No. 96-7989

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

GODWIN IYAMU, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

THOMAS M. GANNON
Attorney

Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

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QUESTIONS PRESENTED

    1.  Whether 18 U.S.C. 3583(d) authorizes a district court to
order a criminal defendant deported, as a condition of supervised
release,  without recourse to the standards and procedures for
determining deportability and relief from deportation under the
Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and
implementing regulations.
    2.  Whether petitioner had adequate notice of, and opportunity
to be heard on, the question of his deportation as a condition of
supervised release.
    3.  Whether evidence seized by law enforcement officers from
an unsealed envelope in the trunk of a car was properly admitted
where the officers had the consent of a person whom they reasonably
believed possessed common authority and control over the car and
trunk.

(I)

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In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-7989

GODWIN IYAMU, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

    The opinion of the court of appeals (Pet. App. A1-A10)l is not
reported, but the judgment is noted at 102 F.3d 554 (Table).  The
order of the district court (Pet. App. B1-B8) and the report and
recommendation of the magistrate judge (Pet. App. C1-C16) are not
reported.

JURISDICTION

    The judgment of the court of appeals was entered on November
19,  1996.  The petition for a writ of certiorari was filed on

___________________(footnotes)

    1 Because the documents in the petition appendix are not
paginated in a readily accessible manner, we treat them as if they
are sequentially paginated within each of the three appendices A,
B, and C.

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February 24, 1997. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).

STATEMENT

    Following a jury trial in the United States District Court for
the Northern District of Georgia, petitioner was convicted of using
an unauthorized access device, with intent to defraud, to obtain
items of value in excess of $1,000 during a one-year period, which
transactions affected interstate commerce,  in violation of 18
U.S.C. 1029(a)(2).  The district court sentenced petitioner to 27
months' imprisonment, to be followed by three years' supervised
release, and ordered, as a condition of supervised release, that
petitioner be deported  2 Gov't C.A. Br. 3-4.  The court of appeals
affirmed.  Pet. App. A1-A10.
    1. In early May 1993, a secret service agent learned of
possible credit card fraud in the Doraville and Norcross areas of
Georgia.  Witnesses at a mailbox rental business where the credit
cards were to be sent and other investigation linked petitioner and
a woman to the mailboxes in question.  Petitioner had been seen in
a car driven by the woman; the car's license plate was registered
to petitioner.  Pet. App. B1-B2; Gov't C.A. Br. 4-5.  The woman was
also observed retrieving mail from the box and entering and leaving
petitioner's residence. Id. at 4-5.
    The agents obtained an arrest warrant for petitioner.  When

___________________(footnotes)

    2 The court also ordered petitioner to serve a term of 24
months  imprisonment,  to run consecutively;  for violation of
supervised release conditions that had been-imposed as part of a
federal sentence in 1991.  Gov't C.A. Br. 4.

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they knocked on petitioner's apartment door, the woman answered,
told them that petitioner was in the bedroom, and permitted the
agents to enter the residence.  Pet. App. B2.  In response to the
agents'  request  that petitioner identify himself,  petitioner
provided them with his wallet which contained, inter alia, credit
cards in the names of two women.  The agents arrested petitioner
and took him out of the apartment.  Id. at B2-B3.
    One of the agents recognized the woman who answered the door
as the same person he had observed at the mailboxes in question and
driving the car registered to petitioner.  She also fit the
description given by the person at the mailbox business.  The woman
provided the agent with identification in two last names, McKenzie
and Iyamu.  She said that she lived at the apartment with
petitioner and that petitioner was the father of one of her two
children who also lived there.  Pet. App. B3 .
    The agent asked the woman for consent to search the car he had
seen her driving, which was parked outside the apartment.  He also
asked her whether she had keys to the car.  The woman consented to
a search of the car and gave the agent a set of keys that included
keys to the car's doors and its trunk.  The agent recovered from
the trunk some blankets that the woman identified as belonging to
her and a large, unsealed manilla envelop, bearing petitioner's
name and containing various documents,  credit cards,  and
identification  cards  relating to  petitioner's fraudulent
activities.  When the agent indicated to the women that he intended
to keep the key ring because it also contained some mailbox keys,

