UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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 
3

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)
4

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. 
5

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 
6

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.
7

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 
8

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. 
9

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.
10

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 
11

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 
12

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 crossexamination 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). 
13

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. 
14

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 Franks8

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).
15

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 
16

(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