United States v. Terrance Katz ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2341
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T ERRANCE L. K ATZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-CR-40053—Michael M. Mihm, Judge.
A RGUED F EBRUARY 13, 2009—D ECIDED S EPTEMBER 22, 2009
Before K ANNE, R OVNER, and E VANS, Circuit Judges.
R OVNER, Circuit Judge. The defendant, Terrance Katz,
was indicted on multiple counts, including unlawful
possession of a firearm by a convicted felon, unlawful
possession of ammunition by a convicted felon,
possession with intent to distribute marijuana, and un-
lawful possession of a firearm in pursuance of a drug
trafficking crime. A jury convicted him on only one of
those counts—unlawful possession of a firearm by a
2 No. 08-2341
convicted felon—and failed to reach a verdict on the
remaining counts. On that felon-in-possession count, the
jury convicted only as to Katz’s possession of a Remington
12-gauge shotgun, not as to the other firearm in the
count which was a Sturm Ruger Super Blackhawk
.44-caliber pistol. The district court denied Katz’s
motions for judgment of acquittal and his motion for
a new trial pursuant to Federal Rule of Criminal Pro-
cedure 29 and 33 respectively.
Katz argues on appeal that the evidence was insuf-
ficient for a jury to find him guilty beyond a reasonable
doubt on the felon-in-possession charge under 18 U.S.C.
§ 922(g), and that the district court abused its discretion
in failing to grant him a judgment of acquittal. We agree
and reverse.
In determining whether the evidence is sufficient to
support the verdict, we consider the evidence in the
light most favorable to the prosecution and determine
whether any rational trier of fact could find the essential
elements of the crime beyond a reasonable doubt. United
States v. McLee, 436 F.3d 751, 757 (7th Cir. 2006). The
evidence at trial consisted of testimony from several
law enforcement agents, a forensic technician, and tapes
of two 911 calls, as well as stipulations by the parties. The
sequence of events leading to the arrest of Katz began
with two 911 calls made by Dawnya Grice on the
morning of February 15, 2007. In the first call, Grice
informed the dispatcher that her boyfriend, Katz, was
threatening her with bodily harm, that he had previously
hit her, that she was in a car outside the house because
No. 08-2341 3
he had finally allowed her to leave her home, and that
she wanted him removed from her home. The dispatcher
asked Grice if Katz had any weapons and she stated that
he did not. Grice then called 911 again and reported that
Katz was now outside her home and that he had a
weapon, which she described as a big revolver. She
stated that she had initially lied about his possession of
a weapon because she assumed he would get rid of it
before the police arrived. She then declared that she
was unsure whether he currently had it but it appeared
that he might be carrying it in his pants. Approximately
three minutes into this call, the dispatcher told Grice
that the police had stopped Katz as he was walking down
the street and that she should return to her home. The
police detained Katz a few blocks from Grice’s home. A
search of Katz revealed no weapons, but the police did
find over $1,800 in cash on him. Grice reported to the
police that she believed he had also taken her house
keys which were on a Nascar keychain, and the police
recovered keys matching that description in their search
of Katz.
The officers subsequently proceeded to Grice’s home
and sought her consent to search the home, which she
provided. As they were obtaining her consent, one of the
detectives saw an unidentified black male descend from
the upstairs of the home and quickly exit through the
front door. Neither the detective nor any of the officers
at the scene were able to detain him, and his identity
was never discovered. The subsequent search of the
home revealed the following items of interest:
4 No. 08-2341
- a box of .44-caliber ammunition, a small mirror with
cocaine residue on its surface, and a razor blade above
the kitchen cupboard;
- a box containing 75.4 grams of marijuana in 56 in-
dividual baggies in the kitchen;
- a Remington 12-gauge shotgun with an attached scope
between the mattress and the box springs in an upstairs
bedroom;
- a black zippered bag containing 2.2 grams of crack
cocaine and “female products” such as makeup and
possibly feminine hygiene products in an upstairs
bedroom closet;
- a black nylon coat containing .8 grams of crack cocaine
in the dining room closet;
- a camouflage backpack containing 4 plastic baggies
of marijuana totaling 19.42 grams on a chair in the
living/dining room area;
- a loaded .44-caliber Sturm Ruger Super Blackhawk
pistol concealed in the ceiling rafters of the basement.
A forensic evidence technician concluded that Katz’s
fingerprints were on the Remington 12-gauge shotgun
and detachable scope found in the mattress of the
upstairs bedroom, and on the small mirror found on top
of the kitchen cupboard. The technician testified that
there was no way of determining how old a fingerprint
was, or when a fingerprint was transferred to an object.
