USA v. Cory L. Griffin, 11-1951.
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 evidence 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
constructive possession of the firearm and ammunition for which he was convicted by intending to exercise control over them.
I. The Evidence
After defendant Cory Griffin was released from prison in April 2008 under court supervision, he moved into his parents’ single family home in Milwaukee. [P]olice 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.
The federal government charged Griffin with possession of all the firearms and ammunition recovered from his parents’ home during the search.
Griffin argues that the evidence was insufficient to support the jury’s conclusion that he possessed the shotgun behind the kitchen door and the ammunition on the
stairs of his parents’ home. 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. Under the law, however, unlawful possession can also include only constructive possession.
government’s theory at trial was that Griffin constructively possessed the guns
and ammunition seized from his parents’ house. See United States v.
Katz, 582 F.3d 749, 752 (7th Cir. 2009) (explaining actual and constructive
possession). Constructive possession 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. 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
possessors from mere bystanders. See Morris, 576 F.3d at 666.
constructive possession cases, the necessary connection between the defendant
and the contraband is typically shown in one of two ways. First, if the
government demonstrates that the defendant had “exclusive control” over the
property where the contraband was discovered, a jury may reasonably infer that
he constructively possessed the items, including the contraband, found on that
property. United States v. Castillo, 406 F.3d 806, 812 (7th Cir.
2005). Second, 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
between that person and the [contraband].” Morris, 576 F.3d at 667.
government argues that, even though Griffin did not have exclusive control of
the residence, he had a “substantial connection” to it, and that constructive
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. 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.” Id. at 668.
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. When we look more closely at the facts, the
tension between these two lines of cases can be resolved. Notwithstanding the
broader “substantial connection” language in the joint residence cases cited by
the government, in each one something more than the defendant’s residence
linked him to the contraband.
The facts demonstrated not just a substantial connection between the defendant and the location, but also a substantial connection between the defendant and the contraband itself. In Richardson, for example, the gun was found in Richardson’s bedroom lying on his bed next to envelopes addressed to him and prescription medications with his name and the home’s address on the labels. 208 F.3d at 628.
The facts in these cases make clear that when the defendant jointly occupies a residence, proof of constructive possession of contraband in the resid nce requires the government to demonstrate a “substantial connection” between the defendant and the contraband itself, not just the residence. See Castillo, 406 F.3d at 813.
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 reasonable doubt, that Griffin
intended to exercise control over his father’s shotgun and the nearby ammunition.
Griffin’s conviction is therefore REVERSED.
For the full opinions visit the 7th Circuit Court of Appeals Web Site
For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com