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the woman asked that he leave her the keys to the car and to the
apartment.  The agent complied by removing the mailbox keys from
the key ring.  Id. at B4; Gov't C.A. Br. 6-7.  The title to the car
and the lease of the apartment were in the names of petitioner and
his wife.  Pet . App. B4.
    After his arrest, petitioner provided the secret service with
a  three-page statement in which he admitted to limited
participation in the credit card scheme and claimed that he acted
at the direction of another.  Fingerprint evidence showed that
petitioner had handled a number of the original credit card
applications received by the credit card processing company.  Gov ` t
C.A. Br. 7-8.
     2. a.  Before trial, petitioner moved to suppress the evi-
dence seized at the time of his arrest, including the documents
found in his wallet and the evidence found in the car trunk.  Pet .
App. C7.   After an evidentiary hearing, a magistrate judge
recommended  suppression of  the  documents recovered from
petitioner's wallet, but against suppression of the evidence seized
from the trunk of the car.  Pet. App. C1-C16.  The magistrate found
substantial evidence that the woman exercised actual common
authority over the car and its trunk, such that her consent to
search was a valid basis for the agent's search.  Pet. App. C11-C13
(relying on United States v. Matlock, 415 U.S. 164, 169-172 & n.7
(1974).  The magistrate also ruled that, regardless of the woman's
actual authority, under  Illinois v. Rodriquez, 497 U.S. 177, 186-
189 (1990),  the search was valid because the agent reasonably

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believed that the woman was authorized to give consent for the
search.  Pet. App. C13-C15.
    The district court agreed with the magistrate's recommendation
not to suppress the evidence from the trunk.  The court disagreed,
however,  with the magistrate's recommendation to suppress the
contents of the wallet.  Pet. App . B1-B8.  The court concluded,
inter alia, that, in light of the surrounding circumstances, it was
reasonable for the agent to have believed that the woman who
consented to the search of the car had authority or joint access or
control over it, including its trunk and its contents.  Pet. App.
B7 (citing United States v. Dunkley, 911 F.2d 522, 526 (11th Cir.
1990) ; Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)).  The court
noted that "[s]ince no objection to the scope of the search was
made, the consent validly extended to the envelope.  By leaving the
envelope in an area where [the woman] had access and control,
[petitioner]  took the risk that this area would be thoroughly
searched on her consent."  Pet. App. B8.
    b.  At sentencing, in addition to imposing a term of
imprisonment and supervised release, the district court ordered, as
a condition of supervised release, that petitioner be deported or,
if  the  Immigration and Naturalization permitted,  that he
voluntarily depart the United States, and that he remain outside
the United States during the period of supervised release.  Pet.
C.A. Rec. Exe. 19.
    3.  Petitioner appealed, contending, inter alia, that the
district court erred in denying his motion to suppress.  He also

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argued  that the court's order  of deportation,  imposed as a
condition of supervised release, exceeded the court's authority.
He urged the court of appeals to reconsider its ruling in United
States v. Chukwura, 5 F.3d 1420 (11th Cir. 1993), cert. denied, 115
s. ct. 102 (1994), that a district court is authorized by Section
3583(d) to order deportation as a condition of supervised release.
Pet. C.A. Br. 28-30.  In response,  the government agreed with
petitioner that Chukwura had been wrongly decided, but acknowledged
that that case remained binding precedent in the Eleventh Circuit.
Gov't C.A. Br. 28-30.  The government noted (id. at 29) that the
court of appeals had recently granted rehearing en bane, however,
to consider the issue.
    4.  On November 13,  1995,  the court of appeals granted
rehearing en bane in consolidated appeals in which two alien
defendants had urged the court of appeals to overrule Chukwura.  On
August 8, 1996, the en bane court of appeals issued its opinion in
those cases, declining to overrule Chukwura.  United States v.
Oboh, 92 F.3d 1082, cert. denied, 117 S. Ct. 1257, 1258 (1997).  By
a 7-5 vote, the en bane court reaffirmed its ruling in Chukwura
that Section 3583(d) authorizes a district court to order deporta-
tion as a condition of supervised release.  The court acknowledged
that its ruling was in conflict with the rulings in United States
v. Sanchez, 923 F.2d 236 (lst Cir. 1991); United States v. Xianq,
77 F.3d 771 (4th Cir. 1996); and United  States v. Quaye, 57 F. 3d
447 (5th Cir. 1995)) 92 F.3d at 1084-1085.  The Oboh majority
nonetheless found that the language of Section 3583(d) supported

