UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. The district court sentenced Henderson to a total of
life plus 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. We grant the motions. 1 Finding no
reversible error, we affirm.
Henderson asserts that the affidavit supporting the
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
1
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 only “bare bones” allegations, the warrant was
facially deficient, and the recitation of the 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. United States v. Day, 591 F.3d
679, 682 (4th Cir. 2010). When a district court denies a
suppression motion, this court reviews the evidence in the light
most favorable to the Government. United States v. Matthews,
591 F.3d 230, 234 (4th Cir. 2009). We give due regard to the
district court’s opportunity to 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.” United States v. Abu Ali, 528 F.3d 210, 232 (4th
Cir. 2008) (internal quotation marks and citation omitted),
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
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“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.” United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir.
1996). The judge reviewing the warrant application is required
“simply to make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before
him, . . . there is a fair probability that contraband or
evidence of a crime will be found in a 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
exclusionary rule applied to the search of the residence. See
United States v. Andrews, 577 F.3d 231, 236 (4th Cir.)
(discussing Leon), cert. denied, 130 S. Ct. 1031 (2009). The
district court therefore properly denied Henderson’s suppression
motion.
Next, Henderson asserts that the district court erred
by admitting audio recordings of his conversations with a
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confidential informant and a co-conspirator, neither of whom was
available for cross-examination at trial. 2 Although Henderson
relies on the Supreme Court’s decision in Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527, 2532 (2009), as support for his
claim, we find that his reliance is misplaced. The recorded
statements were not offered for the truth of the matter
asserted, but rather to provide a context for Henderson’s
statements. 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 rule), cert. denied, 129 S. Ct. 972 (2009).
Moreover, the district court gave extensive limiting
instructions to the jury regarding the purposes for which the
2
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). Henderson therefore
is not entitled to relief on this claim.
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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