Filed: Jan. 05, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4121 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DECARDIO LAMONT GLISSON, Defendant – Appellant. No. 10-4122 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DERRICK LIONELL GLISSON, Defendant – Appellant. Appeals from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:08-cr-00405-JFA-1; 3:08-cr-00405-JFA-2) Argued: October 28, 2011 Decided:
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4121 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DECARDIO LAMONT GLISSON, Defendant – Appellant. No. 10-4122 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DERRICK LIONELL GLISSON, Defendant – Appellant. Appeals from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:08-cr-00405-JFA-1; 3:08-cr-00405-JFA-2) Argued: October 28, 2011 Decided: ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4121
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DECARDIO LAMONT GLISSON,
Defendant – Appellant.
No. 10-4122
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK LIONELL GLISSON,
Defendant – Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia. Joseph F. Anderson, Jr.,
District Judge. (3:08-cr-00405-JFA-1; 3:08-cr-00405-JFA-2)
Argued: October 28, 2011 Decided: January 5, 2012
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded in part by
unpublished per curiam opinion. Judge Davis wrote an opinion
concurring in part and concurring in the judgment.
ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia,
South Carolina; Robert Sneed, ROB SNEED LAW FIRM, LLC,
Greenville, South Carolina, for Appellant. Jeffrey Mikell
Johnson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee. ON BRIEF: William N. Nettles, United
States Attorney, Robert F. Daley, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Brothers Decardio Glisson (“Decardio”) and Derrick Glisson
(“Derrick”) appeal their convictions and sentences on an eight-
count indictment charging them with various narcotics and
firearms offenses under 21 U.S.C. §§ 841 and 846, and 18 U.S.C.
§§ 2, 922, and 924. In this consolidated appeal, the Glissons
raise a total of eleven issues alleging pretrial, trial, and
sentencing errors. In this opinion, we address only three:
whether the affidavit, which contained false information and
which was submitted in support of the search warrant, supported
a finding of probable cause; whether the district court properly
admitted a redacted version of the statement Derrick had given
to the police; and whether the district court correctly held
that Derrick’s conviction under 18 U.S.C. § 922(g)(9) did not
violate his Second Amendment rights. 1 For the following reasons,
we affirm Decardio’s conviction and sentence, and we affirm in
part and vacate and remand in part Derrick’s conviction and
sentence.
I
The circumstances leading to the Glissons’ convictions
arose out of several incidents that occurred in Sumter, South
1
We have reviewed the remaining issues and find them to be
without merit.
3
Carolina, in the summer of 2007. Early on the day of June 14,
2007, there was gunfire on St. Paul Church Road in Sumter.
Several rounds of ammunition were fired into two residences, and
witnesses indicated the perpetrators were traveling by vehicle.
Later that day, Derrick arrived at the Tuomey Regional
Medical Center in a Dodge Ram pickup truck (the "truck") and
reported that he had been shot in his right hand. Local law
enforcement was notified that a gunshot victim had come to the
hospital for treatment. Officers from Sumter County arrived at
the hospital shortly thereafter. In the process of interviewing
several bystanders (one of whom was Decardio) near a truck which
was parked in the Tuomey parking lot, the officers learned that
Decardio and Derrick had been riding in the truck when Derrick
was shot in the hand. The officers also observed three shell
casings on the ground next to the truck. Standing outside the
truck, the officers were also able to observe blood on the
interior floorboard and a shell casing in the truck bed.
Believing that Derrick’s wound might be linked to the
earlier shooting incident, the officers sought a search warrant
for the truck. However, the affidavit which was submitted in
application for the search warrant contained numerous false
statements. After the search warrant was procured, the truck was
towed, and a subsequent search by the officers recovered
marijuana, cash, a knife, a loaded Glock .40 caliber semi-
4
automatic pistol, a loaded Smith & Wesson 9mm semi-automatic
pistol, two spent 9mm cartridge casings, and a total of 152.71
grams of powder cocaine and 9.01 grams of crack cocaine. The
following day, an officer returned to the hospital and obtained
a sworn statement from Derrick which indicated, among other
things, that he had been a passenger in the truck the previous
day when he was shot in the hand and that Decardio had been the
driver of the truck.
