United States v. Oneil South

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 18, 2022
• Docket: 20-4359
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4359

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ONEIL WAYNE SOUTH,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Thomas S. Kleeh, Chief District Judge. (1:19-cr-00043-TSK-MJA-1)

Submitted: July 26, 2022 Decided: August 18, 2022

Before WYNN and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed and remanded by unpublished per curiam opinion.

ON BRIEF: Hilary L. Godwin, Assistant Federal Public Defender, Katy J. Cimino, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant. William J. Powell, United States Attorney, Andrew R. Cogar, Assistant United States Attorney, Danae Demasi-Lemon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.

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PER CURIAM:

Oneil Wayne South appeals his conviction following a jury trial for possession of a

firearm as an unlawful user of a controlled substance in violation of 18 U.S.C. §§ 922(g)(3),

924(a)(2). On appeal, South argues that the district court erred (1) in denying his motion

to suppress evidence recovered during an investigative stop, (2) in its instruction to the jury

with respect to the elements of the offense, and (3) in denying his motion for a judgment

of acquittal pursuant to Federal Rule of Criminal Procedure 29 based on insufficiency of

the evidence. We affirm but remand for correction of a clerical error in the judgment.

First, South asserts that the district court erroneously denied his motion to suppress

evidence recovered during an investigative stop. Specifically, South argues that Fairmont

City Police Officers Buck and Moran lacked the requisite reasonable suspicion of criminal

activity to justify their investigatory detention and search of South following reports of

suspicious behavior made to police by a caller who identified herself and provided her

address.

“When reviewing a district court’s ruling on a motion to suppress, we review factual

findings for clear error and legal determinations de novo,” construing “the evidence in the

light most favorable to the prevailing party.” United States v. Lull, 824 F.3d 109, 114-15

(4th Cir. 2016) (internal quotation marks omitted). Consistent with the Fourth

Amendment, “[a]n officer may stop and briefly detain a person when the officer has

reasonable, articulable suspicion that the person has been, is, or is about to be engaged in

criminal activity.” United States v. Montieth, 662 F.3d 660, 665 (4th Cir. 2011) (internal

quotation marks omitted). To justify such an investigative stop, “the police officer must

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be able to point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1,

21 (1968). “Thus, a court must look to the totality of the circumstances in determining

whether the officer had a particularized and objective basis for suspecting criminal

activity.” United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011).

“The degree to which the police may rely on a tip to establish reasonable suspicion

depends on the tipster's veracity, reliability, and basis of knowledge.” United States v.

Kehoe, 893 F.3d 232, 238 (4th Cir. 2018). “We generally presume that a citizen-informant

or a victim who discloses his or her identity and basis of knowledge to the police is both

reliable and credible.” Id. Whether a location is a known high-crime area and the lateness

of the hour are also “permissible factors that can contribute to a finding of reasonable

suspicion in the totality-of-the-circumstances analysis.” United States v. Slocumb, 804

F.3d 677, 682 (4th Cir. 2015).

We conclude, based on our assessment of the totality of the circumstances, that

Moran and Buck had reasonable suspicion to conduct the investigatory stop. First, the

officers were entitled to rely on information provided to the police dispatcher in two phone

calls from a credible individual who gave police her name and address and reported

suspicious activity at her location; further, the caller’s basis of knowledge was reliable and

her tip was generally corroborated. Moreover, although not dispositive, the officers’

suspicion was bolstered by the facts that the investigative detention occurred in a high-

crime area, known for drug activity, between 3:26 and 4:20 a.m. The tipster observed

activity that in Moran’s experience was indicative of drug use; and Moran personally

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observed South walking away from a vehicle when Moran responded to the scene and

South initially refused to stop after Moran asked him to do so. Accordingly, we conclude

that the district court did not err by denying South’s motion to suppress.

South next contends that the district court erred in instructing the jury with respect

to the elements of the offense. Section 922(g)(3) prohibits the possession of a firearm by

a person “who is an unlawful user of” a controlled substance. Scott argues that the court

erroneously instructed the jury regarding the definition of an “unlawful user” because it

did not require the Government to prove that South used drugs “with regularity” and “over

an extended period of time,” in addition to using drugs contemporaneously with the firearm

possession.

We review for abuse of discretion a district court’s “decision to give (or not to give)

a jury instruction and the content of an instruction.” United States v. Savage, 885 F.3d 212,

222 (4th Cir. 2018) (internal quotation marks omitted). “When jury instructions are

challenged on appeal, the key issue is whether, taken as a whole, the instruction fairly states

the controlling law.” Id. at 222-23 (internal quotation marks omitted). Even if the court’s

instructions were erroneous, however, “we will not set aside a resulting verdict unless the

erroneous instruction seriously prejudiced the challenging party’s case.” United States v.

