2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-22-2004

USA v. Shambry

Precedential or Non-Precedential: Precedential

Docket No. 04-1083

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-1083

 

UNITED STATES OF AMERICA

v.

CLARENCE SHAMBRY,

 Appellant

 

Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal No. 03-cr-00008)

District Judge: Honorable Jerome B. Simandle

 

Submitted Under Third Circuit LAR 34.1(a)

December 6, 2004

Before: RENDELL and FISHER, Circuit Judges, and

YOHN*, District Judge.

__________________

*Honorable William H. Yohn, Jr., Senior District

Court Judge for the Eastern District of Pennsylvania, sitting

by designation.
2

(Filed: December 22, 2004)

 

David S. Rudenstein

9411 Evans Street

Philadelphia, PA 19115

 Counsel for Appellant

George S. Leone

Office of U.S. Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Glenn J. Moramarco

Office of U.S. Attorney

Camden Federal Building & Courthouse

401 Market Street

P.O. Box 2098, 4th Floor

Camden, NJ 08101

 Counsel for Appellee

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

Following a bench trial on September 9, 2003, Clarence

Shambry was found guilty of one count of possession of a

firearm by a convicted felon in violation of 18 U.S.C. §
3

922(g)(1). He was sentenced to 92 months’ imprisonment

followed by three years of supervised release. Shambry now

appeals his conviction on two principal grounds. First, he

challenges the sufficiency of the evidence to sustain the verdict,

claiming that the government failed in its burden of proving

beyond a reasonable doubt that the firearm he possessed actually

moved through interstate commerce. Second, he contends that

the District Court erred in denying his pretrial motion to

suppress the firearm, arguing that it was obtained as the result of

an illegal search and seizure.

The District Court had jurisdiction under 18 U.S.C. §

3231, and we have jurisdiction under 28 U.S.C. § 1291. For the

reasons stated below, we will affirm.

I.

At about midnight on September 29, 2002, Camden

Police Officers Gramaglia and Kemp were dispersing a crowd

that had formed at Morton and Norris Streets in Camden, New

Jersey. While doing so, Officer Gramaglia observed a Pontiac

Bonneville with two occupants traveling toward him at a high

rate of speed. As the vehicle neared a stop sign at the

intersection, Officer Kemp approached the driver’s side of the

vehicle and Officer Gramaglia stood in front of the vehicle,

attempting to stop it. By the street lights at the intersection,

Officer Gramaglia was able to view the driver through the

windshield and recognized him as someone he had seen in the

area while on previous patrols. Officer Kemp instructed the

driver to turn the vehicle off, but the driver instead accelerated,

striking Officer Gramaglia in the leg and forcing him onto the
4

hood of the vehicle. The car traveled approximately five to ten

feet before turning and throwing Officer Gramaglia from the

hood.

Immediately after the incident, the officers pursued the

vehicle in their marked patrol car with the emergency lights and

siren activated. After a short chase, the car stopped at another

intersection and the occupants got out, fleeing on foot. The

officers apprehended the passenger, William Purnell, but failed

to apprehend the driver. In a “Major Incident Report,” Officer

Gramaglia described the incident as an aggravated assault and

the driver as a black male wearing a black hooded sweatshirt.

In the next several weeks, Officer Gramaglia actively looked for

the driver of the vehicle while on patrol, but did not look at the

police department’s database of mug shots to try to identify the

driver.

On October 18, 2002, at about 1:20 A.M., Officers

Gramaglia and Gonzalez were patrolling a high crime area, a

few blocks away from where the vehicle that struck Officer

Gramaglia was abandoned by its occupants. The officers

observed Shambry walking east on Thurman Street when

Officer Gramaglia recognized him as the driver of the vehicle

that struck him. After Officer Gramaglia indicated to his partner

that he recognized Shambry, the officers circled the block and

as they approached Shambry, Officer Gramaglia got out of the

patrol car, saying to Shambry, “Come here, I want to talk to

you.” At that point, Shambry fled on foot and Officer

Gramaglia followed him. Ultimately, Officer Gramaglia

apprehended Shambry as he tried to flee over a fence.
5

After stopping Shambry, Officer Gramaglia conducted a

“pat down” search of his person, discovering a .32 caliber H&R

Model 732 revolver with a defaced serial number in Shambry’s

right front pocket. The revolver contained two live rounds of

ammunition and one spent cartridge. Shambry was transported

to police headquarters and charged with illegal possession of a

handgun and the September 29 aggravated assault.

On January 7, 2003, a federal Grand Jury sitting in

Camden returned a one-count indictment charging Shambry with

being a felon in possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(1) and (2).

In a motion to suppress the revolver, Shambry argued that

its seizure was the result of an unconstitutional search and

seizure insofar as Officer Gramaglia had no reasonable

suspicion to conduct a frisk under Terry v. Ohio, 392 U.S. 1

(1968). The District Court denied the motion, however,

concluding that the search was constitutional. The Court found

that Officer Gramaglia had a reasonable suspicion, grounded in

specific facts, to briefly detain Shambry for investigation in

connection with the prior assault based on Officer Gramaglia’s

observation of the driver during the assault, his recognition of

the driver as someone who frequented the high crime area he

patrolled, and his identification of Shambry on October 18. The

Court found it reasonable for Officer Gramaglia to believe that

he could identify the driver that struck him three weeks earlier

and this fact alone was enough to justify a Terry stop and frisk.

