United States v. Demarco Pegues , 493 F. App'x 396 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4960
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMARCO PEGUES,
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. (3:10-cr-00082-RJC-1)
Submitted: July 25, 2012 Decided: August 16, 2012
Before DIAZ and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Henderson Hill, Executive Director, Ross Hall Richardson,
Assistant Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, Melissa L. Rikard,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial in the United States District
Court for the Western District of North Carolina, Demarco Pegues
was convicted of possession of a firearm by a convicted felon,
18 U.S.C. § 922(g)(1). He appeals his conviction and sentence.
We affirm his conviction, but vacate his sentence and remand for
resentencing.
First, Pegues challenges the district court’s denial
of his motion to suppress firearms that flew out of his
waistband during his flight from a traffic stop of a car in
which he was a passenger. The traffic stop occurred in
Charlotte, North Carolina in the early morning hours of January
24, 2009. We review the legal conclusions of a district court’s
denial of a motion to suppress de novo and the findings of fact
for clear error, construing the evidence in the light most
favorable to the government, the prevailing party below. United
States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011).
A temporary detention of an automobile, even if only
for a limited time or purpose, constitutes a Fourth Amendment
seizure. Whren v. United States, 517 U.S. 806, 809–10 (1996).
Because a routine “traffic stop is . . . more like an
investigative detention than a custodial arrest,” its
limitations must be evaluated under the dual inquiry set out in
Terry v. Ohio, 392 U.S. 1 (1968). United States v. Guijon–
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Ortiz, 660 F.3d 757, 764 (4th Cir. 2011) (internal quotation
marks omitted). Under this analysis, we determine whether the
stop “was justified at its inception” and “whether the continued
stop was sufficiently limited in scope and duration to satisfy
the conditions of an investigative seizure.” Id. (internal
quotation marks omitted).
Regarding the first Terry inquiry, if an officer has
probable cause or reasonable suspicion to believe a suspect has
violated a traffic law, the officer’s decision to stop the
suspect’s car is reasonable under the Fourth Amendment,
regardless of the officer’s subjective motivation for the stop.
United States v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993). In
evaluating the second inquiry, we must consider whether the
officer “‘diligently pursue[d] the investigation of the
justification for the stop.’” Guijon–Ortiz, 660 F.3d at 768
(quoting United States v. Digiovanni, 650 F.3d 498, 509 (4th
Cir. 2011)).
A lawful routine traffic stop justifies detaining the
car’s occupants for the time necessary to request a driver’s
license and registration, run a computer check, and issue a
citation. Digiovanni, 650 F.3d at 507. The officer also is
permitted to request passenger identification or inquire into
unrelated matters, as long as doing so does not measurably
prolong the length of the traffic stop. Guijon–Ortiz, 660 F.3d
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at 765. However, the officer may not “‘definitively abandon[]
the prosecution of the traffic stop and embark[] on another
sustained course of investigation’” absent additional
justification. Id. at 766 (quoting United States v. Everett,
601 F.3d 484, 495 (6th Cir. 2010)). In other words, if a police
officer seeks to prolong a traffic stop to allow for
investigation into a matter outside the scope of the initial
stop, he must possess reasonable suspicion of additional
criminal activity. Digiovanni, 650 F.3d at 507.
While there is no “precise articulation of what
constitutes reasonable suspicion,” United States v. Branch, 537
F.3d 328, 336 (4th Cir. 2008) (citation and internal quotation
marks omitted), “a police officer must offer specific and
articulable facts that demonstrate at least a minimal level of
objective justification for the belief that criminal activity is
afoot.” Id. at 337 (citation and internal quotation marks
omitted). Officers may use their “training and expertise” to
identify sets of factors which are “individually quite
consistent with innocent travel” yet “taken together, produce a
reasonable suspicion of criminal activity.” Id. at 336–37
(citation and internal quotation marks omitted).
Pegues does not challenge the initial stop of the car.
