                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4499


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JAMES E. GOLDSBERRY,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge. (1:17-cr-00143-CCB-1)


Submitted: April 25, 2019                                         Decided: May 1, 2019


Before KING and AGEE, Circuit Judges, and DUNCAN, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Kirstin M. Hopkins, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Robert K. Hur,
United States Attorney, Burden H. Walker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       A jury convicted James E. Goldsberry of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1) (2012), possessing with intent to distribute cocaine

and heroin, in violation of 21 U.S.C. § 841(a)(1) (2012), and possessing a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)

(2012).     He argues that the district court erroneously denied his motion seeking to

suppress evidence discovered during the search of an apartment where he was spending

the night and requesting a Franks 1 hearing. He also asserts that the district court abused

its discretion by admitting at trial text messages recovered from his cell phone and that

the court erroneously denied his Fed. R. Crim. P. 29 motion for judgment of acquittal on

the § 924(c) count. We affirm.

       At approximately 4:30 a.m. on September 20, 2016, a Howard County Police

Department tactical team executed a search warrant at an apartment in Howard County,

Maryland. They found Goldsberry in the master bedroom. The officers discovered the

following items in the apartment: $893 in cash on the footrail of the bed; a larger clear

plastic bag containing smaller baggies of cocaine and heroin on the left bedrail; a loaded

handgun on the floor partially underneath the bed; a backpack in the master bedroom’s

closet containing two unloaded firearms, two extra gun barrels, and two extended

magazines of ammunition; 100 baggies of cocaine and 25 baggies of heroin in the master

closet; a digital scale, razor blade, and several hundred unused baggies in the kitchen,

       1
           Delaware v. Franks, 438 U.S. 154 (1978).


                                             2
along with an additional bag of narcotics. The gross weight of the heroin and cocaine in

the apartment was approximately 11 grams and 16.5 grams, respectively.

       Goldsberry contends that the warrant authorizing the search was not supported by

probable cause because the warrant affidavit did not establish a sufficient nexus between

the apartment and the narcotics. The district court held that, even if the warrant was

defective, the good-faith exception to the exclusionary rule established in United States v.

Leon, 468 U.S. 897 (1984), applied.

       “The fact that a Fourth Amendment violation occurred . . . does not necessarily

mean that the exclusionary rule applies.” Herring v. United States, 555 U.S. 135, 140

(2009). “When police act under a warrant that is invalid for lack of probable cause, the

exclusionary rule does not apply if the police acted in objectively reasonable reliance on

the subsequently invalidated search warrant.” Id. at 142 (citing Leon, 468 U.S. at 922

(internal quotation marks omitted)).

       Typically, an officer’s reliance on a [judge]’s decision to issue a warrant
       will be deemed objectively reasonable. But as Leon makes clear, when a
       supporting affidavit is so lacking in indicia of probable cause as to render
       official belief in its existence entirely unreasonable, then an officer cannot
       be found to have reasonably relied on the resulting warrant, and
       suppression remains the appropriate remedy.

United States v. Thomas, 908 F.3d 68, 72 (4th Cir. 2018) (citation and internal quotation

marks omitted).

       We have reviewed the warrant affidavit and agree with the district court that, even

if the warrant was not supported by probable cause, the affidavit contained sufficient




                                             3
indicia of probable cause such that the officer’s reliance on the warrant was objectively

reasonable.

       Goldsberry also contends that the district court should have held a Franks hearing

because the affiant made knowingly false statements and material omissions in the

affidavit. “To establish a Franks violation, a defendant must prove that the affiant either

intentionally or recklessly made a materially false statement or that the affiant

intentionally or recklessly omitted material information from the affidavit.”        United

States v. Wharton, 840 F.3d 163, 168 (4th Cir. 2016). “An omission is material if it is

necessary to the neutral and disinterested magistrate’s finding of probable cause.” Id.

(brackets and internal quotation marks omitted). We have reviewed the affidavit and the

materials upon which Goldsberry relied to attack its veracity and agree with the district

court that Goldsberry did not meet his burden under Franks. Accordingly, we affirm the

denial of the motion to suppress and for a Franks hearing.

