                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-4342
                                    _____________

                           UNITED STATES OF AMERICA

                                            v.

                                   ERROL NELSON,
                                                  Appellant
                                   _______________

                 On Appeal from the District Court of the Virgin Islands
                            (D.C. No. 1-10-cr-00012-001)
                             District Judge: Wilma Lewis
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 7, 2012

            Before: CHAGARES, JORDAN, and COWEN, Circuit Judges.

                                 (Filed: May 16, 2012)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Errol Nelson was convicted of various firearms offenses in the District Court of

the Virgin Islands, and he now challenges that Court‟s ruling denying his pre-trial motion

to suppress the firearm that police confiscated from him.       He also asserts that his

prosecution under both territorial and federal law violates the Double Jeopardy Clause of


                                            1
the United States Constitution. Finally, he claims that the government failed to introduce

evidence sufficient to support the jury‟s verdict. For the following reasons, we will

affirm his conviction and the denial of his motion to suppress.

I.     Background1

       A.     Facts

       On February 4, 2010, Officer Uston Cornelius, a veteran of the Virgin Islands

Police Department (“VIPD”), received a radio transmission from the VIPD Central

Dispatch informing him of a domestic disturbance at a location known as the Orange

Grove Villas on the Island of St. Croix. The transmission indicated that Nelson had been

identified in a 9-1-1 call as being involved in the disturbance. Officer Cornelius was

familiar with Nelson “from the streets” and knew that Nelson had “served time.” (Joint

Appendix at 227; Supplemental Appendix at 8.)2 Officer Cornelius also received a radio

message from Officer Luis Ortiz of the VIPD, stating that there was an outstanding

warrant for Nelson‟s arrest.

       After hearing the initial report from Central Dispatch, Officer Cornelius headed

towards the Orange Grove Villas. When he arrived, he immediately identified Nelson

walking in a parking area near the apartments. At the time, there were no other police

officers present. After parking his police cruiser, Officer Cornelius, who was unarmed,


       1
        In recounting the facts, we rely on the District Court‟s findings with respect to
Nelson‟s motion to suppress, to the extent they are not clearly erroneous. United States v.
Lewis, 672 F.3d 232, 237 (3d Cir. 2010).
       2
       We will hereafter refer to the Joint Appendix as “JA,” and to the Supplemental
Appendix as “SA.”

                                             2
left the car and approached Nelson. He said that he was responding to a report of a

domestic disturbance and asked Nelson to put his hands on the cruiser to permit a frisk to

ensure that Nelson was unarmed. When Officer Cornelius attempted to guide Nelson to

the cruiser, Nelson brushed Officer Cornelius‟s hand aside and a struggle ensued.

During the struggle, Officer Cornelius heard a hard object fall to the ground, which he

subsequently identified as a chrome handgun. Officer Jason Viveros arrived at the scene

during the wrestling and actually saw the gun fall from Nelson‟s waistband.

       Eventually, Officer Cornelius placed Nelson in handcuffs, searched him, and

advised him of his Miranda rights. After Nelson was read his rights, he said “[l]ook

Cornelius, I didn‟t want to go against the vehicle because I [knew] I had the gun on me.”

(JA at 228.)

       B.      Procedural History

       On March 16, 2010, a grand jury returned a four-count indictment against Nelson:

Count One charged him with being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1) and 924(a)(2), Count Two with being in unauthorized possession of a

firearm, in violation of V.I. Code Ann. tit. 14, § 2253(a), Count Three with possessing a

firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and

924(a)(1)(B), and Count Four with possessing a firearm in a school zone, in violation of

18 U.S.C. §§ 922(q)(2)(A) and 924(a)(1)(B).

       On September 23, 2010, Nelson moved to suppress “any and all statements and

evidence obtained in violation of his Fourth and Fifth Amendment[] rights.” (JA at 221.)

The District Court conducted a hearing and subsequently denied the motion on October 6,

                                            3
2010. In doing so, the Court found that Officer Cornelius conducted a Terry stop when

he attempted to guide Nelson towards the police cruiser, and that “the Terry stop may

have „ripened‟ into an arrest” after Officer Cornelius placed Nelson in handcuffs. (JA at

230.) The Court decided that Officer Cornelius had reasonable suspicion to justify the

Terry stop. It also found that the frisk Officer Cornelius tried to perform during the Terry

stop was objectively reasonable and supported by probable cause because Officer

Cornelius was unarmed when he responded to the potentially violent domestic

disturbance, was the only officer at the scene, and was aware that Nelson had a prior

criminal history. Finally, the District Court held that Nelson‟s statement was admissible

because he volunteered it after being read his Miranda rights.

