints on
those items, nor did any witnesses testify that they
had seen Griffin holding or using them. Under the law,
however, unlawful possession can also include only con-
structive possession. The government’s theory at trial was
that Griffin constructively possessed the guns and am-
munition seized from his parents’ house. See United
States v. Katz, 582 F.3d 749, 752 (7th Cir. 2009) (explaining
actual and constructive possession). Constructive pos-
session is a legal fiction whereby a person is deemed to
possess contraband even when he does not actually
have immediate, physical control of the object. Morris,
576 F.3d at 666. Although constructive possession is a
legal fiction, it can lead to real convictions and punish-
ments. Constructive possession may be established by
demonstrating that the defendant knowingly had both
the power and the intention to exercise dominion and
control over the object, either directly or through others.
Katz, 582 F.3d at 752. This required “nexus” must connect
the defendant to the contraband, separating true pos-
sessors from mere bystanders. See Morris, 576 F.3d at
666; United States v. Quilling, 261 F.3d 707, 712 (7th
No. 11-1951                                              7

Cir. 2001); United States v. Richardson, 208 F.3d 626, 632
(7th Cir. 2000); United States v. Windom, 19 F.3d 1190,
1200 (7th Cir. 1994).
  In constructive possession cases, the necessary con-
nection between the defendant and the contraband is
typically shown in one of two ways. First, if the govern-
ment demonstrates that the defendant had “exclusive
control” over the property where the contraband was
discovered, a jury may reasonably infer that he construc-
tively possessed the items, including the contraband,
found on that property. United States v. Castillo, 406
F.3d 806, 812 (7th Cir. 2005). Exclusive control over the
premises allows the jury to infer the knowledge and
intent to control objects within those premises, and ac-
cordingly we have held that constructive possession can
be established by demonstrating that a firearm was
seized at the defendant’s residence. See United States v.
Pritchard, 745 F.2d 1112, 1124 (7th Cir. 1984) (“The fact
that the firearms in question were seized during a
search of appellant’s residence in an area over which
he exercised dominion and control is sufficient evi-
dence from which to infer that appellant constructively
possessed those weapons.”). Second, in the absence of
exclusive control, “evidence that a defendant had a ‘sub-
stantial connection’ to the location where contraband
was seized is sufficient to establish the nexus between
that person and the [contraband].” Morris, 576 F.3d at 667.
  The government argues that, even though Griffin did
not have exclusive control of the residence, he had a
“substantial connection” to it, and that constructive
8                                               No. 11-1951

possession has been found in similar circumstances. In
essence, the government argues that residency alone
is enough to connect the defendant to the guns even in a
joint residence. Griffin argues that neither control over
the surrounding areas nor proximity to and awareness
of the contraband is sufficient by itself to sustain a guilty
verdict. Rather, Griffin argues, we have looked for
some sort of “plus factor” that ties the defendant to the
contraband. In each of our cases finding constructive
possession in the context of a joint residence, argues
Griffin, the evidence reflected more than mere residency
and knowledge that the contraband was present.
  We have explained repeatedly that mere proximity to
contraband is not enough to establish a sufficient nexus
to prove constructive possession. See, e.g., Morris, 576
F.3d at 666 (“Proximity to the item, presence on the
property where the item is located, or association with
a person in actual possession of the item, without more,
is not enough to support a finding of constructive pos-
session.”); see also United States v. Hampton, 585 F.3d 1033,
1041 (7th Cir. 2009) (“[M]ere proximity to the object alone
is not enough to prove knowledge of the item.”). Rather,
“proximity coupled with evidence of some other factor—
including connection with [an impermissible item],
proof of motive, a gesture implying control, evasive
conduct, or a statement indicating involvement in an
enterprise is enough to sustain a guilty verdict.” Morris,
576 F.3d at 668, quoting United States v. Richardson, 161
F.3d 728, 732 (D.C. Cir. 1998). In fact, “[e]ven when a
defendant continues to have weapons in his home that
he legally obtained before his felony convictions, he is
No. 11-1951                                                   9

