Unpublished Disposition, 874 F.2d 817 (9th Cir. 1986)

MEMORANDUM^** 

Douglas Eugene Wilson appeals his conviction for possession of an unregistered firearm and for being a felon in possession of a firearm. We affirm.

BACKGROUND AND PROCEEDINGS BELOW

On April 20, 1986, officers Reuser and Mason of the Los Angeles Police Department responded to a police radio broadcast concerning a disturbance by a man with a machine gun in the alley behind Hollywood Boulevard. Both Reuser, a helicopter observer with the Air Support Division, and field car officer Mason testified that the suspect was described in the broadcast as a male Caucasian with shoulder-length hair and a full beard, who was wearing a brown jacket, and carrying a yellow duffel bag.

Reuser further testified that from his helicopter he saw a man that fit the radio broadcast description in an alley. Upon his arrival on the scene, Mason also observed a man in the alley that fit the description. Both officers testified that the man was carrying a yellow duffel bag.

From the air, Reuser observed the suspect enter a doorway at the back of a restaurant. Because there was no door on the building, Reuser was able to observe the suspect from the waist down while he was inside the building. Reuser testified that he saw the man bend down, then turn and exit the building. When the man left the building he no longer carried the yellow duffel bag. A few seconds later, police officer Thomas took the suspect into custody. At trial both Thomas and Mason identified Wilson as the man they apprehended.

After taking Wilson into custody, Thomas went inside the building to search for the duffel bag. He found the bag, and because it was open, he noticed numerous firearms and ammunition. Thomas testified that he brought the bag out of the building, and walked towards Wilson and the other police officers. Wilson could not have observed whether Thomas was carrying anything, because Thomas exited the building and placed the duffel bag off to the side, about 15-20 feet behind Wilson. Thomas testified that Wilson then spontaneously stated "I didn't have any guns, and if I did and I had what I think you found you'd all be dead right now, if I wanted you to be."

A subsequent search of the duffel bag determined the following items were in the bag: an Uzi machine gun; a Colt Trooper Mark IV .351 magnum; a silencer; an H & K rifle .308 caliber, model 91; a Sterling Arms .22 caliber pistol; a Luger Black Hawk .44 magnum; a case that contained field glasses; and two gun cases.

Wilson was indicted for possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d) (Count I); and for being a felon in possession of a firearm, in violation of 18 U.S.C.App. Sec. 1202(a)¹  (Count II). Following a jury trial, Wilson was convicted on both counts. Wilson filed a timely notice of appeal.

DISCUSSION

Wilson argues that there was insufficient evidence of two elements of the crimes for which he was indicted. He contends that there was insufficient evidence of his possession of the firearms to convict him of either count of the indictment, and that there was insufficient evidence that the Uzi machine gun had traveled in interstate commerce, an element of Count II of the indictment, being a felon in possession of a firearm under 18 U.S.C.App. 1202(a).

To determine the sufficiency of the evidence to support a conviction, this court reviews the evidence in the light most favorable to the prosecution, and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Dupuy, 760 F.2d 1492, 1500 (9th Cir. 1985).

The trial record shows sufficient evidence that Wilson possessed the firearms. Possession need not be actual, but may be proved by evidence of constructive possession. United States v. Soto, 779 F.2d 558, 560 (9th Cir.), amended on other grounds, 793 F.2d 217 (9th Cir. 1986), cert. denied, 108 S. Ct. 110 (1987); United States v. Alverson, 666 F.2d 341, 345 (9th Cir. 1982). In this case, however, the government need not rely on constructive possession, for there is more than sufficient evidence that Wilson actually possessed the firearms.

Wilson was identified by the arresting officers as the man they had observed in the alley with the yellow duffel bag. Officer Reuser observed him enter a doorway carrying the yellow duffel bag, reach down, and then exit and return to the alley without the duffel bag. The bag was then found in the building that Wilson had just exited.

Wilson's spontaneous statement after his arrest is further evidence of his possession of the firearms. By his statement, Wilson implied that he knew the bag he had previously placed in the building contained firearms.

The government also presented evidence suggesting that Wilson possessed the firearms prior to his arrest. A witness at trial, Jack Boren, testified that some of the firearms found in the duffel bag had been stolen from his residence three days before Wilson's arrest. Boren also identified as his property a metal necklace that was in Wilson's pocket when he was arrested. Fingerprints were lifted from the doorknob of Boren's room, and a fingerprint specialist testified that the prints belonged to Wilson. Wilson's presence at the house where Boren rented a room was further corroborated by another resident of the house, who testified that he saw Wilson in the house with the son of the landlady on the day Boren's firearms were stolen.

The government presented sufficient evidence at trial to allow the jury to find beyond a reasonable doubt that Wilson possessed the firearms.

Special Agent Carenco's testimony, as an expert witness, that each firearm was manufactured outside of California, was sufficient to support a finding that the possession involved interstate commerce. See United States v. Clawson, 831 F.2d 909, 912-13 (9th Cir. 1987), cert. denied, 109 S. Ct. 303 (1988); United States v. Robbins, 579 F.2d 1151, 1153-54 (9th Cir. 1978).

Wilson's argument that this evidence is unpersuasive and thus insufficient, because Carenco did not examine the weapons prior to taking the witness stand, is meritless. Agent Carenco conducted research based on descriptions of the firearms made by another agent, and personally viewed the firearms on the witness stand. In Clawson, we held that expert testimony on the place of manufacture of a firearm did not lack foundation where the expert compared the gun to pictures in catalogues, firearms manuals, and reference publications, but performed no tests on the weapons.

Wilson also argues that because the Uzi machine gun had been modified from a semiautomatic weapon to an automatic weapon, and Carenco could not determine where this modification took place, the government did not prove the machine gun moved in interstate commerce. This argument also fails. A firearm, under Sec. 1202, includes "the frame or receiver" of a firearm. 18 U.S.C.App. Sec. 1202(c) (3). The modification did not alter the frame or receiver of the weapon, and therefore did not negate the proof that the weapon had previously traveled in interstate commerce. In any event, Wilson does not argue that there was insufficient evidence of interstate commerce for any of the other firearms. Section 1202(a) requires only the possession of at least one firearm.

CONCLUSION

The government presented sufficient evidence for a rational jury to find, beyond a reasonable doubt, that Wilson possessed the firearms, and that the firearms had traveled in interstate commerce.

AFFIRMED.