United States v. Kittelberger, 121814 FED5, 14-30172

Docket Nº:14-30172
Opinion Judge:Wiener, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. LAVAR ELLIOTT KITTELBERGER, also known as Lavar E. Kittelberger; ANTHOWN LATARIUS SWAN; ORLANDO BRIAN WASHINGTON, also known as Orlando Washington, Defendants - Appellants
Judge Panel:Before Davis, Wiener, and Haynes, Circuit Judges.
Case Date:December 18, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee


LAVAR ELLIOTT KITTELBERGER, also known as Lavar E. Kittelberger; ANTHOWN LATARIUS SWAN; ORLANDO BRIAN WASHINGTON, also known as Orlando Washington, Defendants - Appellants

No. 14-30172

United States Court of Appeals, Fifth Circuit

December 18, 2014

Appeals from the United States District Court for the Western District of Louisiana USDC No. 2:13-CR-57-3

Before Davis, Wiener, and Haynes, Circuit Judges.

Wiener, Circuit Judge [*]

Defendants-Appellants Lavar Elliot Kittelberger, Anthown Latarius Swan, and Orlando Brian Washington were convicted by a jury for their participation in a fraudulent check cashing conspiracy. Appellants raise the following errors on appeal: (1) The district court erred in denying their motions to suppress, (2) their convictions under 18 U.S.C. § 514(a)(2) should be vacated under our precedent, and (3) the district court erred by applying United States Sentencing Guidelines § 3B1.1(c) to Appellant Kittelberger's sentence because no evidence in the record supports the enhancement.


A. Factual background

In November 2012, Huey Decou, a security officer for a local branch of First National Bank in Crowley, Louisiana, contacted Lafayette Police Department Detective Todd Borel and informed him that a man named Roy Hawks had successfully cashed a fraudulent check. Detective Borel located Hawks, who agreed to cooperate with the police. Hawks told Detective Borel that a group of men had approached him at a homeless shelter in Lafayette, Louisiana, and offered him $300 per check that he cashed for them. Hawks revealed that the men had arranged to meet him at the homeless shelter the next morning so he could cash more checks; and, they had asked him to recruit other homeless individuals to cash checks for them.

At about 8:00 a.m. the next day, Detective Borel and his support team established surveillance near the homeless shelter. At approximately 8:30 a.m., they observed Hawks meet with someone in a white Chevrolet Malibu with Florida plates. The officers conducted a license check on the vehicle and determined that it was registered to the Enterprise car rental company. Enterprise confirmed that the car was leased to "Orlando Washington." The officers followed the Malibu to the Staybridge Inn where they observed it pull into the hotel's parking lot. It remained parked in the front drive for a few moments, then departed without picking up or dropping off any passengers. The surveillance team lost sight of the Malibu shortly after it left the parking lot. At that point, Detective Borel and Detective Broussard returned to the Staybridge Inn to determine if "Orlando Washington" was registered there. The hotel required them to obtain a court subpoena, which they did. At around 11:45 a.m., the hotel confirmed that Orlando Washington had rented Suite 206.

At approximately the same time – 11:45 a.m. – Detective Bajat relocated the Malibu. He observed the vehicle as it stopped at various places where its occupants spoke to different individuals, most of whom appeared to be homeless. After receiving a radio report from an officer expressing concern that their surveillance of the Malibu might have been detected, Sergeant Scott Morgan decided to order a traffic stop of the Malibu to determine whether the driver was Orlando Washington. Before initiating the traffic stop, however, Sergeant Morgan decided that his officers should secure Suite 206 until a search warrant could be obtained. His reasoning, as explained during the suppression hearing, was two-fold: (1) Stopping the Malibu might permit its occupants to alert any individuals in the suite of the ongoing investigation, and (2) any individuals in the suite might become concerned if the Malibu's occupants failed to check in or arrive back at the hotel by a particular time. In his view, either event could expose the officers stationed at the hotel to injury or afford the suite's occupants an opportunity to destroy evidence.

At approximately 11:54 a.m., officers stopped the Malibu and identified the men in the vehicle as Orlando Washington and Kwame Cunningham. After they received confirmation that the Malibu had been stopped, Detectives Borel, Broussard, and Rummel, along with other officers, knocked on the door of Suite 206. When no one answered, the officers entered the suite using a key provided by the hotel staff. The officers spread out to secure the suite's several rooms, and they found Swan and a woman in bed in one of the rooms. Kittelberger arrived while the officers were securing the premises. Kittelberger, Swan, and the unidentified woman were Mirandized and transported to the police station for questioning.

About thirty minutes after the officers first entered the suite, Detective Broussard returned to the station to prepare an application for a warrant to search it. Trooper Frank Garcia and Detective Rummel remained in the living room area to ensure that nothing was disturbed while they waited for a search warrant. At 2:05 p.m., a state court judge issued warrants authorizing the search of Suite 206 as well as two vehicles associated with Washington – the Malibu and a Toyota Camry. The officers' subsequent investigation confirmed that Kittelberger, Swan, and Washington, together with individuals working with them, had participated in a fraudulent check cashing conspiracy.

B. Indictment and district court proceedings

Swan, Washington, and Kittelberger were indicted by a grand jury on the following offenses: (1) one count of violating 18 U.S.C. § 1349, conspiracy to defraud a financial institution; (2) eight counts of violating 18 U.S.C. § 514(a)(2), fictitious obligations; (3) one count of violating 18 U.S.C. § 1708, possession of stolen mail; and (4) one count of violating 18 U.S.C. § 1028A (a)(1), aggravated identity theft.

Swan filed a motion to suppress evidence recovered from Suite 206, asserting that the officers involved in the investigation lacked permission and legal authority to enter the room. Washington filed a similar motion to suppress, contending that the officers' warrantless entry violated his Fourth Amendment rights and that the evidence seized from Suite 206 was inadmissible. Kittelberger orally joined in the motions to suppress. After conducting an evidentiary hearing, the district court denied the motions in a memorandum order for the following reasons: (1) The warrantless entry was justified by exigent circumstances, namely, that the Malibu's occupants could have warned the individuals in Suite 206 once the officers initiated a stop of the Malibu, and (2) even if the officers' warrantless entry into Suite 206 violated the Fourth Amendment, excluding the evidence would be improper because the government had established by a preponderance of the evidence that it would have obtained the evidence even if no misconduct had taken place.1

The case proceeded to a five-day jury trial. The jury found Swan and Washington guilty on all counts of the indictment, save the one for aggravated identity theft. The jury found Kittelberger guilty on all counts except three counts of fictitious obligations...

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