Furthermore, under Illinois v. Wardlow and Third Circuit

precedent, Officer Gramaglia had a reasonable suspicion for a

stop and frisk because of Shambry’s presence in a high crime
6

area coupled with his unprovoked flight from the police. 528

U.S. 119, 119 (2000); United States v. Brown, 159 F.3d 147,

150 (3d Cir. 1998); United States ex rel. Richardson v. Rundle,

461 F.2d 860, 864 (3d Cir. 1972). Because Officer Gramaglia

had a reasonable suspicion, the Court concluded, the stop and

frisk were constitutional and the evidence discovered was

admissible in court.

At trial, the parties stipulated to, inter alia, the following

facts: (1) Officer Gramaglia recovered a .32 caliber H&R Model

732 revolver from Shambry’s pockets; (2) the H&R Model 732

revolver was loaded with two live rounds; (3) the H&R Model

732 revolver was a firearm as defined by 18 U.S.C. §§ 921(a)(3)

and 922(g); (4) the firearm was operable; and (5) prior to

October 18, 2002, Shambry had been convicted of a crime

punishable by a term of imprisonment exceeding one year in a

court in the state of New Jersey. Special Agent John Leonard of

the Bureau of Alcohol, Tobacco, Firearms, and Explosives was

qualified as an expert witness and opined that the gun was

manufactured in Massachusetts and necessarily traveled in

interstate commerce before being found in Shambry’s

possession in New Jersey. After deliberation, the Court

ultimately convicted Shambry.

Following his conviction, Shambry filed a motion for an

order granting a judgment of acquittal pursuant to Fed. R. Crim.

P. 29, arguing that the evidence at trial was not sufficient to

prove that he possessed the firearm in or affecting interstate

commerce. The Court denied this motion, noting that through

the introduction of expert testimony, the government established

that the firearm was manufactured in Massachusetts and that it
7

could not have been manufactured in New Jersey. Taken with

the stipulated fact that Shambry possessed the firearm on

October 18, 2002, in Camden, New Jersey, the logical inference

was that the gun had necessarily traveled in interstate commerce

at some point. The Court also noted that under United States v.

Singletary, 268 F.3d 196 (3d Cir. 2001), the transport of a

weapon in interstate commerce, however remote in the past,

gives its present intrastate possession a sufficient nexus to

interstate commerce to fall within the ambit of Section

922(g)(1). The District Court then pointed out that in

Singletary, there had been clear evidence that the firearm had

been manufactured in Brazil and shipped to Texas via Georgia

prior to somehow ending up in Pennsylvania where it was

possessed by the defendant, but, in the instant matter, there was

no proof of the firearm moving, only that it had been

manufactured in Massachusetts and was possessed by Shambry

in New Jersey. Looking to precedent in the First, Fifth, Ninth,

Tenth, and Eleventh Circuits, the Court ultimately concluded

that the government had, with the evidence outlined above,

sufficiently proved that the firearm had been possessed “in or

affecting” interstate commerce.

On appeal, Shambry argues that the government’s

evidence regarding whether the revolver had moved through

interstate commerce was insufficient to sustain the verdict and

that the search and seizure of the revolver by Officer Gramaglia

were unconstitutional.

II.

Regarding the challenge to the sufficiency of the
8

evidence, “we review the evidence in the light most favorable to

the government as verdict winner,” United States v.

Applewhaite, 195 F.3d 679, 684 (3d Cir. 1999), and “[w]e must

affirm the conviction[] if a rational trier of fact could have found

defendant guilty beyond a reasonable doubt, and the verdict is

supported by substantial evidence,” United States v. Coyle, 63

F.3d 1239, 1243 (3d Cir. 1995). Nevertheless, to the extent this

issue turns on statutory interpretation, we exercise plenary

review. See United States v. Sparrow, 371 F.3d 851, 852 (3d

Cir. 2004) (citing United States v. Cepero, 224 F.3d 256, 258

(3d Cir. 2000) (en banc)). Regarding the denial of the motion to

suppress, we review the District Court’s findings of fact for

clear error and subject the Court’s legal analysis and application

of law to plenary review. United States v. Riddick, 156 F.3d

505, 509 (3d Cir. 1998).

III.

Shambry’s primary argument on appeal is that although

the government proved the revolver was manufactured in

Massachusetts and was possessed by Shambry in New Jersey, it

failed to prove beyond a reasonable doubt that that particular

revolver actually moved through interstate commerce.

Like the District Court, our consideration of this

argument begins with our precedent in United States v.

Singletary, 268 F.3d 196, 200 (3d Cir. 2001), where we

interpreted Scarborough v. United States, 431 U.S. 563 (1977),

to “establish[] the proposition that the transport of a weapon in

interstate commerce, however remote in the distant past, gives

its present intrastate possession a sufficient nexus to interstate
 

1

 Accord United States v. Corey, 207 F.3d 84, 88 (1st Cir.

