United States v. Kingsborough, 080618 FED4, 16-4804

Docket Nº:16-4804
Opinion Judge:KING, CIRCUIT JUDGE
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES KINGSBOROUGH, Defendant-Appellant.
Attorney:William B. Purpura, Jr., OFFICE OF WILLIAM PURPURA, Baltimore, Maryland, for Appellant. David Daniel Metcalf, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Judge Panel:Before KING, AGEE, and THACKER, Circuit Judges. THACKER, Circuit Judge, concurring in part and concurring in the judgment:
Case Date:August 06, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

JAMES KINGSBOROUGH, Defendant-Appellant.

No. 16-4804

United States Court of Appeals, Fourth Circuit

August 6, 2018

UNPUBLISHED

Argued: May 7, 2018

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:15-cr-00478-JFM-1)

ARGUED:

William B. Purpura, Jr., OFFICE OF WILLIAM PURPURA, Baltimore, Maryland, for Appellant.

David Daniel Metcalf, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

ON BRIEF:

Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before KING, AGEE, and THACKER, Circuit Judges.

Affirmed by unpublished opinion.

Unpublished opinions are not binding precedent in this circuit.

KING, CIRCUIT JUDGE

James Kingsborough appeals from his conviction and sentence after a jury trial conducted in the District of Maryland for possessing a firearm as a convicted felon. Kingsborough primarily challenges the district court's denial of his motion to suppress the firearm evidence, which he contends was seized by Baltimore police officers in violation of his Fourth Amendment rights. He also maintains that his trial was unfair in that the court gave an erroneous jury instruction and failed to correct a prejudicial closing argument. As explained below, we reject Kingsborough's contentions of error and affirm the judgment.

I.

A.

On August 27, 2015, the federal grand jury in Baltimore returned an indictment charging Kingsborough, who had theretofore been convicted of a felony, with knowingly and unlawfully possessing a firearm and ammunition (a .380 caliber handgun loaded with six hollow point rounds), in violation of 18 U.S.C. § 922(g)(1). Kingsborough moved to suppress the firearm evidence on the ground that it was seized as the result of an unconstitutional investigatory stop. The government opposed the motion, arguing that the city police officers had reasonable suspicion for their stop of Kingsborough.

1.

On March 2, 2016, the district court conducted a hearing on the suppression motion. The evidence was that, on June 17, 2015, just after 11:00 a.m., two Baltimore police officers - Christopher Szakolczai and Jeffrey Santos - were on patrol in the southwest area of the city. While stopped at a traffic light on North Franklintown Road, they saw a man later identified as Kingsborough.

Kingsborough was near a corner across the street from the officers. The officers thought Kingsborough was injured, in that he was - as Officer Szakolczai explained - "hunched over in a weird manner, almost like holding something or doing something with his, like, front area." See J.A. 38.1 The officers described Kingsborough's movements as somewhat like a "duck walk." Id. at 56, 117. To check on his well-being, the officers drove their patrol car north on Franklintown Road and stopped near Kingsborough.

From inside the patrol car, the officers asked Kingsborough if he was okay. Kingsborough responded in the affirmative and then added, "I'm on the box." See J.A. 39, 95. The officers understood "I'm on the box" to mean that Kingsborough was wearing a location device as part of some type "of supervision or sentence." Id. at 60.2Officer Szakolczai looked down and saw that Kingsborough, who was wearing shorts, had a black GPS tracker box on his ankle. The officers thought it "strange" that Kingsborough shared that he was wearing the tracker box, because he did not appear to be reaching for it and "I'm on the box" did not seem responsive to the officers' inquiry. Id. at 39-40, 62, 96. After their short exchange, however, Kingsborough walked away from the officers unimpeded, heading diagonally across the intersection of North Franklintown Road and West Franklin Street.

