U.S. v. Oliver

Decision Date06 January 2011
Docket NumberNo. 09–10133.,09–10133.
Citation630 F.3d 397
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Lonnie OLIVER, Jr., also known as Jay, Defendant–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

OPINION TEXT STARTS HERE

Alan M. Buie, Susan Cowger, Asst. U.S. Attys., Dallas, TX, for U.S.James C. Belt, Jr., Law Office of James C. Belt, Jr., Dallas, TX, for Oliver.Appeals from the United States District Court for the Northern District of Texas.

Before GARZA and BENAVIDES, Circuit Judges, and CRONE, District Judge.1CRONE, District Judge:

Appellant Lonnie Oliver, Jr. (Oliver) appeals his convictions and the sentences imposed upon his pleas of guilty to aiding and abetting mail fraud and aggravated identity theft. Pursuant to a conditional plea agreement, he appeals the denial of his motion to suppress and also challenges the voluntariness of his appeal waiver and plea. Finally, Oliver challenges the factual basis supporting his aggravated identity theft conviction.

I. Background

On December 12, 2007, Oliver was indicted for his participation in a scheme in which he and several co-defendants gained access to others' names, social security numbers, and other identifiers and used this information to file for and receive unemployment benefits from the Texas Workforce Commission. The Second Superseding Indictment charged Oliver with ten counts of conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349, mail fraud and aiding and abetting in violation of 18 U.S.C. §§ 1341 and 2, aggravated identity theft and aiding and abetting in violation of 18 U.S.C. §§ 1028A(a)(1) and (2), and theft of federal public money in violation of 18 U.S.C. § 641.

On March 4, 2008, Oliver, through counsel, moved to suppress evidence he contends was unconstitutionally obtained. Specifically, Oliver asserted that federal agents illegally searched the contents of a cardboard box and seized a laptop computer that were turned over to them by his girlfriend. He also sought to suppress incriminating statements he made to federal agents during custodial interrogation, maintaining that the statements were made involuntarily in violation of the Fifth Amendment.

On November 14, 2007, Postal Inspector Marcus Ewing (“Ewing”), along with Department of Labor Agents Steven Grell (“Grell”) and Frank Archie (“Archie”), arrested Oliver near his home pursuant to an arrest warrant obtained in connection with the unemployment benefits scheme investigation. Oliver allowed the agents to take him back to his residence and talk with him. Agents Ewing and Grell asked Oliver if he wanted to answer questions, and he responded affirmatively. Before any questioning commenced, however, Agent Ewing advised Oliver of his Miranda rights and presented him with two forms: one acknowledging that he understood his rights and one waiving those rights. Oliver signed the form acknowledging that he understood his rights, but he refused to sign the waiver form. Nevertheless, Oliver stated that he wished to answer the agents' questions. Thereafter, Oliver confessed to his role in the scheme. Oliver also consented to a search of his car, but he declined to consent to a search of his home. During the interview (which lasted between an hour and a half and two hours), Oliver never asked for an attorney and never refused to speak with agents. Part way through the interview, Agent Archie arrived and asked Oliver how he was being treated. Oliver responded that the agents were treating him respectfully.

Following Oliver's arrest, federal agents learned from Oliver's co-defendant, Albert Henson, Jr. (“Henson”), that Oliver stored a laptop computer and a cardboard box containing documents and debit/credit cards related to the scheme at the apartment of Oliver's girlfriend, Erica Armstrong (“Armstrong”). 2 Acting on this information, Agent Heather McReynolds (“McReynolds”) and another agent went to the apartment, where Armstrong gave her the box and the laptop computer.

