UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4960

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEMARCO PEGUES,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., Chief District Judge. (3:10-cr-00082-RJC-1)

Submitted: July 25, 2012 Decided: August 16, 2012

Before DIAZ and FLOYD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Henderson Hill, Executive Director, Ross Hall Richardson, 

Assistant Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne 

M. Tompkins, United States Attorney, Melissa L. Rikard, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Following a jury trial in the United States District 

Court for the Western District of North Carolina, Demarco Pegues 

was convicted of possession of a firearm by a convicted felon, 

18 U.S.C. § 922(g)(1). He appeals his conviction and sentence. 

We affirm his conviction, but vacate his sentence and remand for 

resentencing.

First, Pegues challenges the district court’s denial 

of his motion to suppress firearms that flew out of his 

waistband during his flight from a traffic stop of a car in 

which he was a passenger. The traffic stop occurred in 

Charlotte, North Carolina in the early morning hours of January 

24, 2009. We review the legal conclusions of a district court’s 

denial of a motion to suppress de novo and the findings of fact 

for clear error, construing the evidence in the light most 

favorable to the government, the prevailing party below. United 

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

A temporary detention of an automobile, even if only 

for a limited time or purpose, constitutes a Fourth Amendment 

seizure. Whren v. United States, 517 U.S. 806, 809–10 (1996). 

Because a routine “traffic stop is . . . more like an 

investigative detention than a custodial arrest,” its 

limitations must be evaluated under the dual inquiry set out in 

Terry v. Ohio, 392 U.S. 1 (1968). United States v. Guijon–
3

Ortiz, 660 F.3d 757, 764 (4th Cir. 2011) (internal quotation 

marks omitted). Under this analysis, we determine whether the 

stop “was justified at its inception” and “whether the continued 

stop was sufficiently limited in scope and duration to satisfy 

the conditions of an investigative seizure.” Id. (internal 

quotation marks omitted).

Regarding the first Terry inquiry, if an officer has 

probable cause or reasonable suspicion to believe a suspect has 

violated a traffic law, the officer’s decision to stop the 

suspect’s car is reasonable under the Fourth Amendment, 

regardless of the officer’s subjective motivation for the stop. 

United States v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993). In 

evaluating the second inquiry, we must consider whether the 

officer “‘diligently pursue[d] the investigation of the 

justification for the stop.’” Guijon–Ortiz, 660 F.3d at 768 

(quoting United States v. Digiovanni, 650 F.3d 498, 509 (4th 

Cir. 2011)).

A lawful routine traffic stop justifies detaining the 

car’s occupants for the time necessary to request a driver’s 

license and registration, run a computer check, and issue a 

citation. Digiovanni, 650 F.3d at 507. The officer also is 

permitted to request passenger identification or inquire into 

unrelated matters, as long as doing so does not measurably 

prolong the length of the traffic stop. Guijon–Ortiz, 660 F.3d 
4

at 765. However, the officer may not “‘definitively abandon[] 

the prosecution of the traffic stop and embark[] on another 

sustained course of investigation’” absent additional 

justification. Id. at 766 (quoting United States v. Everett, 

601 F.3d 484, 495 (6th Cir. 2010)). In other words, if a police 

officer seeks to prolong a traffic stop to allow for 

investigation into a matter outside the scope of the initial 

stop, he must possess reasonable suspicion of additional 

criminal activity. Digiovanni, 650 F.3d at 507. 

While there is no “precise articulation of what 

constitutes reasonable suspicion,” United States v. Branch, 537 

F.3d 328, 336 (4th Cir. 2008) (citation and internal quotation 

marks omitted), “a police officer must offer specific and 

articulable facts that demonstrate at least a minimal level of 

objective justification for the belief that criminal activity is 

afoot.” Id. at 337 (citation and internal quotation marks 

omitted). Officers may use their “training and expertise” to 

identify sets of factors which are “individually quite 

consistent with innocent travel” yet “taken together, produce a 

reasonable suspicion of criminal activity.” Id. at 336–37 

(citation and internal quotation marks omitted).

Pegues does not challenge the initial stop of the car. 

