US v. Brian Henderson

Filing 920100526

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5047

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRIAN DARNELL HENDERSON, a/k/a B, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:07-cr-00023-RLV-DCK-2)

Submitted:

March 17, 2010

Decided:

May 26, 2010

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lawrence W. Hewitt, Justin N. Davis, GUTHRIE, DAVIS, HENDERSON & STATON, P.L.L.C., Charlotte, North Carolina, for Appellant. Edward R. Ryan, United States Attorney, Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: A jury convicted Brian Darnell Henderson of conspiracy to distribute and possess with intent to distribute at least fifty grams of crack cocaine and five kilograms of cocaine,

possession with intent to distribute at least fifty grams of crack, use and carry of a firearm during a drug trafficking crime and possession of a firearm after having been convicted of a felony. life plus The district court sentenced Henderson to a total of sixty months. On appeal, Henderson's counsel

challenges the district court's denial of the motion to suppress and the court's evidentiary ruling concerning audio recordings. Counsel has filed motions seeking leave for Henderson to file pro se supplemental briefs. reversible error, we affirm. Henderson asserts that the affidavit supporting the We grant the motions. 1 Finding no

search warrant was defective because it included no information to corroborate the confidential informant's reliability.

Henderson also asserts that the good-faith exception articulated in United States v. Leon, 468 U.S. 897 (1984), did not apply

In his pro se supplemental briefs, Henderson asserts that the indictment is insufficient because it did not charge drug quantity. He also challenges his life sentence on the ground that the predicate offenses used to statutorily enhance his sentence were not felonies. We have carefully considered these claims and find them to be without merit.

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because the magistrate acted as a rubber stamp, the affidavit contained facially only "bare bones" and the allegations, recitation the of warrant the was

deficient,

affiant's

experience did not cure the defects. We review the district court's factual findings

underlying a motion to suppress for clear error and the court's legal determinations de novo. 679, 682 (4th Cir. 2010). United States v. Day, 591 F.3d When a district court denies a

suppression motion, this court reviews the evidence in the light most favorable to the Government. 591 F.3d 230, 234 (4th Cir. 2009). district court's opportunity to United States v. Matthews, We give due regard to the judge the credibility of

witnesses "for it is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress." Cir. 2008) United States v. Abu Ali, 528 F.3d 210, 232 (4th quotation marks and citation omitted),

(internal

cert. denied, 129 S. Ct. 1312 (2009). In reviewing the validity of a search warrant, the relevant inquiry is whether, under the totality of the

circumstances, the issuing judge had a substantial basis for concluding that there was probable cause to issue the warrant. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); see United

States v. Chandia, 514 F.3d 365, 373-74 (4th Cir. 2008) (noting that magistrate's probable cause determination is entitled to 3

"great

deference").

"When

reviewing

[de

novo]

the

probable

cause supporting a warrant, a reviewing court must consider only the information presented to the magistrate who issued the

warrant." 1996). "simply

United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir.

The judge reviewing the warrant application is required to make a practical, common-sense decision whether,

given all the circumstances set forth in the affidavit before him, . . . of there a is a fair be probability found in a that contraband or

evidence

crime

will

particular

place."

Gates, 462 U.S. at 238. With these standards in mind, we have reviewed the record on appeal and conclude the district court did not err in finding that, under the totality of the circumstances, the

affidavit was sufficient to support a finding of probable cause to search Henderson's residence. Additionally, we find that,

even assuming the affidavit was deficient, the district court correctly concluded that the good-faith exception to the See Cir.) The

exclusionary rule applied to the search of the residence. United States v. Andrews, 577 F.3d 231, 236 (4th

(discussing Leon), cert. denied, 130 S. Ct. 1031 (2009).

district court therefore properly denied Henderson's suppression motion. Next, Henderson asserts that the district court erred by admitting audio recordings 4 of his conversations with a

confidential informant and a co-conspirator, neither of whom was available for cross-examination at trial. 2 relies on the Supreme Court's decision in Although Henderson Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527, 2532 (2009), as support for his claim, we find that his reliance is misplaced. statements asserted, statements. were but not offered to for the a truth of for The recorded the matter

rather

provide

context

Henderson's

Our review of the trial transcript leads us to

conclude that the district court did not err in admitting the tape-recorded conversations. See United States v. Watson, 525

F.3d 583, 589 (7th Cir. 2008) ("A statement unwittingly made to a confidential informant and recorded by the government is not `testimonial' for Confrontation Clause purposes.") (collecting cases adopting the rule), cert. denied, court 129 S. Ct. 972 (2009). limiting

Moreover,

district

gave

extensive

instructions to the jury regarding the purposes for which the

Although Henderson also mentions that the district court erred by precluding him from impeaching the non-testifying informant and co-conspirator, he does not further develop that argument, as required by Fed. R. App. P. 28(a)(9). We therefore conclude that he has abandoned that claim on appeal. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006) (finding conclusory single sentence in brief "insufficient to raise on appeal merits-based challenge to the district court's ruling"); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) ("Failure to comply with the specific dictates of [Rule 28] with respect to a particular claim triggers abandonment of that claim on appeal.").

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recordings could be considered, and this court presumes the jury followed the court's instructions. See United States v.

Johnson, 587 F.3d 625, 631 (4th Cir. 2009). is not entitled to relief on this claim.

Henderson therefore

Accordingly, we affirm the district court's judgment. 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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