United States v. Dexter Tyson , 462 F. App'x 402 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4125
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEXTER TYSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:03-cr-00056-CCB)
Submitted: January 20, 2012 Decided: February 1, 2012
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth W. Ravenell, Milin Chun, MURPHY & FALCON, PA, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Christopher J. Romano, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dexter Tyson appeals his convictions entered after a
jury trial for conspiracy to distribute and possess with intent
to distribute 50 grams or more of cocaine base and five
kilograms or more of cocaine (Count I), possession with intent
to distribute 50 grams or more of cocaine base (Count II),
possession with intent to distribute cocaine (Count III),
possession with intent to distribute cocaine (Count IV),
possession of a firearm in furtherance of a drug trafficking
crime (Count V), possession of a firearm with an obliterated
serial number (Count VI), felon in possession of a firearm
(Count VII), and felon in possession of ammunition (Count VIII).
We affirm.
I.
Tyson initially went to trial on June 21, 2004. The
jury convicted him of Counts I, II, III, and IV. The district
court declared a mistrial on the remaining charges. Prior to
sentencing, Tyson filed a motion for a new trial based upon the
perjurious testimony of a Government witness, Jimmie Troutman.
The Government acknowledged the perjury and agreed to a new
trial.
Prior to Tyson’s second trial, the Government filed a
motion in limine seeking to exclude any reference, testimony or
2
evidence regarding Troutman’s testimony at the first trial or
the fact that Tyson had been previously convicted but had
received a new trial. Tyson opposed the motion, arguing that
the evidence was relevant to show ownership of the drugs and
handgun found at the subject apartment. Specifically, the
evidence showed that Tyson’s co-conspirator Rennie Price asked
Troutman to perjure himself and supplied him with false
information about Tyson. Tyson argues that Price did this to
protect himself and his girlfriend Agrario Estevez and to punish
Tyson for refusing to take responsibility for all the drugs.
Tyson avers that, if the drugs did in fact belong to Tyson,
Price would not have had to frame him and the fact that Price
did frame him tends to show that, in fact, the drugs belonged to
Price and Estevez and not to Tyson.
The district court granted the motion in limine,
reasoning that the Troutman evidence was not probative of
possession and, even if it was, the evidence was unfairly
prejudicial. We review a district court’s evidentiary rulings
for abuse of discretion. 1 United States v. Blake, 571 F.3d 331,
1
Tyson contends that the proper standard of review for a
determination that the evidence was not relevant to the crimes
charged is de novo, as it is a question of law. Tyson is
mistaken. See United States v. Miller, 626 F.3d 682, 688 & n.4
(2d Cir. 2010) (determination that evidence was irrelevant
reviewed for abuse of discretion), cert. denied, 132 S. Ct. 379
(2011). Tyson’s citations do not support his conclusion. For
(Continued)
3
350 (4th Cir. 2009), cert. denied, 130 S. Ct. 1104 (2010). A
district court abuses its discretion when its decision to
exclude evidence was arbitrary and irrational. United States v.
Weaver, 282 F.3d 302, 313 (4th Cir. 2002). Relevant evidence is
evidence that has “any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. However, relevant evidence may
be excluded when its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury. Fed. R. Evid. 403; Buckley v. Mukasey, 538
F.3d 306, 318 (4th Cir. 2008). Unfair prejudice occurs when
“there is a genuine risk that the emotions of a jury will be
excited to irrational behavior, and this risk is
disproportionate to the probative value of the offered
evidence.” United States v. Williams, 445 F.3d 724, 730 (4th
Cir. 2006) (internal quotation marks, citation, and alteration
omitted).
example, he cites United States v. Torniero, 735 F.2d 725, 730
(2d Cir. 1984), for the proposition that relevance is a question
of law. While the court does use this language, the court does
not conclude that de novo is the proper standard of review;
instead, the court clearly states that the “court’s discretion
in ruling on relevance, and in assessing potential prejudice, is
broad.” Id.
4
We review a district court’s decision to exclude
evidence under Fed. R. Evid. 403 and 401 “under a broadly
deferential standard, and will not overturn a district court’s
ruling in the absence of the most extraordinary circumstances in
which the court’s discretion has been plainly abused.” United
States v. Hassouneh, 199 F.3d 175, 183 (4th Cir. 2000). In
addition, a district court’s evidentiary rulings are subject to
review for harmless error under Fed. R. Crim. P. 52. United
States v. Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008). Evidence
that is erroneously excluded will be deemed harmless if the
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. Brooks, 111 F.3d 365, 371 (4th Cir.