Rather, he challenges the scope and duration of the continued 

stop. After reviewing the video evidence, the testimony at the 
5

suppression hearing, and the district court’s findings, we 

conclude that the stop was limited in scope and duration. After 

the initial stop of the car driven by Randall Cummings, Officer 

Cristo Fitzpatrick of the Charlotte-Mecklenburg Police 

Department obtained Cummings’ driver’s license and registration 

and immediately proceeded to run his information through the 

routine law enforcement databases. Meanwhile, Officer Timothy 

Kiefer approached the car to obtain identification from the 

passengers. At this point, Officer Kiefer’s efforts were 

stymied by the actions of William Spann (the front seat 

passenger) and Pegues (the back seat passenger). They did not 

have identification with them, the window was rolled down only a 

couple of inches, and Spann and Pegues spoke softly, making 

communication extremely difficult. During this encounter, 

Officer Kiefer observed Pegues attempting to hide something in 

the back seat and also observed a beer can, although he could 

not determine whether the can had been opened. He also observed 

Spann keeping his hands “very tight to his person, very close in 

on his clothing.” (J.A. 77). Under these circumstances, it was 

permissible for Officer Kiefer to continue the stop for a short 

time to investigate whether criminal activity was afoot. Cf.

Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (noting that the 

determination of reasonable suspicion must be based on common

sense judgments and inferences about human behavior).
6

After conferring with Officer Fitzpatrick, Officer 

Kiefer asked Spann to step to the back of the car, and he asked 

for consent to pat him down for weapons. Spann agreed to the 

pat-down, but when Officer Kiefer stepped toward him to pat him 

down, Spann immediately backed up. Spann began to act “jumpy”

and put his hands in the pockets of his hooded sweatshirt, which 

led the officers to think he had weapons or drugs in his pocket. 

(J.A. 43). Officer Kiefer told Spann that he was making him 

nervous and again asked for his consent to pat him down, and 

Spann again consented. But Spann stepped back every time 

Officer Kiefer stepped toward him. So the officers, concerned 

for their safety at this point, attempted to detain Spann. 

Spann was not cooperative and resisted the officers’ attempts to 

handcuff him, causing the officers to have to wrestle him to the 

ground. Meanwhile, Pegues, who had remained in the back seat 

during the officers’ encounter with Spann, climbed over the 

front seat, exited through the open front passenger door, and 

took off running. Officer Kiefer took off after him. During 

the chase, Pegues fell and two loaded firearms flew out of his 

waistband, eventually resting on the ground in front of where he 

was lying. Officer Kiefer then jumped on Pegues’ back to secure 

him.

Unquestionably, Pegues’ actions constituted resisting, 

delaying, or obstructing an officer under N.C. Gen. Stat. § 14-
7

223; see also State v. McNeill, 283 S.E.2d 565, 567 (N.C. App.

1981) (flight from a lawful investigatory stop provides probable 

cause to arrest individual for violation of N.C. Gen. Stat. 

§ 14-223). Accordingly, Officer Kiefer was permitted to seize 

Pegues after he fled the scene. Because the seizure of Pegues 

and the firearms was proper, the district court appropriately 

denied Pegues’ motion to suppress the firearms.

Next, Pegues challenges the district court’s admission 

of certain evidence, namely, that a firearm and a quantity of 

marijuana was recovered from Spann after he was wrestled to the 

ground. We review the district court’s evidentiary ruling for 

an abuse of discretion. United States v. Delfino, 510 F.3d 468, 

470 (4th Cir. 2007)

Evidence of uncharged conduct is not other crimes 

evidence subject to Rule 404(b) if the uncharged conduct arose 

out of the same series of transactions as the charged offense, 

or if evidence of the uncharged conduct is necessary to complete 

the story of the crime on trial. United States v. Basham, 561 

F.3d 302, 327 (4th Cir. 2009); United States v. Siegel, 536 

F.3d 306, 316 (4th Cir. 2008). Rule 404(b) limits only the 

admission of evidence of acts extrinsic to the one charged, but 

does not limit the admission of evidence of intrinsic acts. 

United States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996). Evidence 

is “intrinsic” if it provides “context relevant to the criminal 
8

charges.” United States v. Cooper, 482 F.3d 658, 663 (4th Cir. 

2007). In other words, other acts are intrinsic when they are 

“inextricably intertwined or both acts are part of a single 

criminal episode or the other acts were necessary preliminaries 

to the crime charged.” Chin, 83 F.3d at 88 (citation and 

internal quotation marks omitted).

