1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-7-1996

United States v. Beverly

Precedential or Non-Precedential:

Docket 96-1420

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Recommended Citation

"United States v. Beverly" (1996). 1996 Decisions. Paper 24.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/24
 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 

 No. 96-1420 

 

 

 UNITED STATES OF AMERICA 

 v. 

 DAMON BEVERLY, 

 Appellant 

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. No. 95-cr-00091) 

 

 

 Submitted Pursuant to Third Circuit LAR 34.1(a) 

 November 4, 1996 

 

 Before: SLOVITER, Chief Judge, 

 McKEE and ROSENN, Circuit Judges 

 (Opinion filed November 7, 1996) 

 

William T. Cannon 

Philadelphia, PA 19107 

 Attorney for Appellant 

Michael R. Stiles 

 United States Attorney 

Walter S. Batty, Jr. 

 Assistant United States Attorney 

 Chief of Appeals 

Jo W. Faber 

 Assistant United States Attorney 

Philadelphia, PA 19106 

 Attorney for Appellee 

 OPINION OF THE COURT 

SLOVITER, Chief Judge. 

 Appellant Damon Beverly was convicted following a jury 

trial in the Eastern District of Pennsylvania of both counts of a 
two count indictment charging him with robbery of a postal letter 

carrier of mail matter and property, in violation of 18 U.S.C. § 

2114 (Count One), and with the use of a firearm during and in 

relation to a crime of violence, in violation of 18 U.S.C. § 

924(c) (Count Two). Beverly was sentenced to incarceration of 

110 months on Count One, to be followed by a consecutive sentence 

of 60 months incarceration on Count Two, ordered to pay a fine of 

$1,000.00 and a special assessment fee of $100.00, and ordered 

upon release from prison to serve a period of three years of 

supervised release. 

 There was ample testimony, in particular the testimony 

of the victim mail carrier, of Beverly's involvement in the 

crime. His appeal is limited to a challenge to the sufficiency 

of the evidence to convict him of the crime charged in Count Two. 

He contends that the government failed to prove beyond a 

reasonable doubt that the device described by the robbery victim 

at trial as a gun meets the statutory definition of "firearm" as 

contained in 18 U.S.C. § 921(a)(3). Thus, he contends that his 

conviction should be vacated and his case remanded for resentencing. 

 The testimony shows that on December 20, 1994, Beverly 

and another man approached a U.S. Postal Service letter carrier, 

James McCullough, who was making mail deliveries in the 

Philadelphia area. McCullough testified that the taller of the 

two men, later identified to be Beverly, asked about the contents 

of McCullough's mailbag, lifted up his shirt to reveal a gun in 

the waistband of his pants, and said: "Be cool. Don't do 

anything." App. at 37. After the shorter man took $20.00 from 

McCullough's trousers, Beverly ordered McCullough to accompany 

him and made several threatening statements to McCullough while 

walking, including, "I have already killed motherfuckers. Do you 

want to be number eight? I should pop you right here." App. at 

38. McCullough testified that he was "scared" at the time. Id. 

 McCullough was forced to walk several blocks with his 

assailants to a waiting car, where he was told to get into the 

back seat. A third individual occupied the driver's seat of the 

automobile. When the car started moving, Beverly, who sat in the 

front seat, ordered McCullough to pull down his socks and empty 

his pockets, and stated, "I should pop you right here. I should 

cap you right now." App. at 40. McCullough testified that 

Beverly "took [the gun] out so I could see it in the split of the 

front seat." App. at 41. McCullough described the gun as a 

chrome-plated revolver. Id. 

 The assailants continued to drive McCullough around for 

approximately eight minutes, and when they dropped him off 

Beverly instructed him to "Forget about this. Forget what we 

look like, who we are, you know. If not, we know where your 

route is. We will come back and get you and kill you." App. at 

42. Beverly was arrested several days later, but the gun was 

never recovered. 

 Beverly, who testified on his own behalf, denied 

participating in the robbery. He does not repeat that contention 

on appeal, focusing, as we set forth above, on Count Two. 

 When reviewing a jury verdict to determine whether the 
evidence presented at trial was sufficient to support the 

conviction, we must "'view the evidence in the light most 

favorable to the prosecution'." United States v. Messerlian, 832 

F.2d 778, 789 (3d Cir. 1987) (quoting Jackson v. Virginia, 443 

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). The verdict must be 

sustained if "'any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt'." Id.(quoting 

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789). 

 18 U.S.C. § 924(c)(1), in relevant part, imposes a five 

year minimum term of imprisonment upon a person who "during and 

in relation to any crime of violence or drug trafficking crime 

. . . uses or carries a firearm." Another section of the statute 

defines a firearm as: 

 (A) any weapon (including a starter gun) 

 which will or is designed to or may readily 

 be converted to expel a projectile by the 

 action of an explosive; (B) the frame or 

 receiver of any such weapon; (C) any firearm 

 muffler or firearm silencer; or (D) any 

 destructive device. . . . 