Miltier, 882 F.3d 81, 89 (4th Cir. 2018) (emphasis in original).

We conclude that, here, even assuming an instructional error occurred, it did not

prejudice South’s case. There was ample evidence to support the conclusion that South

used drugs contemporaneously with the offense—the evidence established that officers

discovered a crack pipe and baggies containing crack and powder cocaine in South’s

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pockets when he was arrested, and South admitted to officers that he occasionally used

crack cocaine. The evidence also demonstrated that South had been using drugs at least

intermittently for an extended period—the Government presented evidence that, during an

encounter with South two-and-a-half years before the instant offense, police discovered

crack cocaine and drug paraphernalia on his person. Thus, even had the district court given

South’s preferred instruction, the Government produced sufficient evidence to show his

prolonged drug use.

Finally, South asserts that the district court erred in denying his Rule 29 motion

based on the sufficiency of the evidence. We review de novo a district court’s decision to

deny a Rule 29 motion for a judgment of acquittal. United States v. Smith, 451 F.3d 209,

216 (4th Cir. 2006). “Denial of such a motion is proper where, viewed in the light most

favorable to the prosecution, substantial evidence supports a guilty verdict.” United States

v. Ath, 951 F.3d 179, 185 (4th Cir. 2020) (internal quotation marks omitted). Substantial

evidence is “evidence that a reasonable finder of fact could accept as adequate and

sufficient to support . . . a defendant’s guilt beyond a reasonable doubt.” Savage, 885 F.3d

at 219 (internal quotation marks omitted). A defendant challenging the sufficiency of the

evidence “bears a heavy burden, as appellate reversal on grounds of insufficient evidence

is confined to cases where the prosecution’s failure is clear.” Id. (internal quotation marks

omitted).

South contends, as he did below, that the evidence did not sufficiently establish

either that he was an “unlawful user” of a controlled substance when he possessed the

firearm or that he was aware of his prohibited status at the time of the possession. In a

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prosecution under § 922(g), “the Government must prove both that the defendant knew he

possessed a firearm and that he knew he belonged to the relevant category of persons barred

from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). “‘To

sustain a conviction under Section 922(g)(3), the [G]overnment must prove that the

defendant’s drug use was sufficiently consistent, prolonged, and close in time to his gun

possession to put him on notice that he qualified as an unlawful user under the terms of the

statute.’” United States v. Hasson, 26 F.4th 610, 615-16 (4th Cir. 2022) (internal brackets

omitted) (quoting United States v. Sperling, 400 F. App’x 765, 767 (4th Cir. 2010) (No.

09-5158)). We have previously recognized that the term “unlawful user” is not defined by

§ 922(g)(3) and that “the exact reach of the statute is not easy to define.” United States v.

Jackson, 280 F.3d 403, 406 (4th Cir. 2002).

Here, South had a crack pipe and plastic baggies containing both crack and powder

cocaine in his pockets when he was arrested for the firearm offense. Moreover, at that

time, South admitted to officers that he occasionally used crack cocaine. The Government

presented evidence that South had possessed both drug paraphernalia and crack cocaine

multiple times, and that, in an incident that occurred more than two years prior to the instant

firearm offense, he admitted to officers that the substance in his possession was crack

cocaine. We conclude that, viewing the evidence as a cumulative whole and in the light

most favorable to the Government, there is substantial evidence that South’s drug use was

consistent, prolonged, and close enough in time to his gun possession to show that he was

an “unlawful user” of a controlled substance for purposes of § 922(g)(3) and to put him on

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notice that he qualified as an unlawful user of drugs under the statute. Therefore, the

district court did not err by denying South’s motion for a judgment of acquittal.

Finally, we note that the criminal judgment contains a clerical error. In addition to

the § 922(g)(3) offense, South was indicted for reckless flight from a law enforcement

officer, in violation of 18 U.S.C. §§ 13(a), 7(3), and W. Va. Code § 61-5-17(f) (“Count

Two”). In February 2020, South pleaded guilty to Count Two without a plea agreement,

and the case proceeded to a jury trial only on the § 922(g)(3) offense. However, the

judgment incorrectly states that South pleaded guilty to both counts.

Accordingly, although we affirm the criminal judgment, we remand the case so that

the district court may amend the judgment to reflect that South pleaded guilty only to Count

Two and that he was found guilty on the firearm offense after a plea of not guilty. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

AFFIRMED AND REMANDED