                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3299




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Recommended Citation
"USA v. Burney" (2002). 2002 Decisions. Paper 305.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/305


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                                          NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                            No. 01-3299
                          ________________

                    UNITED STATES OF AMERICA

                                 v.

                         ROBERT BURNEY
                           Appellant
              ____________________________________

        On Appeal From the United States District Court
                 For the District of New Jersey
                  (D.C. Crim. No. 97-cr-00369)
         District Judge: Honorable Joseph H. Rodriguez

              ____________________________________
                     Argued: April 23, 2002

              Before: SCIRICA, RENDELL and NOONAN,
                        Circuit Judges.

                        (Filed May 28, 2002)


MARK W. CATANZARO (Argued)
Blason IV - Suite 208
513 S. Lenola Road
Moorestown, New Jersey 08057

Counsel for Appellant

GEORGE S. LEONE
ELIZABETH S. FERGUSON (Argued)
Assistant U.S. Attorney
970 Broad Street
Newark, NJ 07102-2535

Counsel for Appellee

                   __________________________

                            OPINION
                   __________________________


NOONAN, Circuit Judge.

     Appellant Robert Burney ("Burney") was convicted of carjacking in violation of
18 U.S.C. 2119 (Count One) and possession of a handgun by a convicted felon in
violation of 18 U.S.C. 922(g)(1) (Count Three). He was acquitted of possession of a
handgun during a crime of violence in violation of 18 U.S.C. 924(c) (Count Two).
Burney now argues that the district court erred in denying him a judgment of acquittal, or
in the alternative, a new trial, on Count One because the government did not present
sufficient evidence of his intent to harm or to kill. He also argues that the gun seized
from his waistband should have been suppressed because the police did not have
reasonable suspicion to stop, frisk and handcuff him.
     The district court had jurisdiction under 18 U.S.C. 3231. We have jurisdiction
under 28 U.S.C. 1291. This court reviews de novo the district court’s denial of a post-
verdict judgment of acquittal. United States v. Schneider, 14 F.3d 876, 878 (3d Cir.
1994). The verdict must be affirmed if supported by substantial evidence. U.S. v. Coyle,
63 F.3d 1243, 1239 (3d Cir. 1995). A district court’s denial of a motion for a new trial is
reviewed for abuse of discretion. Pennsylvania v. U.S. Dep’t of Health and Human Serv.,
80 F.3d 796, 810 (3d Cir. 1996). Review of a district court’s decision to deny a motion to
suppress evidence is plenary. United States v. Williams, 3 F.3d 69, 71 (3d Cir. 1993).
     We hold that the district court did not err in denying Burney’s motion for judgment
of acquittal as to Count One, in denying his motion for a new trial and in denying his
motion to suppress the gun seized from his waistband.
     The basic facts have already been set forth by both parties in their briefs.
     Under 18 U.S.C. 2119, an individual can be convicted of carjacking if he "takes
a motor vehicle that has been transported, shipped, or received in interstate or foreign
commerce from the person or presence of another by force and violence or by
intimidation, or attempts to do so" with "the intent to cause death or serious bodily harm."
The intent element of 2119 requires that "at the moment the defendant demanded or
took control over the driver’s automobile [he] possessed the intent to seriously harm or
kill the driver if necessary to steal the car ...." Holloway v. U.S., 526 U.S. 1, 12 (1999).
Viewing the evidence in the light most favorable to the jury verdict, substantial evidence
demonstrates that Burney intended to cause death or serious harm during the carjacking.
Burney pointed a gun directly at his victim’s face, with his finger on the trigger, while he
ordered the victim to deactivate the car alarm, start the car, leave the keys in the ignition
and lie on the ground. No explicit verbal threat to harm or to kill is required. Therefore,
neither a judgment of acquittal nor a new trial is warranted.
     The stop and frisking of Burney was lawful. Police officers have a "narrowly
drawn authority to permit a reasonable search for weapons for the protection of the police
officer, where he has reason to believe that he is dealing with an armed and dangerous
individual, regardless of whether he has probable cause to arrest the individual for a
crime." Terry v. Ohio, 392 U.S. 1, 27 (1968). The "reasonable suspicion" required is
"considerably less than preponderance of the evidence." U.S. v. Valentine, 232 F.3d 350,
353 (3d Cir. 2000).
     In this case, the stop occurred in the middle of the night on a very dark section of
the road, and the Jeep matched the description of the vehicle police reports indicated was
carjacked at gunpoint two nights before, indicating that the occupants of the vehicle may
have been armed and dangerous. The officers did not conduct a more thorough pat down
until one officer observed the butt of a handgun protruding from behind Burney’s belt
buckle when Burney was seated in the patrol car. The search for weapons was
reasonable.
     The police officers in this case, who were reasonably concerned for their safety,
did not "arrest" Burney by placing handcuffs on him. "There is no per se rule that
pointing guns at people, or handcuffing them, constitutes an arrest." Baker v. Monroe
Township, 50 F.3d 1186, 1193 (3d Cir. 1995).
     The judgment of the district court is AFFIRMED.

TO THE CLERK:
                Please file the foregoing opinion.

                                         By the Court,

                                         /s/ John T. Noonan, Jr.
                                         Circuit Judge
