IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
October 6, 2003
UNITED STATES OF AMERICA,
CLARENCE SHAMBRY, DEFENDANT.
The opinion of the court was delivered by: Jerome B. Simandle United States District Judge
This matter comes before the Court upon Defendant Clarence Shambry's motion for an order granting a judgment of acquittal pursuant to Fed. R. Crim. P. 29, following his conviction in a non-jury trial for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The principal issue is whether the evidence at trial was sufficient to prove that Defendant possessed the firearm in or affecting interstate commerce when the government has shown only that the firearm in question was manufactured in Massachusetts and was found on Defendant's person in New Jersey. For the following reasons, the Court will deny Defendant's motion.
On September 29, 2002, Camden Police Officers John Gramaglia ("Gramaglia") and Kemp ("Kemp") were on patrol at the corner of Morton and Norris Streets in Camden, New Jersey. Shortly after midnight, Officer Gramaglia observed a 2003 Pontiac Bonneville traveling eastbound at a high rate of speed toward him. As the vehicle approached the stop sign, Officers Gramaglia and Kemp approached the vehicle. Officer Kemp approached the driver's side of the automobile and asked the driver to turn the vehicle off. Unexpectedly, however, the driver instead accelerated the car and struck the lower portion of Officer Gramaglia's leg, forcing him onto the hood of the moving vehicle as it left the intersection.
After being thrown from the car, Officer Gramaglia reached his marked patrol car, activated his emergency lights and siren, and began pursuit of the fleeing vehicle. Following a short chase, the two occupants of the Pontiac exited the car at the corner of Norris Street and Lansdowne Avenue and began to flee on foot. At this time, the officers apprehended the passenger of the vehicle, although they were unable to locate the driver. Officer Gramaglia, however, clearly saw the driver; in fact, he recognized him as a person who frequented the area in which the incident took place and where Officer Gramaglia routinely patrols.
On October 18, 2002, at approximately 1:23 a.m., Officer Gramaglia and Officer Gonzalez ("Gonzalez") were patrolling in a marked police vehicle in the vicinity of Norris and Thurman Streets, when they observed the defendant, Clarence Shambry ("Shambry"), walking east on the 1200 block of Thurman Street, a high crime area. Officer Gramaglia recognized Shambry as the driver of the Pontiac that had struck him on September 29, 2002. The officers drove toward Shambry in their marked police car. As Officer Gramaglia exited the vehicle and approached Shambry, Mr. Shambry ran south suddenly on Norris Street, away from the officers. Despite orders from Officer Gramaglia to stop, Shambry continued his flight. During the course of the pursuit, Officer Gramaglia noticed Shambry repeatedly grab the waistband of his pants. Office Gramaglia finally stopped Shambry on Pershing Street.
After stopping the defendant, Officer Gramaglia conducted a safety pat down search of Shambry, at which time he discovered a .32 caliber H&R Model 732 pistol (revolver) with an obliterated serial number in the right front pocket of Mr. Shambry's pants. The firearm contained two rounds of .32 caliber ammunition and one spent cartridge. Shambry was subsequently arrested and transported to police headquarters, where he was charged with illegal possession of a handgun and aggravated assault. On January 7, 2003, Shambry was indicted by a Federal Grand Jury.
A motion to suppress the recovered gun was held on July 17, 2003. In its August 5, 2003 Opinion, this Court denied the motion. Subsequently, the Court set the case for a bench trial on September 9, 2003, following Shambry's waiver of his right to a trial by jury. At this non-jury trial, the parties stipulated to the following facts: (1) Officer Gramaglia's motion to suppress testimony was incorporated; (2) Officer Gramaglia recovered a .32 caliber H&R Model 732 revolver from Mr. Shambry's pockets; (3) the H&R Model 732 revolver was loaded with two live rounds; (4) the H&R Model 732 revolver was a firearm as defined by 18 U.S.C. § 921(a)(3) and § 922(g); (5) the firearm was operable; and (6) prior to October 18, 2002, Shambry had been convicted of a crime punishable by term of imprisonment exceeding one year in a court in the state of New Jersey. The Court then took testimony from Special Agent John Leonard, Bureau of Alcohol Tobacco Firearms and Explosives ("ATF"). Special Agent Leonard opined, after being qualified as an expert witness, that the gun in this case was manufactured in Massachusetts and necessarily traveled in interstate commerce, where it was found in Shambry's possession in New Jersey on October 18, 2002.