Two months later, on August 23, 2007, Decardio was stopped,
while driving the same truck, for routine traffic violations. As
the officer approached the truck, he smelled the odor of burning
marijuana and observed in plain view a bag containing marijuana
on Decardio's lap. Decardio was arrested for possession of
marijuana and a search incident to that arrest revealed a gun,
marijuana, drug paraphernalia, over $1,000 in cash, and 1.4
grams of crack cocaine.
The Glissons were charged with conspiracy to distribute and
possess with intent to distribute cocaine base and cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B),
and 846 (Count One); possession with intent to distribute
cocaine base and cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C), and 18 U.S.C. § 2
(Count Two); and possession and use of a firearm in furtherance
5
of a drug trafficking crime, in violation of 18 U.S.C. §§ 2 and
924(c)(1) (Count Three).
In addition, Decardio was charged with two counts of
possession of a firearm after having been convicted of a felony,
in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)
(Count Four and Count Eight); possession with intent to
distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(C) (Count Six); and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (Count Seven). Derrick was charged with
possession of a firearm after having been convicted of a
misdemeanor crime of domestic violence, in violation of 18
U.S.C. §§ 922(g)(9), 924(a)(2), and 924(e) (Count Five).
II
Before trial, the Glissons moved for a hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978), and to suppress the
evidence seized as a result of the search of the truck. The
Glissons argued that the affidavit submitted in support of the
application for the search warrant contained numerous false
statements and that without these statements, probable cause did
not exist to issue a search warrant for the truck. Thus, they
argued that the narcotics and firearms found in the truck, which
were discovered as the result of an invalid search and which
6
formed the basis of some of the counts against them, should be
suppressed.
Additionally, Decardio filed a pretrial motion, under Bruton
v. United States, 391 U.S. 123 (1968), to suppress the statement
Derrick provided to the police which linked Decardio to the
truck. Decardio argued that Bruton precluded the use of
Derrick’s statement in their joint trial because Derrick would
be a non-testifying codefendant and Decardio would not have the
opportunity to cross-examine Derrick. Further, Derrick moved to
dismiss Count 5 of the indictment, which charged him with
possessing a firearm after being convicted of a misdemeanor for
domestic violence, arguing that 18 U.S.C. § 922(g)(9) violates
his Second Amendment right to keep and bear arms.
The district court orally denied Derrick’s motion to dismiss
Count 5. The district court then held an evidentiary hearing on
the Glissons’ motion to suppress the evidence found during the
search of the truck. In its subsequent order denying that
motion, the district court found that the affidavit supported a
finding of probable cause even after the false statements had
been removed. The district court kept the Bruton motion under
advisement, but on the first day of the trial ruled in favor of
the government on the Bruton issue and permitted a redacted
version of Derrick’s statement to be introduced into evidence.
7
After the district court denied motions for judgment of
acquittal, the jury returned a verdict finding Decardio guilty
on Counts One, Two, Three, Four, and Eight, but acquitting him
on Counts Six and Seven, and finding Derrick guilty of Counts
One, Two, Three, and Five. The district court overruled the
Glissons’ objections to their pre-sentence report and sentenced
Derrick to 198 months imprisonment and Decardio to 226 months.
III
A
On appeal, the Glissons argue the district court erred in
denying their motion to suppress the evidence seized from the
truck. We review de novo the legal conclusions underlying a
district court's decision not to suppress evidence, and we
review its factual findings for clear error. United States v.
Gary, 528 F.3d 324, 327 (4th Cir. 2008). Under Franks v.
Delaware, the district court must determine whether, after the
“material that is the subject of the alleged falsity or reckless
disregard is set to one side, there remains sufficient content
in the warrant affidavit to support a finding of probable
cause.” 438 U.S. at 171-72. The false information “must do more
than potentially affect the probable cause determination: it
must be necessary to the finding of probable cause.” United
8
States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990) (internal
quotation marks and citation omitted).
We hold that the district court did not err in denying the
Glissons’ motion to suppress. Although it is undisputed that the
affidavit supporting the search warrant contained numerous false
statements, 2 the district court correctly found that after the
false statements are removed from the affidavit the remaining
information in the affidavit still “informs that a subject
arrived to the hospital with a gunshot wound, that there were
spent shell casings throughout the vehicle in which the subject
arrived, and that there had been a shooting earlier in the day.”
