United States v. Benjamin Goss , 537 F. App'x 276 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4983
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BENJAMIN DEVON GOSS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:11-cr-00730-RMG-1)
Submitted: May 22, 2013 Decided: August 12, 2013
Before SHEDD, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina, Kimberly H. Albro, Research and Writing
Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Columbia, South Carolina, Nathan S. Williams,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal court convicted Benjamin Devon Goss of being a
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1), 924(g)(2) and 924(e). On appeal, Goss contends
that the district court erred in denying his motion to suppress
the firearm. Goss also asserts that the district court abused
its discretion when it failed to grant a mistrial after alleged
improper bolstering by a government witness.
For the reasons that follow, we affirm.
I.
A.
On October 4, 2010, Charleston, South Carolina, Police
Department (“CPD”) officers were dispatched to a disturbance in
downtown Charleston. Dispatch relayed the 911 call, which
stated that there was a disturbance involving a gun between
several black males wearing black and red clothing. Arriving
first at the scene, CPD Officer Carlos Torres observed a group
of people, which included Goss, crossing the street directly in
front of his police cruiser. Goss looked at Torres and
attempted to fix his waistband, revealing what appeared to be
the grip of a black handgun.
Torres got out of his patrol cruiser and told Goss to
“stop” and “get on the ground.” J.A. 231. CPD Officer Robert
2
Wilbanks arrived on the scene just as Torres exited his patrol
car. Goss began to walk away and Torres told him: “stop, you
are under arrest.” Id. When Wilbanks got out of his car, he
heard Torres yell “gun, gun, gun” and saw Goss begin to flee.
J.A. 343. As Torres gave chase, he radioed that he was in
pursuit of an armed black male wearing a red shirt, and other
officers soon joined. While in pursuit, Torres saw Goss drop a
black pistol between two bushes. Torres and Wilbanks eventually
caught and detained Goss, at which point Torres told Officer
Robert Hazelton where he had seen Goss toss the firearm.
Hazelton went to the area described and found a .380 caliber
handgun at the base of a bush. The officers placed Goss under
arrest. 1
B.
The government filed a one-count indictment charging Goss
with being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924(g)(2) and 924(e). Prior to trial, Goss
moved to suppress the weapon, arguing that the relayed 911 call
did not provide Torres with reasonable suspicion sufficient to
justify the initial attempted stop.
1
Goss was charged with Unlawful Possession of Handgun by
Felon, Resisting Arrest, Unlawful Carrying of Handgun, and
Possession of Marijuana.
3
After conducting a suppression hearing, the district court
denied the motion. The court did not make any explicit findings
of fact.
At trial, the government presented the testimony of Torres
and other officers at the scene. The government also offered
the testimony of Bureau of Alcohol, Tobacco, Firearms, and
Explosives (“ATF”) Agent Robert Callahan, who briefly detailed
his role as a federal agent and his level of involvement with
state law enforcement in this case.
Goss moved to strike Callahan’s testimony and for a
mistrial, arguing that the testimony served no purpose but to
improperly bolster the testimony of Officer Torres, who, Goss
submits, presented conflicting testimony at the suppression
hearing and at trial regarding his description of the person
with the firearm. 2 The district court granted the motion to
strike, and instructed the jury to disregard the testimony in
its entirety. However, the district court denied Goss’s request
2
At the suppression hearing, Torres did in fact give
conflicting testimony as to what color shirt Goss was wearing
when Torres saw him with the gun on the evening in question.
See J.A. 77-80. But Torres also testified that the individual
he arrested that evening--Goss--was the same individual he saw
pass in front of his patrol car with the gun in his waistband.
Torres further testified that he never lost sight of Goss while
chasing him.
4
for a mistrial, concluding that the testimony did not prejudice
Goss.
A jury convicted Goss on the one-count indictment. The
district court sentenced Goss to one-hundred twenty months’
imprisonment. Goss filed a timely appeal.
II.
A.
