United States of America v.  Talton Young Gallimore, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4416 
TALTON YOUNG GALLIMORE, JR.,
Defendant-Appellant. 
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)
Argued: January 26, 2001
Decided: April 2, 2001
Before WILKINS, MOTZ, and KING, Circuit Judges.
Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Motz and Judge King joined.
COUNSEL
ARGUED: William Stimson Trivette, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Lawrence Pat-
rick Auld, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee. ON BRIEF: Louis C. Allen, III, Federal Public
Defender, Greensboro, North Carolina, for Appellant. Walter C. Hol-
ton, Jr., United States Attorney, Greensboro, North Carolina, for
Appellee.

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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. § 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 Sher-
iff’s Office conducted surveillance of this property for two days in
connection with an investigation concerning stolen furniture. Galli-
more 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 draw-
ers in the master bedroom, and a rifle from a closet in the spare bed-
room. 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. Galli-
more 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.
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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 insuffi-
cient evidence to prove possession beyond a reasonable doubt. Specif-
ically, 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 § 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 fire-
arm; 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, § 922(g)(1) does not
require proof of actual or exclusive 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 dem-
onstrating that the defendant exercised, or had the power to exercise,
dominion and control over the item." Jackson, 124 F.3d at 610 (inter-
nal 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 evidence
connecting Gallimore to these areas was overwhelming, however. For
example, five firearms were found in a safe that also contained a
briefcase holding Gallimore’s personal papers. The jury could infer
from the presence of these papers that Gallimore had access to the
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safe, particularly in light of testimony that Gallimore was in the vicin-
ity of the safe almost continuously for two days. Cf. United States v.
Jones, 204 F.3d 541, 543-44 (4th Cir. 2000) (upholding a conviction
for drug possession based on a brief observation of the defendant in
the bedroom where the drugs were found and the discovery of the
defendant’s personal papers in that room).
While there was overwhelming evidence that Gallimore used the
office and at least one of the bedrooms where firearms were found,
the evidence that Gallimore and the firearms were present at the same
time was weaker. Nevertheless, a reasonable jury could infer from the
Government’s evidence that the firearms were in Gallimore’s house
and office before he left Thomasville the afternoon preceding the
search. First, less than 24 hours elapsed between Gallimore’s depar-
ture and the search. Second, it did not appear that the firearms had
been brought to the house overnight and stowed somewhere tempo-
rarily. The firearms were in three diverse locations—one in plain
view, one in a closet behind other items, and five locked in a safe; it
is unlikely that the woman encountered in Gallimore’s house acquired
all seven firearms and distributed them around the property in this
fashion in under 24 hours. In light of these circumstances, the evi-
dence was sufficient to prove constructive possession.1 Cf. Jones, 204
F.3d at 543-44; United States v. Lawson, 682 F.2d 1012, 1017 (D.C.
Cir. 1982) (upholding conviction for possession of marijuana found
in defendant’s apartment based on her presence in, and longtime
occupancy of, the apartment, even though officers who found mari-
juana were admitted to the apartment by a codefendant while the
defendant was in the bathtub).
1Gallimore relies heavily on Blue. In that case, the defendant was a
passenger in an automobile that was stopped by the police. After the offi-
cers saw the defendant lean forward as though he were reaching under
his seat, they found a firearm in the area where he may have been reach-
ing. See Blue, 957 F.2d at 107. We held that this evidence was insuffi-
cient to prove that the defendant possessed the firearm. See id. at 108.
Blue offers little guidance here because the two cases are almost diamet-
ric opposites. The defendant in Blue was present in the car where the
firearm was found, but he was merely a passenger and the firearm was
hidden. Here, in contrast, although Gallimore was not at his home when
firearms were found there, he was a regular occupant and the firearms
were in places where he would have seen them.
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B.
Gallimore’s second claim arises from two recent Supreme Court
decisions concerning Congress’ power to regulate interstate com-
merce. See Jones v. United States, 120 S. Ct. 1904 (2000); United
States v. Morrison, 120 S. Ct. 1740 (2000). Gallimore contends that
these decisions require proof of a greater nexus between firearms pos-
session and interstate commerce than was demonstrated here. We dis-
agree.2
Section 922(g) makes it unlawful for people in specified categories
"to ship or transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in inter-
state or foreign commerce." Under existing circuit precedent, the
Government may establish the requisite interstate commerce nexus by
showing that a firearm was manufactured outside the state where the
defendant possessed it. See United States v. Nathan, 202 F.3d 230,
234 (4th Cir.), cert. denied, 120 S. Ct. 1994 (2000).
There have been many constitutional challenges to § 922(g) since
the Supreme Court decided United States v. Lopez, 514 U.S. 549
(1995). In Lopez, the Court held that a statute prohibiting possession
of a firearm within a school zone exceeded Congress’ power under
the Commerce Clause because it "neither regulate[d] a commercial
activity nor contain[ed] a requirement that the possession be con-
nected in any way to interstate commerce." Lopez, 514 U.S. at 551.
Courts have uniformly held that § 922(g) is constitutional under
Lopez because it expressly requires proof of a nexus with interstate
commerce. See United States v. Wells, 98 F.3d 808, 811 (4th Cir.
1996) (citing cases).
Gallimore’s claim differs from these Lopez challenges in two
respects. First, he does not seek to invalidate § 922(g), but instead
contends that the statute should be reinterpreted to enhance the Gov-
ernment’s burden. Second, as noted above, he relies on two post-
2In light of our holding on the merits, we do not address the Govern-
ment’s assertion that Gallimore’s claim was waived at trial and may be
reviewed only for plain error.
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Lopez decisions rather than on Lopez itself. According to Gallimore,
these decisions require the Government to prove that a firearm pos-
sessed in violation of § 922(g) was involved in interstate commerce
beyond mere transportation across state lines.
We have already rejected similar claims arising under Lopez. See
Nathan, 202 F.3d at 234; United States v. Crump, 120 F.3d 462, 466
n.2 (4th Cir. 1997). The two decisions cited by Gallimore, Jones and
Morrison, do not undermine our prior holdings. Morrison did not
modify the Lopez framework in any manner relevant to this case. See
Morrison, 120 S. Ct. at 1749-54. Jones made no constitutional hold-
ing whatsoever, but instead construed a federal statute restrictively in
order to avoid constitutional doubts. See Jones, 120 S. Ct. at 1911-12.
We therefore hold, in accord with every other circuit to consider this
issue, that Morrison and Jones do not affect our post-Lopez decisions
regarding § 922(g). See United States v. Santiago, 238 F.3d 213, 216-
17 (2d Cir. 2001) (per curiam); United States v. Dorris, 236 F.3d 582,
585-86 (10th Cir. 2000); United States v. Napier, 233 F.3d 394, 401-
02 (6th Cir. 2000); United States v. Jones, 231 F.3d 508, 514-15 (9th
Cir. 2000); United States v. Wesela, 223 F.3d 656, 660 (7th Cir.
2000), cert. denied, 121 S. Ct. 1145 (2001).
III.
For the foregoing reasons, we hold that the evidence was sufficient
to sustain Gallimore’s conviction for possession of firearms by a con-
victed felon. We therefore affirm the judgment of the district court.
AFFIRMED
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