2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

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UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

No. 04-1083

UNITED S TATES OF AMERI CA

v.
CLARENC E SHAMBRY, Appellant

App eal from th e Un ited States District Co urt for the Dis tri ct of New Jersey (D.C. Crimi nal No. 03-cr -00008) Distric t Judg e: Ho nora ble Jer om e B. S iman dle

Submitte d Under Third Circ uit LAR 34.1(a)

December 6, 2004 Be for e: R EN DE LL and FIS HE R, Circu it Judges , and

YO HN *, Distri ct Judge

.

__________________ *Honorable Will iam H. Yohn, Jr. , Senior Distri ct Court Judge for

the East ern District

of Pennsy lvania , si tti ng by des ignati on.2 (Fil ed: December 22, 2004)

Da vid S . Rud enstein 9411 Evans Street Philadelphia, PA 19115 Counsel for Appell ant George S. Leone Office of U.S. Attorney 970 Broad Street , Room 700 Newark, NJ 07102
Glenn J. Moramarco Office of U.S. Attorney Camde n Federal Building & C ourthouse 401 Market Stree t P.O . Bo x 20 98, 4 th Floor Camden, NJ 08101 Counsel for

Appellee

OPINI ON OF THE COURT

RE ND EL L, Circuit

Judge

. Following a bench trial on September 9, 2003, Clarence Sham bry was found guilty of one count of possess ion of a firearm by a c onvi cted felo n in vio latio n of 18 U .S.C . §3 922(g)(1). He was sentence d to 92 months’ i mprisonment followed by three y ears of s upervi se d relea se. Shambrynow appe als his convi ction on two principalgrou nds

. First , he chall enges the suffi ciencyof the ev idenc e to sustain the ve rdict, clai ming that the government fai led in i ts burde n of proving beyonda reasonabl e doubt that the fire arm h e pos sessed actua lly moved through i nters tate commerce. Second, he contends that the Distric t Cou rt erred in denyin g his p retrial m otion to suppress the fi rearm, arguing t hat it was obtaine d as the resul t of an ill egal search and sei zure.
The Distri ct Court ha d juri sdiction under18 U.S .C. § 3231, and we have juri sdiction under 28 U.S .C. 

### § 1291. For the
re as ons st at ed b el ow, we wi llaff irm.
I.
At about midni ght on September 29, 2002, Camden Police Officers Gramag lia and Kemp w ere dispersi ng a cr owd that ha d formed at Morton and Norris St reets in Camden, New Jersey . While doi ng so, Office r Gramaglia observed a Pontiac Bo nnev ille with two occupant s travel ing toward hi m at a high rate of s pee d. As the vehicl e neared a s top si gn at th e inter secti on, Off icer Kem p appro ached the driver’s side of the vehic le and Officer Gramagli a stood i n front of t he veh icle , atte mpting to sto p it. By the s treet light s at t

he inte rsection, OfficerGramag lia was able t o view the dri ver thr ough the win dshie ld and recogni zed him as someone he had s een in the
area while on previous p at rols. Officer Kemp inst ructed t he driver to turn the ve hicle off, but the dri ver ins tead acce lerated, striking OfficerGr amaglia i n the le g and forci ng him onto the4 hood of the vehi cle. The car tr aveled appr oximatel y fi ve to te n feetbefore turning and t hrowing O ffi cer Gramagli a from the hood.

Imm ediate ly after the inci dent, the officers p ursue d the vehic le in their marked patrolcar with t he emergencylight s and sire n activ ated

. Af

tera short

chase, t he car st opped at another inter secti on and th e occ upan ts got o ut, fle eing on f oot

. The officers apprehended the passenger , Will iam Purn ell, but fai led to apprehend the driver. In a “Major Inc ident Report,” Officer Gra mag lia descri bed the i ncident as an aggravated ass ault and the dr iver a s a blac k m ale w earing a blac k ho oded swe atshirt. In the ne xt sev eral w eeks , Off icer G rama glia acti velylooked for the driver

of the vehi cle whil e on patrol , but di d not look at the police department ’s dat abase of mug shots to try to identi fy t he driver.
On October 18, 2002, at abou t 1:20 A .M., Of ficers Gra mag lia and G onzalez w ere patr ollin g a h igh crim e are a, a few blo cks away fr om where the vehicl e that struc k Officer Gr ama glia was abando ned by its occupants. The o fficers observed Shambry walki ng east on Thurman S treet when OfficerGra mag li a reco gnize d him as the d river o f the v ehicle that stru ck h im. After Officer Gramaglia i ndicat ed to his partner that he rec ogn ized S ham bry, the of ficers c ircled th e blo ck and
as theyappr oach ed S ham bry, Of ficer G rama glia got out of t he patrolcar , saying to S ham bry, “Co me h ere, I w ant to ta lk to you.” At that poi nt , S hamb ry fled on foot and Officer Gra mag lia fol lo wed h im. Ult ima tely, O ffic er G rama glia apprehended Shambryas he tried to f lee over a fence.5 After stoppi ng Shambry, Officer Gramagli a conducted a “patdown” se ar ch of

