UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 97-4233

DARRELL TODD,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-95-378-DKC)

Argued: October 30, 1997

Decided: March 16, 1998

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and
CAMPBELL, Senior Circuit Judge of the
United States Court of Appeals for the First Circuit,
sitting by designation.

_________________________________________________________________

Vacated and remanded for revision of the sentence in accordance
herewith; otherwise affirmed by unpublished opinion. Senior Judge
Campbell wrote the opinion, in which Chief Judge Wilkinson and
Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Lauren Elizabeth Case, Assistant Federal Public
Defender, Greenbelt, Maryland, for Appellant. Jane Frances Nathan,
Assistant United States Attorney, Hyattsville, Maryland, for Appellee.
ON BRIEF: James K. Bredar, Federal Public Defender, Greenbelt,
Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,
Hyattsville, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

CAMPBELL, Senior Circuit Judge:

A federal officer stopped Darrell J. Todd on a federal government
property located in Gaithersburg, Maryland, suspecting him of unau-
thorized driving through the grounds. Conversation with Todd, and
the sight of two empty knife sheaths within the car, led to a search
of Todd's vehicle, yielding a handgun. Todd ultimately pleaded guilty
to transporting a handgun in violation of a Maryland statute assimi-
lated, as all parties then believed, by the Assimilative Crimes Act, 18
U.S.C. § 13 (1997) (the "ACA"). Todd reserved the right to challenge
the constitutionality of the search. Following a suppression hearing,
the magistrate judge rejected Todd's Fourth Amendment challenge,
and the district court affirmed.

On appeal, Todd renews his Fourth Amendment argument and adds
a new contention: that instead of being charged under the ACA for
violating a Maryland statute, he should have been charged with vio-
lating a federal regulation that prohibits transporting firearms on fed-
eral property. We affirm as to both issues, finding the latter to be
barred by Todd's failure to raise it below.

I. BACKGROUND

On the afternoon of November 29, 1994, Corporal Gary Young, a
uniformed federal officer, was patrolling the grounds of a National
Institute of Standards and Technology ("NIST") installation located

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on federal property in Gaithersburg, Maryland. Young observed
Defendant-Appellant Darrell J. Todd driving his truck on the NIST
grounds, and saw that the truck lacked the parking sticker required for
NIST employees. Driving through the NIST grounds without authori-
zation violates a federal regulation, 15 C.F.R.§ 265.21, notice of
which is posted at all the installation's gates. Based on his belief that
Todd was committing a traffic offense, Officer Young stopped Todd.

The officer asked for and received Todd's license and registration,
then visually inspected the truck's exterior. After radioing in the
license and registration information, Officer Young asked Todd
whether he worked at NIST. Todd indicated that he did not. Young
asked what Todd was doing there, and Todd replied,"[j]ust cutting
through."

While questioning Todd, Officer Young noticed two empty knife
sheaths inside Todd's truck. Although the sheaths were designed to
contain a type of knife that Young knew to be legal, he asked Todd
whether he had any weapons in his truck. Todd said he did not.
Young asked if Todd wanted to "show [him]" that there were no
weapons in the truck, and Todd refused to consent to a search. Young
then asked whether the truck contained any "prohibited" weapons.
Todd replied by asking what weapons would be prohibited. After
Young explained what weapons were prohibited, Todd conceded that
the truck contained a gun. Young ordered Todd from his vehicle and
seized the gun.

Todd was ultimately prosecuted for transporting a handgun under
the Assimilative Crimes Act, 18 U.S.C. § 13 (the "ACA"). The ACA
is a gap-filling criminal statute: in geographic areas which, like the
NIST installation in Gaithersburg, Maryland, are under exclusive fed-
eral jurisdiction, the ACA assimilates the criminal law of the state,
except where the conduct is independently punishable by any "enact-
ment of Congress." 18 U.S.C. § 13. The state law under which Todd
was charged here, Md. Ann. Code art. 27, § 36B(b) (1997), prohibits,
inter alia, the "knowing[ ] transport [of] any handgun, whether con-
cealed or open, in any vehicle traveling upon the public roads."

In proceedings before a federal magistrate judge, Todd moved to
suppress the handgun as seized in violation of the Fourth Amend-

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ment. The magistrate judge denied the motion on the ground that
Todd had consented to the search of his truck. Todd then entered a
conditional plea of guilty, reserving his right to appeal from the denial
of his suppression motion.

