UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4080

MICHAEL D. SHULER,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4081

ROBERT WAYNE HOKE,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4120

MICHAEL D. SHULER,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of North Carolina, at Bryson City.

Lacy H. Thornburg, District Judge.

(CR-95-182-M, CR-95-117)

Submitted: December 9, 1997

Decided: January 22, 1998

Before HALL and MURNAGHAN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.

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COUNSEL

Russell Lyway McLean, III, Waynesville, North Carolina, for Appellants. Mark T. Calloway, United States Attorney, William Boyum,

Assistant United States Attorney, Asheville, North Carolina, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Michael D. Shuler and Robert Wayne Hoke appeal their convictions for aiding and abetting the unlawful possession of ginseng, 16

U.S.C.A. §§ 2, 3372(a)(3)(B) (West 1994 & Supp. 1997), 18 U.S.C.

§ 2 (1994), N.C. Gen. Stat. § 106-202-19(a) (1996), and knowingly

giving false information to an authorized person investigating a violation of law, 36 C.F.R. § 2.32(a)(3) (1997). We affirm.*

The sole issue raised is whether there was sufficient evidence to

support the convictions. "To sustain a conviction the evidence, when

viewed in the light most favorable to the government, must be sufficient for a rational trier of fact to have found the essential elements

of the crime beyond a reasonable doubt." United States v. Brewer, 1

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*Shuler also noted an appeal (No. 97-4120) following his conviction

and sentence upon a guilty plea to unlawfully hunting wild animals, 16

U.S.C. § 403h-3 (1994). Shuler's brief does not raise any issues concerning that conviction or sentence. He therefore has waived appellate

review. See Rosenberger v. Rector & Visitors of Univ. of Va., 18 F.3d

269, 276 (4th Cir. 1994).

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F.3d 1430, 1437 (4th Cir. 1993); see also Glasser v. United States,

315 U.S. 60, 80 (1942). "We must consider circumstantial as well as

direct evidence, and allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established." See United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.

1982).

Park rangers at the Great Smokey Mountains National Park were

conducting surveillance for possible illegal ginseng digging. As dusk

approached, Ranger Braxton Headley saw Hoke walk from a trail to

a pickup truck and place what appeared to be a camouflage jacket in

the cab of the vehicle. Hoke drove away. Headley radioed Ranger Al

Miller, who was in a car, to tell him that Hoke was headed toward

him.

The truck was observed quickly pulling up to a gate blocking a

trailhead. Headley saw a man dressed in a camouflage shirt and carrying what appeared to be a large bag sprint towards the truck. The man

got into the truck with Hoke, who quickly backed up and drove away.

Headley radioed Miller and asked him to stop the truck. A park

employee drove Headley to the spot where Miller had stopped Hoke's

truck. Headley identified Hoke's passenger as Shuler.

The men acknowledged that they had been at a spot in the park five

to ten miles from the place Headley first saw Hoke. Headley noticed

that both Shuler and Hoke had very dirty pants; it appeared to him

that they had been kneeling and sitting in freshly dug dirt. Also, both

men had very dirty hands and fingernails, and their fingernails were

scratched. Headley also observed a long stick with a sharpened, flat

bottom in the bed of the truck. The sharpened end was covered with

dirt. When Headley first saw the pickup truck, the stick was not in its

bed. Neither Hoke nor Shuler claimed to have a permit to dig ginseng

on another's land.

Headley also noticed a large pile of clothing on the floorboard of

the truck. A camouflage hunting jacket lay on top of a red shirt. Hoke

gave Headley permission to search the jacket. Headley found dark,

moist, fresh dirt in the bottom of one pocket. Hoke told Headley that

he had not worn the jacket that day and instead had been wearing the

red shirt. Even after Headley informed Hoke that he had seen him

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place a camouflage jacket in the truck, Hoke insisted that he had been

wearing the red shirt.

Because he could not find Shuler's bag in the truck, Headley began

walking back along the road where the truck had driven. He soon

located a camouflage hunting vest by the side of the road. The bag

was neither covered with leaves nor wet from rain or dew. In the

vest's game pouch Headley found 359 ginseng roots. Headley took

the vest back to the location of the traffic stop. Shuler informed Headley that he had never seen the vest before. However, the vest contained a right shoe insole. Shuler was asked to remove his boots. In

his left boot was a matching insole; his right boot did not contain any

insole.

This evidence, taken with its logical inferences, was sufficient to

convict Shuler and Hoke. The evidence tends to establish that the men

dug ginseng without a permit in a national park, that they possessed

the ginseng roots or aided and abetted such possession, that Hoke lied

to Headley about ownership of the camouflage jacket, and that Shuler

lied about ownership of the hunting vest.

We therefore affirm the convictions. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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