J.A. 240. In light of this, we agree with the district court
that “there is a fair probability that contraband or evidence of
a crime will be found in a vehicle which has blood, firearm
shell casings, and an individual with a gunshot wound as its
cargo.” J.A. 240. Therefore, we find that when the false
information is excised from the affidavit, the remaining factual
allegations are sufficient for a magistrate to find probable
cause for a search warrant.
2
While the false statements are not determinative in this
case, the fact that law enforcement officials presented the
magistrate with an affidavit containing these falsehoods
reflects unfavorably on the officials involved.
9
B
In his statement to the police while he was at the
hospital, Derrick implicated Decardio as the driver of the truck
at the time of the shooting and the driver who drove Derrick to
Tuomey. Decardio argued below and continues to argue on appeal
that Derrick's statement, when combined with other testimony at
trial, is inculpatory evidence that unfairly incriminates
Decardio as possessing the contraband found in the truck.
Decardio argues, therefore, that the district court erred in
admitting into evidence a redacted version of Derrick’s
statement to the police because use of the statement would
violate his Sixth Amendment right to confront and cross-examine
Derrick regarding this statement.
“We review the district court’s admission or exclusion of
evidence for an abuse of discretion.” United States v. Lighty,
616 F.3d 321, 351 (4th Cir. 2010). We hold that, in accordance
with Bruton v. United States, the district court did not abuse
its discretion by admitting a redacted version of the signed
statement into evidence. The references to Decardio were
replaced with “another person,” “other person,” and “the
driver.” J.A. 1014. Although the statements, when combined with
other evidence, may have incriminated Decardio, such inferential
incrimination does not violate the Confrontation Clause. See
United States v. Akinkoye,
185 F.3d 192, 198 (4th Cir. 1999)
10
(approving of neutral phrases in the redaction such as “another
person” or “another individual”); United States v. Vogt, 910
F.2d 1184, 1191-92 (4th Cir. 1990) (noting that a redacted
statement, in which the co-defendant’s name was replaced with
the word “client,” did not on its face impermissibly incriminate
the codefendant even though the incriminating import was
inferable from other evidence that had been admitted).
Accordingly, we hold that the district court did not abuse its
discretion by admitting the redacted statement into evidence.
C
Finally, Derrick argues that 18 U.S.C. § 922(g)(9), which
prohibits the possession of firearms by a person convicted of a
misdemeanor crime of domestic violence, imposes an undue burden
on his Second Amendment rights under District of Columbia v.
Heller, 554 U.S. 570 (2008). Thus, he argues that the district
court erred in failing to dismiss his conviction under Count
Five and that his conviction should be vacated and remanded to
the district court for an individualized determination as to
whether § 922(g)(9) is unconstitutional as applied to him.
In United States v. Chester, 628 F.3d 673 (4th Cir. 2010),
which was decided while this case was on appeal, we adopted a
two-step approach to Second Amendment challenges: First, we
examine “whether the challenged law imposes a burden on conduct
11
falling within the scope of the Second Amendment's guarantee.”
Id. at 680. Second, using an intermediate scrutiny standard, the
government then bears the burden of demonstrating a “reasonable
fit between the important object of reducing gun violence and
§ 922(g)(9)’s permanent disarmament of all domestic-violence
misdemeanants.”
Id. at 683. In Chester, we concluded that the
record on appeal was insufficient to determine whether the
government had met its burden, so we remanded the case in order
for both sides to “have an opportunity to present their evidence
and their arguments to the district court in the first
instance.”
Id.
In light of Chester, we believe that remand of this issue
is appropriate in order for the district court to determine in
the first instance whether § 922(g)(9) is unconstitutional as
applied to Derrick’s conviction on Count Five. Therefore, we
vacate Derrick’s judgment and sentence as it relates to Count
Five and remand this issue to the district court.
IV
For the foregoing reasons, we affirm Decardio's conviction
and sentence. We affirm Derrick's conviction and sentence except
for the judgment and sentence on Count Five, which we vacate and
12
remand to the district court for a hearing consistent with this
opinion.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED IN PART
13
DAVIS, Circuit Judge, concurring in part and concurring in the
judgment:
I concur in part and concur in the judgment, but I write
separately to make two observations.