1997).
At Tyson’s first trial, Troutman testified that he
purchased narcotics from Tyson at his apartment, where he saw
tools of the drug trade present. He also testified that Tyson
told him he kept a handgun in the house. He stated he saw three
kilograms of cocaine present and that he and Tyson cooked the
cocaine into crack at the apartment. Notably, however,
Troutman’s testimony did not exonerate Price and Estevez, who
were present in the apartment with the drugs when the police
5
executed the search warrant; in fact, Troutman testified
(falsely) that he did not know Price.
We conclude that the district court’s ruling was
neither arbitrary nor irrational. The relevance of the evidence
was tangential, requiring assumptions regarding Price’s state of
mind when he arranged for Troutman’s perjury. Moreover, since
such assumptions were required, the district court reasonably
determined that the evidence might be misleading and confusing
to the jury and might require exploration of tangential issues.
The record simply does not support a finding of extraordinary
circumstances requiring reversal. Moreover, given the evidence
at trial connecting Tyson to the apartment, 2 it is unlikely that
the excluded evidence would have altered the jury’s decision.
As such, Tyson’s claim is without merit.
2
Tyson was observed by detectives coming and going from the
subject apartment, including the day the search warrant was
executed; the lease agreement was in Tyson’s name; the master
bedroom (where drugs and money were found) contained documents
with Tyson’s name on them, pictures of Tyson, a safe with
additional Tyson documents; and two of Tyson’s credit cards;
Tyson’s parole officer supported the conclusion that he lived at
the subject apartment despite his deceptive attempts to show he
lived elsewhere; Price’s and Estevez’s passports, wallets, and
clothing were found in the spare bedroom, not the master
bedroom; and Tyson admitted his ownership of the money in the
forfeiture proceeding.
6
II.
Next, Tyson asserts that the district court
incorrectly denied his motion for a mistrial made after a
Government witness improperly testified about Tyson’s past
arrests and warrants. Specifically, the district court ruled
prior to trial that the only prior conviction of Tyson’s that
could be introduced was a conviction in 1997 arising out of a
search and seizure warrant executed in October 1996. Lieutenant
Davis of the Anne Arundel County Police Department testified
regarding the events in 1996-97. When asked about the execution
of the 1996 search warrant, Davis answered that they recognized
Tyson at the time because “he was wanted on a couple of
warrants.” Then, when asked about Tyson’s relationship to the
place being searched, Davis stated that Tyson “had listed it as
an address on previous arrest documents.” After denying Tyson’s
motion for a mistrial, the court gave a cautionary instruction
to the jury telling them to “completely disregard any remarks
that may have been made about a prior arrest or warrant. . . .
That is completely irrelevant.”
The denial of a mistrial is reviewed for an abuse of
discretion. United States v. Dorsey, 45 F.3d 809, 817 (4th Cir.
1995). To show an abuse of discretion, the defendant must show
prejudice. Id. In general, where there is no Government
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misconduct and a curative instruction is given, a mistrial is
not warranted. Id.
Here, assuming that Davis’s testimony violated the
court’s pre-trial ruling, we conclude that the effect was
negligible. The references to “arrest” and “warrants” were
vague and brief. In addition, the improper evidence was likely
cured by the district court’s cautionary instructions. Finally,
even assuming that the improper evidence influenced the jury,
Tyson has failed to show that he suffered prejudice. Given the
evidence against Tyson, it is unlikely that this nonspecific
testimony, even if considered, would have swayed the jury.
Thus, Tyson’s motion for a mistrial was properly denied.
III.
At trial, the Government introduced claims filed by
Tyson with the DEA for the return of over $55,000 seized on
January 9, 2003. In these documents, Tyson claimed that he was
the sole owner of the money seized from his apartment and
person. The Government argued in closing that there was no
legitimate explanation for how Tyson could earn so much money
and contended that it was drug proceeds. At trial, Tyson
objected to the admission of the DEA claims on grounds of
hearsay and relevance.
8
On appeal, Tyson for the first time argues that
admission of the DEA claims violated his Fifth Amendment rights
because he was forced to either surrender his due process rights
to a meaningful forfeiture hearing or his right to remain
silent. Tyson claims that his position is supported by an
extension of the Supreme Court’s decision in Simmons v. United
States, 390 U.S. 377 (1968), that statements made by criminal
defendants in suppression hearings could not be used against
them in a criminal prosecution. Id. at 394. Because this claim
was not raised below, the parties agree that Tyson must show
plain error.