       Goldsberry next contends that text messages that officers recovered from his cell

phone that the Government introduced at trial were inadmissible hearsay. 2 “[W]e review

evidentiary decisions for an abuse of discretion, but legal conclusions concerning the

Rules of Evidence or the Constitution de novo.” United States v. Landersman, 886 F.3d

393, 413 (4th Cir. 2018) (internal quotation marks omitted). “We apply the harmless

error standard to evidentiary rulings . . . .” Id. “In order for an evidentiary ruling to be


       2
        The Government’s expert witness testified at trial that several of these texts
contained coded language used to facilitate drug trafficking.


                                             4
harmless, we must find that the judgment was not substantially swayed by the error.” Id.

(internal quotation marks omitted).

      Hearsay is any statement that the declarant does not make at the instant trial or

hearing that “a party offers in evidence to prove the truth of the matter asserted in the

statement.” Fed. R. Evid. 801(c). “Statement means a person’s oral assertion, written

assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed. R. Evid.

801(a). A statement made by a party and offered against that party is not hearsay. Fed.

R. Evid. 801(d)(2)(A). Hearsay is inadmissible unless a federal statute, the Federal Rules

of Evidence, or other rules prescribed by the Supreme Court provide otherwise. Fed. R.

Evid. 802.

      We agree with the district court that, even assuming the texts were statements, the

Government did not introduce them to prove the truth of the matters asserted therein. 3

Rather, the presence on Goldsberry’s cell phone of texts interpreted by the Government’s

expert to be drug trafficking communications was probative of Goldsberry’s possession

of cocaine and heroin with intent to distribute regardless of whether any assertions in the

texts were true or false. The texts were therefore not hearsay, and the district court did

not abuse its discretion by admitting them.

       Finally, Goldsberry raises a sufficiency-of-the-evidence challenge to his § 924(c)

conviction.


       3
        Texts sent rather than received by Goldsberry are party statements, and are thus
not hearsay under Rule 801(d)(2)(A).


                                              5
       We review the denial of . . . a Rule 29 motion de novo. In its assessment of
       a challenge to the sufficiency of evidence, a reviewing court views the
       evidence in the light most favorable to the prosecution and decides whether
       substantial evidence—that is, 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—supports the verdict.

United States v. Young, 916 F.3d 368, 384 (4th Cir. 2019) (citation and internal quotation

marks omitted). To convict Goldsberry under § 924(c), the Government had to prove that

he possessed a firearm in furtherance of a drug trafficking crime. United States v.

Howard, 773 F.3d 519, 527 (4th Cir. 2014). We have explained

       that § 924(c) requires the government to present evidence indicating that
       the possession of a firearm furthered, advanced, or helped forward a drug
       trafficking crime. Whether the firearm served such a purpose . . . is a
       factual inquiry. Factors that could lead a fact finder to conclude that a
       defendant possessed a firearm in furtherance of a drug crime include: the
       type of drug activity that is being conducted, accessibility of the firearm,
       the type of weapon, whether the weapon is stolen, the status of the
       possession (legitimate or illegal), whether the gun is loaded, proximity to
       drugs or drug profits, and the time and circumstances under which the gun
       is found.

Id. (citations and internal quotation marks omitted).

       In this case, officers found a loaded handgun under the bed where Goldsberry was

sleeping, along with cocaine and heroin packaged for distribution and almost $900 in

cash on the bed. They also found two unloaded guns and ammunition in a backpack in

the nearby master bedroom closet along with more cocaine and heroin, as well as drugs

and drug-packaging supplies in the kitchen. While there was no evidence at trial that the

firearms were stolen, Goldsberry stipulated that he was a convicted felon, and thus his

possession of any firearms and ammunition was illegal. Given these facts, taken in the

light most favorable to the Government, the evidence at trial was sufficient to support

                                             6
Goldsberry’s conviction for possessing a firearm in furtherance of a drug trafficking

crime.

         We therefore affirm the district court’s judgment.     We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                             AFFIRMED




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