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its conclusion that a district court is authorized to order
deportation as a condition of supervised release. 92 F.3d at 1084-
1085.  The Oboh en bane court also found support in Congress's
subsequent enactment of Section 242A(d) of the INA,  8 U.S.C.
1252a(d) , which authorizes district courts to order the deportation
of alien defendants upon the request of the United States Attorney
and the concurrence of the Commissioner of the Immigration and
Naturalization Service (INS) .  92 F.3d at 1087.
    The Oboh en banc court rejected the argument that judicial
deportation under Section 3583(d) did not afford alien defendants
the procedural safeguards established in the INA.  The court noted
that procedural safeguards exist in the sentencing process through
appellate review and that, although greater procedural safeguards
are available under the INA, that was a matter for Congress, not
the court, to decide.  92 F.3d at 1087.  The court specifically
rejected the challenge made by one of the aliens to the adequacy of
the notice given him of the deportation determination and the lack
of an opportunity to present evidence or argument that he was not
subject to deportation.  Id. at 1087-1088.  The court held that the
plain language of  Section 3583(d) provided the defendant sufficient
notice that the district court could deport him as a condition of
supervised  release  upon a  finding  that he was  subject to
deportation.  92 F.3d at 1088.
     Five members of the court of appeals dissented in Oboh,
agreeing with the First, Fourth, and Fifth Circuits that Section
3583 (d) "provides only that a defendant who is subject to depor-

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tation may be surrendered to the INS for deportation proceedings in
accordance with" the INA.  92 F.3d at 1088-1092
    5.  After issuance of the en bane opinion in Oboh, the panel
of the court of appeals in the instant case entered its opinion and
judgment on November 19, 1996, affirming petitioner's sentence in
light of Oboh.  Pet. App . A4 n.1.  The court of appeals also
affirmed the district court's denial of petitioner's suppression
motion.  It concluded that the woman who had been observed in sole
possession of, and driving, petitioner's car on more than one
occasion, clearly appeared to have authority to consent to the
search of the car and its trunk, especially in light of the fact
that she had keys to the car trunk and kept her property in that
trunk.  Id. at A7 (relying on Illinois v. Rodriguez, supra).  The
court emphasized that petitioner had no reasonable expectation of
privacy in an unsealed envelope and "[b]y leaving the unsealed
envelope in the car trunk to which [the woman] also had access and
control, " petitioner " ' assumed the risk ' that she would consent to
a search of the contents of the trunk,  including the unsealed
envelope. "  Pet.  App. A8  (quoting in part, United States v.
Matlock, supra).  The court declined to consider petitioner's
challenge to the admission into evidence of the mailbox keys that
had been recovered because the issue had not been properly raised
below (pet. APP. A8-A9), and it also rejected petitioners
challenge to the admission of certain extrinsic act evidence.  Pet.
App. A10.

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ARGUMENT

    1. Petitioner contends (Pet. 15-23) that the district court
lacked authority to order him deported under 18 U.S.C. 3583(d) as
a condition of supervised release and that the Court should grant
review to resolve the split among the circuits on this issue.
Petitioner also seeks review (Pet. 24-26) on the issue of what
notice and opportunity for presentation of evidence and argument is
required if a district court does have authority to deport under
Section 3583(d).
    We agree that a district court lacks authority under 18 U.S.C.
3583(d) to order petitioner deported as a condition of supervised
release without recourse to the standards and procedures for
determining deportability and relief from deportation under the
Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and
implementing regulations.  See U.S. Br. in Ogbomon v. United
States, No. 95-8736, cert. dismissed as improvidently granted, 117
S. Ct. 725 (1997). 3  Petitioner, however, was afforded recourse to
those standards and procedures before the district court imposed an
order of deportation at sentencing in this case.
    a.  Before the district court imposed sentence in the instant
case, the Immigration and Naturalization Service (INS) already had
determined that petitioner was subject to deportation. 4  On July
                          
