UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4393
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWIN ARIAS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:05-cr-00435-JRS)
Submitted: November 27, 2006 Decided: January 12, 2007
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Robert J.
Wagner, Assistant Federal Public Defender, Sapna Mirchandani,
Research and Writing Attorney, Richmond, Virginia, for Appellant.
Chuck Rosenberg, United States Attorney, Sara E. Flannery,
Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a bench trial, Edwin Arias was convicted of
operating a motor vehicle while under the influence of alcohol
(third offense in five years) (Count One), and operating a motor
vehicle after his license was suspended for driving while under the
influence of alcohol (Count Two). 18 U.S.C. § 13 (2000),
assimilating Va. Code Ann. §§ 18.2-266, 18.2-270, and 18.2-272
(2005). Arias was sentenced to five months’ imprisonment and one
year supervised release on each count, to run concurrently. Arias
challenges the denial of his motion to suppress and his
convictions.
Evidence adduced at trial established that on September
4, 2005, at approximately 12:30 a.m., Fort Lee Police Officer
Michael Griffith observed Arias’ car stopped at a green light.
Griffith noticed that the front right turn signal was blinking and
hanging under the car approximately four to six inches from the
pavement. Concerned Arias might be unaware that his vehicle had
sustained damage, Griffith stopped the vehicle, and asked Arias to
exit the vehicle to inspect the damage. Griffith noticed Arias
appeared unsteady on his feet. Shortly thereafter, Sgt. William
Smoot arrived on the scene, at which time Griffith took Arias’
license, a Virginia driver’s license with a large red “R” on it,
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and returned to his vehicle to process it. The check of the
license elicited that it was restricted.1
Having detected a strong smell of alcohol emanating from
the vehicle, Smoot conducted two field sobriety tests, both of
which Arias failed. Arias was taken into custody and transported
to the military police station where he consented to blood alcohol
analysis. Griffith administered the blood alcohol test, which
revealed that Arias’ blood alcohol content was .24. Subsequent to
releasing Arias, Griffith investigated Arias’ driving record and
learned that he was twice convicted of driving under the influence,
and that his license was suspended for three years in August 2003.
Prior to trial, Arias moved to suppress all evidence
obtained during and subsequent to the traffic stop, claiming that
the stop was not supported by probable cause or reasonable
suspicion. Emphasizing Griffith’s observation that Arias remained
stopped at a green light and that, in Griffith’s mind, the right
turn signal was defective, the court concluded that Griffith’s
decision to stop Arias was reasonable and rational and denied the
motion. Following a bench trial at which the Government presented
1
The restrictions on Arias’ license permitted him to drive to
and from medical appointments, work, and Virginia Alcohol Safety
Action Program meetings.
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the testimony of Griffith and Smoot, the district court found Arias
guilty on Counts One and Two.2
Arias raises three issues on appeal. Arias first
maintains that the district court erred in denying his motion to
suppress. This court reviews the district court’s factual findings
underlying a motion to suppress for clear error, and the district
court’s legal determinations de novo. United States v. Grossman,
400 F.3d 212, 216 (4th Cir. 2005). “[A]n officer may, consistent
with the Fourth Amendment, conduct a brief, investigatory stop when
the officer has a reasonable, articulable suspicion that criminal
activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000);
Terry v. Ohio, 392 U.S. 1, 30 (1968). Any seizure of a person,
including an ordinary traffic stop, must be supported by specific
and articulable facts leading to probable cause or reasonable
suspicion. United States v. Hassan El, 5 F.3d 726, 729 (4th Cir.
1993).
Arias argues that because he had not actually violated
Virginia law, Griffith did not have probable cause or reasonable
suspicion to stop his vehicle; thus, Arias contends, the district
court should have granted the motion to suppress. However, if an
officer makes a traffic stop based on a mistake of fact, the only
question is whether his mistake of fact was reasonable. See United
2
Although Arias was originally charged in a five-count
indictment, the Government moved to dismiss Count Four, and the
district court found Arias not guilty on Counts Three and Five.
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States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003)
(concluding that “an officer’s reasonable mistake of fact may
provide the objective grounds for reasonable suspicion or probable
cause required to justify a traffic stop, but an officer’s mistake
of law may not”); United States v. Cashman, 216 F.3d 582, 587 (7th
Cir. 2000) (holding that propriety of traffic stop does not depend
on whether defendant is guilty of committing traffic offense but
rather whether it was reasonable for officer to believe that a
traffic offense had been committed). Even if Griffith was mistaken
in his belief that the damage to Arias’ car amounted to a violation
of Virginia law, this was a reasonable mistake of fact. A review
of Griffith’s testimony supports the district court’s decision that
it was reasonable for Griffith to believe that a traffic violation
had been committed and therefore the stop was objectively
reasonable. Thus, we find the district court properly denied the
motion to suppress.
