United States v. Clark

MEMORANDUM **

Daniel Nelson Clark was convicted of three counts of violating federal firearms statutes for allegedly “possessing” a semiautomatic pistol found outside his apartment building (Count One, 18 U.S.C. § 922 (g)(1)), and a sawed-off shotgun Clark is holding in a photograph (Counts Two and Three). 1 Clark appeals his conviction on several grounds. Because we conclude that the government lacked sufficient evidence to convict Clark on Count One, we reverse his conviction as to that count. Because we conclude that there was sufficient evidence to convict Clark as to Counts Two and Three, and we reject Clark’s other grounds for reversible error, we affirm his convictions on those counts.

I. Sufficiency of the Evidence

Constructive possession of a firearm can be proved by showing that “the defendant both knows of the presence of the [firearm] and has power to exercise dominion and control over it.” United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir.1985).

A. The Semiautomatic Browning .22 Found Outside the Apartment Building (Count One)

In order to show dominion and control, the prosecution must show more than “mere proximity” to the firearm, or that the firearm was…