Dawnya Grice made two 911 calls on February 15, 2007. In the first she said that her boyfriend Terrence L. Katz had threatened her and she had left her apartment to get away from him. On request she told the operator that he did not have a weapon. In the second call she said he had left the apartment and he had a gun and it looked like he was carrying it in his pants. He was detained and no weapon was found. They did find $1800 in cash on him.

Grice consented to the police searching the apartment. They found guns, marijuana and cocaine. Katz’s fingerprints were on a Remington 12 gauge shotgun. He was charged with various offenses but was only convicted on one count of possession of a gun by a convicted felon. He made motions for an acquittal and for a new trial pursuant to Sections 29 and 31 of the Federal Rules of Criminal Procedure. But the motions were denied and the appeal was filed.

At trial the parties stipulated that Katz had been convicted of a felony prior to February 15, 2007 and that Grice leased the apartment. Neither Katz nor Grice testified at the trial.

At trial and on appeal Katz argued that there was insufficient evidence to convict him of a violation of 18 USC Section 922(g) being a felon in possession of a gun. In order to convict him the prosecution must prove that he had a prior felony conviction, that he possessed the weapon after the conviction and that the weapon traveled in interstate commerce. The first element was stipulated to and there was no argument about the third element. The only issued is whether he possessed the weapon on February 15, 2007 since the stipulation said he had been convicted sometimes prior to that date.

The court found that there was no evidence that he possessed the weapon on February 15, 2007 and it reversed the conviction. Possession can be either personal or constructive. The only evidence showing Katz’s possession of the gun was his fingerprints on the gun. But since the date of the fingerprints cannot be proved this did not help the government’s case.

Constructive possession can be shown when two people are present in a house and there is evidence tying the defendant to the gun. But none was present and there was no evidence showing Katz’s ties to the house. There was no evidence that he lived there. None of his clothes were found there and there was no indicia showing that Katz had any ties to the house.