In this case, the evidence recovered from Spann was 

not admitted to show that Pegues had a criminal disposition 

and/or would act in conformity therewith. Instead, it was 

relevant to explain why the officers acted in the manner they 

did and to explain why Pegues fled from the car. Cf. United 

States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004)

(concluding that evidence of defendant’s resistance to arrest 

and battery on a law enforcement officer before the discovery of 

the firearm giving rise to his felon-in-possession charge gave 

“the jury the body of the story, not just the ending”). Without 

this testimony, the jury would be left wondering why the 

officers restrained Spann and why Pegues fled from the car. Cf.

Old Chief v. United States, 519 U.S. 172, 188 (1997) (holding 

that the government is entitled to present a complete narrative 

of the crime that “satisf[ies] the jurors’ expectations about 

what proper proof should be”); see also United States v. 

Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (noting that 

“evidence is inextricably intertwined with the evidence 
9

regarding the charged offense if it forms an integral and 

natural part of the witness’s accounts of the circumstances

surrounding the offenses for which the defendant was indicted) 

(citation and internal quotation marks omitted). Furthermore, 

the potential for unfair prejudice did not substantially 

outweigh the probative value of the evidence under Rule 403. 

Accordingly, the district court did not abuse its discretion in 

admitting this evidence.*

Finally, Pegues contends that the district court erred 

when it ordered him to reimburse the government for the services 

 * The improper admission of evidence is subject to harmless 

error review. See Fed. R. Crim. P. 52(a) (“Any error, defect, 

irregularity, or variance that does not affect substantial 

rights must be disregarded.”); Fed. R. Evid. 103(a) (noting 

evidentiary errors support reversal only if they affect 

“substantial right”). Erroneously admitted evidence is harmless 

if a reviewing court is able to “say, with fair assurance, after 

pondering all that happened without stripping the erroneous 

action from the whole, that the judgment was not substantially 

swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 

765 (1946); United States v. Abu Ali, 528 F.3d 210, 231 (4th 

Cir. 2008). Even assuming the district court erred in 

permitting the admission of the challenged evidence, we conclude 

that the error is harmless. The challenged evidence played 

little role in the outcome of the trial, as the challenged 

evidence simply provided background to the events leading up to 

the seizure of Pegues and the seizure of the firearms found on 

the ground in front of where he was lying. The main issue at 

trial was whether Pegues possessed these firearms, as he 

essentially conceded his felony status and interstate nexus. 

Unfortunately for Pegues, the evidence that he possessed the 

firearms was overwhelming, rendering any error harmless.
10

of his court-appointed attorney. On this contention, the 

government concedes error.

In United States v. Moore, 666 F.3d 313 (4th Cir. 

2012), we noted that under the Criminal Justice Act, 18 U.S.C. § 

3006A, the government must provide adequate legal representation 

to criminal defendants charged with a federal felony who are 

unable to pay, but if the district court subsequently finds that 

the defendant “‘is financially able to obtain counsel or to make 

partial payment for the representation,’” repayment is 

authorized under subsection (f). Moore, 666 F.3d at 321 

(quoting 18 U.S.C. § 3006A(c)). Subsection (f) authorizes a 

district court to order repayment of attorneys’ fees “[w]henever 

. . . the court finds that funds are available for payment from 

or on behalf of a person furnished representation.” 18 U.S.C. 

§ 3006A(f).

In Moore, we held that to order reimbursement of 

attorneys’ fees, the district court must “find[] that there are 

specific funds, assets, or asset streams (or the fixed right to 

those funds, assets or asset streams) that are (1) identified by 

the court and (2) available to the defendant for the repayment 

of the court-appointed attorneys’ fees.” 666 F.3d at 322. We 

noted that the district court made no findings that the 

defendant was “financially able . . . to make partial payment 

for the representation” or that funds were “available for 
11

payment.” Id. at 323 (internal quotation marks omitted). We 

also noted that, in the absence of such findings, the district 

court simultaneously concluded that the defendant was unable to 

pay a fine or interest. Id. Finding that the district court’s 

reimbursement order conflicted with the statutory requirements, 

we vacated that portion of the judgment and remanded for 

resentencing. Id. at 324.

Similarly, the district court here made no findings 

regarding Pegues’ ability to reimburse the government for 

attorneys’ fees or the availability of such funds. To the 

contrary, the district court concluded that Pegues was unable to 

pay a fine or interest. Because Pegues’ reimbursement order is 

of the same type we rejected in Moore, we vacate that portion of 

the district court’s judgment and remand for resentencing.

We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

AFFIRMED IN PART, 

VACATED IN PART, 

AND REMANDED