At the suppression hearing, Armstrong stated she observed Oliver—who told her he worked from home—using a laptop and a notebook. According to Armstrong, she first became aware of Oliver's cardboard box when, before traveling out of town, he informed her that he had left it in her apartment under her bed. Armstrong testified that, at that time, although the box was not taped, Oliver cautioned her not to “mess with” or “touch” the box. Subsequently, Armstrong noticed that he had moved the box from underneath her bed into the dining room. After Oliver had not been in contact with Armstrong for several days, she looked through the box for information to contact him. In the box, Armstrong found a notebook, a ziplock bag containing credit cards, a white envelope containing identification cards, and other loose paperwork resembling tax documents. Later that day, Agent McReynolds arrived at her apartment inquiring about Oliver. Armstrong did not reveal, and federal authorities were unaware, that Armstrong had already searched the box when she handed it over to McReynolds and agents subsequently examined its contents. According to the affidavit in support of the warrant to search the laptop computer, filed after its seizure, the box contained “hundreds of personal identifiers, including names, dates of birth, and social security numbers.” The affidavit further stated that most of the identities used to file benefits claims were inside the box and that the box also contained “sixteen debit cards in the names of victims identified in [the] case.” Agents also searched the pockets of various articles of clothing that Oliver had left at Armstrong's apartment and retrieved a piece of paper with handwriting on it.

On April 25, 2008, the district court denied Oliver's motion to suppress. The district court held that Oliver's refusal to sign the waiver was insufficient to establish that his statements were involuntary, reasoning that Oliver manifested an intent to waive his Fifth Amendment rights by his conduct. With regard to the search of the cardboard box, the district court determined that the search was permissible under the private search doctrine, reasoning that the agents's subsequent search of the box did not exceed the scope of Armstrong's private search and, thus, it did not violate Oliver's Fourth Amendment rights. The court also held that, even if the initial seizure of the laptop was unlawful, the government's subsequent seizure and search of the laptop were constitutional under the independent source doctrine.

On May 2, 2008, Oliver's court-appointed counsel moved to withdraw, stating that an antagonistic relationship had developed between him and Oliver. Oliver twice confirmed that the relationship with his lawyer had broken down; first, in a motion for dismissal of his attorney and, again, in a “Second Judicial Notice” complaining of his attorney's performance. The district court granted the motion and appointed Oliver a new attorney. Subsequently, Oliver moved to proceed pro se, and Oliver's attorney also filed a separate motion explaining that Oliver wished to represent himself with standby counsel. After holding a hearing, the court allowed Oliver to proceed pro se with standby counsel.

In the weeks leading up to the scheduled trial date of July 14, 2008, Oliver filed over thirty pro se motions, including two nearly identical motions to reconsider the denial of the motion to suppress, which were filed on July 9, 2008, three business days before trial was set to begin and four months after the pretrial motions deadline had passed.3 In his motion to reconsider, Oliver asserted that newly discovered computer records revealed that federal agents accessed the data on the laptop computer before they secured a warrant. He also argued, for the first time, that the search of the pockets of his clothing at Armstrong's home was unconstitutional. Further, Oliver contended that the district court misapplied the private search doctrine and reasserted his argument that he did not waive his Fifth Amendment rights before making incriminating statements to agents after his arrest.

At the pretrial conference held on July 11, 2008, Agent McReynolds testified that, while handling the computer, she inadvertently switched it out of the “sleep” mode and later turned it off. Daryl Ford (“Ford”), a postal inspector responsible for analyzing digital evidence, testified that the laptop's log was consistent with McReynolds's account and did not reflect that any document files or other information stored on the computer were accessed before the warrant was secured. The district court orally denied Oliver's motion to reconsider and indicated that a written ruling was forthcoming.

On July 14, 2008, the day trial was set to begin, Oliver entered into a conditional plea agreement with the government. Oliver pleaded guilty to one count of aiding and abetting mail fraud and one count of aggravated identity theft while reserving the right to appeal the denial of his motion to suppress.

At the rearraignment hearing, the government stated that the plea agreement would allow Oliver to appeal both the district court's denial of the motion to reconsider and the motion to suppress. Oliver confirmed this was his understanding, as well. The court then proceeded to the plea colloquy, during which Oliver represented himself, with standby counsel at his side. The judge again discussed the appeal waiver contained in the plea agreement and the factual basis underlying the plea. Oliver indicated that he understood and entered a plea of guilty, which the district court accepted.

Subsequently, the district court issued a memorandum and order denying Oliver's motion to reconsider the motion to suppress, crediting Ford's testimony at the pretrial conference and concluding that the government did not conduct a search of the laptop computer before it obtained a search warrant. The district court also found that Oliver waived his right to challenge the search of his clothes...

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