2000) (“[T]he ‘interstate nexus’ element was met provided the

government demonstrated that [the defendant] possessed the

shotgun in a state other than the one in which it was

manufactured.”); United States v. Lawson, 173 F.3d 666, 670

(8th Cir. 1999) (finding that the stipulation that the guns were

manufactured outside of the state where the defendant possessed

them satisfied “‘the minimal nexus that the firearms have been,

at some time, in interstate commerce,’ that is, that the firearms

at some point prior to [the defendant’s] possession . . . crossed

a state line” (quoting United States v. Shelton, 66 F.3d 991, 992

(8th Cir. 1995) (per curiam))); United States v. Pierson, 139

F.3d 501, 504 (5th Cir. 1998) (“[E]vidence that a gun was

manufactured in one state and possessed in another state is

sufficient to establish a past connection between the firearm and

interstate commerce.”); United States v. Crump, 120 F.3d 462,

466 & n.2 (4th Cir. 1997) (“[It] is our view that the movement

of a firearm beyond the boundaries of its state of manufacture

‘substantially affects’ interstate commerce . . . .”); United States

9

commerce to fall within the ambit of [Section 922(g)(1)].” To

the extent that both parties and the District Court agree that we

have never addressed the precise issue of whether proof that the

firearm was manufactured in a state other than the state where

the possession occurred is sufficient to establish that the

possession was “in or affecting commerce” under 18 U.S.C. §

922(g)(1), we conclude, like the overwhelming majority of our

sister courts of appeals, that such proof meets the minimal nexus

required to establish that the firearm affected interstate

commerce.1 Accordingly, we conclude that the government
v. Lewis, 100 F.3d 49, 50 (7th Cir. 1996) (“[P]roof of a gun’s

manufacture outside of the state in which it was allegedly

possessed is sufficient to support the factual finding that the

firearm was ‘in or affecting commerce.’” (quoting United States

v. Lowe, 860 F.2d 1370, 1374 (7th Cir. 1988))); United States

v. Farnsworth, 92 F.3d 1001, 1006 (10th Cir. 1996) (finding

expert testimony that the defendant’s gun had been

manufactured in a different state from that in which it was found

was sufficient nexus to interstate commerce); United States v.

Sanders, 35 F.3d 61, 62 (2d Cir. 1994) (finding fact that gun was

manufactured in a state different from that in which it was

possessed was sufficient nexus to interstate commerce); United

States v. Morris, 904 F.2d 518, 519 (9th Cir. 1990) (same);

United States v. Singleton, 902 F.2d 471, 473 (6th Cir. 1990)

(“[T]he mere fact that the firearm was manufactured in a

different state established a sufficient nexus with interstate

commerce.”).

10

provided sufficient evidence and sustained its burden of proving

beyond a reasonable doubt that Shambry possessed the revolver

in or affecting interstate commerce within the meaning of 18

U.S.C. § 922(g)(1).

IV.

Shambry’s second argument is that the search and seizure

that produced the gun were unconstitutional and the District

Court erred in denying his motion to suppress the gun.

Specifically, Shambry contends that Officer Gramaglia tackled

and arrested him and, therefore, the Terry stop “reasonable
11

suspicion” standard is inapplicable, thatWardlow isinapplicable

because his flight upon Officer Gramaglia’s saying “come here”

was not unprovoked and was, rather, tantamount to exercising

his right not to cooperate with the police, and that there is

nothing in the record that supports Officer Gramaglia’s

statement that he recognized Shambry as the driver that hit him

and, therefore, Officer Gramaglia could not have stopped

Shambry in good faith on October 18. We find each of these

contentions to be without merit.

We agree with the District Court that it was reasonable

that Officer Gramaglia could have recognized Shambry as the

driver of the car that hit him, accepting, as we must, the Court’s

crediting of Officer Gramaglia’s testimony in the absence of

clear error. We also believe that Terry is applicable and the stop

was justified in light of the fact that the area had a reputation for

criminal activity and Shambry fled when Officer Gramaglia

sought to question him. See Wardlow, 528 U.S. at 119; Brown,

159 F.3d at 150; Rundle, 461 F.2d at 864. The fact that Officer

Gramaglia said “come here” as he approached Shambry does not

negate this conclusion. See Brown, 159 F.3d at 150. All of

these facts were more than just the “inarticulate hunches”

proscribed by Terry, and we therefore agree with the District

Court’s conclusion that “Officer Gramaglia had a reasonable

suspicion, grounded in specific facts, to briefly detain Shambry

for investigation in connection with” Officer Gramaglia’s

assault. The frisk was also justified under Terry insofar as

Officer Gramaglia had an articulable suspicion that Shambry

had been involved in a crime of violence, i.e., the assault on

September 29. See Terry, 392 U.S. at 13, 33.
12

V.

For the reasons stated above, we will AFFIRM the

District Court’s judgment and Shambry’s conviction.