United States Court of Appeals

For the Eighth Circuit 

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No. 17-3627

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United States of America

 Plaintiff - Appellee

v.

Houston Oliver

 Defendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota - St. Paul

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Submitted: October 15, 2019

 Filed: February 19, 2020 

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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges. 

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GRUENDER, Circuit Judge.

Houston Oliver appeals his conviction for conspiracy to distribute five 

kilograms or more of a mixture and substance containing a detectible amount of 

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Oliver 
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challenges a number of the district court’s1 pretrial rulings, argues the court failed 

to properly instruct the jury, challenges the sufficiency of the evidence, and argues 

that his counsel rendered ineffective assistance. We affirm. 

I.

On November 25, 2014, police received information from a “confidential 

reliable informant” that Oliver and his co-conspirators Desmond Williams and 

Jimmy Green would be mailing packages of cocaine to Minnesota from Maricopa, 

Arizona. As a result of this information, the police contacted a postal inspector who 

found two packages in the Minnesota post office sent from Arizona—one from 

Maricopa, Arizona and another with similar handwriting from Chandler, Arizona. 

After obtaining a search warrant, police officers opened the packages and found 

cocaine inside each package. 

After the seizure of the packages, the informant told police that Oliver would 

be transporting cocaine in a BMW that would arrive in Minneapolis on November 

30, 2014. On the predicted date, police officers in Minneapolis stopped and 

impounded a BMW that belonged to Oliver and was being driven by Sharrod Rowe. 

A few days later, after obtaining a warrant, the police searched the vehicle and 

discovered six kilograms of cocaine in the trunk. That same day, police obtained 

and executed a number of warrants to search locations associated with Oliver, 

including a hotel room he rented. During the search of the hotel room, the police 

recovered certain personal items, including cell phones, but did not recover any 

drugs.

Oliver was first indicted in May 2015 for conspiracy to distribute cocaine, but 

the Government moved to dismiss the indictment without prejudice under Federal 

1The Honorable David S. Doty, United States District Judge for the District 

of Minnesota.
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Rule of Criminal Procedure 48(a) in March 2016. The district court granted the 

Government’s motion to dismiss the same day it was filed. 

A grand jury indicted Oliver a second time for conspiracy to distribute cocaine 

on September 27, 2016. Oliver moved to dismiss the second indictment and filed 

pretrial motions seeking disclosure of the informant’s identity and suppression of 

the roadside search of his BMW and the search of his hotel room. The district court 

denied these motions. 

At trial, Oliver’s co-conspirator Williams testified that he made multiple trips 

to Arizona at Oliver’s request to transport cash for the purpose of buying drugs. 

Williams also testified that on November 24, 2014, he and another co-conspirator 

each mailed one package of cocaine from different towns in Arizona at Oliver’s 

direction. At the conclusion of the Government’s case, Oliver filed a motion for a 

judgment of acquittal, which was taken under advisement and later denied. The jury 

convicted Oliver of conspiracy to distribute cocaine. 

After trial, Oliver again filed a motion for a judgment of acquittal under Rule

29 and, in the alternative, for a new trial under Rule 33. In his motions, Oliver 

claimed there was insufficient evidence to support his conviction because the 

Government’s key witness—Williams—lacked credibility. The district court denied 

the motions. The court then sentenced Oliver to 204 months’ imprisonment. 

Oliver now challenges several aspects of his trial. He asserts that the district 

court erred in denying his pretrial motions to dismiss the second indictment, to 

disclose the identity of the informant, and to suppress the searches of his BMW and 

hotel room. He also asserts that the court should have given the jury an accomplice 

instruction regarding Williams’s testimony, that his conviction should be reversed 

because the evidence against him was legally insufficient, that the district court erred

in denying his motion for a new trial, and that he was prejudiced by ineffective 

assistance of counsel. We address each argument in turn. 
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II.

A.

Oliver argues that the district court erred in denying his motion to dismiss the 

second indictment because the district court improperly dismissed without prejudice 

the first indictment in March 2016. Oliver raises two arguments as to why the district 

court should have dismissed the second indictment: (1) Federal Rule of Criminal 

Procedure 48(a) does not permit dismissal without prejudice, so the dismissal of the 

first indictment had to be with prejudice2

; and (2) even if Rule 48(a) permits 

dismissal without prejudice, the March 2016 motion to dismiss and resulting 

dismissal were done ex parte, constituting a due process violation and thus requiring 

the March 2016 dismissal to be treated as one with prejudice. We review both issues 

de novo. Ramirez v. Sessions, 902 F.3d 764, 770 (8th Cir. 2018) (“We review 

procedural due process challenges de novo . . . .”); United States v. Pardue, 363 F.3d 

695, 697 (8th Cir. 2004) (“Interpretation of the Federal Rules of Criminal Procedure 

is subject to de novo review.”). 

