United States v. Rutley

482 F. App'x 175
Court of Appeals for the Seventh Circuit·Decided May 31, 2012·No. No. 11-2155·Published·Cited by 3 cases

Opinion

ORDER

Mervyn Rutley was charged with defrauding financial institutions using stolen identities. The scheme began in 1996 when Rutley began cashing his deceased father’s erroneously issued pension checks from the Department of Veterans Affairs, and it ended when Rutley was arrested in 2009, by which time he had opened many bank accounts and lines of credit in other people’s names, including his father’s. He [177] pleaded not guilty, but following a jury trial he was convicted of all charges: eleven counts of bank fraud, 18 U.S.C. § 1344, one count of wire fraud, id. § 1343, and twelve counts of aggravated identity theft, id. § 1028A. The district court sentenced him to a total of 72 months’ imprisonment and ordered him to pay roughly $205,000 in restitution. Rutley filed a notice of appeal, but his appointed lawyer contends that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rutley has responded to counsel’s submission. See Cir. R. 51(b). We confíne our review to the potential issues identified in counsel’s facially adequate brief and Rutley’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).

Counsel considers whether Rutley could argue that much of the evidence presented against him at trial should have been suppressed because the searches leading to its discovery violated the Fourth Amendment. A portion of the evidence was discovered in a bag Rutley was carrying at the time of his arrest, and other evidence was found in Rutley’s home, including on his computer, when his home was searched pursuant to a warrant. The evidence consisted of other people’s credit cards, driver’s licenses, and social security cards, as well as records of Rutley’s fraudulent transactions. As appellate counsel explains, Rutley had no realistic chance of acquittal with all of this evidence before the jury, but his trial lawyer did not move to suppress it. Rutley has thus waived any objection to the admission of the evidence unless he can show good cause for his trial lawyer’s omission. See Fed.R.CRIm.P. 12(e); United States v. Brodie, 507 F.3d 527, 530-31 (7th Cir.2007); United States v. Evans, 131 F.3d 1192, 1193 (7th Cir.1997). Counsel, not finding any cause in the district-court record for the trial lawyer’s decision to forgo a motion to suppress, concludes that a challenge on direct appeal to the admission of this evidence would be frivolous. The suppression argument, counsel contends, would be better made as part of a collateral attack based on the performance of Rutley’s trial lawyer. In a collateral proceeding, unlike on direct appeal, a complete record could be developed.

We agree with counsel that it would be frivolous for Rutley to argue on direct appeal that the evidence against him should have been suppressed, though we are not persuaded that Rutley would have better luck with this argument in a collateral proceeding. There simply is no indication that the searches in question were unconstitutional. The search of Rutley’s bag was valid as a search incident to arrest, because the Fourth Amendment permits officers to search, without a warrant, any container carried by an arrestee, including bags, purses, wallets, and books. See United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Mitchell, 64 F.3d 1105, 1110-11 (7th Cir.1995); United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir.1993); United States v. Molinaro, 877 F.2d 1341, 1346-47 (7th Cir.1989). Nor is there any apparent problem with the search of Rutley’s home. Counsel contends that no reasonable officer could have relied on the search warrant because the affidavit underlying it does not include facts showing that Rutley committed his crimes from home or stored evidence there. Yet the affidavit explains that Rut-ley was known to have received mail related to his fraud scheme at his former address and had been receiving mail at his new address for six months; it also explains that in the extensive experience of the affiant, a Postal Inspector, evidence of this type of financial fraud — credit card statements, stolen checks, and records [178] containing information about the victims— is almost always found in the perpetrator’s residence. This was sufficient to establish a fair probability that evidence of Rutley’s fraud would be discovered in his home. See, e.g., United States v. Aljabari, 626 F.3d 940, 944-46 (7th Cir.2010); United States v. Abboud, 438 F.3d 554, 572 (6th Cir.2006). And the search of Rutley’s home computer also seems to have been permissible. Counsel suggests that it violated the Fourth Amendment because the warrant, although it authorized a search of Rutley’s home for “records” related to his offenses, did not mention a computer. But records are as likely to be on a computer as in a filing cabinet, and there is no indication that the search of Rutley’s home computer went beyond looking for the items described in the warrant. See United States v. Hudspeth, 459 F.3d 922, 926-27 (8th Cir.2006), approved in relevant part on reh’g en banc, United States v. Hudspeth, 518 F.3d 954, 961 (8th Cir.2008); United States v. Peters, 92 F.3d 768, 769-70 (8th Cir.1996).

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