FILED
United States Court of Appeals
Tenth Circuit
November 16, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-6077
GEORGE ALLEN LIVINGSTON,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:08-CR-00107-D-1)
Submitted on the briefs:
James T. Rowan, Oklahoma City, Oklahoma, for Defendant-Appellant.
John C. Richter, United States Attorney and Timothy W. Ogilvie, Assistant
United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before KELLY, BRISCOE, and TYMKOVICH, Circuit Judges.
BRISCOE, Circuit Judge.
Following a stipulated-facts bench trial, the district court convicted
Defendant-Appellant George Allen Livingston of two counts of passing, uttering,
and possessing counterfeit notes with the intent to defraud in violation of 18
U.S.C. § 472, and one count of possession of a firearm after conviction of a
felony in violation of 18 U.S.C. § 922(g)(1). Livingston appeals the district
court’s denial of his motion to suppress the physical evidence that Oklahoma City
police officers seized during a search of the motel room he was occupying on
January 11, 2008, as well as his subsequent January 23, 2008 confession. This
court issued, sua sponte, an order to show cause asking the parties to address
whether Livingston had effectively waived his right to appeal the denial of his
motion to suppress by stipulating to the evidence that supports his convictions.
We remand this case to the district court for an evidentiary hearing to determine
whether, by stipulating to the facts that supported his convictions, Livingston
voluntarily entered into the stipulation knowing of the likely consequences his
stipulation would have upon his appeal.
I
On January 11, 2008, Oklahoma City police officers learned from an
informant that a man named George, armed with a “big black gun” and suspected
of committing several robberies, was staying in either Room 219 or 220 of the
Oak Tree Inn. Upon arrival, the officers confirmed with the motel desk clerk that
a man meeting the informant’s description was currently residing in Room 220.
When the officers knocked on the door to Room 220, a man named Angel Rivera,
who did not meet the informant’s description, answered the door. After learning
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that Rivera had been staying there for several days, the officers obtained his
consent to come inside the motel room. Once inside, the officers obtained
Rivera’s consent to search for the person named George. The officers found the
defendant, George Allen Livingston, inside the bedroom closet. After securing
Livingston, one of the officers then noticed a firearm located inside an unzipped
duffel bag that was lying open on the floor of the bedroom closet. That officer
searched inside the duffel bag and found a smaller bag the size of a shaving kit;
he searched inside that smaller bag and found counterfeit currency. The officers
arrested Livingston when they learned that the firearm had been reported as
stolen. Later, on January 23, 2008, Livingston waived his Miranda rights and
voluntarily confessed to printing counterfeit currency and passing that currency
on a prior occasion.
Following his indictment, Livingston filed a motion to suppress, claiming
that the physical evidence resulting from the search of the motel room and his
subsequent confession were obtained in violation of his Fourth Amendment
rights. The district court denied the motion in all respects, concluding that Rivera
had actual or at least apparent authority to consent to the search, and that the
officers were justified in seizing the physical evidence. Livingston then waived
his right to a jury trial, and at the bench trial, the parties stipulated to evidence in
support of all of the elements of each crime charged in the three-count indictment.
The written stipulations presented to the district court at the bench trial were as
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follows:
On December 24th, 2007, Livingston, accompanied
by another male, entered the Wal-Mart at I-240 and Santa
Fe in Oklahoma City, Oklahoma. Acting conjointly, they
bought electronic equipment totaling approximately $250
using counterfeit U.S. currency. Livingston stipulates that
he knew this quantity of currency was counterfeit and that
it was possessed and passed with the intent to defraud.
...
On January 11, 2008, at the Oak Tree Inn in
Oklahoma City, Oklahoma, Livingston was found in
possession of a quantity of counterfeit currency and a
firearm. Both were found within a black duffel bag in the
closet of the motel room by Officer Van Curen of the
Oklahoma City Police Department. Livingston stipulates
that he knowingly possessed the counterfeit currency,
knew that it was counterfeit, and possessed it with the
intent to defraud. Livingston further stipulates he
knowingly possessed the firearm described in Count 3.
...
Prior to January 11th, 2008, Livingston had been
convicted of a felony offense; that is, a crime punishable
by a term of imprisonment exceeding one year.
...
The firearm described in the indictment and
possessed by Livingston on January 11th, 2008, was in or
affecting interstate commerce, and that the firearm was
manufactured outside the state of Oklahoma and would
have had to travel in interstate commerce in order to reach
the state of Oklahoma.
...
On January 23rd, 2008, Livingston made a voluntary
statement to an agent of the United States Secret Service
after being advised of his Miranda rights. Livingston
waived those rights and stated that he and an accomplice
printed counterfeit currency, that they passed counterfeit
currency at the Wal-Mart at I-240 and Santa Fe, and that
he paid $210 in genuine cash for the black nine-millimeter
pistol found in his possession on January 11th, 2008.
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R. Vol. 3 at 59-63.