___________________(footnotes)

    3   We are providing petitioner's counsel with a copy of our
briefs in that case.
    4   Our description of  petitioner's INS deportation
proceedings is based on documents provided to us by the INS,
including  documents filed by petitioner or the attorney who
                           (continued. . . )

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2, 1991, after a  hearing, an immigration judge found that
was deportable under then Section 241(a) (1) (B) of the
Immigration and Nationality Act (INA), 8 U.S.C. 1251(a) (1) (B), as
an alien who had been admitted as a nonimmigrant and remained in
the United States for a longer time than authorized, and under then
Section 241(a) (2) (A) (i) of the INA, 8 U.S.C. 1251(a) (2) (A) (i), as
an alien who had been convicted of a crime involving moral
turpitude (i.e. conspiracy to commit bank fraud), which crime was
committed within five years after his entry.  The immigration judge
also found that petitioner was statutorily ineligible for the
relief from deportation he sought.  Accordingly,  the immigration
judge entered an order that petitioner be deported from the United
States.  In a decision dated October 24, 1991, the Board of
Immigration Appeals  (BIA) dismissed petitioner's appeal, thus
placing petitioner under a final order of deportation.   See Stone
v. INS, 115 s. ct. 1537, 1544, 1547 (199,5) ,
    Petitioner initially petitioned for review in the court of
appeals of his final order of deportation.  He then obtained a
remand of his case to the BIA, by order of the court of appeals
dated February 25, 1992, for further proceedings in light of a
legislative amendment to the statute governing the relief from
deportation he had sought.  By order dated June 30, 1992, the BIA
remanded the case to an immigration judge for further proceedings.

___________________(footnotes)  

    4(.. continued)
represented him during the course of some of those proceedings.  To
the best of our knowledge, all the orders and opinions of the
immigration judge, BIA, and court of appeals that we cite were
served directly on petitioner or on his attorney.

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Petitioner then filed an application for an adjustment of status
and an application for a waiver of his grounds of excludability.
On August 9, 1993, the immigration judge affirmed the initial
immigration  judge ' s  finding of  deportability, and denied
petitioner's application for a waiver of excludability, finding
that petitioner did not establish the extreme hardship necessary to
the grant of such a waiver.  Accordingly,  the immigration judge
also denied petitioner's application for adjustment of status,
denied petitioner's request for voluntary departure, and again
ordered that petitioner be deported from the United States.
    Although petitioner filed a notice of appeal to the BIA on
August 11, 1993, indicating that he would file a written brief, he
appears to have abandoned his administrative appeal.  In his
notice, he requested permission to file his brief 60 days after
receipt of the transcript of the hearing before the immigration
judge.  That transcript was certified as complete by the
transcriber on September 20, 1993.  On January 31, 1994, government
counsel filed a request that the BIA dismiss petitioners appeal.
Government counsel pointed out that petitioner had failed to file
a brief in support of his appeal and urged the BIA to uphold the
immigration judge's decision.  The government memorandum certifies
that, on January 21, 1994, it was served on petitioner's counsel
(the same counsel who had filed the notice of appeal to the BIA).
To our knowledge,  petitioner still has not filed any brief in the
BIA.
    Thus ,  at the time of his February 1995 sentencing in the