The officers moved their patrol car to a nearby parking lot, from which they could see Kingsborough from behind. At first, Kingsborough remained hunched over with his hands in his front waistband area as he walked across the intersection. But suddenly, according to Officer Szakolczai, Kingsborough "reached into, it looked like his front waistband area, and just stood upright and began walking freely, loosely." See J.A. 41. Kingsborough's "right arm was bent slightly, with the elbow at an angle, and then the left arm was swinging freely." Id.

At that point, Officer Szakolczai immediately looked at Officer Santos and said out loud, "[O]h shit, he has a gun." See J.A. 41. That is, Szakolczai quickly deduced that a handgun had been falling out of Kingsborough's shorts when he was hunched over, and that, having reached into his front waistband area and secured the firearm, Kingsborough was now walking normally and keeping his right arm near his waistband as a so-called "security check" to ensure that he kept the firearm under control. Id. at 90-91. Santos, who had witnessed the same movements, concurred that Kingsborough exhibited "some of the characteristics of an armed person." Id. at 97. On cross-examination, the officers clarified that, from their vantage point behind Kingsborough as he crossed the intersection, they could not see his frontside and only assumed that he reached inside his shorts. They explained, however, that their assumption was based on the visible movements of Kingsborough's right arm, as well as their experience. See, e.g.,

id. at 76 (Szakolczai's testimony that "I didn't see where his hand exactly went to. I knew that his hand went to the front area. I saw the [right] arm, I saw the left arm swinging freely. And from all my numerous times of seeing handguns on the street I knew that he had a handgun . . . .").3

Once Kingsborough crossed the intersection, he entered the Creative Cutz barbershop, which was known to the officers as the site of a recent armed robbery. The officers drove their patrol car to the front of the barbershop. Worried that Kingsborough was armed and that someone in the barbershop could be robbed or injured, Officer Szakolczai radioed their location to headquarters. He then followed Kingsborough into the barbershop on foot, while Officer Santos positioned himself outside the barbershop door.

After entering the barbershop, Officer Szakolczai spotted Kingsborough walking through the shop, still with his left arm swinging freely and his right arm locked to his front waistband area. Szakolczai "blurted out something along the lines of come here, stop," seeking Kingsborough's attention and intending to "stop him from continuing further into the barbershop." See J.A. 45. Kingsborough "immediately turned around," "began doing a whole crouched-down thing again," and started walking toward Szakolczai. Id.

Kingsborough continued to walk toward Officer Szakolczai as the officer said "something along the lines of stop, stop, hands, hands" to "get [Kingsborough's] attention" and "keep his hands away." See J.A. 45. Rather than stopping, Kingsborough proceeded in Szakolczai's direction, keeping his hands in his front waistband area. When Kingsborough got close, Szakolczai tried to grab him but only briefly touched him. Kingsborough slipped past Szakolczai, and the two men "ended up barrelling through the [barbershop] door," with Szakolczai grasping Kingsborough's shirt. Id. at 46, 98-99.

As Kingsborough came through the barbershop door, Officer Santos saw a black and silver object fall from Kingsborough's right hand as he tried to brace the object against his waistband. Once the object hit the ground, it separated into two pieces that Santos recognized as a handgun and a magazine. Meanwhile, Kingsborough attempted to run past Santos, but Santos was able to grab Kingsborough. As Kingsborough fought to get away, Officer Szakolczai withdrew his Taser device and used it on Kingsborough to subdue him. The officers then took Kingsborough into custody and retrieved the handgun and ammunition.

During the suppression hearing, to undermine the officers' credibility, Kingsborough sought to highlight inconsistencies between the officers' written reports of the arrest and their hearing testimony, which had been coupled with in-court demonstrations of Kingsborough's movements. The officers acknowledged inaccuracies and poorly worded descriptions in the reports, explaining, inter alia, that it was difficult to describe Kingsborough's movements in writing.

2.

In the arguments that followed the presentation of evidence at the suppression hearing, Kingsborough challenged the officers' credibility and contended that he was illegally seized when Officer Szakolczai touched him inside the barbershop. According to Kingsborough, the officers were not justified in stopping him until he subsequently...

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