hi s p er so n, di sc ov eri ng a . 32 ca l i be r H &R Model 732 revo lver w ith a defaced serial numb er in Sham bry’s right front poc ket. The rev olver con taine d two live rounds of ammunition and one spe nt cartridge. Sham bry was transpor ted to poli ce head quar ters an d cha rged with ill egal poss ession of a hand gun and th e Sep temb er 29 aggr avate d assa ult.
On Janu ar y 7 , 2003 , a fed eral G rand Jury sitting in Camden retur

ned a one-count

indict ment chargi ng Shambr y wit h being a fe lo n i n po ss es si on o f a f ir earm in vi ol at io n of

18 U. S. C. §§ 922 (g)(1) and (2).

In a mo ti on to suppre ss the revolver, Shambry ar gued that its seizure was the res ult of an u ncon stit utionalsearch and seizure insofar

as Officer Gramagl ia had no re as onab le suspici on to condu ct a frisk unde r Terry v. O hio , 392 U.S. 1 (1968). The D istrict Court denied the motion, ho wev er, concludi ng that t

he search was cons tit

utional . The Court found that Of ficer G rama glia ha d a rea sona ble su spicion , grou nded in spec ific facts, to bri eflydetai n Shambr y for inves tigation in connecti on with the pri or assaul t based on Off icer Gram aglia’s observ a tion of the dri ver duri ng the ass ault, his re cogniti on of the dr iv eras som e one who frequent ed the hi gh crime ar ea he patrol led, and his i dentif ication of

Shambry on October

18. The Cou rt found it reasonable for Officer Gramaglia t o belie ve that he could ide ntify

the dri ver that

struc k him three weeks earli er and this fact al one was enough to jus tify a Terry stop and frisk. Furthermore, under Ill inois v. Wardlow and Third Circu it prece dent, Officer Gramagli a had a reas onable sus pici on for a stop and fris k because of Shambry ’s pres en c e i n a h ig h crime6 a rea coupled with his unprovoke d flight from the pol ice. 528 U.S. 119 , 119 ( 200 0); Un ited Sta te s v. Brow n , 159 F.3d 147, 150 (3d C ir. 1998 ); Un ited Sta tes ex r el. Rich ardso n v. R und le , 461 F.2d 860, 864 (3d Cir. 197 2). Bec ause Of ficer G rama glia had a reaso nable susp icio n, the Court c oncluded, the st op and friskw ere consti tuti onal and the evidence di scovered was adm issible in c ourt.
At trial, th e pa rties s tipu lated to, inter alia , the following facts: (1) Officer

Gramaglia r ecovered a . 32 cali ber H&R M odel 732 revolver

from Shambry’ s pockets ; (2) the H&R M odel 732 revolver was loaded with two live rounds ; (3) the H&R M odel 732 revolver

was a firearm as defined by18 U.S.C. §§ 921(a )(3) and 922(g); (4) the f irearm w as operab le; and (5 ) pr ior to Oc to b er 18, 200 2, Sha mbr y hadbee n co nvi ct ed o f a c ri me pun ishab le by a term of impri sonment excee ding one year in a court in the state of

New Jersey. Special Agent John Leonard of the Bureau of Alcohol, Tobacco, Firearms, a nd Explosives was qualif ied as an expert

witness and opined that the gun was manufacturedin Massachusetts an d n ecess arily traveled in interstate co mmer ce befo re being fo und in S hamb ry’s possessi on in N ew Jersey. A fter de lib er ation, the Cou rt ul tim ate ly co nv ict ed Sh am br y. Following his convi ction, Shambry fi led a moti on for an ordergranti ng a ju dgme ntof a cqu itta l p ur suantto Fed . R. Cri m. P. 29, arg uing that the evide nce a t trial wa s not su fficien t to prove that he poss essed the fire arm in or aff ecting interstate
commerce. The Court denied t his moti on, noti ng that t hrough the in trodu ctio n of expert testimony, the government establ ished that the firearm wa s ma nuf acture d in M assac huse tts and th at it7 could not ha ve bee n m anu fac ture d in Ne w J erse y. Tak en w ith the stip ulate d fact that Shambrypossesse d the fi rearm on October 18, 2002, i n Camden, New Jersey, the logica l infe rence was that the gun had neces sari ly travel ed in interst ate commerce at som e poin t. The C ourt also noted that under United States v. Singletary , 268 F.3d 196 (3d Cir . 2001), the tr ansport of a weapon in interst ate c o mm erce, h ow ever re mo te in the past, gives its present

