                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,               
                  Plaintiff-Appellee,
                 v.                           No. 06-50485
EARL ANTHONY NEVILS, a/k/a EARL
NEVILS, JR., EARL BOWMAN; EARL                 D.C. No.
                                            CR-03-01269-CBM
JOHNSON, ALFRED JOHNSON,
                                                OPINION
“BABYCRIPTOE”, “LILAMIGO” and
“BABY FROG,”
              Defendant-Appellant.
                                        
       Appeal from the United States District Court
           for the Central District of California
      Consuelo B. Marshall, District Judge, Presiding

                 Argued and Submitted
          December 3, 2007—Pasadena, California

                  Filed November 20, 2008

      Before: Thomas G. Nelson, Richard A. Paez, and
               Jay S. Bybee, Circuit Judges.

                   Opinion by Judge Paez;
                   Dissent by Judge Bybee




                            15691
15694                 UNITED STATES v. NEVILS


                             COUNSEL

Elizabeth A. Newman, Assistant Federal Public Defender,
Los Angeles, California, for the defendant-appellant.

Sandy N. Leal, Assistant United States Attorney, Los Ange-
les, California, for the plaintiff-appellee.


                             OPINION

PAEZ, Circuit Judge:

   Earl Nevils appeals from a jury conviction for being a felon
in possession of firearms and ammunition in violation of 18
U.S.C. § 922(g)(1). We reverse the conviction because the
evidence offered at trial was insufficient with regard to the
element of knowing possession.1




  1
   Because we reverse Nevils’s conviction, we need not address his chal-
lenge to his sentence.
                    UNITED STATES v. NEVILS               15695
                    I.   BACKGROUND

   On April 14, 2003, LAPD officers specializing in anti-gang
enforcement were investigating unrelated criminal activity at
an apartment complex in a high-crime area of Los Angeles
when they encountered Earl Nevils asleep on a couch in one
of the apartments (Apartment 6). The officers were originally
following another man because he ran away when they
approached him and his friends on the street. As they fol-
lowed the man into the courtyard of the apartment complex,
he approached Apartment 6, started to enter, and then appar-
ently changed his mind and entered another apartment on the
other side of the courtyard. When the officers approached
Apartment 6 to investigate, their attention was diverted from
the other man to Nevils.

   The wooden door of Apartment 6 was off its hinges and
leaning against the interior wall, and the metal security door,
or screen door, was ajar. Inside, the officers could see Nevils
asleep on a couch. Leaning against Nevils’s body were two
firearms—one on his lap and another leaning against his leg.
There was a coffee table approximately one foot from the
couch. On the table were several items that the police later
determined to be baggies full of marijuana and ecstasy, a cell
phone, wrist watches, documents, and U.S. currency.

   The police officers entered the apartment with guns drawn,
conducted a “sweep,” and then began to approach Nevils. As
they approached, Nevils began to wake up. At that point, both
officers identified themselves and yelled for Nevils to get
down on the ground. Nevils either “rolled” or “slid[ ]” onto
the ground, and the officers arrested Nevils for drug posses-
sion. Both officers testified that Nevils “startled” awake. One
officer testified more specifically that, before Nevils’s rolled
or slid onto the ground, “his eyes . . . kind of came full —
fully opened and for a brief second he appeared like he was
going to, you know, grab towards his lap and then he stopped
and put his hands up.” The other officer did not mention any
15696                UNITED STATES v. NEVILS
brief pause; he stated that the events were “very quick” and
“almost immediate,” and that Nevils “jumped up as a startled
jump and rolled over onto the ground.” Some time after the
arrest, a sergeant who had arrived on the scene was question-
ing Nevils to make sure he was not injured, when Nevils
stated: “I don’t believe this shit. Those motherfuckers left me
sleeping and didn’t wake me.” Nevils was later booked on
charges of possession of marijuana for sale.

   Nevils was later charged and tried in federal court on a sin-
gle count of being a felon in possession of a firearm and
ammunition. The Government’s case consisted primarily of
the testimony of the two arresting officers setting forth the
incriminating circumstances surrounding Nevils’s arrest. In
his defense, Nevils presented evidence that he had been at a
party in a neighboring apartment all day, had become so
drunk that he could not stand, and was taken by friends to
Apartment 6 and laid on the couch (on his side “[s]o he
wouldn’t throw up”) to sleep it off. Jonnetta Campbell, who
helped take Nevils to Apartment 6, testified that at the time
she left Nevils on the couch and closed the door behind her,
there were no other people in Apartment 6, and no guns or
drugs were visible. It was undisputed at trial that Nevils did
not live in Apartment 6 and that many other people had access
to the vacant apartment, although Nevils was the only person
present when the police entered.

