PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 09-2793


           UNITED STATES OF AMERICA

                            v.

                    LUKE GATLIN,
                            Appellant




       Appeal from the United States District Court
                 for the District of Delaware
      (D.C. Criminal Action No. 1-06-cr-00028-001)
        District Judge: Honorable Gregory M. Sleet


                 Argued March 24, 2010


Before: RENDELL, AMBRO, and FUENTES, Circuit Judges

              (Opinion filed: June 15, 2010)
Robert D. Goldberg, Esquire (Argued)
Biggs & Battaglia
921 Orange Street
P.O. Box 1489
Wilmington, DE 19899

       Counsel for Appellant


Seth M. Beausang (Argued)
Ilana H. Eisenstein, Esquire
Office of the United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899

       Counsel for Appellee




                           OPINION


AMBRO, Circuit Judge

       Appellant Luke Gatlin was convicted of one count of
possession of a firearm by a felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e)(1). On appeal, he argues that the
District Court erred in denying his motions that sought (1) to
suppress the evidence of the gun, (2) to compel disclosure of the


                               2
identity of the confidential informant involved in his case, and
(3) a judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29(c). We affirm the District Court’s rulings in each
instance.1

                               I.

       On February 9, 2006, at around 7:00 p.m., Wilmington
Police Detective Joseph Leary received a phone call from a
known and reliable confidential informant telling him that a man
was walking in the area of 30th and Market Streets in
Wilmington with a gun in his front right coat pocket. The
informant described this individual as a “light skinned black
male, approximately five foot eight, wearing a Chicago Cubs
hat, a black hooded jacket and black blue jeans.” Detective
Leary then called police dispatch to have this message relayed
to any officers in that vicinity.

        Delaware Probation and Parole Officer Brian Kananen
and Wilmington Police Detective Joshua Burch responded to
this call and went to the corner of 30th and Market Streets.
When they arrived, there were between 15 and 30 people at the
intersection and, though the sun had already set, the area was
well-lit. Among this crowd, the officers spotted a man wearing
a Cubs hat who matched the informant’s description standing at


  1
   The District Court had jurisdiction under 18 U.S.C. § 3231,
and we have jurisdiction under 28 U.S.C. § 1291.

                               3
the passenger window of a red Jeep Grand Cherokee. The
officers got out of their patrol car, Detective Burch drew his gun
and ordered the man down on the ground, and Officer Kananen
handcuffed the man behind his back. The latter then patted the
man down for weapons, and found a handgun in his right front
coat pocket. At that point, Officer Kananen recognized the
individual as Luke Gatlin, based on previous interactions with
him in the Delaware probation system.

        Gatlin was arrested and charged as noted above. Before
his trial, Gatlin moved to suppress the evidence of the gun,
arguing that the officers lacked reasonable suspicion to stop and
search him based solely on the informant’s tip that he was
carrying a concealed handgun. The District Court denied the
motion because it is a crime in Delaware to carry a concealed
deadly weapon without a license. 

. § 1442.2

       Gatlin also moved pre-trial to reveal the identity of the
confidential informant based on a justification defense theory.
Gatlin asserted that, shortly before the tip was made, he had
been robbed at gunpoint and managed to wrest the gun away
from his robber. If the informant were the same person as the
robber, he argued, this would buttress his defense theory. The


    2
     

. § 1442 provides that “[a] person is guilty of
carrying a concealed deadly weapon when the person carries
concealed a deadly weapon upon or about the person without a
license to do so as provided by § 1441 of this title.”

                                4
District Court denied this motion, finding that this theory was
too attenuated to defeat the Government’s privilege to conceal
the informant’s identity.

        Gatlin was found guilty after a jury trial. He then moved
for a judgment of acquittal, under Federal Rule of Criminal
Procedure 29(c), arguing that the Government had failed to
prove that the gun had traveled in interstate commerce because
it had not certified one of its witnesses as an expert. The
District Court denied the motion, finding that Gatlin had waived
this argument by not objecting to the witness’s qualifications at
trial. In any event, the Court concluded that, even without this
witness’s testimony, there would still be sufficient evidence to
support the jury’s verdict.

                                II.

