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United States v. Iyamu

United States District Court, D. Minnesota

December 20, 2018

United States of America, Plaintiff,
v.
Ihenvbiru Frank Iyamu, Defendant.

          Katharine T. Buzicky and Robert M. Lewis, Assistant United States Attorneys, on behalf of Plaintiff.

          James E. Ostgard, Esq., and Steven J. Wright, Esq., on behalf of Defendant.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the undersigned United States District Judge for consideration of Defendant Ihenvbiru Frank Iyamu's (“Iyamu”) Objection [Docket No. 77] to Magistrate Judge Steven E. Rau's September 24, 2018 Report and Recommendation (“R&R”) [Docket No. 73]. In the R&R, Judge Rau recommends denying Iyamu's Motion to Suppress Evidence Obtained as a Result of Search and Seizure (“Motion to Suppress Evidence”) [Docket No. 35], and granting in part and denying in part Iyamu's Motion to Suppress Statement [Docket No. 36]. After a de novo review of the record, and for the reasons stated below, Iyamu's Objection is granted in part and denied in part.

         II. BACKGROUND

         A. Superseding Indictment

         Iyamu is charged in a Superseding Indictment [Docket No. 50] with one count of unauthorized access of a protected computer in violation of 18 U.S.C. § 1030(a)(4), one count of conspiracy to access a protected computer in violation of 18 U.S.C. § 371, and one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. The Superseding Indictment alleges that from about 2012 to 2017, Iyamu and two co-defendants (collectively, “Defendants”), all citizens of Nigeria, engaged in a scheme and conspiracy to commit mail and wire fraud, identity theft, money laundering, and fraud against the United States and other victims. Superseding Indictment ¶ 1. Defendants sent fraudulent “phishing” emails to unsuspecting recipients who were misled into providing sensitive information such as user names and passwords. Id. ¶ 2. The user names and passwords were then used to gain access to the recipients' email accounts and to send emails from those accounts to prospective victims of the fraud scheme. Id. ¶ 5.

         One of the phishing email recipients misled into providing information was a U.S. Postmaster in Minnesota who responded to a fraudulent email in November 2013. Id. ¶ 3. Using the information from the Postmaster, Defendants gained access to Postal Service computer servers that processed the Postal Service's email traffic. Id. ¶¶ 3-4. From November 2013 to April 2017, Postal Service email accounts were used to send emails to intended victims of the scheme. Id. ¶ 5. Defendants caused victims to send hundreds of thousands of dollars via bank transfers, Western Union, MoneyGram, PayPal, and other means. Id.

         B. Search Warrant

         On March 13, 2018, federal agents obtained a search warrant authorizing the search of a home in Acworth, Georgia. See Gov't Ex. 1 (“Search Warrant”). The search warrant was based on the March 13, 2018 affidavit of Cole Ashcraft (“Agent Ashcraft”), a Special Agent with the U.S. Postal Service Office of Inspector General. Id. at 00003443-86 (“Ashcraft Aff.”). The affidavit described the fraudulent scheme and stated that a laptop computer with a Dell serial number had gained unauthorized access to the to the Postal Service email accounts. Ashcraft Aff. ¶ 65. The laptop associated with the Dell serial number had been purchased on eBay by a user with an email address that was strikingly similar to that on Iyamu's visa application. Id. ¶¶ 65-66. The purchaser's email account included a recovery phone number and email address that matched those listed on Iyamu's visa application. The purchaser paid for the laptop using a PayPal account. Id. The phone number associated with the PayPal account matched the phone number on Iyamu's visa application. Id. Investigators corresponded undercover with co-conspirators in the scheme and received calls from the telephone number listed on Iyamu's visa application. Id. ¶ 62.

         The affidavit further averred that investigators surveilled a home in Acworth, Georgia for several weeks and saw Iyamu repeatedly visit the house in a pattern “consistent with residence, or at least frequent presence.” Id. ¶ 81. A vehicle registered to Iyamu was also frequently parked outside the home. Id. Investigators also observed Iyamu talking on a cell phone and transporting the phone in a vehicle. Id. ¶ 85. Investigators knew that Iyamu used his phone to access email accounts associated with the fraud. Id. The affidavit also stated that mobile phones and laptops were used in the conspiracy and were “readily transportable” due to their size. Id. ¶ 86.

         C. Search Warrant and Arrest

         At 6:00 a.m. on March 14, 2018, Agent Ashcraft and five to seven additional federal agents executed the search warrant at the Acworth address. Hr'g Tr. [Docket No. 46] at 8-12, 22. After knocking on the door and getting no response, the agents forced entry into the home with their weapons drawn. Id. at 23. They entered on the home's first level and saw Iyamu descending the stairs from the second level. Id. at 11, 23. The agents arrested him pursuant to a federal complaint filed in this district. Id. at 8. The agents searched the home and found a laptop computer with an attached iPod, multiple cellular hotspots, several identification cards, and other items. Id. at 10-11.

         D. Interrogation

         After arresting Iyamu, Agent Ashcraft and Special Agent Lamar A. Sims (“Agent Sims”) questioned him in an upstairs bedroom. Id. at 12. The agents began by providing Iyamu with a written Miranda waiver form and reading his Miranda rights to him. Gov't Ex. 4 (“Interrogation Tr.”) at 3; Gov't Exs. 3, 5. Agent Sims then asked, “Do you need me to go over them again, or do you understand?” Interrogation Tr. at 4. Iyamu replied, “I understand.” Id.

         Before signing the waiver form, Iyamu asked, “If I cannot - I have a right to consult an attorney?” Id. at 5. Agent Sims responded “Yeah, at any time. At any time. So once we get started, if you decide that you want to talk to an attorney, then you can at any time. But once we get this form completed here, then we'll tell you everything, what's going on.” Id. Iyamu initialed and signed the form to indicate that he had been advised of his Miranda rights and that he understood them and chose to waive them. Id. at 4-6; Gov't Ex. 5.

         The agents first questioned Iyamu about his background, including his name, how long he had been in the United States, marital status, family living arrangements, and occupation. Interrogation Tr. at 8-37. Agent Sims then told Iyamu to “[t]ell us what you think this is all about.” Id. at 38. Iyamu replied, “Well, it's not - I understand it's about a fraud.” Id. Sims responded, “Right.” Id.

         Soon after this exchange, Agent Ashcraft informed Iyamu that agents searching the home found a computer, cellular hotspots, and several identification cards belonging to other people. Id. Agent Ashcraft asked: “What sort of stuff do you use that computer for?” Id. at 39. Iyamu responded: “Okay. So can I talk to my lawyer before I comment?” Id. Agent Sims replied, “It's up to you. . . . [A]re you terminating the interview, or do you want to talk about something else?” Id. Iyamu answered: “Yeah, I'd like to talk about something else.” Id.

         The agents then asked Iyamu to explain how he “got into” what he was doing. Id. at 41-42. In responding to this question, Iyamu twice used the phrase “the fraud.” Id. at 42-43. Agent Ashcraft then gave the following description of his understanding of the fraud and asked Iyamu to confirm whether it was correct:

[T]he fraud involves getting people to send you and some other people money, right, through a variety of means? And to get them to do that you send them some - or someone sends them some e-mail saying you might have inherited some money or you've won a lottery or like a romance thing, like it's boyfriend/girlfriend type of thing online. And then it starts up sort of a relationship conversation. And them somewhere ...

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