Of the Northern District of California, sitting by designation. *

United States Court of Appeals

For the First Circuit

Nos. 07-1780, 07-2020

United States of America,

Appellee,

v.

FNU LNU, a/k/a Jimmy Oshunkey,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., District Judge]

Before

Lynch, Chief Judge,

Selya, Circuit Judge,

and Schwarzer, District Judge. *

Richard L. Goldman with whom Orlen & Goldman was on brief for

appellant.

Thomas P. Colantuono, United States Attorney, with whom Aixa

Maldonado-Quiñones, Assistant United States Attorney, was on the

brief for the appellee.

 

October 10, 2008

 
 The record reflects several different spellings of the 1

defendant's name. Although the SSA database uses the spelling of

Oshuwkeye, we use Oshunkey, for consistency with the pleadings and

the proceedings in the district court.

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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.

I. Factual and Procedural History

On September 9, 2005, defendant applied for a duplicate

Social Security card at the Social Security Administration (ASSA@)

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 Oshuwkeye , who was born on August 1

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
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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 General=s 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 defendant=s 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 defendant=s

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
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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", Abrother@ and Ason@. 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 Ato 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 indictment originally charged two counts. The first count, 2

Fraud in Connection with Identification Documents, 18 U.S.C. §

1028(a)(7) & (c)(3)(A), was dismissed because the government failed

to meet its evidentiary burden at trial. 

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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 "AHow to

Vanish B 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 Astudy 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). His motion for new trial was denied. He was 2

sentenced to time served. This timely appeal followed.
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II. Discussion

A. Search of Storage Locker

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 (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
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storage facility operator had taken possession of the unit by

removing the defendant=s 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
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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 person=s reasonable expectation of privacy is

not defined by Aarcane distinctions developed in property and tort

law@, Rakas v. Illinois, 439 U.S. 128, 143 (1978), the right to

access the area searched is an important factor in the analysis.

See United States v. Rawlings, 448 U.S. 98, 105 (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 storage space. Trial testimony established that under the

storage facility's rental policy, the manager of the facility had

the right to lock the defendant out of the rented space if rent is

more than five days overdue, and the storage facility treats a
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locker as abandoned if rent is 60 days past due. Having lost his

right of access, the defendant did not have a reasonable

expectation of privacy in the storage space and lacked standing to

challenge the search.

Defendant contends that his situation is distinguishable

from Melucci and similar cases because, although his rent payments

were overdue, he did not intend to abandon the space. He argues

that he was unable to make rental payments after he was

incarcerated, and that he contacted the storage facility manager to

Aapprise him of his situation@. He contends that the lessee in

Melucci not only failed to pay rent, but also did not contact the

facility operator and thus intended to abandon the space. This

attempt to distinguish Melucci is unconvincing. Regardless of the

reason why the defendant could not continue to pay rent and his

attempts to contact the storage facility operator, there is no

evidence that the storage facility agreed to make any accommodation

on account of the defendant=s incarceration. Even if the defendant

subjectively did not intend to abandon the locker after failing to

pay rent, such a belief is objectively unreasonable and does not

allow the defendant to challenge the search on Fourth Amendment

grounds.

Defendant also points to Massachusetts General Laws

Chapter 105A § 7, which provides that Aexcept as otherwise provided

herein or as stated in the rental agreement, the exclusive care,
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custody and control of all property in the leased self-service

space shall vest in the occupant until a lien sale under the

provisions of this chapter.@ He argues that under this provision,

he had a reasonable expectation of privacy in the locker until the

auction, which was set to occur on May 17, 2006, one day after the

agents searched the locker. 

This argument is also unavailing. While § 7 states that

a lessee has custody and control of belongings stored, it also

provides that the lessee=s rights are limited by other provisions

of Chapter 105A and the terms of the rental contract. As noted

above, both § 5 and the terms of the storage facility policy allow

the storage facility operator to exclude a lessee who fails to pay

rent. In light of the limitations on the defendant=s right to

control access to the storage locker, it is clear that defendant=s

reasonable expectation of privacy did not continue up until the

time the lien sale. 

B. Alleged Error in the Prosecutor=s Closing Argument

Defendant argues that the prosecutor=s argument in his

closing that the defendant was impersonating Mr. Oshunkey lacked an

evidentiary foundation and contradicted the court's ruling that the

purported impersonation was irrelevant. He claims that the argument

resulted in prejudicial error and entitles him to a new trial. 