   At the close of the Government’s case and again at the
close of all the evidence, Nevils moved under Federal Rule of
Criminal Procedure 29 for a judgment of acquittal on the basis
of insufficiency of the evidence. The district court denied both
motions, and the jury found Nevils guilty.

   Nevils timely appealed.2 He argues that the evidence was
insufficient on the element of knowing possession. Nevils
points out that: (1) it is undisputed that he was asleep; (2) a
  2
   We have jurisdiction under 28 U.S.C. § 1291.
                    UNITED STATES v. NEVILS                15697
witness offered unrebutted testimony that he had gotten drunk
at a nearby party and had been taken to Apartment 6 to lie
down; and (3) no evidence—other than his presence—tied
Nevils to the firearms, or to the other items found in the apart-
ment (i.e., the drugs, the cell phone, the watches, and the U.S.
currency).

   The Government argues that the evidence of knowing pos-
session was sufficient because: (1) Nevils had “actual posses-
sion” of the firearms due to his physical contact with them;
(2) there was evidence that Nevils had been in Apartment 6
at least once before; (3) Nevils’s “gang affiliation . . . sup-
port[ed] the jury’s finding that [he] knowingly possessed the
firearms”; (4) Nevils “appeared like he was going to . . . grab
towards his lap” when he was awakened by the police; and (5)
Nevils made statements showing consciousness of guilt.

                     II.   DISCUSSION

   We review de novo the denial of a Rule 29 motion. United
States v. Esquivel-Ortega, 484 F.3d 1221, 1224 (9th Cir.
2007). In considering a challenge to the sufficiency of the evi-
dence, we review the entire record, “[v]iewing the evidence
in the light most favorable to the government,” and “must
determine whether any rational jury could have found [the
defendant] guilty of each element of the crime beyond a rea-
sonable doubt.” Id. We do not “question [the] jury’s assess-
ment of witnesses’ credibility, and must presume that the trier
of fact resolved any conflicting inferences in favor of the
prosecution.” United States v. Johnson, 229 F.3d 891, 894
(9th Cir. 2000) (internal quotation marks and footnote omit-
ted). Applying this standard, as we explain below, the evi-
dence was insufficient as a matter of law to support Nevils’s
conviction, and we therefore reverse and remand for entry of
a judgment of acquittal.
15698                  UNITED STATES v. NEVILS
      A.   Elements of an 18 U.S.C. § 922(g)(1) offense

   [1] The crime charged, being a felon in possession of a fire-
arm in violation of 18 U.S.C. § 922(g)(1), requires proof of
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 com-
merce.” United States v. Beasley, 346 F.3d 930, 933-34 (9th
Cir. 2003). The first element was conceded by stipulation, and
the third was not contested. The only disputed element at trial
was Nevils’s knowing possession of the firearms.3

   [2] Proof of knowing possession in the context of 18 U.S.C.
§ 922(g)(1) requires “that the defendant consciously pos-
sessed what he knew to be a firearm.” Id. at 934. “In general,
a person is in possession of something if the person knows of
its presence and has physical control of it, or has the power
and intention to control it.”4 United States v. Cain, 130 F.3d
381, 382 (9th Cir. 1997) (emphasis in original) (internal quo-
tation marks omitted); see also United States v. Ruiz, 462 F.3d
1082, 1088 (9th Cir. 2006) (“Possession of an item includes
the ability and intent to exercise control over that item.”).

   [3] “[T]he element of control necessary for possession [is
not] satisfied if it [i]s shown that the defendant was merely ‘in
the presence of the contraband and could reach out and take
it’ if he so desired.” United States v. Chambers, 918 F.2d
1455, 1459 (9th Cir. 1990) (quoting United States v. Terry,
  3
     The indictment also alleged possession of ammunition, but it was
undisputed that the ammunition in question was loaded inside the fire-
arms. The sufficiency analysis is thus identical with regard to both the
ammunition and the firearms.
   4
     This formulation is almost identical to that provided by our Circuit’s
model jury instructions. See Ninth Circuit Manual of Model Jury Instruc-
tions, Criminal § 3.18 (“Possession—Defined”) (2003 ed.) (“A person has
possession of something if the person knows of its presence and has physi-
cal control of it, or knows of its presence and has the power and intention
to control it.”).
                    UNITED STATES v. NEVILS                15699
911 F.2d 272, 280 (9th Cir. 1990)). Rather, “[w]e have held
repeatedly that neither proximity to the contraband, presence
on property on which contraband is recovered nor association
with a person having actual possession of the contraband is
sufficient proof of . . . possession.” Id. (collecting cases).
“Mere proximity, presence and association go only to the con-
traband’s accessibility, not to the dominion or control which
must be proved to establish possession.” Id. (emphasis in
original) (internal quotation marks omitted).