First, I am unable to join in Part III.A of the majority
opinion affirming the district court’s denial of the Glissons’
motion to suppress under Franks v. Delaware, 438 U.S. 154
(1978). Instead, I conclude that the longstanding automobile
exception to the Fourth Amendment warrant requirement plainly
applies to the circumstances presented in this case and obviates
any necessity to examine the propriety of the district court’s
treatment of the Franks issue. While the government does not
rely on the automobile exception on appeal, the government
asserted the exception in opposition to the Glissons’ motion to
suppress below and we may affirm on any ground supported by the
record. See Allen v. Lee,
366 F.3d 319, 343 (4th Cir. 2004).
Under the automobile exception to the Fourth Amendment
warrant requirement, law enforcement officers may search a
vehicle if it is “‘readily mobile’” and “‘probable cause exists
to believe it contains contraband,’” United States v. Kelly, 592
F.3d 586, 589 (4th Cir.) (quoting Pennsylvania v. Labron,
518
U.S. 938, 940 (1996)), cert. denied,
130 S. Ct. 3374 (2010), or
even mere evidence, Arizona v. Gant,
556 U.S. 332, ---, 129 S.
Ct. 1710, 1721 (2009) (“If there is probable cause to believe a
14
vehicle contains evidence of criminal activity, United States v.
Ross, 456 U.S. 798, 820-821 (1982), authorizes a search of any
area of the vehicle in which the evidence might be found.”). The
scope of the search “is as broad as a magistrate could
authorize.”
Kelly, 592 F.3d at 589. Therefore, “once police have
probable cause, they may search ‘every part of the vehicle and
its contents that may conceal the object of the search.’”
Id. at
590 (quoting
Ross, 456 U.S. at 825).
Here, the truck was readily mobile ∗ and the officers had
probable cause to believe it contained evidence of one or more
criminal offenses. Specifically, the officers learned that (1)
the Glissons had been riding in the truck when Derrick suffered
a gunshot wound and (2) they had arrived at the hospital in the
truck. The officers observed three shell casings on the ground
next to the vehicle, as well as a shell casing in the bed of the
vehicle and blood on the interior floorboard. Indisputably,
therefore, the record here shows that probable cause existed to
∗
There was testimony that one of the officers parked his
car near or behind the truck, which the Glissons contend
“prevent[ed] access or movement of [the truck],” Appellant’s Br.
7, but this does not undermine application of the automobile
exception. See Kelly, 592 F.3d at 590-91 (rejecting defendant’s
argument that the automobile exception does not apply “because
the police exercised control over the vehicle and had therefore
eliminated any potential exigencies” as there was “little risk
that [the car] would be driven away” because “[the car] was
operational and therefore readily mobile”).
15
believe that evidence of criminal offenses arising from a
felonious shooting, e.g., live and/or spent ammunition, bullet
fragments, shell casings, myriad microscopic evidence, evidence
of ownership and/or use of the vehicle itself, among other
potential evidence, would be discovered in the vehicle.
To be sure, officers are certainly to be applauded whenever
they seek a warrant in lieu of undertaking a warrantless search.
United States v. Srivastava, 540 F.3d 277, 288 (4th Cir. 2008)
(“Our Court—as well as the Supreme Court and other judicial
bodies—has consistently encouraged the authorities to act
prudently in the Fourth Amendment context, and, when the
circumstances permit, to seek and secure the authorization of a
judicial officer—in the form of a warrant—before conducting a
search or seizure.”), cert. denied, 129 S. Ct. 2826 (2009).
Nonetheless, their decision here, grounded in commendable
caution, to seek a warrant does not mean, as a matter of settled
law, they actually needed one to search the vehicle under the
circumstances confronting them in this case.
Second, our remand of the indictment count charging a
violation of 18 U.S.C. § 922(g)(9) in Part III.C may seem
puzzling in some sense in light of United States v. Staten, ---
F.3d ---, 2011 WL 6016976 (4th Cir. Dec. 5, 2011), but given the
disposition of this appeal, it would seem likely that the
16
government will move successfully to dismiss that charge
altogether upon remand.
17
