United States v. Beckham

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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