First, Oliver argues that the text of Rule 48 only allows the district court to 

dismiss an indictment with prejudice. We have recognized, however, that the

dismissal of an indictment at the request of the Government under Rule 48 prior to 

trial “does not bar subsequent prosecution for criminal acts described in that 

indictment.” DeMarrias v. United States, 487 F.2d 19, 21 (8th Cir. 1973) (per 

curiam); see, e.g., United States v. Arradondo, 483 F.2d 980, 983 (8th Cir. 1973) 

(noting that a dismissal pursuant to Rule 48(a) is without prejudice). These decisions 

bind us, and therefore Oliver’s argument fails. See Rodriguez de Henriquez v. Barr, 

942 F.3d 444, 446 (8th Cir. 2019) (“We are bound by [a] prior panel decision.”). 

2Rule 48 provides that “[t]he government may, with leave of court, dismiss an 

indictment, information, or complaint. The government may not dismiss the 

prosecution during trial without the defendant’s consent.” Fed. R. Crim. P. 48(a).
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Second, Oliver’s argument that his due process rights were violated with 

respect to the dismissal because he had no notice or opportunity to respond to the 

Government’s motion is without merit. Although Oliver points out that the district 

court ruled on the Government’s motion the same day it was filed, which did not 

allow him time to respond, Oliver could have challenged the ruling by filing a motion 

to reconsider because the Government’s motion and district court’s ruling were 

publicly filed. Fed. R. Crim. P. 12(b)(1); see also Loctite Corp. v. Fel-Pro, Inc., 667 

F.2d 577, 583 (7th Cir. 1981) (rejecting appellant’s argument that a due process 

violation occurred in the form of a “sua sponte” dismissal because the appellant had 

an “opportunity to be heard” in the form of a motion to reconsider); Barlau v. City 

of Northfield, 568 F. Supp. 181, 186 (D. Minn. 1983) (holding that ex parte

communications did not violate due process when the excluded party was aware of 

the communications and chose not to challenge them at a later hearing). Moreover, 

Oliver had an opportunity to challenge the dismissal when he filed his motion to 

dismiss the second indictment. For these reasons, Oliver suffered no procedural due 

process violation. 

B. 

Oliver next argues that the district court should have granted his pretrial 

motion to disclose the identity of the informant or conduct an in camera examination 

regarding the informant. We review the district court’s decision to deny the motion 

for an abuse of discretion. United States v. Bradley, 924 F.3d 476, 481 (8th Cir. 

2019); United States v. Mazzulla, 932 F.3d 1091, 1100 (8th Cir. 2019). 

The Government has a “privilege to withhold the identity of its confidential 

informants.” United States v. Harrington, 951 F.2d 876, 877 (8th Cir. 1991). In 

order to override this privilege of nondisclosure, “defendants must establish beyond 

mere speculation that the informant’s testimony will be material to the determination 

of the case.” Id.; see also United States v. Grisham, 748 F.2d 460, 463 (8th Cir. 

1984) (noting the “central importance of materiality” in determining whether to 

order disclosure of an informant’s identity). 
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In his pretrial motion, Oliver argued that Williams was the confidential 

informant, and therefore the disclosure of the informant’s identity was necessary 

because Williams was a material witness. Oliver asserted that the Government 

falsely stated there was a confidential informant “to avoid the need to identify 

Desmond Williams as the source of information [given] to police.” The Government 

denied that Williams was the informant and invoked the informant privilege as to 

the identity of the informant. 

Oliver bases his argument that Williams was the confidential informant on the 

assertion that Williams admitted at trial to mailing a “third package” of drugs, in 

conflict with a police officer’s testimony that only described Williams as mailing the 

two packages on November 24, 2014.

