                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.



                                        6
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.

                                       7
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.




                                                   11
                            III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                     AFFIRMED




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