                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



                                              7
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
