UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDDIE BECKHAM, JR., a/k/a Amun Usir Ali-Bey,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00012-RJC-DSC-1)
Submitted: January 13, 2011 Decided: March 17, 2011
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eddie Beckham, Jr., Appellant Pro Se. William A. Brafford,
Assistant United States Attorney, Mark A. Jones, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eddie Beckham, Jr. * (“Appellant”), was convicted,
following a jury trial, of possession of a firearm by a
convicted felon. Beckham proceeded pro se below and is
proceeding pro se on appeal. The district court imposed a 120-
month sentence. Appellant appeals the denial of his motion to
suppress evidence and he challenges his conviction. Finding no
reversible error, we affirm.
During the hearing on Appellant’s motion to suppress
evidence, Officer Reece testified that he observed Appellant
driving without wearing a seatbelt. Reece initiated a traffic
stop. Appellant was talking on a cell phone as Reece
approached, and Reece requested the Appellant’s driver’s license
and registration. Appellant was agitated and asked why he was
stopped. Reece obtained Appellant’s license and registration,
called for back up officers to assist him, explained the reason
for the traffic stop, and then asked Appellant to end his phone
call. Appellant refused.
Once additional officers arrived, the officers
approached Appellant and ordered him to step out of the vehicle.
When Appellant refused and resisted, the officers physically
*
Appellant is also known as Amun Usir Ali-Bey, and in the
district court was referred to, at his request, as “the
Beneficiary.”
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removed him from the vehicle, using a taser as needed. As the
officers were attempting to remove Appellant from the car, Reece
observed a handgun between the driver’s seat and the center
console. Appellant was arrested for resisting, obstructing, and
delaying a public officer and also for carrying a concealed
weapon.
When given the opportunity to cross-examine the
officer, or to present evidence in support of his motion to
suppress, Appellant remained silent. The court then found that
the officer had probable cause to stop Appellant for not wearing
a seatbelt; that, upon making the traffic stop, the officers
were justified, based on Appellant’s behavior and demeanor, in
requesting that he step out of the vehicle; and, that, by
refusing, Appellant gave the officers probable cause to arrest
him for resisting arrest and obstructing them in their duties.
The court found that, while attempting to arrest Appellant, the
officers observed the handgun in plain view. Additionally, the
court found the officer’s testimony to be credible, found no
grounds for suppressing the evidence, and denied Appellant’s
motion to suppress the evidence.
This court reviews the factual findings underlying a
district court’s ruling on a motion to suppress for clear error,
and the court’s legal conclusions de novo. United States v.
Wilson, 484 F.3d 267, 280 (4th Cir. 2007). When evaluating the
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denial of a suppression motion, the court construes the evidence
in the light most favorable to the Government, the prevailing
party below. United States v. Uzenski, 434 F.3d 690, 704 (4th
Cir. 2006).
The uncontroverted evidence at the suppression hearing
was that the officer observed Appellant driving his vehicle
without having his seatbelt fastened. In North Carolina, an
officer “may stop and issue a citation to any motorist who ‘he
has probable cause to believe has committed a misdemeanor or
infraction.’” North Carolina v. Hamilton, 481 S.E.2d 98, 100
(N.C. App. 1997) (quoting N.C. Gen. Stat. § 15A-302(b) (2009)).
North Carolina law provides that “[a]ny driver or front seat
passenger who fails to wear a seat belt as required by this
section shall have committed an infraction.” N.C. Gen. Stat.
§ 20-135.2A(e) (2009). A vehicle stop is permissible if the
officer has probable cause to believe a traffic violation has
occurred. Whren v. United States, 517 U.S. 806, 809-10 (1996).
Thus, having seen Appellant operating a vehicle without wearing
a seat belt, Officer Reece had probable cause to stop the
vehicle. See Hamilton, 481 S.E.2d at 100.
