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.
The opinion of the court was delivered by: Ambro, Circuit Judge
Before: RENDELL, AMBRO, and FUENTES, Circuit Judges
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 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.*fn1
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 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. 11 Del. C. § 1442.*fn2
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 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.