The parties stipulated that “Prior to February 15, 2007,
the defendant, Terrance L. Katz, had been convicted of a
No. 08-2341 5
crime that was punishable by a term of imprisonment of
more than one year under the laws of the State of Illinois.”
The parties also stipulated that Grice had entered into a
lease for the property and that she first took possession
of the rental property on January 3, 2007. Neither Grice
nor Katz testified at the trial.
The felon-in-possession count, 18 U.S.C. § 922(g),
on which Katz was convicted prohibited the knowing
possession of a Remington 12-gauge shotgun, which had
previously traveled in interstate commerce, by a
person who had previously been convicted of a crime
punishable by imprisonment for a term exceeding one
year. In order to convict Katz of that charge, the gov-
ernment was required to prove three elements: (1) Katz
had a previous felony conviction; (2) he possessed the
Remington 12-gauge shotgun after that conviction; and
(3) the firearm had traveled in or affected interstate
commerce prior to the time Katz possessed it. The third
element and first elements are not contested. Therefore,
the issue on appeal is whether there was sufficient evi-
dence for a jury to find beyond a reasonable doubt that
Katz possessed the shotgun on February 15, 2007, which
was the date of the incident here. That date is the
relevant focus because the parties’ stipulation only pro-
vided that prior to February 15, Katz had been convicted
of a crime punishable by imprisonment of more than
one year. Accordingly, possession of the shotgun on an
earlier date would not establish the second element of
the offense.
There is absolutely no evidence, however, that Katz was
in physical possession of the shotgun on February 15. The
6 No. 08-2341
911 call mentions possession of a revolver, not a 12-gauge
shotgun. The only other evidence of physical possession
is the testimony of the forensic evidence technician
that Katz’s fingerprints were found on the shotgun. But
the technician also testified that it was not possible to
determine how long the fingerprints had been on the
shotgun. The prints could have been transferred that
day, a month earlier when moving Grice into her new
place, or years earlier. The point is that we have nothing
but pure speculation as to when Katz was in physical
contact with the shotgun. A jury cannot speculate its
way out of reasonable doubt. United States v. Groves,
470 F.3d 311, 324 (7th Cir. 2006) (“Speculation cannot be
the basis for proof in the civil context much less the
basis for proof beyond a reasonable doubt.”).
We are left, then, with the alternative means of estab-
lishing possession—constructive possession. Constructive
possession may be established by demonstrating that the
defendant knowingly had the power and intention to
exercise dominion and control over the object, either
directly or through others, thus establishing a nexus
between himself and the object. United States v. Irby, 558
F.3d 651, 654 (7th Cir. 2009); United States v. Rogers, 542
F.3d 197, 202 (7th Cir. 2008); United States v. Castillo, 406
F.3d 806, 812 (7th Cir. 2005). “If a person exercises
exclusive control over a premises, then constructive pos-
session of a weapon found therein can be inferred.”
Castillo, 406 F.3d at 812. The control over the premises
allows the jury to infer the knowledge and intent to
control the objects within those premises, and accordingly
we have held that constructive possession can be estab-
No. 08-2341 7
lished by demonstrating that a firearm was seized at the
defendant’s residence. United States v. Caldwell, 423
F.3d 754, 758 (7th Cir. 2005); United States v. Kitchen, 57
F.3d 516, 521 (7th Cir. 1995). Even where a defendant
jointly occupies a premise, it is possible to find construc-
tive possession, but the government must provide
evidence supporting a nexus between the weapon and
the defendant. Castillo, 406 F.3d at 813. “ ‘Mere proximity
to the [object], mere presence on the property where it is
located, or mere association, without more, with the
person who does control the [object] or property on
which it is found, is insufficient to support a finding of
possession.’ ” Irby, 558 F.3d at 654, quoting United States
v. DiNovo, 523 F.2d 197, 201 (7th Cir. 1975).
Here, we have nothing more than presence on the
property and the fingerprints. There is no evidence what-
soever that Katz resided at the premises, or even that
he had ever stayed at the home for any period of time.
The only evidence presented indicates that the home
belonged to Grice exclusively: the lease was in her
name; she did not want to leave him in the home when
she left for work; she called police to have him removed
from her home; and she possessed the keys. He ap-
parently did not have keys because he took hers when
he left the premises. There are none of the indicia of
joint possession of the premises that we have found in
other cases.