intr astate possess ion a s uffici ent ne xus to inters tate co mmerce to fal l withi n the ambit of Secti on 922(g)(1). The Distri ct Cou rt then p ointed out tha t in Sing le tary , there ha d been clear evidence t

hat the firearm had been manufactur ed in Brazi l and shipped t o Texas via G eorg ia prior to somehow ending up in Pennsy lvania where it was possesse d by the defendant, but, i n the instant matter, there was
n o proof o f the fi rearm moving, only that i t had been manufacturedin M assac huse tts and was possesse d by Sham bry in N ew Jersey. Lo okin g to p reced ent in the First , Fift h, Ninth, Ten th, and Eleventh Ci rcuit s, the Court ult imatel y conclud e d that the government

had, with the evi dence outl ine d above, suff iciently proved that the firearm had been posses sed “in or affecti ng” inte rstate commerce.
On appe al , Sham bry argues that the go vernm ent’s evidence regardi ng whether the revo lver had moved t hrough interstate com merc e w as insu fficien t to sustai n the verdict and that the search and s eizure of the revo lver by O ffice r Gra mag lia
we re un cons titutional.
II. Regarding the ch all eng e to the suffici ency of t he8 evidence, “we review the evide nce in the ligh t mos t favo rable to the gov ernm ent as v erdict w in ner, ” United States v. Ap plew haite , 195 F.3d 679, 684 ( 3d Cir. 1999) , and “[w]e must affirm the convi ction[ ] if arati onal tr ier of fa ct coul d have found defendantguilt

y bey ond a reasonabl e d oub t, and th e verd ict is supporte d by subs tanti al evi dence,” United States v . Coyle , 63 F.3d 1239, 1243 (3d Cir. 19 95). N everth eless, to the ex tent this issue turns o n statuto ry interpreta tio n, w e exercise plen ary re vi ew. See United States v. Sparrow , 371 F.3 d 85 1, 852 (3d Cir. 2004) (ci ting United S tates v. Cepe ro , 224 F.3d 25 6 , 258 (3d Cir. 20 00) (e n ban c)). Re gard ing the denia l of the mo tion to suppre ss, w e revie w the District Court ’s fi ndings of fact for clear error and subject

the Court’ s legalanaly sis and application of law to pl en ar y revie w. United States v. Riddi ck , 156 F.3d 505, 509 (3d Cir. 199 8).
III. Shambry’ s primary ar gument on appeal i s that although the govern ment pro ve d the re volv er w as m anuf acture d in M assac huse tts and was possesse d by Shambryin New Jers ey, it fail ed to pro ve be yond a r easo nable dou bt that tha t particular revolver actual ly moved through interst ate commerce.
Like the Dist

rict Cour t, our c onsid eration of this argumentbegins wit

h our prece de nt in United States v. Sin gletary , 268 F.3d 196, 200 ( 3d Cir. 2001) , wher e w e inter preted Scarborough v. United States , 431 U.S. 563 (1977), to “establ ish[] the propos iti on that the tr ansport

of a we apon in interstate c o mmerce, however remot e in the dist ant past , give s its presen t intrastate p osses sion a suff icient n exus to intersta te1 Acc ord U nited St ates v. Corey , 207 F.3d 84, 88 (1st C ir. 200 0) (“[ T]he ‘interstate nexus’ element was met provided the governmentdemonstrated that [the defendant] posses sed the shotgun in a state other th an the o ne in which i t was manu facture d.”); U nited St ates v. Lawson , 173 F.3d 666, 670 (8th Cir

. 19 99) (finding that the stipulation that the gu ns we re manufacturedoutsi de o f the state where the defendant posses sed them sati sfied “‘ the mini mal nexus that t he firearms have been, at some ti me, in i nters tate commerce,’ t hat is, th atth e fire ar ms at some point

prior to [the defendant’ s] posse ssion

. . . crossed
a state line ” (quoti ng United States v. Shelton , 66 F.3d991, 992 (8th Cir. 1995 ) (per c uriam ))); United States v. Pi erson , 139 F.3d 501 , 504 ( 5th C ir. 1998 ) (“[E ]viden ce tha t a gun was manufacturedin on e state a nd p osses sed in an other s tate is suffici ent to establi sh a past conne ction be tween the firearm and interstate com merc e.”); United St at es v. Cru mp , 120 F.3d 462, 466 & n.2 (4 th Cir. 1 997 ) (“[It] is our vi ew that the movement of a firearm b eyond the bo undaries o f its state of man ufacture ‘subs tantially affects’ inter state commerce . . . .”); United States 9 com merc e to fa ll with in the a mb it of [S ection 922( g)( 1)] .” To the extent