Arias next argues the Government presented insufficient
evidence to support the conviction on Count One, and thus the
district court erred in denying his Fed. R. Crim. P. 29 motion for
a judgment of acquittal on that count. This court reviews the
denial of a Rule 29 motion de novo. United States v. Alerre, 430
F.3d 681, 693 (4th Cir. 2005). Where, as here, the motion was
based on a claim of insufficient evidence, “[t]he verdict of a jury
must be sustained if there is substantial evidence, taking the view
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most favorable to the Government, to support it.” Glasser v.
United States, 315 U.S. 60, 80 (1942). This court “ha[s] defined
‘substantial evidence’ as evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion of
a defendant’s guilt beyond a reasonable doubt.” Alerre, 430 F.3d
at 693 (internal quotations and citation omitted). This court
“must consider circumstantial as well as direct evidence, and allow
the government the benefit of all reasonable inferences from the
facts proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). This court “may not
weigh the evidence or review the credibility of the witnesses.”
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).
Arias’ challenge to the sufficiency of the Government’s
evidence relevant to Count One fails. Count One charged Arias with
driving under the influence of alcohol, third offense in five
years. The Government presented more than sufficient evidence to
establish that Arias was driving under the influence of alcohol,
including Griffith’s testimony regarding Arias’ “strange” driving
and that he was unsteady on his feet, and Smoot’s testimony that
Arias failed two field sobriety tests. Thus, contrary to Arias’
assertion, the court did not rely exclusively on the fact that
Arias’ blood alcohol content was .24. The Government also
presented unrefuted evidence to establish Arias’ prior convictions
for driving under the influence of alcohol.
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Lastly, Arias asserts that the Government’s evidence
relevant to Count Two constructively amended the indictment,
resulting in a fatal variance. A defendant may only be tried on
charges alleged in an indictment, and “only the grand jury may
broaden or alter the charges in the indictment.” United States v.
Randall, 171 F.3d 195, 203 (4th Cir. 1999) (citing Stirone v.
United States, 361 U.S. 212, 215-16 (1960)). A constructive
amendment to an indictment occurs when either the government or the
court broadens the possible bases for conviction beyond those
charged by the grand jury. United States v. Bolden, 325 F.3d 471,
493 (4th Cir. 2003).
Arias’ argument on this issue is essentially one of
statutory construction. Count Two assimilated Va. Code Ann.
§ 18.2-272, which provides as follows:
Any person who drives or operates any motor vehicle . .
. in the Commonwealth during the time for which he was
deprived of the right to do so (I) upon conviction of a
violation of § 18.2-268.3 or of an offense set forth in
subsection E of § 18.2-270, (ii) by § 18.2-271 or
46.2-391.2, (iii) after his license has been revoked
pursuant to § 46.2-389 or 46.2-391, or (iv) in violation
of the terms of a restricted license issued pursuant to
subsection E of § 18.2-271.1, is guilty of a Class 1
misdemeanor except as otherwise provided in § 46.2-391,
and is subject to administrative revocation of his
driver’s license pursuant to §§ 46.2-389 and 46.2-391.
Va. Code Ann. § 18.2-272(A) (2005). Arias argues the indictment
charged him with violating subsection (ii) because it charged him
with driving after having his driver’s license suspended. Arias
contends that, because Griffith’s testimony established that Arias
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was driving while under the influence of alcohol in violation of
the terms of his restricted license, in violation of subsection
(iv), the Government’s evidence constructively amended the
indictment.
We conclude that Arias’ argument lacks merit. Under
Virginia law, an individual whose driving privileges are suspended
or revoked may petition the convicting court for the issuance of a
restricted license. Va. Code Ann. § 18.2-271.1 (2005). If the
convicting court grants the petition, the Department of Motor
Vehicles must issue the restricted license. Va. Code Ann. § 18.2-
271.1(C) (2005). However, “the license revocation . . . remains in
effect” despite the issuance of the restricted license. Salama v.
Commonwealth, 45 Va. Cir. 446, 1998 WL 972196, *3 (Va. Cir. Ct.
1998). The Supreme Court of Virginia has explained that “[b]y
authorizing a circuit court to restore the privilege on whatever
conditions the court may prescribe, the General Assembly did not
intend for a restoration of driving privileges subject to court-
imposed conditions to have the same legal effect as a restoration
without any conditions.” Commonwealth v. Norman, 604 S.E.2d 82, 86
(Va. 2004). Thus, Arias’ contention that because he had received
a restricted license, his license was no longer suspended, lacks
merit. As the district court noted, “even though the license is
restricted, he is suspended with the restrictions.” J.A. 112. The
Government’s evidence that Arias had a restricted license does not
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amount to a fatal variance from the offense charged in the
indictment.
For the foregoing reasons, we affirm Arias’ convictions
and sentence. 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
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