We first consider Goss’s challenge to the district court’s
denial of the motion to suppress, reviewing the district court
court’s legal conclusions de novo and its findings of fact for
clear error. Ornelas v. United States, 517 U.S. 690, 699
(1996). In this case, however, the district court made no
findings of fact. “It is, of course, the better practice for
the district court to make such findings, but where the district
court fails to do so, we assume the district court construed the
evidence in the light most favorable to the party who prevails
on the suppression motion below. . . . On review, we do the
same.” United States v. Cardwell, 433 F.3d 378, 388 (4th Cir.
2005). Moreover, “[t]his court has recognized that when later
proceedings confirm the correctness of the district court’s
findings, we can affirm a pre-trial suppression ruling based on
such evidence.” United States v. Gray, 491 F.3d 138, 148 (4th
5
Cir. 2007). See also United States v. Han, 74 F.3d 537, 539
(4th Cir. 1996).
Goss contends that Officer Torres’s initial command for him
to “stop” was unlawful because the officer had no articulable
reason to suspect that Goss was involved in criminal activity.
Goss argues that at the time Torres attempted to stop him, the
officer knew only that an anonymous 911 caller had reported a
disturbance involving several black men wearing black and red
clothing, possibly involving weapons. This uncorroborated 911
call, Goss submits, was insufficient to allow Torres to stop
him. Goss also argues that Torres could not stop him even after
seeing what the officer believed to be the grip of a black
handgun in Goss’s waistband because Torres could not have known
whether Goss was prohibited from possessing a concealed firearm
under South Carolina Code § 16-23-30. 3
While acknowledging that Officer Torres needed only
reasonable suspicion to justify an investigatory stop, the
district court nevertheless ruled that the government had
satisfied the more stringent probable cause standard. We agree
3
South Carolina Code § 16-23-30 prohibits the possession of
a handgun by certain enumerated classes of persons, including,
inter alia, those who have been convicted of a crime of
violence, members of a subversive organizations, and minors.
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with the district court’s legal analysis and therefore reject
Goss’s Fourth Amendment claim.
The underlying command of the Fourth Amendment is that all
government searches and seizures must be reasonable, Wilson v.
Arkansas, 514 U.S. 927, 931 (1995), and “reasonable suspicion”
is the standard that justifies an investigatory stop when an
officer believes that criminal activity may be afoot, Terry v.
Ohio, 392 U.S. 1, 21 (1968). Under that standard, a police
officer may conduct a brief investigatory stop if he has “a
reasonable suspicion grounded in specific and articulable facts
that the person he stopped has been or is about to be involved
in a crime.” United States v. Moore, 817 F.2d 1105, 1107 (4th
Cir. 1987) (quoting United States v. Hensley, 469 U.S. 221, 227
(1985)). So long as such “reasonable suspicion of illegal
activity” exists, an investigatory stop does not require a
finding of probable cause. United States v. Harris, 39 F.3d
1262, 1269 (4th Cir. 1994).
Relatedly, the existence of probable cause constitutes “the
minimum justification necessary to make the kind of intrusion
involved in an arrest ‘reasonable’ under the Fourth Amendment.”
Dunaway v. New York, 442 U.S. 200, 208 (1979). Probable cause
exists when the facts and circumstances known to the officer
“would warrant the belief of a prudent person that the arrestee
had committed or was committing an offense.” United States v.
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Garcia, 848 F.2d 58, 59-60 (4th Cir. 1988) (internal quotations
omitted). In assessing the existence of probable cause, courts
examine the totality of the circumstances known to the officer
at the time of the arrest. United States v. Al-Talib, 55 F.3d
923, 931 (4th Cir. 1995) (quoting Illinois v. Gates, 462 U.S.
213, 230-231 (1983)). Probable cause must be supported by more
than a mere suspicion, but evidence sufficient to convict is not
required. Wong Sun v. United States, 371 U.S. 471, 479 (1963).
