FILED

United States Court of Appeals

Tenth Circuit

November 16, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

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,
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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
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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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
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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.