                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-7-1996

United States v. Beverly
Precedential or Non-Precedential:

Docket 96-1420




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"United States v. Beverly" (1996). 1996 Decisions. Paper 24.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/24


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
       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 re-
sentencing.
         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.