       After the trial, which commenced on February 24, 2010, the jury returned a verdict

convicting Nelson on Counts One, Two, and Three. He filed a timely notice of appeal.

II.    Discussion3

       A.     Sufficiency of the Evidence4

       Nelson first argues that the evidence presented at trial was insufficient to sustain


       3
        The District Court had jurisdiction pursuant to 48 U.S.C. § 1612 and 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
       4
          In reviewing Nelson‟s challenge to the sufficiency of the evidence we must
“view the evidence in the light most favorable to the prosecution and sustain the verdict
unless it is clear that no rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Walker, 657 F.3d 160, 171 (3d
Cir. 2011) (citations and internal quotation marks omitted). “We examine the totality of
the evidence, both direct and circumstantial, and only when the record contains no
evidence, regardless of how it is weighted, from which the jury could find guilt beyond a
reasonable doubt will we reverse a jury verdict for insufficiency of the evidence.” Id.
(citations and internal quotation marks omitted).

                                              4
his conviction on Counts One, Two, and Three. His primary argument with respect to

each of those counts is that the government failed to prove that he possessed a firearm.5

We disagree.

       The record contains sufficient evidence to sustain the convictions.          Officer

Cornelius testified during trial that, when he struggled with Nelson, a chrome handgun

in Nelson‟s possession fell to the ground. Officer Viveros corroborated that testimony,

stating that, when he arrived at the Orange Grove Villas, he observed a handgun fall

from the waistband of Nelson‟s pants. That evidence, which we must “view … in the

light most favorable to the [government],” provides a sufficient basis for a rational jury

to conclude that Nelson possessed a firearm at the time of his confrontation with Officer

Cornelius.6 Walker, 657 F.3d at 171. Moreover, if there was any doubt as to whether

Nelson had a gun at the time of his arrest, his subsequent statement to the police made it

eminently clear. Without prompting, he told Officer Cornelius “I didn‟t want to go


       5
         Counts One, Two, and Three each require the government to prove, beyond a
reasonable doubt, that Nelson possessed a firearm. See 18 U.S.C. § 922(g) (making it a
crime for any person convicted of a felony to “possess in or affecting commerce… any
firearm … .” (emphasis added)); 18 U.S.C. § 922(k) (making it a crime for any person to
knowingly “possess … any firearm which has had the importer‟s or manufacturer‟s serial
number removed, obliterated, or altered and has, at any time, been shipped or transported
in interstate or foreign commerce” (emphasis added)); V.I. Code Ann. tit. 14, 2253(a)
(making it a crime to, “unless otherwise authorized by law, … possess[] … openly or
concealed any firearm … .” (emphasis added)).
       6
         Nelson asserts that Officer Cornelius‟ credibility is called into question because
he changed his testimony to say at trial that he not only heard the gun fall but that he saw
it drop. (Appellant‟s Br. at 8 (citing JA at 79).) That argument is unavailing however,
because in determining whether the evidence is sufficient to sustain Nelson‟s conviction,
we may not “weigh evidence or determine the credibility of witnesses.” United States v.
Casper, 956 F.2d 416, 421 (3d Cir. 1992) (citations omitted).

                                             5
against the vehicle, because I [knew] I had the gun on me.” (SA at 12.) The record thus

contains ample evidence from which a rational jury could conclude that Nelson

possessed a firearm at the time of his arrest, and his sufficiency-of-the-evidence

challenge fails.

      B.     Double Jeopardy7

      Nelson also argues that because “[t]he territorial and federal firearms counts in this

case represent a single offense” (Appellant‟s Br. at 9), his prosecution for both federal

and territorial firearms crimes violates the Double Jeopardy Clause. He is mistaken.

      The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any

person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S.

