UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5692
IVAN FRANCION WILKERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-94-34)
Argued: February 1, 1996
Decided: April 2, 1996
Before NIEMEYER and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Robert Edwin Walker, Jr., JOHNSON & WALKER,
P.C., Richmond, Virginia, for Appellant. Nicholas Stephan Altimari,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Vir-
ginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attor-
ney, David J. Novak, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Ivan Francion Wilkerson appeals his convictions for possession of
an unregistered firearm, 26 U.S.C. § 5861(d), and for being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), on the grounds that
there was insufficient evidence at trial from which the jury could have
found that he had possessed the firearm. Finding the evidence suffi-
cient, we affirm his convictions.
I.
At Wilkerson's trial, Officer Kendall Gammon testified that on the
night of December 6, 1993 he saw a car leaving an apartment com-
plex and noticed that its "tag light"--the light that illuminates a car's
license plate--was not on. He turned on his blue light and siren in an
effort to stop the car, which had two people in it. No one disputes that
the driver of the car was the defendant-appellant here, Ivan Wilker-
son. The car neither stopped nor accelerated significantly but drove
through a residential area until it pulled into the driveway of what
turned out to be the house of Wilkerson's grandfather and drove up
and around to the back of the house. Gammon followed, losing sight
of the car for just a few seconds as it went behind the house but
quickly regaining sight of it. Then, from thirty to forty feet behind the
car, Gammon saw a person get out of the driver's door with an object
in his hand. His "first thought" was that the object was an umbrella
because it had "a small, like a hook, on the rear part of the object
. . ." But he immediately also wondered if it might be a weapon. He
then saw the person run from the car into the yard of the next-door
neighbor and disappear around the corner of the garage.
Gammon testified that he did not follow Wilkerson because of
safety concerns. Instead, he called on his police radio for assistance
in setting up a perimeter around the area and for a tracking dog. Offi-
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cer George Carey arrived with the tracking dog and set the dog to
looking for tracks. At trial, Carey testified that the dog found a
recently made track on his first try and followed it along a path that
passed about thirty yards to the left of where two shotguns would
eventually be found. Carey pulled the dog off that track when they
reached a parking lot. On his second attempt, in an entirely different
direction, the dog found no track. On his third attempt, he again found
a track, and Carey again pulled him off the track when he reached the
parking lot. This third track ran in the same general direction as the
first and passed about ten yards to the left of the place where the guns
were eventually found. Finally, Carey took the dog into the woods
just to look around. Without finding a track, Carey and the dog imme-
diately came on two shotguns a small distance behind a woodpile.
The dog immediately reacted to the guns--pawing and playing with
them--in a way that indicated to Carey that they had been handled
within the last hour, give or take a half hour, although neither the
dog's reaction nor any other evidence in the case could by itself link
the guns specifically to Wilkerson.
Another officer, David Fauver, then testified that, while Carey and
Gammon were recovering the guns, he spoke to Wilkerson's grandfa-
ther, who gave Fauver an address where he could find Wilkerson and
the passenger. Fauver and Gammon went to that address and found
Wilkerson and the passenger. The officers questioned Wilkerson, and
Wilkerson admitted to having been the driver of the car, claimed that
he fled only because he was afraid of being beaten up by the police,
and denied any knowledge of any guns.
Wilkerson did not testify or put on any evidence of his own.
II.
On an insufficiency claim, we must ask whether there is substantial
evidence, viewed in the light most favorable to the government, to
support the verdict. Glasser v. United States , 315 U.S. 60, 80 (1942);
United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992). In this case
of firearm possession, then, the question is whether there was substan-
tial evidence to support the jury's finding that Wilkerson had actually
possessed a firearm.
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Circumstantial though it was, the evidence at trial, as described
above, certainly constituted the "substantial" evidence required by
Glasser to sustain a conviction. The evidence showed that Wilkerson
and his passenger had fled from the police both in Wilkerson's car
and on foot rather than, for example, proceeding for protection to a
public place or into Wilkerson's grandfather's house; that Wilkerson
had had in his hand an object that could fit the description of a shot-
gun; that fairly fresh tracks had been found leading from the car in
the general direction of the home where Wilkerson was ultimately
found; that two shotguns had been found not very far from those
tracks; and that those shotguns had borne evidence of human handling
within the last hour-and-a-half at the most. Wilkerson was certainly
free at trial to attack this evidence as circumstantial and to attempt to
undermine the reliability of the canine evidence and the credibility of
the government's witnesses. And he did so. But the jury was entitled
to find the witnesses credible and the tracking dog reliable. Having
done so, the jury was justified in finding that Wilkerson had, indeed,
possessed at least one of the shotguns found that night.
Wilkerson relies mainly on our decision in Blue to defeat this con-
clusion, but Blue has little bearing here. In that case, the government
tried to show constructive possession by evidence that a gun was
found under the automobile passenger seat in which Blue was sitting
and that the officer who stopped the car saw Blue dip his shoulder as
the officer approached the car. But Blue stands only for the proposi-
tions that mere accessibility does not prove constructive possession
and that a "shoulder dip alone does not transform[a person] from a
mere passenger in the car to a possessor of whatever is discovered
underneath the seat in which he is sitting." Blue, 957 F.2d at 108. Blue
may serve as a helpful reminder that some kinds of circumstantial evi-
dence are not enough to sustain a firearm possession conviction, but
it does not help much in evaluating the different kind and quantity of
circumstantial evidence at issue in Wilkerson's case.
AFFIRMED
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