18 U.S.C. § 921(a)(3). 

 In this case, the only evidence presented with respect 

to the firearms charge was the testimony of McCullough that 

Beverly threatened him with a gun during the course of the 

robbery, and that the gun, which was displayed in the car, was a 

chrome-plated revolver. Although Beverly argues on appeal that 

this testimony is inadequate since McCullough did not testify as 

to the gun's weight, length, or to the fact that he saw the gun 

for more than a "fleeting glance," Appellant's Brief at 28, 

several other courts of appeals have held evidence substantially 

similar to that presented in this case was sufficient to sustain 

a conviction under § 924(c). 

 In Parker v. United States, 801 F.2d 1382 (D.C. Cir. 

1986), cert. denied, 479 U.S. 1070 (1987), an opinion authored by 

then Circuit Judge Scalia, the court held that non-expert 

testimony that a robber used a gun was enough to justify a 

conviction under § 924(c) even though the weapon used by Parker 

in the bank robbery was not drawn but was stuck in the robber's 

waistband, id. at 1383. In that case, as here, the gun was not 

recovered and there was no evidence that the gun was fired. The 

government's evidence consisted only of testimony from two bank 

employees who testified that Parker carried a gun with which he 

threatened to "blow their heads off." Id. at 1383. One employee 

described the gun as "silver" with a "vinyl-looking" brown 

handle, and the other testified that she saw the brown handle of 

a small pistol. Id. 

 In rejecting Parker's challenge to the evidence, the 

court held that the testimony of the two bank employees was 

sufficient to support Parker's § 924(c) conviction. The court 

analogized Parker's case to United States v. Marshall, 427 F.2d 

434 (2d Cir. 1970), where the court held that eyewitness 

testimony that two bank robbers brandished a silver revolver and 

a sawed-off shot gun was sufficient to convict the defendants 
under the federal bank robbery statute, 18 U.S.C. § 2113(d), 

which provides for an enhanced sentence for those convicted of 

jeopardizing the life of any person "by use of a dangerous 

weapon." See also United States v. Jones, 34 F.3d 655 (8th Cir. 

1994) (upholding conviction for use of a firearm during an 

assault on a federal officer based on testimony of two trained 

law enforcement officials that they saw a gun at close range for 

an extended period of time, although they could not have 

determined that it was a real gun, as opposed to a toy or 

replica). 

 In United States v. Kirvan, 997 F.2d 963 (1st Cir. 

1993), a case arising under the same statute at issue here, 18 

U.S.C. § 924(c), the court sustained the conviction although no 

gun was produced at trial. As here, in Kirvan there was only 

eyewitness testimony that the defendant brandished a gun during 

the commission of his crime. One witness testified that the gun 

was black and had a five-inch barrel while another witness 

testified that the gun appeared to be shiny and silver in color, 

and that it was very large for a handgun. The appellate court 

held that the jury's conclusion that the object was a real gun 

could not be deemed irrational since the description of the gun 

was of "plausible size, colored like a real gun, and quite 

heavy." Id. at 966. The court also noted that "while a good 

replica might still fool a witness at a distance, the chances 

decline, where, as here, the witness saw the gun, stationary and 

at a close distance, for at least half a minute." Id.; see alsoUnited 

States v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995) 

(holding that lay opinion testimony from three eyewitnesses to a 

bank robbery, each of whom observed the object gripped by the 

defendant at close range was sufficient to sustain a finding that 

the object was a real gun); United States v. Jones, 907 F.2d 456, 

460 (4th Cir.) (upholding § 924(c) conviction based upon 

testimony from five eyewitnesses), cert. denied, 498 U.S. 1029 

(1990). 

 Beverly emphasizes that after the jury in this case 

rendered its verdict, the trial judge expressed "considerable 

doubt" as to whether the evidence sufficed to uphold the guilty 

verdict on Count Two, and advised Beverly's counsel to file a 

motion for judgment of acquittal on that Count. App. at 305. 

However, the trial court, after considering Beverly's timely Rule 

29 Motion for judgment of acquittal on Count Two, denied the 

motion. 

 We find no error in this ruling. McCullough saw the 

gun on two different occasions, decreasing the likelihood that he 

was mistaken as to the authenticity of the weapon. Additionally, 

McCullough's close proximity to Beverly while he brandished the 

weapon further diminishes the possibility that the object he was 

threatened with was anything other than a firearm. The 

defendant's own expert psychologist testified that, in the 

presence of a gun, the tendency of the victim is to concentrate 

attention on the gun instead of on the face of the assailant. 

App. at 248-49. Considering this testimony, McCullough had ample 

time to view the weapon while he was in the defendant's car. 

Finally, Beverly threatened McCullough's life numerous times 
during the course of the robbery. McCullough's testimony was 

sufficient evidence for a jury to conclude that the defendant 

utilized a firearm in the commission of his crime. "'The act of 

threatening others with a gun is tantamount to saying that the 

gun is loaded and that the gun wielder will shoot unless his 

commands are obeyed'." Parker, 801 F.2d at 1384 (quoting 

Marshall, 427 F.2d at 437). 

 We agree with the district court that the evidence 

presented, when considered in the light most favorable to the 

government, was a sufficient basis for a reasonable jury to find 

that Beverly utilized a firearm in the commission of a violent 

crime, in violation of 18 U.S.C. § 924(c). We will therefore 

affirm the judgment of conviction.