Because defense counsel made no objection at the time of

the closing argument, we review for plain error. United States v.
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Anh, 523 F.3d 43, 55 (1st Cir. 2008). In order to prevail, the

defendant must show: 1) that there was an error, 2) that the error

was clear or obvious, 3) that it affected the defendant=s

substantial rights, and 4) that it seriously impaired the fairness,

integrity, and public reputation of the judicial proceedings.

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). 

Defendant bases his contention on the district court's

evidentiary ruling excluding some of the blank certificates and

forms found in the defendant=s storage locker. Rejecting the

government's argument that the certificates were probative of its

theory that the defendant was impersonating someone else, the court

reasoned that the probative value of the certificates was

substantially outweighed by their prejudicial effect. The

defendant contends that the prosecutor=s subsequent statement about

impersonation was contrary to the court=s ruling and amounted to

error.

 The district court's evidentiary ruling did not bar the

prosecution from introducing evidence and arguing that the

defendant was impersonating someone else. Indeed, at the time of

the ruling, Count I of the indictment, which charged fraud in the

connection with identification documents, had not yet been

dismissed. See supra note 2. The government had to introduce

evidence of fraud, such as impersonation, to meet its burden of

proof on that count. 
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Further, the prosecutor=s statements were not without

evidentiary support. The defendant was unable to recall the Social

Security number under which he was applying for a duplicate card,

could not provide contact information for his parents, and stated

that he did not know the authors of several letters found in his

possession. Additionally, there were inconsistencies with regard

to his date and place of birth contained in several records

recovered from the defendant=s car and locker. Based on the

evidence admitted at trial, the jury could have properly inferred

that the defendant was attempting to impersonate someone else. We

find no error.

C. Sufficiency of Evidence to Support Conviction

The defendant contends that the evidence was insufficient to

support his conviction. A defendant challenging his conviction

must demonstrate that, taking all the evidence in the light most

favorable to the government, a reasonable jury could not have found

that the prosecution successfully proved all elements of the crime

beyond a reasonable doubt. United States v. Connolly, 341 F.3d 16,

22 (1st Cir. 2003). 

In this case, a reasonable jury could have found that the

prosecution met its burden on all elements of the crime and

convicted the defendant. To support a conviction under 42 U.S.C.

§ 408(a)(6), the government must show 1) that the defendant

furnished information to the Commissioner of the SSA he knew was
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false, 2) that such information was furnished willfully, knowingly

and with the specific intent to deceive the Commissioner as to his

true identity, and 3) that the information submitted was required

by the Commissioner of the SSA in order to issue a duplicate card.

See 42 U.S.C. § 408(a)(6).

The defendant supplied a date and place of birth of June

8, 1964, in Atlanta, Georgia, on his application for a duplicate

card. At trial, the government introduced two of the academic

transcripts found in the search of his car and storage locker that

reflected different dates and places of birth than those listed on

the SSA application. A pamphlet entitled Ahow to vanish@ and

several blank marriage and baptismal certificates like the one

presented to the Lowell SSA office were also introduced into

evidence. In short, there was sufficient evidence for the jury to

infer that the defendant submitted information to the SSA that he

knew to be false. 

Additionally, with regard to the second element, the jury

could have found that submissions were made knowingly with the

specific intent to deceive. The jury could have inferred the

requisite intent based on the fact that, after his application had

been rejected by the Lowell office, the defendant went to the

Nashua SSA office to seek a duplicate card and did not inform them

that he had recently been denied a card by the Lowell office. The

defendant does not contest that the government met its burden on
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the third element, that the documents were required to be submitted

to receive a duplicate card. Because a reasonable jury could have

found that the prosecution met its burden on all elements of the

crime, there is sufficient evidence to sustain the defendant's

conviction.

D. Defective Indictment

Defendant contends that his indictment was defective

because it did not specify what false information he allegedly

submitted to the Commissioner of Social Security. We normally

review the claims of defectiveness for harmless error. United

States v. Mojica-Baez, 229 F.3d 292, 311 (1st Cir. 2000). Because

the defendant failed to raise the objection prior to trial,

however, he has waived his right to argue defectiveness of the

indictment on appeal. Fed. R. Crim. P. 12(b)(3)(B).

