United States v. Oliver

• Decision Date: 19 February 2020
• Docket Number: No. 17-3627,17-3627
• Citation: 950 F.3d 556
• Parties: UNITED STATES of America Plaintiff - Appellee v. Houston OLIVER Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

950 F.3d 556

UNITED STATES of America Plaintiff - Appellee

v.Houston OLIVER Defendant - Appellant

No. 17-3627

United States Court of Appeals, Eighth Circuit.

Submitted: October 15, 2019

Filed: February 19, 2020

LeeAnn K. Bell, Andrew Dunne, Assistant U.S. Attorneys, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN, for Plaintiff-Appellee.

Houston Oliver, Federal Correctional Institution, Sandstone, MN, pro. se.

Larry E. Reed, Law Offices of Larry E. Reed, Minneapolis, MN, for Defendant-Appellant.

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Houston Oliver appeals his conviction for conspiracy to distribute five kilograms or more of a mixture and substance containing a detectible amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Oliver challenges a number of the district court’s¹ pretrial rulings, argues the court failed to properly instruct the jury, challenges the sufficiency of the evidence, and argues that his counsel rendered ineffective assistance. We affirm.

I.

On November 25, 2014, police received information from a "confidential reliable informant" that Oliver and his co-conspirators Desmond Williams and Jimmy Green would be mailing packages of cocaine to Minnesota from Maricopa, Arizona. As a result of this information, the police contacted a postal inspector who found two packages in the Minnesota post office sent from Arizona—one from Maricopa, Arizona and another with similar handwriting from Chandler, Arizona. After obtaining a search warrant, police officers opened the packages and found cocaine inside each package.

After the seizure of the packages, the informant told police that Oliver would be transporting cocaine in a BMW that would arrive in Minneapolis on November 30, 2014. On the predicted date, police officers in Minneapolis stopped and impounded a BMW that belonged to Oliver and was being driven by Sharrod Rowe. A few days later, after obtaining a warrant, the police searched the vehicle and discovered six kilograms of cocaine in the trunk. That same day, police obtained and executed a number of warrants to search locations associated with Oliver, including a hotel room he rented. During the search of the hotel room, the police recovered certain personal items, including cell phones, but did not recover any drugs.

Oliver was first indicted in May 2015 for conspiracy to distribute cocaine, but the Government moved to dismiss the indictment without prejudice under Federal Rule of Criminal Procedure 48(a) in March 2016. The district court granted the Government’s motion to dismiss the same day it was filed.

A grand jury indicted Oliver a second time for conspiracy to distribute cocaine on September 27, 2016. Oliver moved to dismiss the second indictment and filed pretrial motions seeking disclosure of the informant’s identity and suppression of the roadside search of his BMW and the search of his hotel room. The district court denied these motions.

At trial, Oliver’s co-conspirator Williams testified that he made multiple trips to Arizona at Oliver’s request to transport cash for the purpose of buying drugs. Williams also testified that on November 24, 2014, he and another co-conspirator each mailed one package of cocaine from different towns in Arizona at Oliver’s direction. At the conclusion of the Government’s case, Oliver filed a motion for a judgment of acquittal, which was taken under advisement and later denied. The jury convicted Oliver of conspiracy to distribute cocaine.

After trial, Oliver again filed a motion for a judgment of acquittal under Rule 29 and, in the alternative, for a new trial under Rule 33. In his motions, Oliver claimed there was insufficient evidence to support his conviction because the Government’s key witness—Williams—lacked credibility. The district court denied the motions. The court then sentenced Oliver to 204 months’ imprisonment.

Oliver now challenges several aspects of his trial. He asserts that the district court erred in denying his pretrial motions to dismiss the second indictment, to disclose the identity of the informant, and to suppress the searches of his BMW and hotel room. He also asserts that the court should have given the jury an accomplice instruction regarding Williams’s testimony, that his conviction should be reversed because the evidence against him was legally insufficient, that the district court erred in denying his motion for a new trial, and that he was prejudiced by ineffective assistance of counsel. We address each argument in turn.

II.

A.