   [4] Possession can be either actual or constructive. See,
e.g., Chambers, 918 F.2d at 1457-58. The Government argues
that this case is an “actual” or “physical” possession case, and
that “constructive” possession cases discussing “mere proxim-
ity” therefore do not apply. The tenuous distinction between
“actual” and “constructive” possession, however, is not ana-
lytically useful in this case. See Ninth Circuit Manual of
Model Jury Instructions, Criminal § 3.18 (“Possession—
Defined”), cmt. (2003 ed.) (stating that instruction quoted
above at note 4 is “all-inclusive” and that “[t]here is no need
to attempt to distinguish further between actual and construc-
tive possession”); cf. Nat’l Safe Deposit Co. v. Stead, 232
U.S. 58, 67 (1914) (“[A]ctual possession and constructive
possession . . . often so shade into one another that it is diffi-
cult to say where one ends and the other begins.”). Ultimately,
possession—of whatever type—requires a showing that
Nevils had knowledge of the firearms and the ability and
intention to control them. Accordingly, rather than attempting
to sort this case as an “actual” or “constructive” possession
case, we focus on the dispositive requirements of knowledge
and ability and intention to control.

       B.   Sufficiency of the evidence of possession

   [5] Noting that Nevils was alone in Apartment 6 when he
was arrested, the Government argues that “a rational trier of
fact could find that the physical location of the firearms on
defendant’s lap and leaning against his leg, as well as the
15700               UNITED STATES v. NEVILS
presence of packaged drugs, a cell phone, and money within
a foot from where defendant lay, constituted possession of the
firearms. In short, the jury was entitled to rely upon his actual
possession of the firearms to infer that his possession was
knowing.” The Government argues that the “mere proximity”
cases cited above are irrelevant because here the firearms
were actually touching Nevils’s body. But the pivotal circum-
stance in this case is the undisputed fact that Nevils was
asleep (or passed out). Thus, the fact that the firearms were
physically touching him is not sufficient to show that he was
conscious of their presence, and the “mere proximity” cases
are quite relevant.

   [6] The Government is correct that, had Nevils been caught
running with a gun in his hand—or sitting on top of a gun
(while awake), see United States v. Gutierrez, 995 F.2d 169
(9th Cir. 1993)—the jury would be entitled to make an infer-
ence of knowledge, and the mere proximity cases would be
superfluous. Because Nevils was asleep, though, this is not a
paradigmatic “actual” possession case, and additional evi-
dence is necessary to allow an inference of knowledge. That
the weapons were touching Nevils is a factor tending to make
knowing possession more likely, but without evidence that
Nevils was aware of their presence, this fact is not enough.
See Chambers, 918 F.2d at 1459 (“[P]roximity . . . go[es] only
to the contraband’s accessibility, not to the dominion or con-
trol which must be proved to establish possession.” (emphasis
in original) (internal quotations omitted)).

   In Gutierrez, for example, proximity was coupled with the
facts that: (1) the defendant—who was awake—was “sitting
on top of a pistol” in the back seat of a car; (2) the police tes-
tified that the car’s occupants appeared to be hiding things as
they approached; and (3) the corner of the back seat appeared
to have been “hastily” torn back to conceal the weapon. 995
F.2d at 171-72 (noting that “testimony that the defendant may
have placed something in the spot where the police later
                    UNITED STATES v. NEVILS                15701
found the weapon can support a finding of possession” (inter-
nal quotation marks omitted)).

    Similarly, in United States v. Taylor, 154 F.3d 675 (7th Cir.
1998), the court affirmed a conviction for possession of a fire-
arm where evidence that the defendant was sleeping in the
same room as the firearm was accompanied by additional evi-
dence tying him to the apartment. There was “overwhelming”
evidence that Taylor lived in the apartment, and “[t]he weap-
ons were found in a padlocked closet near the bed in which
he slept, and the closet contained only men’s clothing and
cologne, as well as a receipt with his name on it.” Id. at 682.
Moreover, “[t]he record reveal[ed] no evidence of any other
man residing at the house.” Id. See also United States v. Cas-
tillo, 866 F.2d 1071, 1086-88 (9th Cir. 1988) (affirming con-
viction for possession of cocaine on similar facts, where
defendant had keys to apartment, defendant was sleeping in
locked bedroom where cocaine was found, and defendant’s
clothes were found in bedroom closet).

