                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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.
                (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, 4 th 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. §

                             2
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

                                3
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.


                                4
        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

                                5
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 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 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

                                  6
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

                               7
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

                                 8
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


   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
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


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
suspicion” standard is inapplicable, that Wardlow is inapplicable
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.


                                 11
                          V.

       For the reasons stated above, we will AFFIRM the
District Court’s judgment and Shambry’s conviction.




                          12