Oliver argues that the district court erred in denying his motion to dismiss the second indictment because the district court improperly dismissed without prejudice the first indictment in March 2016. Oliver raises two arguments as to why the district court should have dismissed the second indictment: (1) Federal Rule of Criminal Procedure 48(a) does not permit dismissal without prejudice, so the dismissal of the first indictment had to be with prejudice² ; and (2) even if Rule 48(a) permits dismissal without prejudice, the March 2016 motion to dismiss and resulting dismissal were done ex parte , constituting a due process violation and thus requiring the March 2016 dismissal to be treated as one with prejudice. We review both issues de novo . Ramirez v. Sessions , 902 F.3d 764, 770 (8th Cir. 2018) ("We review procedural due process challenges de novo ...."); United States v. Pardue , 363 F.3d 695, 697 (8th Cir. 2004) ("Interpretation of the Federal Rules of Criminal Procedure is subject to de novo review.").

First, Oliver argues that the text of Rule 48 only allows the district court to dismiss an indictment with prejudice. We have recognized, however, that the dismissal of an indictment at the request of the Government under Rule 48 prior to trial "does not bar subsequent prosecution for criminal acts described in that indictment." DeMarrias v. United States , 487 F.2d 19, 21 (8th Cir. 1973) (per curiam); see, e.g. , United States v. Arradondo , 483 F.2d 980, 983 (8th Cir. 1973) (noting that a dismissal pursuant to Rule 48(a) is without prejudice). These decisions bind us, and therefore Oliver’s argument fails. See Rodriguez de Henriquez v. Barr , 942 F.3d 444, 446 (8th Cir. 2019) ("We are bound by [a] prior panel decision.").

Second, Oliver’s argument that his due process rights were violated with respect to the dismissal because he had no notice or opportunity to respond to the Government’s motion is without merit. Although Oliver points out that the district court ruled on the Government’s motion the same day it was filed, which did not allow him time to respond, Oliver could have challenged the ruling by filing a motion to reconsider because the Government’s motion and district court’s ruling were publicly filed. Fed. R. Crim. P. 12(b)(1) ; see also Loctite Corp. v. Fel-Pro, Inc. , 667 F.2d 577, 583 (7th Cir. 1981) (rejecting appellant’s argument that a due process violation occurred in the form of a "sua sponte" dismissal because the appellant had an "opportunity to be heard" in the form of a motion to reconsider); Barlau v. City of Northfield , 568 F. Supp. 181, 186 (D. Minn. 1983) (holding that ex parte communications did not violate due process when the excluded party was aware of the communications and chose not to challenge them at a later hearing). Moreover, Oliver had an opportunity to challenge the dismissal when he filed his motion to dismiss the second indictment. For these reasons, Oliver suffered no procedural due process violation.

B.

Oliver next argues that the district court should have granted his pretrial motion to disclose the identity of the informant or conduct an in camera examination regarding the informant. We review the district court’s decision to deny the motion for an abuse of discretion. United States v. Bradley , 924 F.3d 476, 481 (8th Cir. 2019) ; United States v. Mazzulla , 932 F.3d 1091, 1100 (8th Cir. 2019).

The Government has a "privilege to withhold the identity of its confidential informants." United States v. Harrington , 951 F.2d 876, 877 (8th Cir. 1991). In order to override this privilege of nondisclosure, "defendants must establish beyond mere speculation that the informant’s testimony will be material to the determination of the case." Id. ; see also United States v. Grisham , 748 F.2d 460, 463 (8th Cir. 1984) (noting the "central importance of materiality" in determining whether to order disclosure of an informant’s identity).

In his pretrial motion, Oliver argued that Williams was the confidential informant, and therefore the disclosure of the informant’s identity was necessary because Williams was a material witness. Oliver asserted that the Government falsely stated there was a confidential informant "to avoid the need to identify Desmond Williams as the source of information [given] to police." The Government denied that Williams was the informant and invoked the informant privilege as to the identity of the informant.

Oliver bases his argument that Williams was the confidential informant on the assertion that Williams admitted at trial to mailing a "third package" of drugs, in conflict with a police officer’s testimony that only described Williams as mailing the two packages on November 24, 2014.³ Oliver claims that if the police lied about this "third package," this is evidence that the Government also lied about Williams not being the confidential informant. But Oliver mischaracterizes Williams’s testimony. The trial transcript shows that Williams repeatedly stated he only remembered mailing two packages of cocaine at Oliver’s direction. When asked about a "third box," Williams stated he "only recall[ed] shipping one from Maricopa and [one from] Chandler." In light of Williams’s trial testimony, we agree with the district court that Oliver presented nothing more than speculation to refute the Government’s assertion that Williams was not the informant. Therefore, w...