   On the other hand, in Ruiz, we reversed convictions under
§ 922(g)(1) because the defendants’ ties to the firearms and
the premises where they were found (a methamphetamine lab
operated on property on which several buildings stood) were
too undefined. 462 F.3d at 1090. Ruiz and codefendant
Noriega—both of whom admitted participating in a criminal
drug conspiracy on the property—were observed fleeing the
premises during a police raid, and “firearms were found in the
loft area, in the main part of the residence, in the garage and
in the stairwell of the main part of the residence.” Id. at 1088.
In reversing the convictions, we stated: “The most that can be
said in favor of a finding of possession of the firearms is that
Diaz, one of the co-conspirators, resided on the premises
where the drugs were found, and that Noriega and Ruiz both
had access to the residence. However, access to the premises
does not equate to possession.” Id. at 1089. We noted that
“there was no evidence . . . regarding a finite number of iden-
tified individuals who had access to the subject premises.” Id.
15702                   UNITED STATES v. NEVILS
We also rejected “the [Government’s] argument that ‘some-
body must have possessed the weapons because they were
there’ [as] insufficient evidence of control or intent to control
the weapons by one or more identified individuals.” Id.

   [7] None of the above cases is precisely on all fours with
our case, because of the special circumstance that the guns
were actually on or leaning against Nevils’s body as he slept.
Nevertheless, despite the close physical proximity of the guns
to Nevils, the fact remains that the circumstantial evidence of
knowledge and intent to control here falls far short of that
found sufficient in cases like Castillo or Taylor. The Govern-
ment did not offer evidence tying Nevils to any of the other
personal items in the apartment,5 as in Taylor, and it did not
offer any evidence that Nevils’s access to Apartment 6 was
exclusive. Not only did the Government fail to offer “evi-
dence . . . regarding a finite number of identified individuals
who had access to [Apartment 6],” Ruiz, 462 F.3d at 1089, it
was unable to rebut evidence that there was open access to
Apartment 6. Nor did the Government establish suspicious
behavior by Nevils similar to the defendants scrambling to
hide the guns in Gutierrez. See Gutierrez, 995 F.2d at 171.6

   The Government argues that “[h]ere, unlike Ruiz, witness
testimony not only links defendant to the firearms and [Apart-
  5
     A forensic officer testified that it was not possible to lift fingerprints
from the guns, and that the items on the coffee table were not tested for
fingerprints. The arresting officers testified that they did not recover
ammunition, drugs, money, or keys to Apartment 6 from Nevils’s person.
   6
     As noted above, here one officer testified that, immediately after being
awoken from a drunken stupor by screaming officers, Nevils “for a brief
second . . . appeared like he was going to, you know, grab towards his
lap.” On appeal, the Government cites this testimony as evidence that
Nevils was aware of the firearms’ presence. At trial, the Government did
not make any similar argument to the jury. In any case, unlike the specific
evidence of “ ‘furtive’ movements” in Guttierez, the officer’s speculative
and diffident testimony here is not the type of consciousness-of-guilt evi-
dence on which a reasonable juror could rely.
                    UNITED STATES v. NEVILS               15703
ment 6], but defendant was in actual possession of both
loaded firearms, and he was the only person in the apart-
ment.” First, this argument bootstraps by assuming the
proposition—actual possession—that it must prove. Second,
the Government fails to acknowledge that the defendants in
Ruiz were also directly linked to the subject premises. Among
other things, the Ruiz defendants were observed fleeing the
premises, admitted participating in a meth-production con-
spiracy on the premises, and admitted having access to the
premises. Finally, the Government fails to acknowledge that,
although Nevils was the only person in Apartment 6 when the
police entered, the evidence (1) established that other people
generally had access to the apartment, and (2) strongly
suggested—based on the various personal effects found on the
coffee table—that other people had been in the apartment
before the police arrived.

   In Ruiz, there was no question that the defendants were at
the subject premises, frequently, and were up to no good. The
relevant question was whether there was specific evidence to
show that they were aware of the weapons’ presence and had
the intent and ability to control the weapons. Similarly, here
there is no doubt that Nevils was in Apartment 6, or that he
had been there once before, allegedly up to no good (he was
arrested there several weeks earlier for violating his parole by
associating with gang members). The question was whether
there was sufficient evidence to allow a finding that he had
knowledge of, and the intent and ability to control, the fire-
arms. The Government claims that the officers’ observation of
Nevils—admittedly, asleep—with one gun on top of him and
the other next to his leg was sufficient to support a finding of
possession. But this argument amounts to little more than the
argument rejected in Ruiz—that “somebody must have pos-
sessed the weapons because they were there.” 462 F.3d at
1089.