A.     Motion to Suppress

       Gatlin first argues that the District Court erred in denying
his motion to suppress the handgun. Specifically, he claims that
the tip did not indicate he was engaged in criminal activity
because it contained no information about whether he was
licensed to carry a concealed weapon. He contends further that
the police had no basis to search him for weapons because,
although they had reason to believe he was armed, they had no
reason to believe he was dangerous.



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       We review the District Court’s denial of Gatlin’s motion
to suppress “‘for clear error as to the underlying facts, but
exercise plenary review as to its legality in light of the court’s
properly found facts.’” United States v. Lafferty, 

,
298 (3d Cir. 2007) (quoting United States v. Givan, 

, 458 (3d Cir. 2003)).

        A brief, investigatory stop is valid under Terry v. Ohio,

(1968), “when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.” Illinois v.
Wardlow, 

, 123 (2000) (citing 

). In determining whether there was reasonable suspicion, we
consider the totality of the circumstances. United States v.
Valentine, 

, 353 (3d Cir. 2000) (citing United
States v. Sokolow, 

, 8 (1989)). When the officer has
“reason to believe that he is dealing with an armed and
dangerous individual,” he may then conduct “a reasonable
search for weapons for the protection of the police officer.”

. The purpose of a Terry frisk for weapons
“is not to discover evidence of crime, but to allow the officer to
pursue his investigation without fear of violence.” Adams v.
Williams, 

, 146 (1972). The stop and the search are
independent actions, and each requires its own justification.
Arizona v. Johnson, 

, 784 (2009) (“First, the
investigatory stop must be lawful. . . . Second, to proceed from
a stop to a frisk, the police officer must reasonably suspect that
the person stopped is armed and dangerous.”). If the lawful
bounds marked by Terry are exceeded, any evidence obtained

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from the stop or the weapons search must be suppressed. United
States v. Johnson, 

, 447 (3d Cir. 2010).

       1.      The Investigatory Stop

        Because it is undisputed that the tip here was reliable, the
first question before us is whether the officers had reasonable
suspicion to stop Gatlin based solely on the information that he
was carrying a concealed handgun. This case is different from
most, in that it lacks other factors often present (in addition to a
tip) that suggest the defendant was engaged in criminal activity
(e.g., presence late at night in a high-crime area known for
shootings, or attempting to flee from the police, see 

–57). Nonetheless, we hold that reasonable
suspicion existed in this case based solely on the reliable tip
from a known informant because carrying a concealed handgun
is presumptively a crime in Delaware. While it is possible to
have a concealed handgun license, “[t]he burden is upon the
defendant to establish that he had a license to carry [the]
concealed . . . weapon.” Lively v. State, 

, 884 (Del.
1981) (quoting Modesto v. State, 

, 288 (Del. Super.
Ct. 1969)); see also Upshur v. State, 

, 169 (Del.
1980) (stating that “the clear import of [Delaware law] . . .
places the burden of proving that he was legally entitled to carry
the deadly weapon (by virtue of a license) on the defendant”).
Thus, under Delaware law, carrying a concealed handgun is a
crime to which possessing a valid license is an affirmative
defense, and an officer can presume a subject’s possession is not

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lawful until proven otherwise. See 

.

        This presumption under Delaware law distinguishes
Gatlin’s case from our decision in United States v. Ubiles, 

, 218 (3d Cir. 2000), in which we held that a stop-and-
frisk based solely on a tip that an individual had a firearm
violated Terry. While Ubiles presented similar facts (in that the
only evidence was a tip of firearm possession), the case arose in
the U.S. Virgin Islands, which, unlike Delaware, does not apply
a presumption of illegality. Instead, there it is the Government’s
burden to prove the absence of a license. United States v.
McKie, 

, 630 (3d Cir. 1997). Thus, the tip did not
supply reasonable suspicion that criminal activity was afoot
because it provided evidence of what is presumptively a legal
activity—possession of a handgun. In other words, this tip was
no different than “if [the informant] had told the officers that
Ubiles possessed a wallet, a perfectly legal act in the Virgin
Islands, and the authorities had stopped him for this reason.”

.

        In contrast, it is presumed in Delaware that concealed
handgun bearers are violating the law. 