not guilty of violating 18 U.S.C. § 922(g)(1) without a
showing that he exercised control over the firearms.”
United States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003).
  Some of our cases cited by the government, however,
use broad language that seems to support the argument
that a “substantial connection” to a location is sufficient
to establish a nexus to specific items of contraband in
the location. See Richardson, 208 F.3d at 632 (“[I]t is ap-
parent that Richardson had a substantial connection to
the house . . . . This is enough to prove that Richardson
had control over the property and to establish a nexus
between the contraband and Richardson.”); United States
v. Kitchen, 57 F.3d 516, 521 (7th Cir. 1995) (“If [Kitchen]
in fact resided at Williams’s home, then he had the
power to exercise control over the two firearms.”); Morris,
576 F.3d at 667 (“In the absence of exclusive control,
evidence that a defendant had a ‘substantial connection’
to the location where contraband was seized is sufficient
to establish the nexus . . . .”); United States v. Caldwell, 423
F.3d 754, 758 (7th Cir. 2005) (“The foregoing evidence
provided the jury with a rational basis to conclude that
the 4758 S. Lawler home was Caldwell’s residence at the
time in question, which is sufficient to establish that
he had constructive possession of the firearms seized
there.”); United States v. Alanis, 265 F.3d 576, 592 (7th Cir.
2001) (“We have repeatedly held that ‘constructive pos-
session may be established by a showing that the fire-
arms was seized at the defendant’s residence.’ ”), quoting
United States v. Walls, 225 F.3d 858, 867 (7th Cir. 2000).
  When we look more closely at the facts, the tension
between these two lines of cases can be resolved. Not-
10                                               No. 11-1951

withstanding the broader “substantial connection” lan-
guage in the joint residence cases cited by the govern-
ment, in each one something more than the defendant’s
residence linked him to the contraband. The facts demon-
strated not just a substantial connection between the
defendant and the location, but also a substantial con-
nection between the defendant and the contraband itself.
In Richardson, for example, the gun was found in Richard-
son’s bedroom lying on his bed next to envelopes ad-
dressed to him and prescription medications with his
name and the home’s address on the labels. 208 F.3d at
628. Similarly, in Kitchen, the seized guns were recovered
from a bedroom that also contained a number of Kitchen’s
possessions—a gold bracelet with his gang nickname,
bills and papers bearing his name, and men’s clothing.
57 F.3d at 519-20. In Morris, the defendant fled from
police, and we have identified a defendant’s flight as
“something more” that is sufficient to overcome the mere-
presence principle. 576 F.3d at 668; see also United States v.
Starks, 309 F.3d 1017, 1025 (7th Cir. 2002). In Caldwell, a
witness testified that he saw the defendant with the same
handgun seized by government agents shortly before the
time period charged in the indictment. 423 F.3d at 758. In
Alanis, the gun was found in a nightstand next to the
defendant’s bed with his eyeglasses, clothing, and wallet
nearby. 265 F.3d at 592.
  The facts in these cases make clear that when the defen-
dant jointly occupies a residence, proof of constructive
possession of contraband in the residence requires the
government to demonstrate a “substantial connection”
between the defendant and the contraband itself, not
No. 11-1951                                               11

just the residence. See Castillo, 406 F.3d at 813 (“[I]f the
defendant jointly occupies the premises, the Govern-
ment must present some evidence that supports a
nexus between the weapon and the defendant.”); United
States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003) (“Even
where we have found constructive possession of
firearms when they are found in close proximity to the
defendants, the weapons were found in areas over which
the defendant exercised control, such as a bedroom,
garage, or workplace.”) (internal citations omitted).
  This approach is consistent with the approach taken
by our colleagues in several other circuits. For example,
in United States v. Bonham, 477 F.2d 1137 (3d Cir. 1973)
(en banc), the Third Circuit explained:
      When a person is the sole occupant of a room and
    has the right to exclude all others from it, it may
    logically be inferred that he has knowing dominion
    and control over objects so situated in his room that
    he is likely to be aware of their presence. But the
    situation is different where two persons share the
    occupancy of a room and the right to exclude
    others from it. Depending on the circumstances,
    either or both may have knowing dominion and
    control over a particular chattel, and choice be-
    tween these alternatives must be based on more
    than speculation.
Id. at 1138 (internal citation omitted). Accord, e.g., United
States v. Reese, 775 F.2d 1066, 1073 (9th Cir. 1985) (“Al-
though the firearms were discovered at Reese’s house,
Reese was not the only person residing there at the
12                                               No. 11-1951

time the guns were found. Where, as here, a residence
is jointly occupied, the mere fact that contraband is dis-
covered at the residence will not, without more, provide
evidence sufficient to support a conviction based on
constructive possession against any of the occupants.”);
United States v. McCane, 573 F.3d 1037, 1046 (10th Cir.
2009) (“When a defendant has exclusive possession of
the premises on which a firearm is found, knowledge,
dominion, and control can be properly inferred because
of the exclusive possession alone. However, in cases of
joint occupancy, where the government seeks to prove
constructive possession by circumstantial evidence, it
must present evidence to show some connection or
nexus between the defendant and the firearm. Proximity
alone is insufficient to establish knowledge and access
to (and dominion and control over) a firearm in a joint
occupancy case.”) (internal quotation marks and cita-
tions omitted); United States v. Ford, 993 F.2d 249, 252 (D.C.
Cir. 1993) (“[I]n cases in which contraband or firearms
are discovered in a place occupied by more than one
person, the Government must establish the likelihood
that in some discernable fashion the accused had a sub-
stantial voice vis-à-vis the items in question. In other
words, the Government cannot rest its case on the
mere circumstance that a defendant was close to or had
access to the illegal items; there must be some action,
some word, or some conduct that links the individual to
the illegal items and indicates that he has some stake in
them, some power over them.”) (internal quotation
marks and citations omitted); see also United States v.
Mergerson, 4 F.3d 337, 349 (5th Cir. 1993) (“Although we
No. 11-1951                                           13