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instant case,  orders of deportation had been entered against
petitioner in 1991 and 1993 and he had abandoned his effort to
overturn the immigration judge's denial of his deportation waiver
application in the latter proceeding.  Clearly, petitioner had been
afforded the opportunity to avail himself fully of the standards
and procedures  for determining deportability and relief from
deportation under the INA.  The district court's order that
petitioner be deported as a condition of supervised release thus
does not present the legal issues raised by petitioner (Pet. 15-26)
that would arise in a case where, at the time of the entry of such
an  order by a district court,  the INS had not yet made a
determination regarding a criminal defendant's reportability.  See
U.S. Br. in Ogbomon v. United States, No. 95-8736 (at pp. 30-31),
cert. dismissed as improvidently granted, 117 S. Ct. 725 (1997) .
    b.  Review by this Court also is not warranted because the
issues presented are of diminishing importance in light of the
enactment of Section 304 (a) (3) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No.
104-208, Div. C, 110 Stat. 3009 (reproduced at 138 Cong. Rec
H11,798 (daily ed. Sept. 28, 1996)) (to be codified at 8 U.S.C.
1230(a) (3)).  Section 304(a) (3) adds to the INA a new Section 240
that states that,
   
   [u]nless otherwise specified in [the INA] , a proceeding under
   this section shall be the sole and exclusive procedure for
   determining whether an alien may be admitted to the United
   States or, if the alien has been so admitted, removed from the
   United States.              

The INA does  "otherwise  specif[y] "  that judicial  orders of

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deportation are  authorized in proceedings uncle r the recently
enacted, and even more recently amended and renumbered, Section
238(c) of the INA.  That Section,  unlike 18 U.S.C.  3583(d),
includes  detailed  procedures  requiring,  inter  alia,  a
recommendation from the INS on the alien's eligibility for relief
from deportation.  The INA, however, does not "otherwise  specif[y]"
that the determination of the admission or removal of an alien is
authorized in proceedings under Section 3583(d) of Title 18.
    Thus , the new provision of  IIRAIRA supersedes the holding of
the court of appeals in this case.  It follows that the legal
issues  presented in this case, i.e.,  the authority of  the
sentencing court under Section 3583(d) to enter a judicial order of
deportation, and what notice and hearing would be required if such
authority is exercised, will not recur in the same form after the
April 1, 1997,  effective date of IIRAIRA.  That circumstance
deprives the issues raised by petitioner of ongoing significance. 5
    2. Petitioner also contends (Pet. 26-30) that the district
court erred in denying his motion to suppress the evidence obtained
from the unsealed manila envelope recovered from the car trunk.
    Petitioner does not identify any conflict among the courts of
appeals on  the question of the appropriate governing  legal

___________________(footnotes)     

    5 The  Court  recently denied petitions  for writs of
certiorari in four other cases presenting the same issues.  See
Oboh V. United States, 117 S. Ct-. 1257 (March 17, 1997) ; Bowen v.
United States, 117 S. Ct. 1258 (March 17, 1997) ; Akamiokhor v.
United States, 117 S. Ct. 1258 (March 17, 1997) ; Valdez-Mejia v.
United States, 117 S. Ct. 1259 (March 17, 1997) .  The issue is also
presented  in Akujorobi V. United States, petition for cert.
pending, No. 96-7740.

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standard.  Petitioner merely challenges the adequacy of the showing
made by the government before the district court that the woman who
consented to the search had joint control over the envelope.  See
Pet .  29-30.  And, petitioner maintains  (id. at 29) that the
information known to the agent at the time he seized the envelope
was insufficient to support a reasonable belief that the woman had
authority to consent to the seizure of the envelope.
    The courts below adequately addressed and correctly resolved
this issue.  See Pet. App . A6-A8; id. at B8; id. at C15-C16.  The
facts developed  during the investigation,  e.g.  the woman's
unaccompanied driving of the car, her possession of keys to the car
and its trunk, and the storage of her property in its trunk, showed
that she reasonably appeared to have authority to consent to a
search of the car and the trunk.  See Illinois v. Rodriquez, 497
U.S. 177,  186 (1990).  Moreover, petitioner had no reasonable
expectation of privacy in an unsealed envelope that he left in the
trunk of a car to which the woman had access and over which she
exercised control.  Accordingly,  he assumed the risk that the woman
would consent to a search of the trunk's contents, including the
unsealed envelope.  See United States v. Matlock, 415 U.S. 164, 171
and n.7 (1974).  Further review is therefore unwarranted.

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CONCLUSION

    The petition for a writ of certiorari should be denied.
Respectfully submitted.

APRIL 1997

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

THOMAS M. GANNON
Attorney

APRIL 1997