At the conclusion of the Government's case, the defense moved, pursuant to Fed. R. Crim. P. 29, for a judgment of acquittal and the Court reserved decision on this motion. Upon the defense resting its case and after argument, this Court deliberated and found Defendant guilty of the stated charge. Pursuant to Fed. R. Crim. P. 29, Defendant now renews his motion for judgment of acquittal. For reasons discussed herein, Defendant's motion for an order granting a judgment of acquittal will be denied.
Under Fed. R. Crim. P. 29, a defendant may move the court to enter a judgment of acquittal on any offense for which the Government's evidence is insufficient to sustain a conviction. Here, Defendant was indicted under 18 U.S.C. § 922(g)(1), which makes it a crime for a felon "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition, or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Defendant argues that the Government has failed to provide the Court with any evidence that the specific firearm at issue traveled through interstate commerce and has therefore not shouldered the burden necessary to sustain such a conviction. This Court disagrees.
In United States v. Singletary, 268 F.3d 196 (3d Cir. 2001), the Third Circuit held that the transport of a weapon in interstate commerce, however remote in the past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of Section 922(g)(1). That court pointed to an earlier decision of the U.S. Supreme Court and emphasized that, "[T]he Court in Scarborough v. United States had the opportunity to address squarely `whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce.'" Id. at 200 (quoting Scarborough v. United States, 431 U.S. 563, 564 (1977)). The Third Circuit continued, "The Court accepted the Government's contention that it only need prove that `the firearm possessed by the convicted felon traveled at some time in interstate commerce.'" Id. (quoting Scarborough, 431 U.S. at 568).
Here, the Government, through the introduction of expert testimony, established that the firearm at issue was an H&R Model 732, .32 caliber revolver, manufactured by Harrington & Richardson in Massachusetts, and could not have been manufactured in New Jersey, as no manufacturing facilities existed there. In addition, the parties have stipulated that Defendant possessed this firearm on October 18, 2002 in Camden, New Jersey.
The Third Circuit's Singletary case, like Scarborough, dealt chiefly with the timing requirement, finding that the firearm's movement in commerce at any time in the past invests it with a sufficient nexus to interstate commerce, even if the defendant himself did not possess the weapon at that prior time. Singletary's facts regarding the firearm's movement in or affecting interstate commerce included proof that the firearm in question was manufactured in Brazil, imported into the United States through Atlanta, Georgia, and eventually sent to a firearms dealer in Texas in 1983, with no evidence of how the firearm found its way into Pennsylvania. Singletary, 268 F.3d at 198. In contrast to the present case, the Singletary court at least had clear evidence that the firearm had been distributed, from Brazil to Georgia to Texas, in commerce about 17 years before it was possessed in Pennsylvania. The issue here, then, is whether proof that the H&R Model 732 was manufactured by a licensed, regulated manufacturer in Massachusetts before 1985 (when H&R ceased operations), and that it was found in New Jersey, satisfies the essential element that the firearm was "in or affecting interstate commerce," since it necessarily traveled across state lines by some unknown modality. The Third Circuit does not appear to have addressed this issue, although other appellate courts have. For example, the Eleventh Circuit held that the Government may meet its burden of proving a nexus between the firearm and interstate commerce by expert testimony that the firearm was manufactured outside of the state in which it was found. United States v. Floyd, 281 F.3d 1346, 1349 (11th Cir. 2002); United States v. Bonavia, 927 F.2d 565, 567 n.2 (11th Cir. 1991).
