UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, 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Unpublished opinions are not binding precedent in this circuit.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 sufficient, 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 complex 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 Wilkerson. 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 immediately 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 grandfather, 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 substantial 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 shotgun; 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 conclusion, 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 propositions 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 evidence 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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