The officers determined that Appellant was resisting,
obstructing, or delaying them in the conduct of their duties and
placed him under arrest for violating N.C. Gen. Stat. § 14-223
(2009), which prohibits resisting, obstructing or delaying a
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public officer. Because this offense was committed in the
officers’ presence, the warrantless arrest was not in violation
of the Fourth Amendment. See United States v. Watson, 423 U.S.
411, 424 (1976).
Viewing the evidence in the light most favorable to
the Government, Uzenski, 434 F.3d at 704, we hold that the
district court did not err in finding that probable cause
existed to stop the vehicle and to arrest Appellant. In the
course of the arrest, the firearm was observed in plain sight.
The district court correctly ruled that there was no basis for
suppression of that evidence. Thus, the district court properly
denied Appellant’s motion to suppress evidence.
Next, Appellant asserts a violation of double jeopardy
because he was indicted on the federal charge of possession of a
firearm by a convicted felon after the state had filed the same
charge against him. There is no double jeopardy violation when
two separate sovereigns — the United States and the State of
North Carolina — prosecute an individual for the same offense.
See Heath v. Alabama, 474 U.S. 82, 89 (1985) (applying separate
sovereign exception); Rinaldi v. United States, 434 U.S. 22, 28
(1977) (“[T]he Constitution does not deny the State and Federal
Governments the power to prosecute for the same act.”).
Appellant asserts that the district court denied him
the right to subpoena witnesses and therefore denied him the
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right to present a defense. Appellant had requested that the
court issue blank subpoenas to him at government expense. The
magistrate judge denied the request, noting that Appellant had
not been found to be indigent and therefore was not entitled to
issuance of subpoenas at government expense. Appellant did not
challenge this ruling and did not issue any subpoenas at his own
expense. Because Appellant fails to identify any potential
witness he was denied or what the witness’s testimony would have
been, and because the only witnesses to the events leading to
Appellant’s arrest were the officers and the Appellant, he has
not shown any plain error. See United States v. Olano, 507 U.S.
725, 732 (1993) (providing standard).
Appellant next asserts that Officer Reece committed
perjury when testifying that, after he initiated the traffic
stop, he observed Appellant lean “toward the center console as
if hiding something.” This evidence was presented to the
district court during the suppression hearing and the court
found it credible. This court accords great deference to the
district court’s credibility determinations. See United States
v. Murray, 65 F.3d 1161, 1169 (4th Cir. 1995). This evidence
was also presented to the jury and Appellant cross-examined the
officer and attempted to impeach his testimony. This court does
not review the credibility of the witnesses and assumes the jury
resolved all contradictions in the testimony in favor of the
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Government. United States v. Sun, 278 F.3d 302, 313 (4th Cir.
2002).
Appellant claims that the district court continued the
trial without him present and therefore deprived him of the
right to present a defense. However, the court did allow
Appellant to testify on his own behalf and present a defense.
Because he was proceeding pro se, the district court afforded
Appellant great latitude in the presentation of his evidence;
however, when Appellant became belligerent and disrespectful to
the court during the conference on jury instructions, he was
removed from the courtroom. The district court then gave
Appellant numerous opportunities to return to the courtroom for
closing arguments. Appellant refused to return unless the court
dismissed the charge against him and awarded him $50,000 in
damages. The court also gave Appellant the opportunity to
participate remotely, and he refused to do so.
While an accused “has a constitutional right to be
present in the courtroom at every stage of his trial, [ ] he may
waive that right. Diaz v. United States, 223 U.S. 442 (1912).
Rule 43(b) of the Federal Rules of Criminal Procedure provides
that the defendant’s presence is not required when he
“voluntarily absents himself after the trial has commenced.”
Here, by his conduct, Appellant voluntarily absented himself
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from his trial. We conclude that the district court did not
abuse its discretion by continuing the trial in his absence.
We have considered Appellant’s remaining claims and
find no merit to them. Accordingly, we affirm Appellant’s
conviction and his 120-month sentence. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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