                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2008

USA v. Bellinger
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5040




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                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 06-5040
                                 _____________

                       UNITED STATES OF AMERICA

                                        v.

                            EDWARD BELLINGER,
                            a/k/a Matthew Berringer,
                                a/k/a Carlos Key


                                Edward Bellinger,

                                       Appellant
                                 ____________

                   Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                                (No. 02-cr-00644)
                    District Judge: Honorable Anita B. Brody

                              Argued June 5, 2008

           Before: AMBRO, CHAGARES, and COWEN, Circuit Judges.
                             ____________

                              (Filed: July 9, 2008)
                                 ____________


Ellen C. Brotman
Lathrop B. Nelson, III (Argued)
Tanya M. Johnson
Montgomery, McCracken, Walker & Rhoads, LLP
123 South Broad Street
Philadelphia, PA 19109
Counsel for Appellant
Edward Bellinger

Patrick L. Meehan
Robert A. Zauzmer
Vicki J. Markovitz (Argued)
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

Counsel for Appellee
Government of the United States of America
                                    ____________

                               OPINION OF THE COURT
                                    ____________

CHAGARES, Circuit Judge.

       Edward Bellinger appeals his conviction for possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). Specifically, Bellinger challenges the

District Court’s denial of his motions to suppress and for judgment of acquittal. As

Bellinger’s arguments are unpersuasive, we will affirm the Court’s judgment of

conviction.

                                             I.

       On April 2, 2002, Bellinger borrowed a burgundy Oldsmobile with tinted windows

from an acquaintance, Angela Landers. After allowing his neighbor, Delonda Pearson, to

run an errand with the car, Bellinger got in the vehicle with another neighbor, Jermaine

Gailyard. Bellinger asked Pearson to drive Gailyard to 57th street in West Philadelphia.

En route, as Bellinger sat in the front-passenger seat and Gailyard sat in the back seat, two


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Philadelphia Police officers pulled over the Oldsmobile. They did so because the car met

a radio flash description of a red, medium-sized car with tinted windows that had been

involved in a rash of prior robberies and aggravated assaults.

         During the stop, Gailyard was unable to produce identification, and he was ordered

out of the vehicle. As Gailyard exited the car, one of the officers heard a “clink” and

discovered a loaded .45 caliber Smith & Wesson handgun which had fallen from

Gailyard’s waistband onto the ground. The officer then ordered Pearson and Bellinger

out of the car and spotted a .40 caliber Beretta handgun jammed underneath the right side

of the front-passenger seat, where Bellinger had been. This was the firearm Bellinger was

charged with possessing.

         After a jury convicted him on this charge, the District Court sentenced Bellinger to

102 months imprisonment, from which he filed a timely appeal.

                                              II.

         We review the District Court’s denial of a motion to suppress “for clear error as to

the underlying factual findings” and exercise “plenary review of the District Court’s

application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir.

2002).

         Where the district court denies a motion for judgment of acquittal, we review such

denials “de novo and independently appl[y] the same standard as the District Court.”

United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006). As such, we review the

evidence in the light most favorable to the prosecution to determine whether any rational

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trier of fact could have found proof of guilt beyond a reasonable doubt based on the

available evidence. See United States v. Lopez, 271 F.3d 472, 486 (3d Cir. 2001). “Only

when the record contains no evidence, regardless of how it is weighted, from which the

jury could find guilty beyond a reasonable doubt, may an appellate court overturn the

verdict.” United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1990) (quoting Bradom v.

United States, 431 F.2d 1391, 1400 (7th Cir. 1970)).

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction under 18 U.S.C. § 1291.

                                             III.

       Bellinger first challenges the District Court’s denial of his motion to suppress,

asserting that the arresting officers lacked reasonable suspicion of a traffic violation to

justify pulling over the burgundy Oldsmobile. As we have explained, reviewing courts

should “look to whether specific, articulable facts produced by the officer would support

a reasonable suspicion of a traffic violation.” United States v. Delfin-Colina, 464 F.3d

392, 398 (3d Cir. 2006); cf. Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (looking, for

purposes of probable cause, at “the reasonable conclusion to be drawn from the facts

known to the arresting officer at the time of the arrest”). Reasonable suspicion “‘requires

a showing considerably less than preponderance of the evidence,’ and only a ‘minimal

level of objective justification’ is necessary” for a traffic stop. Delfin-Colina, 464 F.3d at

396 (citation omitted).