. § 1442.
When (i) a reliable tip is received that a person is carrying a
concealed firearm, and (ii) that conduct is presumed to be a
crime (as it is in Delaware), an investigatory stop is within the
bounds of Terry. That the suspect might later offer a license as
an affirmative defense does not affect this analysis.



                                8
        Here, the officers had reasonable suspicion that criminal
activity was afoot based on the tip that someone matching
Gatlin’s description was at that very moment committing a
crime—carrying a concealed firearm.              Therefore, the
investigatory stop of Gatlin was justified.

       2.     The Limited Weapons Search

        Stopping Gatlin was a proper police act under Terry.
Moreover, because the officers believed Gatlin to have a
firearm, they were permitted by Terry to conduct a limited
search for weapons. 3 During a lawful stop, if the officer “has
reason to believe that he is dealing with an armed and dangerous
individual,” he may conduct “a reasonable search for weapons
for the protection of the police officer.” 

.
As noted above, because the “purpose of this limited search is
not to discover evidence of crime, but to allow the officer to
pursue his investigation without fear of violence,” the frisk (so
long as it is conducted pursuant to a lawful stop) may be
permissible “whether or not carrying a concealed weapon
violate[s] any applicable state law.” 

.

                        *   *   *   *   *


   3
    While we are concerned by the manner in which the search
was conducted—at gunpoint, ordering Gatlin to the ground, and
then handcuffing him behind his back before even asking him
a single question—this issue is not before us on appeal.

                                9
        As both the stop and limited search of Gatlin were
constitutionally proper, we conclude that the District Court did
not err in denying his motion to suppress.

B.     Confidential Informant’s Identity

       Gatlin argues that the identity of Detective Leary’s
informant is central to his defense. He suspects that the
informant might be the same individual, Daquon Anderson, who
allegedly robbed him at gunpoint shortly before his (Gatlin’s)
arrest at 30th and Market Streets. If the police revealed the
informant’s identity and validated this suspicion, Gatlin argues
this would lend credence to his defense theory.

        “We review the District Court’s refusal to order
disclosure of [a] confidential informant’s identity for abuse of
discretion.” United States v. Johnson, 

, 149 (3d
Cir. 2002). While the Government has a privilege to withhold
the identity of confidential informants, a “defendant can
overcome this privilege if he demonstrates that disclosure ‘is
relevant and helpful to [his] defense’ or ‘is essential to a fair
determination’ of his guilt.” 

v. United
States, 

, 60–61 (1957)) (alteration in original).

       Gatlin did not carry his burden of demonstrating that
disclosure was relevant to his defense; rather, his defense theory
merely indicated a hope that the informant’s identity would be
helpful. See United States v. Brown, 

, 679 (3d Cir.

                               10
1993) (“A defendant who merely hopes (without showing a
likelihood) that disclosure will lead to evidence supporting
suppression has not shown that disclosure will be ‘relevant and
helpful to the defense . . . or is essential to a fair determination’
of the case.” (quoting 

–61)). Even if
Anderson were revealed as the informant, this would not prove
that Anderson had robbed Gatlin and that the latter had obtained
the handgun while defending himself in that robbery.
Accordingly, we conclude that the District Court did not abuse
its discretion in denying Gatlin’s motion to disclose the
informant’s identity.

C.     Sufficiency of the Evidence

       Gatlin argues that the Government, by relying on the
testimony of an ATF agent who was not certified as an expert,
failed to establish an element of the crime of unlawful
possession of a firearm by a felon—namely, that Gatlin’s
handgun had traveled in interstate commerce. “In reviewing a
jury verdict for sufficiency of the evidence, we must consider
the evidence in the light most favorable to the government and
affirm the judgment if there is substantial evidence from which
any rational trier of fact could find guilt beyond a reasonable
doubt.” 

(internal quotation marks
omitted).

      Here, even without the testimony of the ATF Agent, there
was substantial evidence from which the jury could have found

                                 11
that the gun had traveled in interstate commerce: the gun was
marked with a “Miami, Florida” engraving and the
manufacturer’s name, the ATF database indicated that the gun
had been purchased in Virginia, and no handguns have been
manufactured in Delaware in nearly 100 years.

                       * * * * *

      For the reasons discussed above, we affirm the District
Court’s rulings.




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