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. e du/thir dc ir c uit_1996/24UNITED 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 C ourt for the Eastern District of Pennsylvani a (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 foll owing a jury trial in the Eastern District of Pennsylvania of bo th counts of atwo count indictment charging him with robbery of a postal letter

carrier of mail matter and property, in violation o f 18 U.S.C. § 2114 (Count One), and with the use of a firearm dur ing and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Two). Beverly was sentenced to incar ceration of 110 months on Count One, to be followed by a consec utive 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 t he testimony of the victim mail carrier, of Beverly's involvemen t 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 bey ond a reasonable doubt that the device described by the r obbery victim at trial as a gun meets the statutory definition of "firearm" as contained in 18 U.S.C. § 921(a)(3). Thus, he conte nds that his
conviction should be vacated and his case remanded for resentencing. The testimony shows that on December 20, 1 994, Beverly and another man approached a U.S. Postal Service le tter carrier, James McCullough, who was making mail deliveries in the Philadelphia area. McCullough testified that the t aller of the two men, later identified to be Beverly, asked abou t the contents of McCullough's mailbag, lifted up his shirt to rev eal a gun in the waistband of his pants, and said: "Be cool. D on't do anything." App. at 37. After the shorter man took $20.00 from McCullough's trousers, Beverly ordered McCullough t o accompany him and made several threatening statements to McCu llough while walking, including, "I have already killed motherfu ckers. Do you want to be number eight? I should pop you right he re." App. at 38. McCullough testified that he was "scared" at t he time. Id. McCullough was forced to walk several bloc ks with his assailants to a waiting car, where he was told to g et 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 soc ks and empty his pockets, and stated, "I should pop you right he re. I should cap you right now." App. at 40. McCullough testif ied that Beverly "took [the gun] out so I could see it in th e split of the front seat." App. at 41. McCullough described the gun as a chrome-plated revolver. Id.
The assailants continued to drive McCullou gh around for approximately eight minutes, and when they dropped him off Beverly instructed him to "Forget about this. Forg et what we look like, who we are, you know. If not, we know w here your route is. We will come back and get you and kill y ou." App. at 42. Beverly was arrested several days later, but t he gun was

never recovered. Beverly, who testified on his own behalf, denied participating in the robbery. He does not repeat t hat contention on appeal, focusing, as we set forth above, on Coun t Two. When reviewing a jury verdict to determine whether theevidence presented at trial was sufficient to suppo rt the

conviction, we must "'view the evidence in the ligh t most favorable to the prosecution'." United States v. M esserlian, 832 F.2d 778, 789 (3d Cir. 1987) (quoting Jackson v. Vi rginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). The v erdict must be sustained if "'any rational trier of fact could hav e 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, i mposes a five year minimum term of imprisonment upon a person who "during and in relation to any crime of violence or drug traffi cking 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 readil y be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firea rm 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 McCullo ugh that Beverly threatened him with a gun during the course of the robbery, and that the gun, which was displayed in t he car, was a chrome-plated revolver. Although Beverly argues on appeal that this testimony is inadequate since McCullough did n ot 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 Brie f at 28, several other courts of appeals have held evidence substantially similar to that presented in this case was sufficie nt 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 opini on authored by then Circuit Judge Scalia, the court held that non- expert testimony that a robber used a gun was enough to ju stify a conviction under § 924(c) even though the weapon us ed 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 wa s fired. The government's evidence consisted only of testimony f rom two bank employees who testified that Parker carried a gun w ith 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 br own handle of a small pistol. Id. In rejecting Parker's challenge to the evi dence, the court held that the testimony of the two bank emplo yees was sufficient to support Parker's § 924(c) conviction. The court analogized Parker's case to United States v. Marsha ll, 427 F.2d 434 (2d Cir. 1970), where the court held that eyewi tness testimony that two bank robbers brandished a silver revolver and a sawed-off shot gun was sufficient to convict the defendantsunder the federal bank robbery statute, 18 U.S.C. § 2113(d),

which provides for an enhanced sentence for those c onvicted of jeopardizing the life of any person "by use of a da ngerous weapon." See also United States v. Jones, 34 F.3d 655 (8th Cir. 1994) (upholding conviction for use of a firearm du ring an assault on a federal officer based on testimony of two trained law enforcement officials that they saw a gun at cl ose 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 iss ue here, 18 U.S.C. § 924(c), the court sustained the conviction although no gun was produced at trial. As here, in Kirvan ther e 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 sil ver in color, and that it was very large for a handgun. The appe llate court held that the jury's conclusion that the object was a real gun could not be deemed irrational since the descriptio n of the gun was of "plausible size, colored like a real gun, an d quite heavy." Id. at 966. The court also noted that "wh ile a good replica might still fool a witness at a distance, t he chances decline, where, as here, the witness saw the gun, s tationary 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 eyew itnesses to a bank robbery, each of whom observed the object grip ped 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, 49 8 U.S. 1029 (1990). Beverly emphasizes that after the jury in this case rendered its verdict, the trial judge expressed "co nsiderable doubt" as to whether the evidence sufficed to uphol d the guilty verdict on Count Two, and advised Beverly's counsel to file a motion for judgment of acquittal on that Count. Ap p. at 305. However, the trial court, after considering Beverly 's timely Rule 29 Motion for judgment of acquittal on Count Two, d enied the
motion. We find no error in this ruling. McCullou gh saw the gun on two different occasions, decreasing the like lihood that he was mistaken as to the authenticity of the weapon. Additionally, McCullough's close proximity to Beverly while he br andished 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, McCull ough had ample time to view the weapon while he was in the defenda nt's car. Finally, Beverly threatened McCullough's life numer ous timesduring the course of the robbery. McCullough's tes timony 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 sayi ng that the gun is loaded and that the gun wielder will shoot u nless his commands are obeyed'." Parker, 801 F.2d at 1384 (q uoting Marshall, 427 F.2d at 437). We agree with the district court that the evidence presented, when considered in the light most favora ble to the government, was a sufficient basis for a reasonable jury to find that Beverly utilized a firearm in the commission o f a violent crime, in violation of 18 U.S.C. § 924(c). We will therefore affirm the judgment of conviction.