  The Government did not present any other evidence linking
Nevils to the guns or to the other items in Apartment 6 (the
15704               UNITED STATES v. NEVILS
drugs, the phones, etc.). Further, Nevils was only slightly
linked to the apartment itself, having been there at least one
other time. Finally, as in Ruiz, and unlike in Taylor, there was
no reason to believe that Nevils regularly stayed in Apartment
6, much less that he had exclusive access to the apartment. To
the contrary, there was every reason to believe that the apart-
ment was open to all comers.

   [8] Nor does Nevils’s gang affiliation, familiarity with the
apartment complex, or Nevils’s prior experience with drugs
provide sufficient evidence to support an inference that he
was in knowing possession of a firearm on April 14, 2003.
Nevils’s mere presence at the scene and his general character
and history as a gang member are insufficient evidence of the
required mental state. See Spivey v. Rocha, 194 F.3d 971, 978
(9th Cir. 1999).

   In short, there is little to distinguish this case from cases
like Ruiz, other than the physical proximity of the firearms to
Nevils. If the firearms in this case had been found on the cof-
fee table—along with the drugs, cell phone, watches, U.S.
currency, and documents—there is no doubt that a judgment
of acquittal would be required, as no other evidence tied
Nevils to the firearms or the apartment, other than his pres-
ence in the apartment on one other occasion. See, e.g., Ruiz,
462 F.3d at 1088-89. Indeed, the district court here did not
hesitate at sentencing to find that the Government had failed
to prove—even by a preponderance of the evidence—that
Nevils possessed the drugs on the coffee table. In declining to
make such a finding, the district court emphasized that Nevils
“was asleep at the time.”

   The sufficiency of the Government’s evidence thus
depends on the distinction between the guns being found on
the coffee table and their being found on and leaning against
Nevils’s body as he slept. Despite the Government’s insis-
tence that the distinction itself is enough to demonstrate
Nevils’s “actual possession” of the firearms, possession—
                      UNITED STATES v. NEVILS                     15705
whether labeled actual or constructive—requires knowledge
of the object possessed and intent to control that object.
Knowledge and intent obviously require consciousness, at
some point. There was no direct evidence showing that Nevils
was ever conscious in Apartment 6 on April 14, 2003. All of
the evidence presented indicated that he was asleep and/or
passed out. The circumstantial evidence bearing on Nevils’s
mental state was similar to that we have repeatedly rejected
as insufficient. See, e.g., Esquivel-Ortega, 484 F.3d at 1226-
27; Ruiz, 462 F.3d at 1088-89; United States v. Corral-
Gastelum, 240 F.3d 1181, 1184 (9th Cir. 2001). Cf. United
States v. Vasquez-Chan, 978 F.2d 546, 551 (9th Cir. 1992)
(noting that we have held “evidence legally insufficient to
establish possession when the evidence suggested that a
defendant was merely caught in ‘extremely incriminating cir-
cumstances’ ”).

   [9] “When there is an innocent[7] explanation for a defen-
dant’s conduct as well as one that suggests that the defendant
was engaged in wrongdoing, the government must produce
evidence that would allow a rational jury to conclude beyond
a reasonable doubt that the latter explanation is the correct
one.” Vasquez-Chan, 978 F.2d at 549; see also Esquivel-
Ortega, 484 F.3d at 1227-28. Here, the Government did not
produce evidence that would allow a rational jury to conclude
beyond a reasonable doubt that Nevils was guarding the drugs
or otherwise consciously in possession of the guns, as
opposed to being passed out at the wrong place, at the wrong
time.
  7
   Innocence in this instance is used in a narrow sense. The question is
not whether the defendant was innocent of all wrongdoing, but whether
the inference in question renders him legally innocent of the crime
charged. For example, if a defendant was charged with possession of a
shotgun found in the trunk of a car he was driving, evidence that (1) the
defendant had stolen the car only minutes before being pulled over, and
(2) the shotgun was registered to the car’s rightful owner, would support
an “innocent” inference that the defendant lacked the requisite knowledge
to be convicted of possessing the shotgun.
15706               UNITED STATES v. NEVILS
   Although Nevils’s proffered explanation might seem
implausible in many towns and many apartment complexes,
cf. United States v. Perlaza, 439 F.3d 1149, 1177 (9th Cir.
2006) (“[This court] will accept a defendant’s allegedly ‘inno-
cent explanation’ only when that explanation is plausible.”),
it is not implausible given the evidence that this neighbor-
hood, this apartment complex, and Apartment 6 itself, were
neck-deep in gang activity and the illicit drug trade. Further,
the presence of several watches, a cell phone, other personal
items, and drugs packaged for retail sale—none of which
were tied to Nevils—supports the inference that other people
were in Apartment 6 before the police arrived.