Not withstanding the defendant's waiver, a review of the

indictment reveals that it was not defective. It tracked the

elements of the offense and stated the allegedly false information

that the defendant attempted to use to obtain a duplicate Social

Security card. See United States v. Serino, 835 F.2d 924, 929 (1st

Cir. 1989)(stating that an indictment should apprise the defendant

of the nature of the accusation and inform the court of the facts

alleged). 

E. Constructive Amendment of Indictment at Trial

Defendant argues his indictment was constructively
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amended at trial because the district court allowed the government

to introduce blank forms found in the search of the storage unit

and because of the prosecutor's statements in his closing argument

that the defendant was impersonating someone else. He contends

that this broadened the bases on which the jury could convict him

to include identity theft or impersonation, rather than the more

limited crime charged in the indictment. 

In determining whether there has been constructive

amendment of the indictment, we generally evaluate whether the

defendant has demonstrated that "the alleged alteration in the

indictment did in fact change the elements of the offense charged,

and whether he was convicted of a crime not charged in the grand

jury indictment." United States v. Kelley, 722 F.2d 873, 876 (1st

Cir. 1983). Because the defendant failed to adequately raise this

issue before the trial court, however, we review for plain error.

United States v. Brando, 539 U.S. F.3d 44, 57 (1st Cir. 2008). 

Here, the introduction of the blank forms and the

prosecutor's suggestion of impersonation neither altered the

elements of the charged offense nor allowed the jury to convict him

of an uncharged crime. Under 42 U.S.C. § 408(a)(6), the government

was required to prove that the defendant knowingly and willfully

provided false information with the intent to deceive. The blank

forms and the prosecutor's theory that the defendant was

impersonating someone else helped to establish that he had the
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requisite mens rea to be convicted of the crime charged. That

defendant possessed forms that he could freely fill in and was

trying to use someone else's identity to obtain a duplicate Social

Security card made it more likely that he could have provided the

information on his SSA application with the intent to deceive. 

F. Denial of the Right to Testify

Defendant contends that the district court erred in

denying his motion for a new trial because he was not permitted to

testify in his own defense. We review the denial of a motion for

a new trial for abuse of discretion. United States v. MontillaRivera, 115 F.3d 1060, 1064 (1st Cir. 1997). The district court’s

findings of fact are reviewed for clear error. Awon v. United

States, 308 F.3d 133, 141 (1st Cir. 2002)(noting that the trial

court's credibility determinations should be given special

deference).

In this case, the district court held a hearing and

considered testimony from both the defendant and trial counsel.

The defendant testified that he did not knowingly waive his rights,

and that he did in fact intend to testify in his own defense.

Trial counsel testified that he informed the defendant of his right

to testify and conducted a mock examination, and that the defendant

decided against testifying. Further, trial counsel testified that

he briefly conferred with the defendant during the course of the

trial at which time he again indicated that he did not intend to
 Section 2B1.1(b)(10)(C)(I) provides in relevant part: "If the 3

offense involves...the unauthorized transfer or use of any means of

identification unlawfully to produce or obtain any other means of

identification...increase by 2 levels. If the resulting offense

level is less than level 12, increase to level 12."

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testify. Crediting the testimony of trial counsel, the court found

that the defendant had been adequately informed of his rights. The

district court’s findings of fact were made after a full hearing,

and are not clearly erroneous. Based on these facts, the court did

not abuse its discretion in denying defendant’s motion for a new

trial. 

G. Sentence Enhancement

The defendant contends that the district court erred in

increasing his offense level from 6 to 12 under U.S.S.G. §

2B1.1(b)(10)(C)(I) , based on a finding that he used a means of 3

identification unlawfully to obtain another means of

identification. We review a sentencing court's findings of fact

for clear error and afford de novo review to its resolution of

questions of law. United States v. Ramos-Paulino, 488 F.3d 459,

463 (1st Cir. 2007). The district court did not err in enhancing

the defendant's sentence under the Guidelines. Although the

defendant contends that there was no evidence he used a form of

identification unlawfully to obtain a duplicate Social Security

card, the jury's verdict on Count II established that defendant

unlawfully used false means of identification to obtain another

means of identification, i.e. a Social Security card.
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AFFIRMED.