United States District Court, D. Minnesota
Katharine T. Buzicky and Robert M. Lewis, Assistant United
States Attorneys, on behalf of Plaintiff.
E. Ostgard, Esq., and Steven J. Wright, Esq., on behalf of
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
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.
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.
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.
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.
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. ¶
Search Warrant and Arrest
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.
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.
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
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.
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.”
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