Const. amend. V. The Clause “embodies two vitally important interests”:

             The first is the deeply ingrained principle that the State with
             all its resources and power should not be allowed to make
             repeated attempts to convict an individual for an alleged
             offense, thereby subjecting him to embarrassment, expense
             and ordeal and compelling him to live in a continuing state of
             anxiety and insecurity, as well as enhancing the possibility
             that even though innocent he may be found guilty. The
             second interest is the preservation of the finality of
             judgments.

Yeager v. United States, 129 S. Ct. 2360, 2365-66 (2009) (citations and quotation marks

omitted). Consistent with those principles, we have held that “[i]f … two offenses [for

which a defendant is charged] grow out of the same occurrence then multiple

punishments are impermissible.” United States v. Hodge, 211 F.3d 74, 78 (3d Cir. 2000)

      7
        We exercise plenary review over double jeopardy challenges. See United States
v. Ciancaglini, 858 F.2d 923, 926 (3d Cir. 1988).

                                            6
(citation and internal quotation marks omitted). In order to determine whether the two

offenses grow out of the same occurrence, we conduct the test articulated in Blockburger

v. United States, which asks “whether each provision requires proof of a fact which the
                   8
other does not.”       284 U.S. 299, 304 (1932). In performing that test, we compare the

elements of the offense “in the abstract, without looking to the facts of the particular

case.” Gov’t of the V.I. v. Joseph, 765 F.2d 394, 396 (3d Cir. 1985) (citations omitted).

       The federal firearms provisions charged in the indictment required the government

to prove, among other things, that Nelson knowingly possessed a firearm “in or affecting

commerce,” 18 U.S.C. § 922(g), or “in interstate or foreign commerce,” 18 U.S.C. §

922(k). In contrast, the government had to make no such showing in order to prove

Nelson‟s guilt under V.I. Code Ann. tit. 14, § 2253(a). Moreover, unlike the federal

statutes, in order to prove that Nelson was guilty of violating § 2253(a), the government

had to demonstrate that he was carrying an operable firearm9 without authorization by

law. See V.I. Code Ann. tit. 14, § 2253(a) (prohibiting possession of firearm “unless

       8
        “[T]he Virgin Islands and the federal government are considered one sovereignty
for the purposes of determining whether an individual may be punished under both
Virgin Islands and United States statutes for a similar offense growing out of the same
occurrence.” Gov’t of the V.I. v. Brathwaite, 782 F.2d 399, 406 (3d Cir. 1986) (citation
omitted).
       9
        Unlike § 2253(a), the federal firearms statute does not require the government to
prove that a firearm is operable. See 18 U.S.C. § 921(a)(3) (defining “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
such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.
Such term does not include an antique firearm.”); United States v. Adams, 137 F.3d 1298,
1300 (11th Cir. 1998) (noting that the “government need not show that a firearm is
operable for purposes of § 922(g)(1),” and that “every circuit addressing the issue has
reached the same conclusion.”).
                                              7
otherwise authorized by law”); United States v. Tyson, 653 F.3d 192, 199 n.11 (3d Cir.

2011) (“A conviction for unauthorized possession of a firearm under 14 V.I.C. § 2253(a)

requires that the firearm at issue be operable.”); United States v. Blyden, 740 F. Supp.

376, 380 (D.V.I. 1990) (noting that “under the law of the Virgin Islands, V.I. Code Ann.

tit. 14, § 2253(a) and V.I. Code Ann. tit. 23, § 451(d), [a] firearm must be operable”).

       Therefore, because Nelson‟s conviction under the federal firearms provisions

requires proof of an element not required by the territorial firearms provision, and his

conviction under the territorial firearms provision requires proof of an element not

required by the federal firearms provisions, Nelson‟s prosecution did not violate the Fifth

Amendment‟s Double Jeopardy Clause. See Hodge, 211 F.3d at 78 (holding that because

robbery under territorial statute did not require the government to prove defendant‟s

offense “affect[ed] commerce,” as required by the federal robbery statute, and, unlike the

federal robbery statute, the territorial robbery statute required the government to prove

that defendant “displayed, used or threatened to use a dangerous weapon,” defendant‟s

conviction for both federal and territorial offenses did not violate the Double Jeopardy

Clause).