Indeed, a number of courts in various circuits throughout the country have found the interstate commerce requirement of § 922(g) to have been satisfied when the Government establishes nothing more than the manufacture of a gun in one state and its later presence in another. In United States v. Rawls, 85 F.3d 240 (5th Cir. 1996), the Government offered an ATF weapons expert to testify at the trial of a criminal defendant charged under § 922(g) that the revolver he possessed was manufactured in Massachusetts and that the revolver's presence in Texas had to result from transport in interstate commerce. The Fifth Circuit held that "[t]his evidence is sufficient to establish a past connection between the firearm and interstate commerce." Id. at 243.
In United States v. Corey, 207 F.3d 84 (1st Cir. 2000), an ATF agent testified that, in his opinion, the shotgun of which the defendant was charged with being in possession in violation of § 922(g) was manufactured by Smith & Wesson either in Massachusetts or Ohio. The court found that since the gun was discovered in Maine, where no manufacturing plants were located, it necessarily traveled across state lines. The First Circuit held that "the `interstate nexus' element was met provided the government demonstrated that [the defendant] possessed the shotgun in a state other than the one in which it was manufactured." Id. at 88.
In United States v. Patterson, 820 F.2d 1524 (9th Cir. 1987), the court held that because the handgun at issue bore the imprint of manufacture in Miami, FL and was later found in the defendant's home in Los Angeles, CA, the firearm could not have made the journey from Miami to L.A. without traveling in interstate commerce. There also, the Government was not required to prove sale or distribution in order to satisfy the statute's "in or affecting commerce" language.
Finally, the Tenth Circuit, in United States v. Gregg, 803 F.2d 568 (10th Cir. 1986), has clearly articulated what these and other circuits have time and time again suggested. "Proof that a firearm is manufactured outside the state in which the possession occurred is sufficient to support a finding that the possession was in or affected commerce." Id. at 571. Moreover, none of the cases cited here by Defendant impose any sort of requirement upon the Government to demonstrate more than that the firearm was manufactured in one state and ultimately discovered in another.
Defendant, however, asserts that Scarborough does not stand for the proposition that the Government may prove interstate movement simply by showing that a weapon was manufactured in a state other than the jurisdictional state in question. However, the Fourth Circuit's decision in United States v. Scarborough, 539 F.2d 331 (4th Cir. 1976), from which appeal was taken to the Supreme Court, based its decision on the earlier case of United States v. Bass, 404 U.S. 336 (1971), and stated its belief that "The Court in Bass was not . . . fixing precise criteria for establishing the degree of proof of interstate commerce movement required under the statute for the offenses of receipt and possession." Scarborough, 539 F.2d at 333. The Supreme Court granted the petition for a writ of certiorari only insofar as to the limited question of whether the interstate commerce nexus need be contemporaneous. Scarborough v. United States, 431 U.S. at 567 n.5. The Court did not squarely address whether "in or affecting commerce" requires proof of a sale or distribution. Nevertheless, since the Supreme Court's decision in Scarborough, all lower appellate courts addressing the issue have required only proof of manufacture in another state or country to establish the "in or affecting commerce" element of § 922(g)(1). As these decisions in and following Scarborough remain controlling law, this Court is bound by the precedent that has evolved. The evidence in this case thus satisfies the element of "in or affecting commerce."
For the foregoing reasons, Defendant's motion for an order granting a judgment of acquittal will be denied. The accompanying order will be entered.
THIS MATTER having come before the Court upon Defendant Clarence Shambry's motion for an order granting a judgment of acquittal pursuant to Fed. R. Civ. P. 29; and the Court having considered the parties' submissions; and for the reasons stated in the Court's Opinion of today's date;
IT IS on this 6th day of October, 2003, hereby
ORDERED that Defendant's motion for an order granting a judgment of acquittal be, and hereby is, DENIED.
JEROME B. SIMANDLE
United States District Judge
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