We first conclude that Torres had reasonable suspicion to
stop Goss. While in his police cruiser, Torres saw Goss walk
directly in front of him. Goss attempted to adjust something in
his waistband, at which point Torres saw what appeared to be the
grip of a black handgun. This, together with the fact that Goss
fit the admittedly general description provided by the 911
dispatch, created objectively reasonable suspicion of illegal
activity that justified an investigatory stop. 4
Goss’s reliance on Florida v. J.L., 529 U.S. 266 (2000), is
misplaced. In J.L., the officers’ suspicion that J.L. was
carrying a weapon arose solely from an anonymous call made from
4
In any case, as the district court observed, because Goss
fled, Torres’s initial attempt to stop him did not constitute a
“seizure” for purposes of the Fourth Amendment. See California
v. Hodari D, 499 U.S. 621, 626 (1991) (“The word ‘seizure’
readily bears the meaning of a laying on of hands or application
of physical force to restrain movement.”)
8
an unknown location. Id. The Supreme Court explained that “an
anonymous tip that a person is carrying a gun [is not], without
more, sufficient to justify a police officer’s stop and frisk of
that person.” Id. at 268. Here, however, in contrast to the
officers in J.L., Torres’s reasonable suspicion that Goss was
armed was based not just on an anonymous tip, but also on the
officer’s personal observations. 5
Next, we conclude that Torres had probable cause to arrest
Goss. After disobeying several orders from Torres to stop and
get on the ground, Goss fled. During the ensuing chase, Torres
observed Goss toss a gun into the bushes. Shortly thereafter,
Goss was captured and detained. Torres told other officers
where Goss had tossed the gun, and that was the exact location
where they found it. Based on these facts, Torres had ample
probable cause to then arrest Goss.
B.
We next consider Goss’s contention that the district court
erred by refusing to declare a mistrial on the ground that ATF
agent Robert Callahan’s testimony prejudiced Goss’s right to a
5
It does not matter whether Torres actually knew that Goss
had committed a crime. To justify the stop, Torres needed only
a reasonable suspicion that criminal activity was afoot, not
proof beyond a reasonable doubt. As the government notes in its
brief, under South Carolina law it is unlawful (with certain
enumerated exceptions) “for anyone to carry about the person any
handgun, whether concealed or not.” S.C. Code Ann. § 16-23-20.
9
fair trial. It is well settled that a “[g]rant or denial of a
motion for . . . mistrial is within the trial court’s discretion
and will not be overturned absent a clear abuse of that
discretion.” United States v. West, 877 F.2d 281, 287-88 (4th
Cir. 1989). In order for the trial court’s ruling to constitute
an abuse of discretion, the defendant must show prejudice. Id.
at 288. No prejudice exists, however, “if the jury could make
individual guilt determinations by following the court’s
cautionary instructions.” Id. “Absent . . . misconduct on the
part of the Government counsel, the courts generally have
discerned no reversible error where the trial court has acted
promptly in sustaining an objection and advising the jury to
disregard the testimony.” United States v. Johnson, 610 F.2d
194, 197 (4th Cir. 1979).
According to Goss, Agent Callahan’s testimony prejudiced
him because it improperly bolstered the trial testimony of
Torres, who, Goss argues, gave conflicting testimony at the
suppression hearing and at trial regarding his description of
the person with the firearm. Although he acknowledges the
district court’s curative instruction, Goss insists that the
instruction was insufficient to correct the prejudicial effect
of Callahan’s testimony. In response, the government denies
that Callahan’s testimony constituted improper bolstering, and
10
contends that even if it did, it did not prevent Goss from
receiving a fair trial.
“[B]olstering is an implication by the government that the
testimony of a witness is corroborated by evidence known to the
government but not known to the jury.” United States v.
Sanchez, 118 F.3d 192, 198 (4th Cir. 1997). We fail to see how
the testimony of a witness actually presented to the jury
amounts to improper bolstering, at least as we have defined the
term. We think it more accurate to say that Agent Callahan’s
testimony was irrelevant.
In any event, we find that the district court rightly
denied Goss’s motion for a mistrial. Agent Callahan’s
testimony, which focused only on his role as a criminal
investigator, was isolated, exceptionally brief, and did not
comment directly on the evidence or Torres’s testimony.
Moreover, the independent evidence of Goss’s guilt was
overwhelming. Lastly, and perhaps most importantly, the court
struck the testimony on Goss’s motion and gave the jury a
curative instruction, admonishing them not to consider the
testimony for any purpose. We find no abuse of discretion in
the district court’s ruling.
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III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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