       C.     Motion to Suppress10

       Lastly, Nelson disputes the District Court‟s October 6, 2010 order denying his

motion to suppress both the firearm confiscated from him at the time of his arrest and the


       10
         “We review a district court‟s order denying a motion to suppress under a mixed
standard of review. We review findings of fact for clear error, but we exercise plenary
review over legal determinations.” Lewis, 672 F.3d at 236-37 (citation omitted).

                                             8
incriminating statement he made to Officer Cornelius. Nelson asserts that a seizure

occurred when Officer Cornelius placed a hand on him to guide him toward the police

cruiser and that, at the time, Officer Cornelius did not have a reasonable, articulable

suspicion that Nelson was engaged in any criminal activity. He also claims that the

District Court inappropriately admitted into evidence the statements he made to Officer

Cornelius before11 he was read his Miranda rights. We disagree.

      The Fourth Amendment provides:

      The right of the people to be secure in their persons, houses, papers, and
      effects, against unreasonable searches and seizures, shall not be violated,
      and no Warrants shall issue, but upon probable cause, supported by Oath or
      affirmation, and particularly describing the place to be searched, and the
      persons or things to be seized.

U.S. Const. amend. IV. “Generally, for a seizure to be reasonable under the Fourth

Amendment, it must be effectuated with a warrant based on probable cause.” United

States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002) (citation omitted). However,

under Terry v. Ohio, 392 U.S. 1 (1968), an officer may “conduct a brief, investigatory

stop when the officer has a reasonable, articulable suspicion that criminal activity is

afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000).


      11
          In his brief, Appellant asserts that he “filed a motion to suppress the …
statement [he] allegedly made to Officer Cornelius while they were traveling in the police
unit before [he] was read his Miranda rights.” (Appellant‟s Br. at 13 (emphasis added).)
However, during the suppression hearing, the District Court found that Nelson made the
incriminating statement to Officer Cornelius after he was advised of his Miranda rights.
(See JA 228 (“Following advisement of his rights, Defendant allegedly said „Look
Cornelius, I didn‟t want to go against the vehicle because I knew I had the gun on
me.‟”).) However, we need not decide exactly when the incriminating statement was
made because, as discussed below, the statement was voluntary and therefore admissible
against Nelson, regardless of when made.
                                            9
      With those principles in mind, we conclude that the District Court appropriately

denied Nelson‟s motion to suppress the firearm. Officer Cornelius knew, based on

Officer Ortiz‟s report, that there was an outstanding warrant for Nelson‟s arrest. That

knowledge alone provided a more-than-adequate justification for Officer Cornelius to

conduct a Terry stop. See Arizona v. Johnson, 555 U.S. 323, 326 (2009) (noting that a

“stop and frisk” is permissible in an “on-the-street encounter” when police officer

reasonably suspects that person “is committing or has committed a criminal offense.”)

(emphasis added); see also United States v. Tellez, 11 F.3d 530, 532-33 (5th Cir. 1993)

(holding that police officer had reasonable suspicion justifying Terry stop based on his

knowledge of outstanding warrant for defendant‟s arrest). Thus, the District Court

appropriately found that Officer Cornelius had a reasonable, articulable suspicion that

Nelson had engaged in criminal activity, thereby justifying the Terry stop.

      The District Court also appropriately denied Nelson‟s motion to suppress the

statement he made to Officer Cornelius. Under Miranda v. Arizona, 384 U.S. 436

(1966), “a statement made by a suspect in response to custodial interrogation after he or

she has elected to remain silent is inadmissible at trial.” United States v. Brownlee, 454

F.3d 131, 146 (3d Cir. 2006). However, “the special procedural safeguards outlined in

Miranda” are required only where a suspect is taken into custody and “subjected to

interrogation.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). “Any statement given

freely and voluntarily without any compelling influences is, of course, admissible in

evidence.” Id. at 299-300 (quoting Miranda, 384 U.S. at 478).



                                           10
       Here, Nelson was in the custody of the VIPD after Officer Cornelius arrested him,

but there is no evidence that Officer Cornelius or any other police officer prompted

Nelson to admit that he was carrying a firearm. The record shows that he freely and

voluntarily said, “I didn‟t want to go against the vehicle, because I [knew] I had the gun

on me.” (JA at 228.) Because Nelson made that statement of his own volition, the

District Court did not err by allowing the government to admit the statement against

him.

III.   Conclusion

       For the foregoing reasons, we will affirm.




                                            11