3

 Oliver claims that if the police lied about 

this “third package,” this is evidence that the Government also lied about Williams 

not being the confidential informant. But Oliver mischaracterizes Williams’s 

testimony. The trial transcript shows that Williams repeatedly stated he only 

remembered mailing two packages of cocaine at Oliver’s direction. When asked 

about a “third box,” Williams stated he “only recall[ed] shipping one from Maricopa 

and [one from] Chandler.” In light of Williams’s trial testimony, we agree with the 

district court that Oliver presented nothing more than speculation to refute the 

Government’s assertion that Williams was not the informant. Therefore, we have 

no reason to believe the Government was anything but truthful, and the district court 

did not abuse its discretion in denying the motion. See Harrington, 951 F.2d at 877.

Moreover, “mere speculation” that undisclosed information is material “is not 

enough to compel . . . in camera review.” Mazzulla, 932 F.3d at 1100; see United 

States v. Van Brocklin, 115 F.3d 587, 594 (8th Cir. 1997) (noting that “speculation” 

about the contents of material in the prosecution’s possession “does not compel the 

district court to review” the material in camera). Thus, for the same reason it did 

3Assuming, without deciding, that we may rely on trial evidence in reviewing 

a district court’s ruling on a pretrial motion, we proceed to review Oliver’s argument

insofar as it relies on Williams’s trial testimony.
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not abuse its discretion in denying Oliver’s motion for disclosure, the district court 

did not abuse its discretion in denying Oliver’s motion for in camera examination.

C. 

Oliver also argues that the roadside search of his BMW was unlawful because 

the police had no warrant or probable cause at the time of the stop. Specifically, he 

asserts that a police dog unlawfully searched inside the trunk of the BMW and 

alerted to drugs in a speaker. We review the district court’s order denying the motion 

to suppress under two standards: its factual findings are examined for clear error and 

its legal conclusions are reviewed de novo. United States v. Stevens, 439 F.3d 983, 

987 (8th Cir. 2006). 

We agree with the district court that there was probable cause to search the 

vehicle, and therefore the search was lawful under the automobile exception to the 

warrant requirement. When “probable cause exists to believe that contraband . . . is 

located inside the vehicle,” a police officer “may search the passenger compartment

and trunk” under what is known as the “automobile exception.” United States v. 

Walker, 840 F.3d 477, 483 (8th Cir. 2016). When the basis for a search is 

information supplied by an informant, such information may establish probable 

cause where the informant has a “track record of providing accurate information” or 

where the informant has accurately predicted certain events. United States v. 

Winarske, 715 F.3d 1063, 1067 (8th Cir. 2013). The confidential informant relied

on by police here had already provided accurate information about the shipments of 

cocaine that were sent on November 24, 2014. Furthermore, the informant’s tip that 

a BMW belonging to Oliver and transporting cocaine would arrive in Minneapolis 

on November 30th was corroborated when the BMW registered to Oliver arrived in 

Minneapolis on the predicted date. In other words, the informant had a track record 

of providing accurate information and correctly predicting certain events. Thus, the 

information the informant provided furnished probable cause to search the BMW 

under the automobile exception. 
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D.

 

Oliver next challenges the search of his hotel room, arguing that there was no 

probable cause to search and that the warrant did not allow for the seizure of cell 

phones. “Whether a search warrant is supported by probable cause is determined by 

the totality of the circumstances; resolution of the question by an issuing judge 

should be paid great deference by reviewing courts.” United States v. Kattaria, 553 

F.3d 1171, 1175 (8th Cir. 2009). The existence of probable cause “is a legal question

reviewed de novo.” Odom v. Kaizer, 864 F.3d 920, 923 (8th Cir. 2017). We review 

de novo whether a seizure violated the scope of a warrant and, therefore, violated the 

Fourth Amendment. United States v. Montgomery, 527 F.3d 682, 687 (8th Cir.

2008).

First, Oliver argues that the lack of information in the affidavit regarding the 

confidential informant’s basis of knowledge of Oliver’s drug trafficking undermined 

probable cause. “When [an] affidavit is based on information from an informant, 

the informant’s reliability, veracity, and basis of knowledge are relevant to whether 

the affidavit provided probable cause to support the search.” United States v. 

Solomon, 432 F.3d 824, 827 (8th Cir. 2005). But an informant’s “reliability” and 

“basis of knowledge” are not “entirely separate and independent requirements to be 

rigidly exacted in every case.” United States v. Stevens, 530 F.3d 714, 718 (8th Cir. 

