Filed: Jul. 09, 2008
Latest Update: Mar. 02, 2020
Summary: 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of the United 2008 Decisions States Court of Appeals for the Third Circuit 7-9-2008 USA v. Bellinger Precedential or Non-Precedential: Non-Precedential Docket No. 06-5040 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Bellinger" (2008). 2008 Decisions. Paper 868. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/868 This decision is brought to you for free and open access by the Opinions of the United S
Summary: 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of the United 2008 Decisions States Court of Appeals for the Third Circuit 7-9-2008 USA v. Bellinger Precedential or Non-Precedential: Non-Precedential Docket No. 06-5040 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Bellinger" (2008). 2008 Decisions. Paper 868. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/868 This decision is brought to you for free and open access by the Opinions of the United St..
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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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Bellinger" (2008). 2008 Decisions. Paper 868.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/868
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 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL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
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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
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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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