In a colloquy with Livingston, the district court read these written
stipulations and confirmed that Livingston had read the stipulations before
signing them, had consulted with his attorney, and had understood that he was
agreeing that the facts contained in those stipulations were true and correct. Id. at
58-64. These written stipulations, and an oral stipulation that the government
agreed that Livingston should receive a downward adjustment for acceptance of
responsibility pursuant to United States Sentencing Guidelines § 3B1.1, were the
sum total of the evidence presented to the district court. The district court
convicted Livingston on all three counts. Livingston then filed this appeal
contending the district court erred in denying his motion to suppress.
II
While Livingston’s appeal was pending before this court, we sua sponte
questioned our jurisdiction. Because Livingston’s convictions were based on
agreed stipulations, it appeared that a reversal of the district court’s suppression
ruling would have no impact on Livingston’s convictions. We reasoned that
Livingston’s stipulations were tantamount to an unconditional plea of guilty, and
as such, amounted to a waiver of all non-jurisdictional defenses, including the
right to appeal the district court’s denial of his motion to suppress. See United
States v. Davis, 900 F.2d 1524, 1525-26 (10th Cir. 1990) (declining to review the
district court’s denial of a motion to suppress because the defendant entered an
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unconditional plea of guilty). We therefore directed the parties to show cause
why we should not dismiss the appeal for lack of jurisdiction. In doing so, we
alerted the parties to a factually similar Ninth Circuit case, United States v.
Larson, 302 F.3d 1016 (9th Cir. 2002), in which that court concluded that if a
defendant’s stipulation to all the elements of 18 U.S.C. § 922(g)(1) was “found to
be valid, there would no longer be a live controversy relating to the suppression
motion and thus [the court] would have no jurisdiction.” Id. at 1020. Given that
the record in that case suggested that the defendant “may not have known that a
direct consequence of the stipulated-facts trial would be to moot his appeal of the
suppression ruling,” the Ninth Circuit remanded the case to the district court “for
an evidentiary hearing to determine whether [the defendant] entered into the
stipulation knowing of the consequences to his appeal and voluntarily
surrendering his appeal of the suppression motion.” Id. at 1022.
In response to our show cause order, Livingston argues that Larson “is
identical to the case now before the court,” and he urges us to follow Larson and
remand his case to the district court for an evidentiary hearing. Aplt. Resp. at 3.
Livingston “emphatically states that he was told the stipulation would not deprive
him of his right to appeal,” and he further explains that “[b]oth attorneys agreed
that it was the intent of the government and the defendant in entering into the
Stipulation of Fact, signed by the parties, to avoid a time-consuming jury trial and
that [Livingston’s] right to appeal his conviction and the court’s ruling on the
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Motion to Suppress would be preserved.” Id. at 2. He has additionally submitted
affidavits of both his trial counsel and his appellate counsel. Both counsel
confirm that Livingston’s trial counsel never informed him that by stipulating to
the facts which support his convictions, he could potentially moot his appeal of
the district court’s suppression ruling. Although given the opportunity to respond
to Livingston’s response to our show cause order, the government has filed
nothing to contradict these assertions.
III
We agree that a remand is necessary. Valid stipulations “are the equivalent
of proof and on appeal neither party will be heard to suggest that the facts were
other than as stipulated;” however, to be valid a party must enter into a stipulation
“freely and voluntarily.” United States v. Campbell, 453 F.2d 447, 451 (10th Cir.
1972). Here, despite the thorough colloquy the district court conducted with
Livingston before accepting the stipulations, the knowing and voluntary nature of
his stipulations appears to be in question because Livingston may have been
unaware that by stipulating to facts at his bench trial he was implicitly waiving
his right to appeal the suppression ruling. 1 Although “[a] defendant’s knowing
and voluntary waiver of the statutory right to appeal his sentence is generally
1
We do not fault the district court for this omission because the record
does not indicate that either Livingston’s counsel or counsel for the government
informed the district court that even after entering the stipulation of facts
Livingston still intended to appeal the denial of his suppression motion.
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enforceable,” United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998),
the record before us and Livingston’s response to our show cause order both
indicate that Livingston may not have knowingly and voluntarily waived his right
to appeal the suppression ruling. At no point during the brief stipulated-facts trial
did the district court inform Livingston that he was jeopardizing his right to
appeal the suppression ruling; in fact, Livingston alleges that based on his trial
counsel’s representations, he operated under an entirely contrary understanding.
See David Henry Aff. ¶ 5 (“I advised . . . Livingston that he could preserve his
right to appeal the court’s order overruling his Motion to Suppress if he would
agree to waive a jury trial and enter into a written stipulation with the government
as to the facts of the crimes charged in the indictment.”).
Accordingly, we remand this case to the district court to conduct an
evidentiary hearing to determine whether Livingston “entered into the stipulation
knowing of the consequences to his appeal and voluntarily surrendering his
appeal of the suppression motion.” Larson, 302 F.3d at 1022.
REMANDED for further proceedings consistent with this opinion.
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