United States v. Byram , 73 F. App'x 586 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4746
MICHAEL WAYNE BYRAM,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CR-01-13)
Submitted: July 29, 2003
Decided: August 22, 2003
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John Q. Adams, Harrisonburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Ray B. Fitzgerald, Jr., Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BYRAM
OPINION
PER CURIAM:
Michael Wayne Byram appeals his conviction and 470-month sen-
tence for two counts of use or possession of a firearm in relation to
a drug trafficking crime in violation of 18 U.S.C. § 924(c) (2000), two
counts of felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1)(2000), one count of possession of a short-barreled shot-
gun in violation of 26 U.S.C. § 5861(d) (2000), and one count of dis-
tribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (2000).
Byram noted a timely appeal raising three issues: (1) the district court
erred in denying his motion to suppress guns and drugs seized as the
result of an August 1, 2000 automobile stop because the police offi-
cers lacked reasonable suspicion to make the stop; (2) the district
court erred in granting the Government’s motion to amend Count two
of the indictment; and (3) the district court erred in denying Byram’s
motion to have two trials, separating the charges arising from his
August 1, 2000 arrest from charges stemming from his February 9,
2001 arrest. Finding no reversible error, we affirm.
Byram’s first argument on appeal is that police officers had no rea-
sonable suspicion to make an automobile stop on August 1, 2000, and
therefore, the evidence of the drugs and guns seized pursuant to this
stop should have been suppressed. This court reviews legal conclu-
sions in a district court’s suppression determination de novo and
reviews the underlying facts under a clearly erroneous standard, giv-
ing "due weight to inferences drawn from those facts by resident
judges and local law enforcement officers." United States v. Sprinkle,
106 F.3d 613, 616-17 (4th Cir. 1997). When a suppression motion has
been denied, this court reviews the evidence in the light most favor-
able to the Government. United States v. Seidman, 156 F.3d 542, 547
(4th Cir. 1998).
Under Terry v. Ohio, 392 U.S. 1 (1968), "an officer may, consistent
with the Fourth Amendment, conduct a brief, investigatory stop when
the officer has a reasonable, articulable suspicion that criminal activ-
ity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000). To con-
duct a Terry stop, there must be "at least a minimal level of objective
justification for making the stop." Id. Reasonable suspicion requires
UNITED STATES v. BYRAM 3
more than a hunch but less than probable cause and may be based on
the collective knowledge of officers involved in an investigation. Id.;
see also United States v. Hensley, 469 U.S. 221, 232 (1985). In
assessing police conduct in a Terry stop, courts must look to the total-
ity of the circumstances. United States v. Sokolow, 490 U.S. 1, 8
(1989). A suspect’s presence in an area known for criminal activity
is not, by itself, enough to support a Terry stop. However, presence
in such an area is relevant, as are flight upon noticing the police, ner-
vous, evasive behavior, and the lateness of the hour. Wardlow, 528
U.S. at 124; see also United States v. Lender, 985 F.2d 151, 154 (4th
Cir. 1993) (noting that lateness of the hour is another fact that may
raise the level of suspicion). Based on the facts in this case, and view-
ing the evidence in the light most favorable to the Government, we
hold that the district court did not err in ruling that the officers had
reasonable suspicion sufficient to justify a Terry stop. Therefore, the
district court did not err in denying Byram’s motion to suppress.
Byram next argues that the district court erred in granting the Gov-
ernment’s motion to amend Count two of the indictment by excluding
language that referred to the drug methamphetamine. This court
reviews a district court’s decision whether to strike certain language
from an indictment for abuse of discretion. United States v. Hartsell,
127 F.3d 343, 353 (4th Cir. 1997). Byram relies on Rule 7(d) of the
Federal Rules of Criminal Procedure, which provides that the district
court may strike surplusage from an indictment on the defendant’s
motion. Byram did not move to have the phrase containing the word
methamphetamine struck from Count two. However, due process is
not offended when an amendment "drop[s] from an indictment those
allegations that are unnecessary to an offense that is clearly contained
within it . . . ." United States v. Miller, 471 U.S. 130, 144 (1985); see
also United States v. Bledsoe, 898 F.2d 430, 432 (4th Cir. 1990) (mat-
ters of form that do not alter an essential element to the prejudice of
a defendant may be corrected by amendment). Amendments to indict-
ments implicate federal constitutional rights where the amendment
changes the offense charged. Stirone v. United States, 361 U.S. 212,
217 (1960). We find that the amendment made by the district court
did not change the offense charged, nor impermissibly broaden the
bases for conviction beyond those presented to the grand jury. See
United States v. Sampson, 140 F.3d 585, 589-90 (4th Cir. 1998).
Therefore, the district court did not abuse its discretion.
4 UNITED STATES v. BYRAM
Byram’s last argument on appeal is that the district court erred in
denying his motion to have two trials, separating charges arising from
events that occurred on August 1, 2000 from charges arising from
events that occurred on February 9, 2001. We review the district
court’s refusal to grant a misjoinder motion de novo to determine
whether the initial joinder of the offenses in the indictment was
proper under Fed. R. Crim. P. rule 8(a). United States v. Mackins, 315
F.3d 399, 412 (4th Cir.), petition for cert. filed, (U.S. Apr. 2, 2003)
(No. 02-9992). If joinder was proper, review of the denial of a motion
to sever is for abuse of discretion under Fed. R. Crim. P. 14. Id. Our
review leads us to conclude that the charges were properly joined in
the indictment and that the district court did not abuse its discretion
in denying Byram’s motion to sever.
Accordingly, we affirm Byram’s convictions and sentence. We dis-
pense 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