James M. SCHOOLS, Appellant,
UNITED STATES, Appellee.
Submitted Oct. 22, 2013.
[Copyrighted Material Omitted]
Jamison Koehler was on the brief for appellant.
Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Ben Schrader, and Peter S. Smith, Assistant United States Attorneys, were on the brief for appellee.
Before THOMPSON, Associate Judge, and WAGNER and SCHWELB, Senior Judges.
THOMPSON, Associate Judge:
A jury convicted appellant James Schools (aka David Schools) of unlawful possession of a firearm by a felon, possession of an unregistered firearm, and unlawful possession of ammunition (acquitting him of possession with intent to distribute cocaine while armed, lesser-included cocaine-possession charges, and possession of a firearm during a crime of violence). He seeks reversal of his convictions on the ground that the evidence at trial was not sufficient to show that he had constructive possession of the gun and ammunition— i.e., that " no jury could have reasonably concluded beyond a reasonable doubt that [he] knew about the firearm and ammunition" or that he " had the requisite intent to exercise dominion and control" over them. We are persuaded by his argument and therefore reverse.
I. The Evidence
The government presented evidence that shortly after 7:00 a.m. on April 21, 2011, Metropolitan Police Department (" MPD" ) officers executed a search warrant of an apartment located at 1608 17th Place, S.E. The apartment, which was on the first floor of a two-story building, had a front bedroom and a second " back bedroom"
that had been converted from a sleeping porch and had a door that led outside. Officer Alvin Cardinal testified that when police arrived at the apartment, they knocked on the door and one officer loudly yelled, " Police, search warrant" at least twice. After waiting 15 to 30 seconds and hearing no response from inside the apartment, officers used a battering ram to force entry into the apartment. They first encountered a woman and a child near the front of the apartment. Officer Cardinal and Detective Scott Brown, another member of the search team, testified that two other people were stopped just outside the apartment, on the " ledge" of the back-bedroom door that led to the outside. When Officer Cardinal first approached the back bedroom, he found appellant, whom he described as a " large gentleman," standing next to a bed, his back turned away from the door, and his hands positioned " as if he was manipulating or hiding something." Appellant was wearing only a pair of boxers and a tank top. Officer Cardinal twice ordered appellant to " put his hands up." After the second order, appellant dropped a " white object," raised his hands, and turned around. Officer Cardinal handcuffed the appellant and took him into the living room, where officers were detaining " all the other ... occupants who were in the house[.]"
When officers returned to the back bedroom after taking appellant into the living room, they saw, in the area where appellant had dropped the white object, a white, man's shoe, inside of which were 53 green zip-lock bags containing crack cocaine. Officers also found a digital scale on the windowsill of the room. Detective Erick Alvarado testified that in the right middle drawer of a three-level, six-drawer dresser, " hidden underneath clothing,"  he found a .45-caliber handgun in a plastic bag, five rounds of ammunition, and a shaving-kit-like bag that contained, in a side pouch, a potato chips bag, inside of which were empty, pink ziplock bags. Police were unable to recover any fingerprints from the handgun or the ammunition.
Officer Cardinal identified Government Exhibit 37 as a videotape that a police technician took on the morning of the search, which, the officer explained, was recorded before officers started searching, " just to show where all the evidence" was before anything was moved. As the prosecutor played the video for the jury, Officer Cardinal identified a shot of appellant (whom the video shows to be a heavyset man) and a shot of two other (much smaller) men, who are shown seated in the living room and who Officer Cardinal testified were " in the search warrant."
MPD Detective Lavinia Quigley, who also participated in the search, testified that as it got underway, she gave appellant men's clothing (a shirt and sweat pants) that she had found on a chair in the back bedroom, and he put the clothes on. She had also looked in the front bedroom for clothes for appellant, but found only female clothing and children's clothing. She also gave appellant shoes that she testified she believed she got from the back bedroom (although, when pressed on cross-examination, she testified that she was " not sure" that she got the shoes from the back bedroom rather than from a clothes
closet in the living room). She testified on cross-examination that her recollection was that there were ...