First, assuming without deciding that there was error,
Tyson cannot show that the error was plain. Tyson admits that
we have not yet addressed this particular issue. See also
Brown v. Berghuis, 638 F. Supp. 2d 795, 816 (E.D. Mich. 2009)
(collecting cases and noting that the body of law on this issue
is “murky”). Thus, any error was not clear and obvious. See
United States v. Olano, 507 U.S. 725, 734 (1993) (standard of
review). Further, Tyson cannot show that the error affected his
substantial rights, given that exclusion of this evidence would
not have changed the outcome of the proceedings. See id. As
discussed above, there was a wealth of evidence tying Tyson to
the apartment, and by extension, the cash and the drugs.
Accordingly, Tyson has failed to show plain error.
9
IV.
Tyson asserts that he was prejudiced by joinder of the
charges against him because he wished to testify regarding Count
IV, but wished to remain silent with regard to the remaining
counts. Federal Rule of Criminal Procedure 8 provides that
“[t]he indictment or information may charge a defendant in
separate counts with 2 or more offenses if the offenses charged
. . . are of the same or similar character, or are based on the
same act or transaction, or are connected with or constitute
parts of a common scheme or plan.” Fed. R. Crim. P. 8(a).
Federal Rule of Criminal Procedure 14 provides, however, that
“[i]f the joinder of offenses . . . in an indictment, an
information, or a consolidation for trial appears to prejudice a
defendant . . . the court may order separate trials of counts.”
Under Rule 14, “[t]he party seeking severance bears the burden
of demonstrating a strong showing of prejudice.” United
States v. Branch, 537 F.3d 328, 341 (4th Cir. 2008) (internal
quotations omitted).
We previously articulated the legal principles
governing this argument as follows:
[B]ecause of the unfavorable appearance of testifying
on one charge while remaining silent on another, and
the consequent pressure to testify as to all or none,
the defendant may be confronted with a dilemma;
whether, by remaining silent, to lose the benefit of
vital testimony on one count, rather than risk the
prejudice (as to either or both counts) that would
10
result from testifying on the other. Obviously no
such dilemma exists where the balance of risk and
advantage in respect of testifying is substantially
the same as to each count. Thus . . . no need for a
severance exists until the defendant makes a
convincing showing that he has both important
testimony to give concerning one count and strong need
to refrain from testifying on the other. In making
such a showing, it is essential that the defendant
present enough information—regarding the nature of the
testimony he wishes to give on one count and his
reasons for not wishing to testify on the other—to
satisfy the court that the claim of prejudice is
genuine and to enable it intelligently to weigh the
considerations of economy and expedition in judicial
administration against the defendant’s interest in
having a free choice with respect to testifying.
United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984);
see United States v. Jamar, 561 F.2d 1103, 1108 n. 9 (4th Cir.
1977) (indicating that “a particularized showing must be made
concerning the testimony the defendant wishes to give and his
reasons for remaining silent on the joined counts, so that the
court can make an independent evaluation of whether the
defendant will be prejudiced to an extent that outweighs the
interests favoring joinder”).
Here, Tyson indicated that he “may wish” to testify
regarding conversations between himself and a Detective,
requesting that Tyson bring drugs to the police station as part
of his cooperation (Count IV). However, he feared that, by
taking the stand, he would implicate himself on the other counts
through cross-examination. The district court denied the motion
to sever, reasoning that Tyson had not made a sufficient showing
11
of prejudice because the evidence supporting Count IV would be
admissible in a trial based upon only the other counts and vice
versa. Thus, severance would not insulate Tyson from cross-
examination about all the evidence in the case in both trials.
Because Tyson’s desire to testify was not definite and
because the evidence supporting each of the counts would be
mutually admissible in separate trials, 3 Tyson’s allegations of
prejudice are undermined. Furthermore, all the counts were
logically related because the conspiracy covered the entire
month of January. See United States v. Mir, 525 F.3d 351, 357
(4th Cir. 2008) (affirming denial of severance because “[t]rying
the . . . charge[s] separately would have led to significant
inconvenience for the government and its witnesses, and required
a needless duplication of judicial effort in light of the legal,
factual, and logistical relationship between the charges”). For
these reasons, the district court did not abuse its discretion
in balancing the competing interests in the case and denying the
motion for severance.