The district court affirmed the magistrate's decision, although on
a different basis. It rejected the conclusion that the encounter was
consensual, and found that Officer Young lacked reasonable suspi-
cion to believe that Todd was engaged in criminal activity. However,
ruling that Officer Young could reasonably have feared for his safety,
the district court affirmed the magistrate's denial of Todd's suppres-
sion motion. This appeal followed.

II. DISCUSSION

A. Todd's Fourth Amendment Challenge

Todd contends that Officer Young exceeded the constitutional lim-
its delineated by Terry v. Ohio, 392 U.S. 1 (1968), and its progeny,
when he detained Todd for questioning about weapons. In particular,
Todd challenges Officer Young's power to have continued question-
ing him after inspecting his license and registration and making inqui-
ries relevant to traffic matters. Instead of allowing Todd to continue
on his way, Officer Young interrogated him further about whether he
had weapons, whether he would allow a search for weapons, and
whether he had any "prohibited" weapons. These questions resulted
in Todd's admission that he was carrying a gun in his truck, leading
to a vehicular search that revealed the gun. Todd does not challenge
the officer's right to have searched the truck once he was told of the
gun. His objection is rather to the questioning about weapons that
elicited the information about the gun. Todd argues that he should
have been allowed to proceed as soon as Officer Young had con-
cluded the purely traffic-related aspects of his investigation.

During a routine traffic stop, an officer may not hold a driver for
further questioning unless other grounds to do so are present, such as
consent or reasonable suspicion of a criminal activity. See United
States v. Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992). Another per-
missible ground for conducting further investigation during a traffic
stop is the officer's reasonable fear based "on information sufficient

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to cause a reasonably prudent person to believe that either [the offi-
cer's] safety or that of others is in danger." United States v. Baker, 78
F.3d 135, 137 (4th Cir. 1996). In the latter circumstances the officer
may conduct a protective search, the proper extent of which is to be
determined, on a case by case basis, by balancing the officer's interest
in protection against the resulting intrusion. Id. at 1138.

Here, the district court ruled out both consent and a reasonable sus-
picion of criminal activity as justifications for further detaining Todd.
However, the district court correctly held that the officer's observa-
tion of two open knife sheaths in Todd's vehicle gave rise to reason-
able safety concerns that justified additional questions about weapons
resulting in Todd's disclosure that he was carrying a gun in his truck.

We need not decide whether seeing the two empty sheaths in
Todd's vehicle was sufficient indicia of dangerousness to have per-
mitted a full-blown search of the vehicle. Officer Young did not
embark upon an actual search then. He did, however, extend the traf-
fic stop briefly by questioning Todd about the possible existence of
weapons in the truck. Todd replied first with equivocation, then by
admitting that he was carrying a handgun. Once Todd said he pos-
sessed a firearm, Officer Young had probable cause to order Todd
from the truck and conduct an actual search.

In determining the legality of an officer's conduct during a Terry
stop, a court must balance the degree of the intrusion against the evi-
dence known to the officer at the time. Here we agree with the district
court that the sight of the two empty sheaths raised sufficient safety
concerns so as to justify briefly extending the detention for the pur-
pose of asking Todd about possible weapons. Todd's responses justi-
fied both the officer's continued questioning and the vehicular search
that finally took place. Like the district court, we find no violation of
the Fourth Amendment in what was done.

B. Improper Charging Under the
Assimilative Crimes Act

For the first time on appeal, Todd argues that he should not have
been prosecuted under the ACA for violating the Maryland law pro-
hibiting the transport of a handgun. The ACA assimilates a state's

                     5
criminal law only when the acts or omissions in question are "not
made punishable by any enactment of Congress." 18 U.S.C. § 13(a).
Williams v. United States, 327 U.S. 711, 717 (1946) (no assimilation
if the same acts were made criminal by the laws of Congress). Todd
asserts that the proper charge was a violation of 15 C.F.R. § 265.39,
a federal regulation providing that no unauthorized person "shall
carry, transport, or otherwise possess on [an NIST] site, firearms."

The government now represents that it agrees with Todd that it was
error to have prosecuted him under the ACA. However, as Todd
entered a voluntary plea of guilty to the erroneous charge and did not
object below, the government contends that he is barred from raising
the purported error on appeal. Todd responds that this alleged defect
is reviewable as either plain error, see Fed. R. Crim. P. 52(b), or as
one of jurisdiction, see Fed. R. Crim. P. 12(b)(2).

We hold that it is too late for Todd to advance this newly-minted
contention. In so holding, we also make clear that we do not rule on
whether or not Todd was erroneously charged below, a question turn-
ing on as-yet unsettled law in this Circuit.

