USA. v. Gallimore, 00-4416

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Citation: 247 F.3d 134
• Docket Number: No. 00-4416,00-4416
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TALTON YOUNG GALLIMORE, JR., Defendant-Appellant. Argued:
• Decision Date: 26 January 2001

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247 F.3d 134 (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
TALTON YOUNG GALLIMORE, JR., Defendant-Appellant. No. 00-4416 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Argued: January 26, 2001
Decided: April 2, 2001

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge.

(CR-99-365)

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COUNSEL: ARGUED: William Stimson Trivette, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Lawrence Patrick Auld, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, III, Federal Public Defender, Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Greensboro, North Carolina, for Appellee.

Before WILKINS, MOTZ, and KING, Circuit Judges.

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Affirmed by published opinion. Judge Wilkins wrote the opinion, in which Judge Motz and Judge King joined.

OPINION

WILKINS, Circuit Judge:

Talton Young Gallimore, Jr. appeals his conviction for possession of firearms by a convicted felon. See 18 U.S.C.A. S 922(g)(1) (West 2000). He contends that the evidence presented by the Government was insufficient regarding the elements of possession and nexus with interstate commerce. We hold that the evidence was sufficient with respect to both of these elements, and we therefore affirm Gallimore's conviction.

I.

At the time of his arrest, Gallimore lived in Thomasville, North Carolina and operated a furniture business located in a warehouse behind his residence. In February 1999, the Davidson County Sheriff's Office conducted surveillance of this property for two days in connection with an investigation concerning stolen furniture. Gallimore was on the premises most of the time during these two days.

On February 4, Gallimore was observed leaving Thomasville. The following day, officers executed a search warrant at Gallimore's home and office and seized a rifle and four handguns from a safe in his office, a shotgun from between the television and a chest of drawers in the master bedroom, and a rifle from a closet in the spare bedroom. Gallimore's personal papers--including a birth certificate, a driver's license, and tax documents with Gallimore's name and address on them--were observed in both the office and house. Gallimore was not present during the search, but a woman who apparently resided in Gallimore's house was.

Gallimore was charged with possession of firearms by a convicted felon. At trial, the Government presented evidence of the facts described above, as well as evidence that all seven of the firearms recovered in the search were manufactured outside North Carolina. Gallimore then moved for a judgment of acquittal, contending that there was insufficient evidence to prove that he possessed the firearms found on his property. The district court denied the motion, and the jury returned a verdict of guilty.

II.

We review the denial of a motion for a judgment of acquittal de novo. See United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). If the motion was based on insufficiency of the evidence, the verdict "must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).

A.

Gallimore's first claim is that the Government presented insufficient evidence to prove possession beyond a reasonable doubt. Specifically, he asserts that the Government failed to demonstrate that he was ever in the house with the firearms or that he was the only person with access to them. We hold that the evidence was sufficient as to the first issue and that no evidence of the latter issue was required.

"To show a S 922(g)(1) violation, the government must prove three elements: (i) that the defendant was a convicted felon at the time of the offense; (ii) that he voluntarily and intentionally possessed a firearm; and (iii) that the firearm traveled in interstate commerce at some point." United States v. Hobbs, 136 F.3d 384, 390 (4th Cir. 1998). Although Gallimore argues to the contrary, S 922(g)(1) does not require proof of actual or exclusive

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possession; constructive or joint possession is sufficient. See United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997); United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992). The Government may prove constructive possession "by demonstrating that the defendant exercised, or had the power to exercise, dominion and control over the item." Jackson , 124 F.3d at 610 (internal quotation marks omitted).

Gallimore depends heavily on the fact that no witness at his trial described seeing him in the office or the house. Based on this lack of evidence, he asserts that the Government failed to prove he was ever in the areas where firearms were found. The circumstantial...