2008); see also United States v. Gladney, 48 F.3d 309, 315 (8th Cir. 1995) (noting 

that “[t]he lack of specific details regarding basis of knowledge is not fatal in the 

probable cause analysis”). “An informant’s track record of providing trustworthy 

information establishes reliability.” Bradley, 924 F.3d at 480 (internal quotation 

marks omitted). The affidavit here described the information provided by the 

confidential informant, the informant’s track record of reliability, and the 

investigative efforts to corroborate the informant’s information, including the 

interception of the packages of cocaine mailed from Arizona to Minneapolis and of 

the BMW transporting cocaine. Given this evidence of the confidential informant’s 

reliability, we find that the district court did not err in finding that the affidavit’s

failure to set forth the informant’s basis of knowledge was not a “fatal flaw,” and 
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there was probable cause to support a search. See United States v. Anderson, 933 

F.2d 612, 615 (8th Cir. 1991). 

Second, the warrant’s reference to “other media” as items to be seized is broad 

enough to include cell phones. See United States v. Gamboa, 439 F.3d 796, 807 (8th 

Cir. 2006). The warrant authorized the seizure of “other media that show standing 

for an address, vehicle, the location of narcotics proceeds, or a connection between 

people, addresses and vehicles or that a crime has been committed.” We agree with 

the district court that it is “self-evident” that a cell phone could constitute such 

media. Furthermore, we have held that cell phones may be seized when they may 

contain other items listed in a search warrant. See Gamboa, 439 F.3d at 807. (stating 

that “cell phones may well contain ‘records of the use and purchase of controlled 

substances’” as stated in the search warrant). Even if we credited Oliver’s argument 

that cell phones do not constitute media, the cell phones here could have contained

other items specifically mentioned in the warrant, such as notes or photographs. 

Thus, the district court did not err in concluding that the police’s seizure of Oliver’s 

cell phones did not violate the Fourth Amendment.

E.

Oliver also argues that the district court erred when it failed to give an

accomplice instruction before Williams testified, asserting that such an instruction 

is mandatory when the accomplice testimony is uncorroborated. Oliver did not 

request an instruction before Williams testified, and thus we review this claim for 

plain error. See United States v. Joos, 638 F.3d 581, 587-88 (8th Cir. 2011). 

Oliver’s argument fails on its own terms because Williams’s testimony was 

corroborated by other evidence, such as the discovery of cocaine in Oliver’s BMW. 

But even if Williams’s testimony was uncorroborated, our precedents do not require 

that an accomplice instruction be given. See, e.g., United States v. Shriver, 838 F.2d 

980, 983 (8th Cir. 1988) (noting there is no “absolute and mandatory duty . . . upon 

the court to advise the jury by instruction that they should consider the testimony of 
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an uncorroborated accomplice with caution”). At any rate, the district court gave 

the pattern Eighth Circuit accomplice instruction in its final charge to the jury. We 

find no error, much less plain error, in the district court’s failure to give sua sponte

an accomplice instruction prior to Williams’s testimony. See id. 

F.

Next, we address Oliver’s arguments that his conviction should be reversed 

because the evidence against him was legally insufficient and, in the alternative, that 

he should be awarded a new trial because the verdict was against the weight of the 

evidence. 

Oliver’s insufficient-evidence argument rests primarily on his assertion that 

Williams’s testimony was entirely uncorroborated, but we have held that 

uncorroborated testimony of an accomplice “is sufficient to sustain a conviction if it 

is not otherwise incredible or unsubstantial.” See United States v. Crenshaw, 359 

F.3d 977, 988-89 (8th Cir. 2004) (emphasis omitted). We review the sufficiency of 

evidence de novo. United States v. Polk, 715 F.3d 238, 245 (8th Cir. 2013). We will 

uphold a guilty verdict “if there is any interpretation of the evidence that could lead 

a reasonable jury to convict.” United States v. Brandon, 521 F.3d 1019, 1025 (8th 

Cir. 2008); see also United States v. Stegmeier, 701 F.3d 574, 578 (8th Cir. 2012) 

(“[C]redibility determinations . . . are left to the jury.”). Reversal is warranted only 

where no reasonable jury could have found the defendant guilty beyond a reasonable 

doubt. United States v. Donnell, 596 F.3d 913, 924 (8th Cir. 2010). 