1. The Purported Error Was Not Jurisdictional

Assuming for purposes of argument, but see below, that Todd was
incorrectly charged under the ACA, Todd is nonetheless wrong that
an incorrect reference to the ACA and the Maryland statute would
have rendered the charging document unable "to show jurisdiction in
the court." Fed. R. Crim. P. 12(b)(2). The magistrate judge had
subject-matter jurisdiction over purported violations of federal law
within the judicial district. See 18 U.S.C.§§ 3401(a), 3231. To charge
an offense incorrectly under the ACA rather than under another provi-
sion of federal law would not alter the jurisdiction of the district
court: both charges would be federal violations within the district
court's subject matter jurisdiction. The existence of an independent
federal proscription goes to the merits of the cause, not its jurisdic-
tional cognizability in the federal courts. Accord Hockenberry v.
United States, 422 F.2d 171, 174 (9th Cir. 1970). Therefore, Rule
12(b)(2)'s jurisdictional exception would not excuse Todd's failure to
challenge the ACA charge below.

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2. Plain Error

Rule 52(b) of the Federal Rules of Criminal Procedure provides
that "[p]lain errors or defects affecting substantial rights may be
noticed though they were not brought to the attention of the Court."
An error is "plain" only if "clear under current law." United States v.
Olano, 507 U.S. 725, 734 (1993). Because the prosecution of Todd
under the ACA was not clearly error under current law, the alleged
error is not reviewable under Rule 52(b).

To be sure, this court has assumed in two of its opinions that the
ACA's phrase "enactment of Congress" may include federal regula-
tions. See United States v. Fox, 60 F.3d 181, 185 (4th Cir. 1995)
("[T]he Secretary's traffic regulations . . . qualify as an enactment of
Congress for the purpose of the [ACA]"); United States v. Pardee,
368 F.2d 368, 372 (4th Cir. 1966) (assuming that ACA assimilated
Department of Interior traffic regulations). Accordingly, both Todd
and the government thought that the federal regulation that prohibited
the precise conduct with which Todd was charged precluded assimila-
tion of the state-law offense under the ACA.

However, this court's statements in Fox and Pardee were not hold-
ings in the sense of being essential to the results in those cases. In
both cases, the court ruled that the federal regulation in question did
not prohibit the precise conduct criminalized by the assimilated state
law, affirming the ACA conviction on that ground. See Fox, 60 F.3d
at 185; Pardee, 368 F.2d at 372. Thus, we cannot say that it was
plainly error for the government to proceed under the ACA. What was
done may not have been error and even if it was error, the error would
not have been "plain."

Further disposing of the notion of plain error is the absence of any-
thing that can be said to have "`seriously affect[ed] the fairness, integ-
rity, or public reputation of judicial proceedings.'" Olano, 507 U.S.
at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
Even assuming the worst, for the sake of argument, that Todd was
incorrectly charged under a Maryland firearms statute carrying a pun-
ishment more severe than allowed under the federal firearms regula-
tion, he was at all times subject to the former when driving anywhere

                     7
in Maryland outside federal enclaves, rendering the disparity hardly
so grievous as to fall within the Olano standard.*

Accordingly, we reject Todd's challenge based on the alleged mis-

application of the ACA. We emphasize that our decision on this point
should in no way be construed as adding to or subtracting from the
law in this circuit regarding the correct construction of "enactment of

Congress" for purposes of the ACA. Whatever the correct interpreta-
tion of that phrase, an unargued issue that must await decision on
some later occasion, Todd is not entitled to raise the point on appeal

under the "plain error" standard.

Subject, therefore, to correction of the sentence to comport with the
government's stipulation, we affirm the judgment of the district court,

rejecting Todd's Fourth Amendment claim and also rejecting his con-
tention, raised for the first time upon appeal, that we should reverse
his ACA conviction notwithstanding his guilty plea to the ACA
charge and his failure to contest it below.

In order to effectuate the government's stipulation, we remand with
directions that Todd's sentence be revised so as to provide for a fine
of only $50 and a special assessment of only $5.

        VACATED AND REMANDED FOR REVISION OF
        THE SENTENCE IN ACCORDANCE HEREWITH;
        OTHERWISE AFFIRMED
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*We note further that to avoid any possible appearance of unfairness,
the government agreed in open court at the time of argument to reduc-
tions in Todd's fine and special assessment to no more than what would
have been allowed in a proceeding brought under the federal regulation.

We emphasize that this stipulation to a reduction was not legally com-
pelled, but rather was a matter of the government's grace consistent with
its understanding that Todd should not have been prosecuted under the
ACA but rather under the federal regulation.

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