United States of America, Plaintiff-appellee, v. Timothy W. Murphy, Defendant-appellant, 47 F.3d 1177 (9th Cir. 1995)

Before: BRUNETTI and KOZINSKI, Circuit Judges, and SHADUR, District Judge.^* 

MEMORANDUM^** 

Viewing the evidence in the light most favorable to the government, we conclude that no rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crimes with which Murphy was charged. As a result, Murphy's convictions for being a felon in possession of a firearm and ammunition under 18 U.S.C. §§ 922(g) (1) and 924(e) must be reversed.

To prove the element of possession, the government had to show that Murphy knew the gun and ammunition were present in the garage, and that he exercised dominion and control over those items. United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir. 1992). The government fell far short of meeting this burden. At most, the evidence established Murphy's proximity to the gun and ammunition, and his joint occupancy and use of a residence and garage in which the items were found. As we have repeatedly held, this showing is insufficient as a matter of law to prove possession. See, e.g., id. at 550-51; United States v. Ocampo, 937 F.2d 485, 488-89 (9th Cir. 1991); United States v. Reese, 775 F.2d 1066, 1073 (9th Cir. 1985); Delgado v. United States, 327 F.2d 641, 641-42 (9th Cir. 1964).

Murphy's judgment of conviction is VACATED and the case is REMANDED to the district court for entry of a judgment of acquittal, with instructions that Murphy be released forthwith. The mandate shall issue now. Fed. R. App. P. 2.