   Finally, we reject the Government’s reliance on Nevils’s
post-arrest statement as supporting a jury inference of know-
ing possession. The statement “[t]hose motherfuckers left me
sleeping and didn’t wake me” is ambiguous and is subject to
multiple interpretations, and the Government did not produce
evidence sufficient to allow a jury to choose an inculpatory
interpretation. The Government argues that “the most reason-
able inference . . . from this statement was that defendant was
angry that his friends failed to warn him . . . something he
expected them to do because he knew he was illegally in pos-
session of guns and drugs.” To the contrary, the statement
merely demonstrates Nevils’s mastery of the obvious: some
person or persons (1) had been in Apartment 6, and then (2)
absconded and left him surrounded by the incriminating evi-
dence. The fact that Nevils realized he had been left high and
dry, and was not happy about it, is hardly incompatible with
his innocent explanation of his circumstances (i.e., that he was
asleep), and it does not show that Nevils had knowledge of
the firearms before being arrested.

   [10] Because there was a plausible innocent explanation for
the facts, the Government was required to “produce evidence
that would allow a rational jury to conclude beyond a reason-
able doubt that [an inculpatory] explanation [was] the correct
one.” Vasquez-Chan, 978 F.2d at 549. Here—given the lack
                   UNITED STATES v. NEVILS              15707
of any corroborating details connecting Nevils to the guns or
the other items in the apartment, combined with the very
slight evidence connecting Nevils to Apartment 6, and the
evidence that Apartment 6 was essentially accessible to the
public—the Government has not provided evidence that
would allow a rational jury to conclude beyond a reasonable
doubt that Nevils knew, prior to awaking, of the firearms’
presence and had the intention to exercise control over them.

                      III. Conclusion

   Nevils could not be convicted for his mere sleeping pres-
ence in Apartment 6 during criminal activity by others, and he
also could not be convicted of a violation of § 922(g) based
on “mere presence” even if he were, at some point, awake and
aware that others were committing crimes involving guns and
drugs in the apartment. The Government did not produce suf-
ficient evidence beyond evidence of “mere presence” and
gang affiliation. The undisputed evidence established that
Nevils was asleep when the police arrived. On this record, we
hold that the Government failed to produce evidence that
would have allowed a rational jury to infer knowing posses-
sion beyond a reasonable doubt. It may be natural to assume
that “somebody must have possessed the weapons because
they were there,” Ruiz, 462 F.3d at 1089, but the Government
did not offer sufficient evidence to prove that that “some-
body” was Nevils.

  REVERSED and REMANDED for entry of a judgment
of acquittal.



BYBEE, Circuit Judge, dissenting:

   It is said that the wife of English lexicographer Samuel
Johnson returned home unexpectedly in the middle of the day,
to find Dr. Johnson in the kitchen with the chambermaid. She
15708                 UNITED STATES v. NEVILS
exclaimed, “My dear Dr. Johnson, I am surprised.” To which
he reputedly replied, “No my dear, you are amazed. We are
surprised.”1

   Earl Nevils was surprised when two LA police officers
with guns drawn ordered him not to move. 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 majority overturns his conviction because it finds the
evidence insufficient to show that Nevils knowingly pos-
sessed the guns. 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 con-
cludes, no reasonable juror—certainly not the twelve who did
—could have found that Nevils knowingly possessed the
guns. Like Mrs. Johnson, I am both amazed and disappointed.
I respectfully dissent.

                                  I

   To overturn a jury’s conclusion that evidence introduced in
a trial was sufficient to convict the defendant we must, as the
  1
   The story has occasionally been attributed to Noah Webster.
                    UNITED STATES v. NEVILS                15709
majority admits, “determine whether any rational jury could
have found [the defendant] guilty of each element of the
crime beyond a reasonable doubt.” United States v. Esquivel-
Ortega, 484 F.3d 1221, 1224 (9th Cir. 2007). Under this
inquiry, we must not “question [the] jury’s assessment of wit-
nesses’ credibility, and must presume that the trier of fact
resolved any conflicting inferences in favor of the prosecu-
tion.” United States v. Johnson, 229 F.3d 891, 894 (9th Cir.
2000). This standard is extraordinarily high. It means that to
overturn a jury conviction based on sufficiency of evidence,
the majority must conclude that no rational jury could have
convicted Nevils under the evidence properly presented at
trial. United States v. Barron-Rivera, 922 F.2d 549, 552 (9th
Cir. 1991).