Rather, he challenges the scope and duration of the continued
stop. After reviewing the video evidence, the testimony at the
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suppression hearing, and the district court’s findings, we
conclude that the stop was limited in scope and duration. After
the initial stop of the car driven by Randall Cummings, Officer
Cristo Fitzpatrick of the Charlotte-Mecklenburg Police
Department obtained Cummings’ driver’s license and registration
and immediately proceeded to run his information through the
routine law enforcement databases. Meanwhile, Officer Timothy
Kiefer approached the car to obtain identification from the
passengers. At this point, Officer Kiefer’s efforts were
stymied by the actions of William Spann (the front seat
passenger) and Pegues (the back seat passenger). They did not
have identification with them, the window was rolled down only a
couple of inches, and Spann and Pegues spoke softly, making
communication extremely difficult. During this encounter,
Officer Kiefer observed Pegues attempting to hide something in
the back seat and also observed a beer can, although he could
not determine whether the can had been opened. He also observed
Spann keeping his hands “very tight to his person, very close in
on his clothing.” (J.A. 77). Under these circumstances, it was
permissible for Officer Kiefer to continue the stop for a short
time to investigate whether criminal activity was afoot. Cf.
Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (noting that the
determination of reasonable suspicion must be based on common
sense judgments and inferences about human behavior).
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After conferring with Officer Fitzpatrick, Officer
Kiefer asked Spann to step to the back of the car, and he asked
for consent to pat him down for weapons. Spann agreed to the
pat-down, but when Officer Kiefer stepped toward him to pat him
down, Spann immediately backed up. Spann began to act “jumpy”
and put his hands in the pockets of his hooded sweatshirt, which
led the officers to think he had weapons or drugs in his pocket.
(J.A. 43). Officer Kiefer told Spann that he was making him
nervous and again asked for his consent to pat him down, and
Spann again consented. But Spann stepped back every time
Officer Kiefer stepped toward him. So the officers, concerned
for their safety at this point, attempted to detain Spann.
Spann was not cooperative and resisted the officers’ attempts to
handcuff him, causing the officers to have to wrestle him to the
ground. Meanwhile, Pegues, who had remained in the back seat
during the officers’ encounter with Spann, climbed over the
front seat, exited through the open front passenger door, and
took off running. Officer Kiefer took off after him. During
the chase, Pegues fell and two loaded firearms flew out of his
waistband, eventually resting on the ground in front of where he
was lying. Officer Kiefer then jumped on Pegues’ back to secure
him.
Unquestionably, Pegues’ actions constituted resisting,
delaying, or obstructing an officer under N.C. Gen. Stat. § 14-
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223; see also State v. McNeill, 283 S.E.2d 565, 567 (N.C. App.
1981) (flight from a lawful investigatory stop provides probable
cause to arrest individual for violation of N.C. Gen. Stat.
§ 14-223). Accordingly, Officer Kiefer was permitted to seize
Pegues after he fled the scene. Because the seizure of Pegues
and the firearms was proper, the district court appropriately
denied Pegues’ motion to suppress the firearms.
Next, Pegues challenges the district court’s admission
of certain evidence, namely, that a firearm and a quantity of
marijuana was recovered from Spann after he was wrestled to the
ground. We review the district court’s evidentiary ruling for
an abuse of discretion. United States v. Delfino, 510 F.3d 468,
470 (4th Cir. 2007)
Evidence of uncharged conduct is not other crimes
evidence subject to Rule 404(b) if the uncharged conduct arose
out of the same series of transactions as the charged offense,
or if evidence of the uncharged conduct is necessary to complete
the story of the crime on trial. United States v. Basham, 561
F.3d 302, 327 (4th Cir. 2009); United States v. Siegel, 536
F.3d 306, 316 (4th Cir. 2008). Rule 404(b) limits only the
admission of evidence of acts extrinsic to the one charged, but
does not limit the admission of evidence of intrinsic acts.
United States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996). Evidence
is “intrinsic” if it provides “context relevant to the criminal
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charges.” United States v. Cooper, 482 F.3d 658, 663 (4th Cir.
2007). In other words, other acts are intrinsic when they are
“inextricably intertwined or both acts are part of a single
criminal episode or the other acts were necessary preliminaries
to the crime charged.” Chin, 83 F.3d at 88 (citation and
internal quotation marks omitted).
