Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:08-cr-00195-RTR-1--Rudolph T. Randa, Judge.
The opinion of the court was delivered by: Hamilton, Circuit Judge.
Before BAUER, POSNER, and HAMILTON, Circuit Judges.
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 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.
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- 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- 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.
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. 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 ...