   In this case, for the purposes of 18 U.S.C. § 922(g), the jury
had to find that the defendant had “knowing possession” of a
firearm; that is, the jury must have concluded that Nevils
“consciously possessed what he knew to be a firearm.” United
States v. Beasley, 346 F.3d 930, 934 (9th Cir. 2003). This
conscious possession can either be actual or constructive, see
United States v. Chambers, 918 F.2d 1455, 1457-58 (9th Cir.
1990), but in either case the government must prove “a suffi-
cient connection between the defendant and the [firearms] to
support the inference that the defendant exercised dominion
and control over the [firearms].” Gutierrez, 995 F.2d at 171
(quoting United States v. Terry, 911 F.2d 272, 278 (9th Cir.
1990)). There is a “sufficient connection” in this case.

   There was ample circumstantial evidence for a rational jury
to conclude that Earl Nevils knew he possessed, at the least,
the 9mm Luger semi-automatic handgun (also referred to in
the record as a Tec 9) on his lap. The gun was loaded with
several live rounds of ammunition, including one in the gun’s
chamber. The jury heard evidence from which it could easily
have inferred that Nevils knew the gun was there. Officer
Clauss, one of the two police officers who apprehended
Nevils, testified that when they came upon Nevils and
15710               UNITED STATES v. NEVILS
announced themselves, “at that point, you know, his eyes, you
know, kind of came full—fully opened and for a brief second
he appeared like he was going to, you know, grab toward his
lap and then he stopped and put his hands up.” A rational
juror could equally infer from Nevils’ behavior that his first
instinct was to reach for his weapon—an instinct that was
suppressed when Nevils realized the officers had already
drawn their guns and one of the officers had flanked him.
Nevil’s subsequent behavior is consistent with the jury’s find-
ing. When he talked to Sergeant Coleman after his arrest,
Nevils did not express any consternation over waking up in a
strange place, or amazement about finding guns on his person.
He didn’t say “Hey, how did I get here?” or “Where did those
guns come from?” Instead, he simply expressed anger over
being left alone, proclaiming, “I can’t believe this s---. Those
m------------ left me sleeping and didn’t wake me.”

                               II

   The majority rejects these perfectly plausible explanations
because it finds another explanation in equipoise with the
government’s case and relies on the rule that where the evi-
dence presented at trial does not “establish any reason to
believe that an innocent explanation of that evidence was any
less likely than the incriminating explanation advanced by the
government,” it cannot establish the defendant’s guilt beyond
a reasonable doubt. United States v. Vasquez-Chan, 978 F.2d
546, 551 (9th Cir. 1992). The majority’s “innocent explana-
tion” in this case, however, is extraordinarily implausible. The
defense’s theory, adopted by the majority, is that Nevils, after
arriving at the apartment complex for a baby shower, became
drunk, passed out, and was carried into the notorious Apart-
ment #6 by several female friends. He then remained uncon-
scious for some seven hours (from approximately 4:00 or 5:00
p.m., a few hours after the baby shower ended, until around
11:45 p.m., when the police officers entered the apartment
complex). During that period, one or more persons, whose
identities and reasons are unknown, entered Apartment #6,
                    UNITED STATES v. NEVILS                15711
placed drugs in small baggies, a cell phone, and cash on the
coffee table in front of Nevils and left a loaded semiautomatic
handgun on Nevils’ lap and another loaded pistol leaning
against his leg. This activity, apparently, did not wake the
lethargic Nevils. Instead, the majority believes, he continued
to sleep soundly until the police arrived, was awakened, and
was amazed to find himself surrounded by drugs and guns.

   Even more curious than Nevils’ behavior under the majori-
ty’s “innocent explanation” is the behavior of the anonymous
drug dealers. What did the drug dealers do? There are a cou-
ple of options, none of them very good. As Mark Twain
wrote, “[i]t would take you thirty years to guess, and even
then you would have to give it up.” MARK TWAIN, Fenimore
Cooper’s Literary Offenses, in IN DEFENSE OF HARRIET SHELLEY
AND OTHER ESSAYS 60, 68 (1918). These drug dealers, accord-
ing to one version of the theory, were surprised by the pres-
ence of a police car outside the apartment complex, got
scared, and ran off. They decided it was best to leave their
drugs and weaponry with the sleeping Nevils, and either
threw or placed the heavy guns unto Nevils’ lap and leg (all
without waking him) as they rushed to leave the premises.
Although ordinary drug dealers might, with an eye towards
profits, stuff the drugs, cash, and cellphones in their pockets
while they were leaving, the majority’s anonymous constructs
are no ordinary drug dealers. Instead, these guys were so
frightened of being caught by the police that they left all their
loot on the coffee table, ran out the front door of the apart-
ment, and disappeared before the police arrived. Ironically,
their haste did not appear to be necessary—the police officers
saw no one leaving Apartment #6 and were only drawn to the
apartment after noticing a person furtively trying to enter it
later.