       Here, the record demonstrates that the officers were aware of the vehicle’s tinted

                                              4
windows, and that the tinting did not permit them to see the inside of the car through the

windshield. Appendix (App.) 14. Because any tinting which does not “permit a person to

see or view the inside of the vehicle through the windshield, side wing or side window of

the vehicle” is prohibited under Pennsylvania law, 75 Pa.C.S.A. § 4524, the facts

articulated by the officers demonstrate reasonable suspicion of a traffic violation.

Accordingly, the officers were justified in conducting the traffic stop, and the District

Court properly denied Bellinger’s motion to suppress.

                                             IV.

       Bellinger’s second contention is that the Government produced insufficient

evidence to show that he possessed the firearm in question. Because Bellinger was not

found in actual possession of the Beretta, the specific issue, as the District Court properly

noted, is whether there was sufficient evidence at trial to prove that Bellinger

constructively possessed it.

       To prove constructive possession, the Government must have shown that Bellinger

knew of the gun and had both the power and intent to exercise dominion and control over

it. See United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992). While proximity to the

gun is a substantial consideration in this analysis, see Lopez, 271 F.3d at 487-488,

proximity alone is insufficient. See United States v. Jenkins, 90 F.3d 814, 818 (3d Cir.

1996). Thus, we look for certain “plus factors,” such as “connection with a gun, proof of

motive, a gesture implying control, evasive conduct, or a statement indicating

involvement in an enterprise” in completing the inquiry. United States v. Booker, 436

                                              5
F.3d 238, 242 (D.C. Cir. 2006) (quoting United States v. Alexander, 331 F.3d 116, 127

(D.C. Cir. 2003)); accord United States v. Newsom, 452 F.3d 593, 610 (6th Cir 2006); see

also McNeill, 887 F.2d at 450 (“Inferences from established facts are acceptable methods

of proof when no direct evidence is available so long as there exists a logical and

convincing connection between the facts established and the conclusion inferred.”).

       Here, Bellinger’s proximity to the Beretta, in addition to several plus factors,

provide sufficient evidence for a rational juror to find constructive possession beyond a

reasonable doubt. For example, the District Court considered that:

       • the Beretta was jammed underneath the right side of Bellinger’s bucket
       seat at an angle difficult for passengers other then Bellinger to reach it;
       • Landers, the car’s owner, testified that she never owned any guns, never
       kept guns in the car, and was the only person who used the car before
       loaning it to Bellinger;
       • Pearson, the driver of the car at the time of the arrest, testified that she did
       not have a gun that day, never saw a gun in the car prior to the arrest, and
       never left the driver’s seat after she entered the car;
       • Gailyard immediately went to the back seat upon entering the car; also, the
       Smith & Wesson that fell from his pants required different sized bullets
       than the Beretta;
       • Bellinger had borrowed the car from Landers, had lent the car to Pearson,
       then requested that Pearson drive Gailyard and himself to their desired
       location; also, despite the fact that the officers directed their questions at
       Pearson and asked Bellinger to be quiet and let Pearson answer, Bellinger
       was the one who answered all of the officers’ questions and who looked for
       the vehicle’s registration when the officers requested it;
       • it took the passengers approximately 15 seconds to roll down their
       windows after the officers knocked on the windows of the car.

App. 24; 31-35.

       Given this and other evidence indicating that Bellinger was the only person that

could have placed the firearm under his seat, that Bellinger exercised control over the

                                               6
vehicle at the time of the traffic stop, and that Bellinger acted suspiciously and evasively,

there is a logical and convincing connection between the facts established and Bellinger’s

constructive possession of the firearm in question. See Booker, 436 F.3d at 241 (“[W]e

give ‘full play to the right of the jury to determine credibility, weigh the evidence and

draw justifiable inferences of fact.’”). Accordingly, the District Court properly denied

Bellinger’s motion for judgment of acquittal and we will affirm the Court’s judgment of

conviction.




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