do not adopt the ‘affirmative link’ test adopted by some
of these courts, we do believe that something else (e.g.,
some circumstantial indicium of possession) is required
besides mere joint occupancy before constructive pos-
session is established.”) (internal citation omitted).
  The government contends that it had “something
more” in this case to link Griffin to the seized firearm
and ammunition. The government urges that Griffin’s
“intent to possess the firearm and ammunition of which
he was convicted is best shown by his failure to separate
himself from them despite his practical knowledge that
this was necessary,” and that Griffin knew “as a pro-
hibited person he was not supposed to live in a residence
where those guns were kept.” This argument is not per-
suasive for two reasons. First, even when viewed in
the generous light we must cast in support of the jury’s
guilty verdict, the cited evidence simply does not show
what the government says it shows. Even if we assume
that Griffin knew that his father’s guns had been
removed from the house in 2004 in connection with Grif-
fin’s arrest at that time, that knowledge does not
translate into proof that Griffin knew that “as a prohib-
ited person he was not supposed to live in a residence
where those guns were kept.”
  Along the same lines, there is no evidence that Pro-
bation Officer Perry communicated to Griffin himself
her advice that “someone under her supervision” who
discovers a gun in his residence should contact
her immediately to receive a new residential place-
ment. Nor is there any evidence that Griffin knew of
14                                            No. 11-1951

Perry’s direct warning to his father regarding guns in the
house. (We put aside for this case the question whether
failure to comply with an overly conservative warning
would be evidence of unlawful possession.) Thus, none
of the evidence cited by the government actually sup-
ports a finding that Griffin intended to exercise
dominion or control over the guns and ammunition.
   This argument suffers from a second, more funda-
mental problem. It confuses access with possession.
Neither the felon-in-possession statute nor the terms of
Griffin’s conditional release prohibited him from living
in a home where firearms were otherwise lawfully pres-
ent. Both prohibit only his possession of firearms
and ammunition. We recognize that Griffin’s easy access
to the weapons may have meant that, sitting in the
kitchen, he was capable of violating the felon-in-posses-
sion statute in a matter of seconds. Without more, how-
ever, that easy access does not mean that he actually
violated the felon-in-possession statute by intending
to exercise control over any of the firearms. “A jury
cannot speculate its way out of reasonable doubt.” Katz,
582 F.3d at 752. Accordingly, the previous seizure of the
firearms, what Probation Officer Perry presumably told
Griffin’s father during their phone call, and what con-
clusions Griffin may or may not have drawn from
the previous gun seizure and his meeting with Perry
are all insufficient to show constructive possession by
Griffin himself.
  Nor does Mario Walker’s testimony provide the “some-
thing more” missing from the government’s case. As
No. 11-1951                                             15

in many cases of supposed confessions to other pris-
oners, the credibility of Walker’s testimony was subject
to attack, but in light of the jury’s verdict, we accept it
at face value for purposes of appeal. The critical problem
with Walker’s testimony is that it did not attribute to
Griffin possession of the specific shotgun or ammunition
for which he was convicted. Walker testified that Griffin
had told him that two handguns hidden behind the
stove were his. No handguns were actually found
behind the stove, and the jury also did not find Griffin
guilty of possessing any handgun or even any of the
shotguns behind the refrigerator. We must assume that
the jury did not believe Walker on that point, or at least
did not believe him unanimously and beyond a rea-
sonable doubt.
   The government discounts the absence of testimony
from Walker tying Griffin to the specific shotgun and
ammunition for which he was actually convicted. The
government argues that the jury could have inferred
from Walker’s testimony about Griffin’s connection to
some of the guns seized from the residence that, at a
minimum, he intended to exercise control over the
firearm most readily at hand. There were, however, five
guns located in the kitchen, apparently mere steps
apart. We cannot discern how the gun behind the door
was any more readily available than the guns behind
the refrigerator, such that a non-arbitrary distinction can
be drawn between them. Walker’s testimony also
failed to provide the “something more” the government
needed to prove that Griffin constructively possessed
the shotgun and ammunition for which he was convicted.
16                                          No. 11-1951

III. Conclusion
  Even when we construe the evidence and all of the
reasonable inferences that can be drawn from it in the
light most favorable to the government, the evidence
was not sufficient to support a finding, beyond a rea-
sonable doubt, that Griffin intended to exercise control
over his father’s shotgun and the nearby ammunition.
Griffin’s conviction is therefore R EVERSED.




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