   Alternatively, the drug dealers deliberately decided to leave
their paraphernalia in the apartment. But rather than leave one
of their number behind to guard the loot, they set up a scare-
crow of sorts—arming the unconscious Nevils and propping
15712               UNITED STATES v. NEVILS
him up on the couch to look menacing. This plan, of course,
was foiled by the arrival of the police, who weren’t impressed
with the sleeping Nevils. This theory, like the first, is so far-
fetched that a rational jury could easily have rejected it in
favor of the far more plausible conclusion that Nevils simply
fell asleep while guarding the drugs.

   The majority recognizes that its theory is implausible “in
many towns and many apartment complexes.” Maj. Op. at
15706. But it finds that its “innocent explanation” is “not
implausible given the evidence that this neighborhood, this
apartment complex, and Apartment 6 itself, were neck-deep
in gang activity in the illegal drug trade.” Id. In other words,
the alternate theory would be implausible if Nevils had been
found in an ordinary apartment complex, but because this was
a notorious drug area, anything can happen. The majority’s
admission that its theory is generally implausible is healthy,
but it can’t make its implausible theory plausible just because
these events took place in a drug-infested area. No one—not
even drug dealers, and maybe especially drug dealers—are
going to go off and abandon their loaded weapons, drugs,
cash and cellphones with a man sleeping off a drunken binge.
It makes no sense whatsoever. If we are to assume, without
any evidence, that people are that irrational, then we are going
to have to revise our “innocent explanation” jurisprudence
and overturn a bunch of our cases.

                               III

   We don’t have any cases that address precisely how much
the government must prove to show that a sleeping defendant
is a knowing possessor. The two cases that are closest to this
case come to opposite conclusions and each is distinguish-
able. The majority relies principally on United States v. Ruiz,
462 F.3d 1082 (9th Cir. 2006). In that case, the defendants
were arrested following a raid on a meth lab in a house. The
officers found weapons in a couch in the loft area, in the main
part of the residence, in a stairwell and under a sofa cushion
                    UNITED STATES v. NEVILS                15713
in the garage. Id. at 1085. Other than the defendants’ mere
presence at the house, nothing linked them to the weapons;
there was no fingerprint evidence and they did not own the
residence. Id. at 1088. Our decision is a model of common
sense: although the men were present in a dwelling where
weapons were found, there is nothing to show that they know-
ingly possessed the weapons. Like the defendants in Ruiz,
Nevils did not own Apartment #6, nor were his fingerprints
found on the gun. However, unlike in Ruiz, where the defen-
dants were simply present in the same house as the weapons,
here Nevils had the weapons on his person, and they were
loaded and chambered.

   Our decision in United States v. Gutierrez, 995 F.2d 169
(9th Cir. 1993), is closer to this case. In that case, the police
stopped a car on a possible traffic violation. After taking the
driver for a sobriety test and determining that the remaining
two men did not possess a valid driver’s license, the police
decided to tow the car. The officers discovered a loaded fire-
arm under the left rear seat, where Gutierrez had been sitting.
Acknowledging that “ ‘mere presence as a passenger in a car
from which the police recover weapons does not establish
possession,’ ” we found that “there was much more than
‘mere proximity’ or ‘mere presence” in the car. Id. at 171
(quoting United States v. Soto, 779 F.2d 558, 560 (9th Cir.
1986)). Rather, “[i]t would tax credulity to assert that Gutier-
rez was sitting on top of a pistol without knowing of its pres-
ence, or that he just happened to be a passenger in an
automobile equipped with a pistol for each passenger, and the
he knew nothing of that odd coincidence.” Id. If the majority
applied its “innocent explanation” theory to Gutierrez, we
would have deemed the evidence insufficient in that case. In
Gutierrez, we might have easily said that Gutierrez’s explana-
tion sounded implausible, but in this car, in this neighbor-
hood, and with this defendant, anything was possible—
including the possibility that Gutierrez was sitting in the back
seat of a car with a loaded pistol under it and didn’t know it.
15714               UNITED STATES v. NEVILS
   If the guns had been found elsewhere in the apartment,
Nevils would have a good claim under Ruiz. If the guns were
found on the table, the case would be a close one. The major-
ity, however, has no plausible explanation—certainly nothing
with a shred of evidence to support it—for how Nevils ends
up with a loaded semiautomatic on his lap and a pistol against
his leg.

   Because the majority’s “innocent explanation” “tax[es] cre-
dulity,” Gutierrez, 995 F.2d at 171, a reasonable juror could
find Nevils had control of the guns. I would affirm the district
court’s determination that the evidence was sufficient to con-
vict Nevils of knowing possession of the weapons. Thus, I
respectfully dissent.