Contrary to Oliver’s contention, Williams’s testimony was corroborated by 

independent evidence of Oliver’s guilt. For instance, Williams testified that Oliver 

owned a BMW that he kept in Arizona, and the Government presented records at 

trial showing Oliver owned the BMW that was transporting cocaine. In addition, 

Williams testified that he mailed packages of cocaine from Arizona to Minneapolis 

at Oliver’s direction, and the informant tipped off the police that Williams would 

send packages from Arizona to Minneapolis. The packages were later intercepted 
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and found to contain cocaine. Furthermore, Williams testified that Oliver let 

Williams stay in Oliver’s house in Maricopa during his trips to buy drugs, and a 

police officer testified that a lease for a residence in Maricopa was in Oliver’s name 

and contained handwriting very similar to the handwriting on the two packages of 

cocaine that were seized in the mail. Considering this evidence corroborating 

Williams’s testimony that Oliver directed the selling and transporting of cocaine, 

and the overwhelming evidence of Oliver’s participation in a conspiracy to distribute 

cocaine, we find the evidence was sufficient for a reasonable jury to find Oliver 

guilty beyond a reasonable doubt.

Similar to his insufficient-evidence argument, Oliver asserts that his verdict 

was against the weight of the evidence because the only evidence against him was 

Williams’s uncorroborated testimony. “Upon the defendant’s motion, the court 

may . . . grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 

33(a). We review a district court’s denial of a motion for a new trial for an abuse of 

discretion. United States v. Lacey, 219 F.3d 779, 784 (8th Cir. 2000). As detailed 

above, Williams’s testimony was corroborated by independent evidence of Oliver’s 

guilt. Because the evidence here did not “preponderate[] heavily against the 

verdict,” the district court did not abuse its discretion in denying the motion for a 

new trial. See United States v. Knight, 800 F.3d 491, 504 (8th Cir. 2015). 

G.

Finally, Oliver argues that his right to a fair trial was prejudiced by the 

ineffective assistance of his counsel because his counsel was mentally impaired as a 

result of his undergoing brain surgery two months before Oliver’s trial. We normally 

defer ineffective-assistance claims to 28 U.S.C. § 2255 proceedings. United States 

v. McAdory, 501 F.3d 868, 872-73 (8th Cir. 2007). We review ineffective-assistance 

claims on direct appeal only “where the record has been fully developed, where not 

to act would amount to a plain miscarriage of justice, or where counsel’s error is 

readily apparent.” United States v. Thompson, 690 F.3d 977, 992 (8th Cir. 2012); 

see also United States v. Sanchez-Gonzalez, 643 F.3d 626, 628 (8th Cir. 2011) 
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(noting we review ineffective-assistance of counsel claims on direct appeal only in 

“exceptional cases”).

Oliver’s ineffective-assistance claim is not ripe for review. A developed 

record in the ineffective-assistance context requires that “the district 

court . . . created a record on the specific issue of ineffective assistance.” United 

States v. Wilder, 597 F.3d 936, 944 (8th Cir. 2010). There is no such record in this 

case because the district court neither “convened an evidentiary hearing nor analyzed 

the potential merit of the claim.” Id. Additionally, declining to consider this claim 

on direct appeal would not constitute a plain miscarriage of justice because Oliver 

“remains free to pursue [his] ineffective assistance claim through a section 2255 

action.” See Sanchez-Gonzalez, 643 F.3d at 629. 

Furthermore, his counsel’s errors are not “readily apparent” from his briefing. 

Some of the many errors Oliver asserts are easily refuted. For example, Oliver

claims that his counsel failed to object to Williams’s statement that Oliver offered 

Williams $200,000 to change his testimony. But, in fact, his trial counsel sought to 

exclude this testimony during a pretrial conference. Similarly, Oliver generally 

objects that his counsel should have probed more aggressively into Williams’s 

criminal history. But Oliver’s counsel did highlight that there was an outstanding 

felony charge against Williams in another county and that Williams absconded from 

his halfway house and was later found with drugs. 

Some of Oliver’s claims, however, are broader such that it is not readily 

apparent whether his counsel’s decisions were deficient performance or legitimate 

trial strategy. See United States v. Orr, 636 F.3d 944, 952 (8th Cir. 2011) (noting 

we “generally entrust cross-examination techniques, like other matters of trial 

strategy, to the professional discretion of counsel”). For example, Oliver asserts, 

without further elaboration or citation to the record, that his counsel “failed to 

adequately cross examine” “other witnesses that were called by the state.” An error 

is not readily apparent when a defendant fails to allege specific aspects of inadequate 

cross-examination of certain witnesses. See id. at 952-53. For these reasons, this is 
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not one of the “exceptional cases” in which an ineffective-assistance claim is ripe 

for review on direct appeal. See Sanchez-Gonzalez, 643 F.3d at 628.

III.

For the foregoing reasons, we affirm. 

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