In this case, the evidence recovered from Spann was
not admitted to show that Pegues had a criminal disposition
and/or would act in conformity therewith. Instead, it was
relevant to explain why the officers acted in the manner they
did and to explain why Pegues fled from the car. Cf. United
States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004)
(concluding that evidence of defendant’s resistance to arrest
and battery on a law enforcement officer before the discovery of
the firearm giving rise to his felon-in-possession charge gave
“the jury the body of the story, not just the ending”). Without
this testimony, the jury would be left wondering why the
officers restrained Spann and why Pegues fled from the car. Cf.
Old Chief v. United States, 519 U.S. 172, 188 (1997) (holding
that the government is entitled to present a complete narrative
of the crime that “satisf[ies] the jurors’ expectations about
what proper proof should be”); see also United States v.
Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (noting that
“evidence is inextricably intertwined with the evidence
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regarding the charged offense if it forms an integral and
natural part of the witness’s accounts of the circumstances
surrounding the offenses for which the defendant was indicted)
(citation and internal quotation marks omitted). Furthermore,
the potential for unfair prejudice did not substantially
outweigh the probative value of the evidence under Rule 403.
Accordingly, the district court did not abuse its discretion in
admitting this evidence. *
Finally, Pegues contends that the district court erred
when it ordered him to reimburse the government for the services
*
The improper admission of evidence is subject to harmless
error review. See Fed. R. Crim. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial
rights must be disregarded.”); Fed. R. Evid. 103(a) (noting
evidentiary errors support reversal only if they affect
“substantial right”). Erroneously admitted evidence is harmless
if a reviewing court is able to “say, with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.” Kotteakos v. United States, 328 U.S. 750,
765 (1946); United States v. Abu Ali, 528 F.3d 210, 231 (4th
Cir. 2008). Even assuming the district court erred in
permitting the admission of the challenged evidence, we conclude
that the error is harmless. The challenged evidence played
little role in the outcome of the trial, as the challenged
evidence simply provided background to the events leading up to
the seizure of Pegues and the seizure of the firearms found on
the ground in front of where he was lying. The main issue at
trial was whether Pegues possessed these firearms, as he
essentially conceded his felony status and interstate nexus.
Unfortunately for Pegues, the evidence that he possessed the
firearms was overwhelming, rendering any error harmless.
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of his court-appointed attorney. On this contention, the
government concedes error.
In United States v. Moore, 666 F.3d 313 (4th Cir.
2012), we noted that under the Criminal Justice Act, 18 U.S.C. §
3006A, the government must provide adequate legal representation
to criminal defendants charged with a federal felony who are
unable to pay, but if the district court subsequently finds that
the defendant “‘is financially able to obtain counsel or to make
partial payment for the representation,’” repayment is
authorized under subsection (f). Moore, 666 F.3d at 321
(quoting 18 U.S.C. § 3006A(c)). Subsection (f) authorizes a
district court to order repayment of attorneys’ fees “[w]henever
. . . the court finds that funds are available for payment from
or on behalf of a person furnished representation.” 18 U.S.C.
§ 3006A(f).
In Moore, we held that to order reimbursement of
attorneys’ fees, the district court must “find[] that there are
specific funds, assets, or asset streams (or the fixed right to
those funds, assets or asset streams) that are (1) identified by
the court and (2) available to the defendant for the repayment
of the court-appointed attorneys’ fees.” 666 F.3d at 322. We
noted that the district court made no findings that the
defendant was “financially able . . . to make partial payment
for the representation” or that funds were “available for
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payment.” Id. at 323 (internal quotation marks omitted). We
also noted that, in the absence of such findings, the district
court simultaneously concluded that the defendant was unable to
pay a fine or interest. Id. Finding that the district court’s
reimbursement order conflicted with the statutory requirements,
we vacated that portion of the judgment and remanded for
resentencing. Id. at 324.
Similarly, the district court here made no findings
regarding Pegues’ ability to reimburse the government for
attorneys’ fees or the availability of such funds. To the
contrary, the district court concluded that Pegues was unable to
pay a fine or interest. Because Pegues’ reimbursement order is
of the same type we rejected in Moore, we vacate that portion of
the district court’s judgment and remand for resentencing.
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 IN PART,
VACATED IN PART,
AND REMANDED
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