For instance, in Irby, 558 F.3d at 654, the court con-
sidered whether the defendant had constructive
possession of crack cocaine in a house. The defendant was
8 No. 08-2341
observed exiting and reentering the house after feeding
a dog there which was some indication that he occupied
the premises. Id. Physical evidence linked him with the
master bedroom in which baggies of marijuana and crack
cocaine were intermingled. Id. Specifically, the master
bedroom contained his state identification card, social
security card, and mail addressed to him. Id. Testimony
also established that he came from the house, walked to
a car, and attempted to sell marijuana. Id. That evidence
provided a nexus between the defendant and the object
he was charged with possessing. See also Rogers, 542 F.3d
at 202 (the defendant spent more than 80% of his time
living with his girlfriend at the apartment where the
firearms were found, he gave the firearms to her, and he
knew precisely where they usually were stored); United
States v. Kelly, 519 F.3d 355, 362 (7th Cir. 2008) (the defen-
dant had keys to the apartment where the drugs and
gun were found, gave the apartment as his address,
mail addressed to him was found in the room with the
contraband, drugs found elsewhere in the apartment
were packaged similarly to that at the scene of his
arrest, and he referred to the gun and the drugs as be-
longing to him); United States v. Thomas, 321 F.3d 627, 636
(7th Cir. 2003) (constructive possession of firearms based
in part on the close proximity to the defendant can be
proper where the weapon is found in areas over which
the defendant exercised control, but could not be estab-
lished by mere proximity where it is found in the area
under an apartment building’s entrance stairs—a public
area which the defendant did not control). See also
Caldwell, 423 F.3d at 758; Castillo, 406 F.3d at 813.
No. 08-2341 9
No such nexus has been established here. No bills,
mail or forms of identification in Katz’s name were dis-
covered in the home, nor was there testimony that his
clothes were found there. In short, we have nothing
except his apparently unwelcome visit that day, and
the fingerprints on the shotgun. There is no evidence
that the fingerprints were made on February 15. There-
fore, the prints are relevant only in indicating that he
at some point in time had touched the shotgun. There
was no testimony that the shotgun belonged to him at
any point in time, such as might indicate an awareness
of its current location at the house.
The government argues that Katz exercised “dominion
and control” over Grice’s residence because he was in
her house threatening her and for some period of time
refused to allow her to leave, and by swiping the keys
from the home he could return there at will to retrieve
any items. The government further postulates that the
$1,800 in cash as well as the fingerprints on the mirror
with cocaine residue suggests that Katz controlled the
drug business at the home, and that drug dealers
often possess guns to protect their drug stash.
First, we note that the journey from cash-in-his-
pocket and fingerprints-on-a-mirror to drug-dealer-
operating-from-the-house is one that cannot survive
the reasonable doubt standard by any conception of it.
The cash in his pocket could have been obtained
lawfully, could have resulted from drug dealing, or could
have been stolen from Grice’s home—the home in which
the drugs were found. There is simply nothing to
10 No. 08-2341
indicate that Katz was a drug dealer operating from
the house. The drugs were found throughout the house,
not in a central location from which an outsider might
operate, and the bag containing crack cocaine in the
upstairs bedroom contained “female items.” This is
nothing but pure speculation, and is not enough to
support a criminal conviction.
Moreover, the government’s contention that he had
dominion and control over the house and its pos-
sessions because he was an unwelcome intruder stands
constructive possession on its head. The constructive
possession standard allows a jury to infer possession
from the defendant’s relationship with the premises
and the objects in it. If it is the defendant’s home and
his posessions are in the home, then it is a reasonable
inference for a jury to attribute the weapons in the home
to the defendant as well. Similarly, where the defendant
stays at least some of the time at another person’s resi-
dence and a weapon is found in a room that also
contains the defendant’s belongings, then a jury may
infer possession of the weapon found there as well. That
is fundamentally different from an intruder who seizes
“control” of a home by force. There is no nexus between
the intruder and the home’s possession, and no reason
for a jury to conclude that the intruder has the knowl-
edge that the weapon is in the home or the intent to
exercise dominion or control over it. The constructive
possession standard loses all of its grounding if inter-
preted as the government would so as to include
intruders such as Katz. The evidence in this case was not
sufficient to support the verdict. Accordingly, the
No. 08-2341 11
decision of the district court is R EVERSED and the case
R EMANDED for the district court to enter a judgment of
acquittal on that count.
9-22-09