that bot h parti es and th e Di st

ri ct Cou rt ag re e tha t we have never addre ssed the precis e issue of whether proof that t he firearm was manufactured i n a state other than the state w here the p os sessi on occurred i s suffi cient to est ablis h that t

he possessi on was “in oraff ectin g co mm erce ” un der 18 U .S.C . § 922(g)(1), we conclude, l ike the over wh elmin g m ajority of our sister courts of appeals , that such pr oof meets the minimal nexus required to estab lish that th e firea rm af fecte d interstate
commerce. 1 Ac co rdingl y, we conclude that the governmentv. Lew is , 100 F.3d 49, 50 (7th C ir. 1996) (“[P]ro of of a g un’s
manu facture outsid e of the state in w hich it w as alleg edly possesse d is suff

i cient to support t

he factualfinding t

hat the firearm wa s ‘in or affecting comm erce.’” (quoti ng United States v. Lowe , 860 F .2d 13 70, 13 74 (7 th Cir. 1 988 ))); Un it ed St ates v. Farn swo rth , 92 F.3d 1001, 1006 (10th C ir . 1996) ( finding expert testimony that t he defendant’ s gun had been manufacturedin a differe nt st ate fr om that i n which it was found
was suff icient n exus to intersta te com merc e); United St ates v. Sande rs , 35 F.3d 61, 62 (2d Cir . 1994) ( finding f act that gun was manufacturedin a st ate di fferen t fr om that i n which it was possesse d was sufficient nex us to interstate com merce); United St ates v. M orris , 904 F.2d 518, 519 (9th Cir. 1990 ) (same) ; United States v. Singl eton , 902 F.2d 471, 473 (6th C ir. 1990) (“[T]he mere fact t

hat the firearm was man ufact ured in a differe nt state esta blished a suf ficien t nexu s with interstate
comm erce.”).
10 providedsuffici ent evi dence and sust ained i ts burde n of proving beyonda reasonabl e doubt that Shambry possesse d the revol ver in or affecting interst ate commerce wit hin the meani ng of 1 8 U.S.C . § 922(g)(1).
IV.
Sham bry’s seco nd ar gum ent is tha t th e se arch and seizure that prod uced the gu n w ere un cons titutional and the Dist rict Cou rt erred i n denyi ng his moti on t o suppress the gun. Sp ec ifi ca lly, Shambry contends that OfficerGramaglia t ackled and arres ted h im and, theref ore, t he Terry stop “ reaso nable11 suspici on” standar d is i napplic a ble, that Wardlow is inapp li cable because his fl ightupon Officer Gramagli a’s saying “come here”
wa s not unprovoked and w as, rather, tantamount to exercisi n g his right not to co o perate with the po lice, and that the re is nothing in the record tha t supports O fficer Gramag lia’s statement that he recog nized Sha mb ry as the d river tha t hit him and, theref

ore, Offi ce r Gram aglia could not ha ve stopped Sham bry in good fai th on October 18

. We find each of these conte ntions to be w ithout m erit.

We agree with the D istrict Co urt that it w a s reaso nable that Off icer Gra mag lia c ould have re cognized Shambryas the driver of the car

th athi t h im, accepting, as w e must, the C ourt’s credit ing of Of

fi cer Gra ma gli a’s t esti mony in t he absence of clear er r or
. We also b elieve that Terry is appl icabl e and the stop was justified in light

of the fact

that t he areahad a reput ation f or crimina l acti vity

and Shambry fl ed when Officer Gram aglia soughtto que stio n hi m. See Wardlow , 528 U.S . at 119 ; Bro wn , 159 F.3d at 150 ; Ru ndle , 461 F.2 d at 8 64. The fact that Officer Gra mag lia said “come here” as he appr oached Shambry does not nega te this conclusi on
. Se e Br own , 159 F.3d at 150. All of these facts were more than just the “inarticulate hunches” proscribed by Te rry , and we ther efore agre e with the Distri ct Cou rt’s conclusi on tha t “O ffice r Gra mag lia had a reaso nable suspici on, ground ed in specific f acts, to briefly detain Sham bry fo r in vestigation in con nection w ith” Off icer Gram aglia’s
assau lt. The frisk w as also justifi ed und er Terry insofar as O fficer Gramaglia had an arti culabl e suspic ion that Shambr y had been i n vol ved in a c rime of v iolen ce, i.e

. , the assaul t on Sep tem ber 29. See T erry , 392 U.S. at 13, 33.12 V.
For the rea sons st at ed ab ove, we willAFFIRM the Distri ct Court’ s judgment and Shambry’ s conviction.