United States v. Lyle ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 5, 2004
Charles R. Fulbruge III
Clerk
No. 03-20751
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEON LYLE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-616-1
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
David Leon Lyle was convicted by a jury of four bank
robberies; using, carrying, brandishing, and discharging a
firearm during and in relation to a crime of violence; and using,
carrying, and brandishing a firearm during and in relation to
crimes of violence. The district court sentenced Lyle to a total
of 1,141 months’ imprisonment and five years’ supervised release.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-20751
-2-
Counsel’s motion to withdraw and to allow Lyle to file a
reply brief pro se as well as Lyle’s motion for the appointment
of substitute counsel are DENIED.
Lyle challenges the district court’s denial of his motion to
suppress evidence seized during a search of Lyle’s apartment,
evidence of Lyle’s confessions, and evidence of a pre-trial
identification. He also challenges the denial of a continuance.
Lyle admitted that he signed a consent form authorizing a
search of his apartment. The district court’s finding that there
was no evidence that Lyle was coerced to consent to the search of
his apartment is supported by the record evidence, including
Lyle’s testimony, and is not clearly erroneous. See United
States v. Solis, 299 F.3d 420, 435-36 (5th Cir. 2002).
We review for plain error Lyle’s contentions, which are
raised for the first time on appeal, that he consented to the
search of his apartment to avoid embarrassment and that police
exceeded the scope of the consent. See United States v.
Maldonado, 42 F.3d 906, 907 (5th Cir. 1995). Lyle does not
identify evidence to support his claim that embarrassment caused
by the presence of news reporters resulted in his coerced consent
to a search of his apartment. Lyle does not explain how the
officers exceeded the scope of the consent that he provided.
Lyle does not dispute that he consented to a search to locate the
firearm that was used in the bank robbery and that he provided
No. 03-20751
-3-
keys to his apartment and to his safe. Lyle has not shown plain
error. See id. at 912.
Lyle asserts that his confessions should have been
suppressed because he was not advised of his rights to counsel
and to remain silent. Lyle insists that he did not sign a
waiver-of-rights form. He argues that the FBI Agents told him to
help himself by answering questions and continued questioning him
after he requested counsel.
The district court’s findings that Lyle was advised of his
rights to remain silent and to an attorney, that Lyle signed the
waiver-of-rights form, and that Lyle did not request a lawyer are
supported by the record evidence and are not clearly erroneous;
the district court’s decision to credit Agent Sharp’s testimony
over Lyle’s is not clearly erroneous. See Solis, 299 F.3d at
435-36. To the extent that Lyle is challenging the voluntariness
of his confessions, he has not shown that his confessions were
obtained by coercion or subtle persuasion. See United States v.
Scurlock, 52 F.3d 531, 536 (5th Cir. 1995).
Lyle has not shown that evidence of the one-man show-up
identification affected any in-court identification. See United
States v. Craft, 691 F.2d 205, 205 (5th Cir. 1982). Moreover,
because the evidence of Lyle’s guilt of the Bank One robbery was
overwhelming, the admission of evidence of the show-up was
harmless. See United States v. Watkins, 741 F.2d 692, 695 (5th
Cir. 1984).
No. 03-20751
-4-
Lyle has not shown that the lack of testimony from a
handwriting expert and a bank employee caused material prejudice;
thus, he has not shown that the district court abused discretion
by denying his request for a continuance. See United States v.
Olaniyi-Oke, 199 F.3d 767, 771 (5th Cir. 1999). Accordingly, the
judgment of the district court is AFFIRMED.
AFFIRMED; MOTIONS DENIED.