U.S. v. Lnu
| Decision Date | 10 October 2008 |
| Docket Number | No. 07-2020.,No. 07-1780.,07-1780.,07-2020. |
| Parties | UNITED STATES of America, Appellee, v. Fnu LNU, a/k/a Jimmy Oshunkey, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Before LYNCH, Chief Judge, SELYA, Circuit Judge, and SCHWARZER,* District Judge.
On August 17, 2006, a jury convicted Defendant FNU LNU a/k/a Jimmy Oshunkey of furnishing false information to the Commissioner of Social Security in violation of 42 U.S.C. § 408(a)(6). He appeals on seven grounds. For the reasons discussed below, we find none to be meritorious and affirm the judgment.
On September 9, 2005, defendant applied for a duplicate Social Security card at the Social Security Administration (SSA) office in Lowell, Massachusetts. The application listed his birth date as June 8, 1964, and his place of birth as Atlanta, Georgia. A SSA employee processing the application noticed discrepancies between the application and information in the SSA database. SSA records indicated that the Social Security number in question had initially been issued to Sheyi Oshuwkeye1, who was born on August 6, 1957, in Lagos, Nigeria. SSA employees asked for additional documentation, and the defendant provided a baptismal certificate, which was rejected as unofficial and generic. The defendant was unable to provide other forms of documentation requested, such as a birth certificate and school records.
Unsuccessful in his effort to obtain a duplicate Social Security card from the Lowell office, the defendant went to the Nashua, New Hampshire SSA office on September 13, 2005, and again applied for a duplicate card. He did not disclose that he had applied and been declined for a duplicate card at the Lowell office. Like the SSA employee in Lowell, the employee in Nashua noted discrepancies between the application and SSA database and denied the defendant's application.
Some time later, Special Agent Michael Leonard of the SSA Inspector Generals office was called in to investigate the possible submission of fraudulent applications by the defendant. Leonard attempted to arrange in person meetings with the defendant, but he failed to appear. He learned that the defendant had a post office box in Newtonville, Massachusetts. Working in collaboration with postal inspectors, Leonard monitored the defendants incoming mail. He learned that the defendant received mail from the Doubletree hotel in Lowell and from a self storage facility in Billerica, Massachusetts. Leonard was not able to obtain the defendants current contact information from the storage facility operator and contacted the Doubletree hotel. The hotel manager identified the defendant as a former employee, and agreed to ask the defendant to come to the hotel to pick up a check.
When he arrived at the hotel on December 15, 2005, the defendant was arrested and given Miranda warnings. He waived his rights, and spoke with Special Agent Leonard. He stated that he could not recall his Social Security number and birth date, and also refused to say where he was currently living. He stated that his wallet was in his car, and gave permission for Leonard to search the car and its contents. The agents discovered a variety of forms of identification, including the baptismal certificate presented to the Lowell SSA office as well as other blank certificates. They recovered transcripts from the University of Massachusetts which reflected a birth date that was inconsistent with the information the defendant had supplied to the SSA. Additionally, the agents found several letters from Nigeria in the car that addressed the recipient as "Seyi", brother and son. The defendant stated that he did not know the authors of the letters, and could not provide contact information for his parents.
While in jail following his arrest, the defendant was unable to continue making rental payments on his storage locker and went into default. The defendant apparently contacted the storage facility to apprise them of his situation, but nothing in the record indicates that the storage facility agreed to excuse the payments due.
On May 16, 2006, personnel from the self storage facility contacted government agents and informed them that the defendant had not paid rent since December, 2005, and that the contents of the locker were to be auctioned off the next day. They offered to allow agents to search the storage locker.
The agents obtained a number of items in the search of the locker that were later offered in evidence at trial, including a transcript from Newbury Junior College that contained different birth dates and names than the defendant listed on his application for a duplicate Social Security card, a flyer entitled "How to Vanish— Start Life Over Again Under a New Identity," and additional correspondence from Nigeria. The defendant moved to suppress the items found in the search of the storage locker, but the motion was denied.
In his closing argument at trial, the prosecutor argued that the defendant was impersonating Oshunkey. He suggested that the defendant held on to the letters and other personal property so that he could study up on Oshunkey in order successfully to carry on the impersonation. Defense counsel made no objection. The defendant was convicted on one count of providing false information to the Commissioner of Social Security, in violation of 42 U.S.C. § 408(a)(6).2 His motion for new trial was denied. He was sentenced to time served. This timely appeal followed.
The defendant contends that the district court erred in denying his Fourth Amendment challenge of the search of his storage locker. We review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Lawlor, 406 F.3d 37, 41 (1st Cir.2005).
To successfully challenge a search on Fourth Amendment grounds, the defendant must show that he had a subjective expectation of privacy in the place searched that is accepted by society as objectively reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); United States v. Cardona-Sandoval, 6 F.3d 15, 20 (1st Cir. 1993). When evaluating whether a person has a reasonable expectation of privacy, courts examine a variety of factors, such as ownership of the premises, possession, access or control, ability to control or exclude others, and legitimate presence on the premises at the time of the search. Cardona-Sandoval, 6 F.3d at 21.
In holding that the defendant did not have a protected Fourth Amendment right in the storage locker, the district court relied on United States v. Melucci, 888 F.2d 200, 202 (1st Cir.1989). In Melucci, this court held that a defendant did not have a reasonable expectation of privacy in his rented storage unit after he had failed to make multiple rental payments and the storage facility operator had taken possession of the unit by removing the defendants lock. Id. at 202. Other courts have held that individuals do not have standing to challenge a search of their rented storage locker based on similar facts. In United States v. Poulsen, the Ninth Circuit held that a defendant did not have a reasonable expectation of privacy in his storage locker when he defaulted on rental payments. 41 F.3d 1330, 1336-37 (9th Cir.1994). The facility operator had a lien on the contents of the storage space under both the express terms of the rental agreement and California law. The court reasoned that the defendant lost his right of access to the space due to the lien, and thus no longer had a reasonable expectation of privacy. Likewise, in United States v. Abiodun, the court held that a defendant lost his reasonable expectation of privacy in a rented storage space when the facility operator imposed a lien, scheduled a public auction for the contents of the space, and removed the lessee's lock to allow government agents to conduct a search after the defendant defaulted on rental payments. No. 04-CR-1316 (D.C.) 2005 WL 3117305 at *3 (S.D.N.Y. Nov. 22, 2005).
We agree with the district court that the defendant lacked a reasonable expectation of privacy in the storage space at the time of the search. Testimony at trial established that the defendant had failed to pay rent on the storage locker for several months, and that the storage facility operator had a lien on the contents of the locker, had scheduled a public auction, and had removed the lock on the space to permit the government agents to search the storage area.
Although a persons reasonable expectation of privacy is not defined by arcane distinctions developed in property and tort law, Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the right to access the area searched is an important factor in the analysis. See Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Under both Massachusetts law and the facility's rental policy, the defendant lacked the right to access the rented space. Massachusetts General Laws Chapter 105A, § 3 permits a storage facility operator to impose a lien on the contents of a storage space when the lessee defaults on rent. Section 5 further provides that:
If an occupant is in default for a period of five days or more, the operator may deny the occupant access to the leased space in a reasonable and peaceable manner; provided however, that the occupant may have access at any time for the sole purpose of viewing the contents of his leased space in order to verify the contents therein.
Even apart from the provisions of Chapter 105A, the storage facility had a contractual right to exclude the defendant from the...
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