3
In his reply brief, Tyson assumes that the search of his
apartment would be admissible in a trial regarding the later
search incident to his arrest (Count IV), but challenges whether
the arrest incident was admissible in a trial relating only to
the search (remaining counts). However, the fact that Tyson was
in possession of a quantity of crack cocaine within a couple
weeks of the search of his apartment is relevant on the issues
of his knowledge and intent and any absence of mistake regarding
the contents of his apartment. Fed. R. Evid. 404(b).
12
V.
Finally, Tyson asserts that the district court erred
in failing to hold a hearing on his allegations that Detective
Caputo included false statements in his affidavit in support of
the search warrant. The alleged falsities are as follows: (1)
stating that he surveilled Tyson on dates when Tyson was
actually incarcerated; (2) stating that he conducted a criminal
history check on Tyson on December 6, 2002, when he did not
actually conduct the check until December 18; 4 (3) listing
charges against Tyson and Pariag without listing the
dispositions of these charges; 5 and (4) omitting information that
Tyson’s 1996 arrest involved only 3.5 grams of cocaine. 6
Caputo’s affidavit was dated January 2, 2003. The
affidavit described surveillance conducted on Tyson, his brother
(Brent Pariag), and Tyson’s apartment during the month of
December 2002 based upon a tip from a confidential informant.
Caputo alleges that he saw Tyson conducting what “appeared to be
4
The date of the check is not listed in the affidavit.
Instead, this discrepancy arose at the suppression hearing.
5
While not all of the charges ended with convictions, some
did.
6
Also seized from Tyson at the time of that arrest was
$28,000 in cash, the equivalent cost of a kilogram of cocaine.
13
controlled dangerous substance related” actions on December 2. 7
Then, Caputo asserted that, sometime after December 17, he saw
Tyson and Pariag again conducting what appeared to be drug
activities. A drug detection dog alerted on Pariag’s van parked
outside of Tyson’s apartment, and the officers seized drug
packaging from the garbage left by someone who had been
traveling with Pariag which yielded a positive test for cocaine.
Caputo stated that he conducted background checks on Tyson and
Pariag and determined that they each had been charged with
numerous drug and violent offenses and that Tyson listed the
subject apartment as his address.
For a criminal defendant to be entitled to a Franks 8
hearing, this court has required a “dual showing[,] . . . which
incorporates both a subjective and an objective threshold
component.” United States v. Colkley, 899 F.2d 297, 300 (4th
Cir. 1990). First, the defendant must show that the affiant to
a search warrant made a false statement in the warrant
affidavit, “knowingly and intentionally, or with reckless
disregard for the truth.” Franks, 438 U.S. at 155-56. Next,
the defendant has the burden to show that the false statement
7
Tyson was incarcerated from sometime in November until
December 9.
8
Franks v. Delaware, 438 U.S. 154 (1978).
14
itself was necessary to a determination of probable cause, and
if probable cause still exists absent the false statement, then
no Franks hearing is required. Id. at 156.
The defendant carries a heavy burden in showing that a
Franks hearing is necessary. United States v. Jeffus, 22 F.3d
554, 558 (4th Cir. 1994). Additionally, the “showing ‘must be
more than conclusory’ and must be accompanied by a detailed
offer of proof.” Colkley, 899 F.2d at 300. Accordingly,
allegations of such misconduct must be supported through
affidavits and sworn witness statements, or an explanation of
why they cannot be provided. Franks, 438 U.S. at 171. We
review de novo a district court determination that a defendant
has not made a proper showing to trigger a Franks hearing.
United States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008).
We conclude that Tyson has not established that he was
entitled to a Franks hearing. Tyson does not offer any evidence
to prove that Caputo intentionally stated that he observed Tyson
when in fact he did not or intentionally changed the date he
conducted the record search. Instead, the incorrect dates
appear to be nothing more than misstatements or mistakes.
Moreover, even assuming that Caputo’s affidavit was
intentionally false and misleading, probable cause would still
have existed to support the search warrant even without the
alleged misstatements. See Illinois v. Gates, 462 U.S. 213, 238
15
(1983) (holding that, when viewing the totality of the
circumstances, the issuing court must believe that there is “a
fair probability that contraband or evidence of a crime will be
found in a particular place”). Accordingly, we find no
reversible error in the district court’s failure to order a
Franks hearing.
Based on the foregoing, we affirm Tyson’s convictions.
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
16