UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 05-cr-254-01-JD

FNU LNU a/k/a Jimmy Oshunkey

O R D E R

The defendant has moved in limine to exclude certain

evidence from his upcoming trial. He has been charged with 

(1) knowingly furnishing false information to the Commissioner of

Social Security with the intent to deceive as to his true

identity in violation of 42 U.S.C. § 408(a)(6), and (2) knowingly

using another person’s means of identification to do so in a

manner affecting interstate commerce in violation of 18 U.S.C. 

§§ 1028(a)(7) and (c)(3)(A). The government objects.

The government alleges that, on September 13, 2005, the

defendant appeared at the Social Security Administration’s office

in Nashua, New Hampshire, seeking a social security card,

purportedly to replace one previously issued to him. On that

day, the defendant allegedly identified himself as Jimmy

Oshunkey, born June 8, 1964, in Atlanta, Georgia. The social

security number the defendant allegedly claimed, however, had

been issued in 1979 to one Sheyi Oshuwkeye, born August 6, 1957,

in Lagos, Nigeria. The government therefore charges that the

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defendant used either someone else’s social security number,

someone else’s biographical information, or both, in a fraudulent

attempt to obtain a social security card. The defendant explains

that he is, in fact, Sheyi Oshuwkeye, and that he was, in fact,

issued the social security number in question, but that he has

since “Americanized” his name to Jimmy Oshunkey. 

Through separate motions, the defendant seeks to exclude 

(1) a Massachusetts “Firearm Identification Card” identifying him

as Jimmy Oshunkey, born June 8, 1964, in Atlanta, Georgia, and 

(2) testimony from an Immigration and Customs Enforcement agent

that it has no record of anyone lawfully entering the United

States under either name. The defendant argues that each of

these pieces of evidence is irrelevant to the charges against him

but that, even if it is, its probative value is substantially

outweighed by its prejudicial effect.

Specifically, the defendant argues that the firearm

identification card is irrelevant to the government’s case

because it supports, rather than contradicts, the allegation that

he is Jimmy Oshunkey. One of the government’s theories, however,

is that the defendant is Oshunkey, but fraudulently attempted to

procure a social security card with a number already assigned to

Oshuwkeye. In any event, the government represents that the

defendant presented the very same firearm identification card to

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the Nashua Social Security office as proof of his purported

identity during the incident of September 13, 2005. Thus, if the

defendant is not Oshunkey, he used the card as part of the

alleged scheme to obtain a social security card with another

person’s name. Under either theory, i.e., whether the defendant

is or is not actually Oshunkey, the card is relevant. 

The defendant also argues that any probative value the card

has would be substantially outweighed by its prejudicial effect

in that it suggests that its holder “may have owned or possessed

a firearm” and therefore “would only cause the jury to speculate

if [sic] the defendant may be dangerous in some way.” Mot. in

Limine ¶¶ 5, 6. As this argument recognizes, however, holding a

gun license does not necessarily equate with owning a gun. 

Furthermore, as the government points out, gun ownership itself

does not indicate dangerousness, particularly when the existence

of the identification card suggests that, even if the defendant

owned a gun, he had a license to do so legally. Any prejudice to

the defendant from the firearm identification card, then, is

minimal at worst and therefore does not outweigh its probative

value. See United States v. Williams, 2006 WL 1071232, at *8-*9

(11th Cir. Apr. 24, 2006) (unpublished disposition) (upholding

admission, in gun possession case, of photographs of defendant

posing with replica handguns over his objection that they

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portrayed him as “gun-toting lawbreaker” and therefore should

have been excluded under Rule 403).

The defendant also objects to the anticipated testimony on

the absence of any record of lawful entry into the United States

by anyone named either Jimmy Oshunkey or Sheyi Oshuwkeye. This

evidence is irrelevant, he contends, because the government has

not charged him with any immigration violation. As the

government points out, however, evidence tending to show that the

defendant is an illegal alien helps establish a motive for one of

his alleged crimes–-falsely representing his place of birth as

Atlanta in attempting to get a social security card identifying

him as an American citizen. The evidence is similarly probative

as to his state of mind in doing so. Accordingly, the expected

testimony as to the defendant’s apparently unlawful entry into

the country is relevant. See Fed. R. Evid. 404(b); United States

v. Remache-Garcia, 102 Fed. Appx. 761, 2004 WL 1530357, at *2 (3d

Cir. July 8, 2004) (unpublished disposition) (upholding admission

of evidence of defendant’s status as illegal alien in case

charging violation of 18 U.S.C. § 1028 because his “immigration

status was, according to the prosecution, the very reason” for

the alleged crime).

Finally, the defendant argues that this evidence is unfairly

prejudicial because it suggests that he “may be an illegal alien

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in the United States and at a time when this issue is discussed

daily.” Mot. in Limine ¶ 6. While the court recognizes that one

side of the recent public discourse on immigration has largely

cast illegal aliens in an unfavorable light, this general

observation alone cannot justify the exclusion of relevant

evidence. See United States v. Yi, 451 F.3d 362, 370-71 (5th

Cir. 2006). During jury selection, the court will explore any

prejudices among potential jurors that tend to affect their

ability to consider this case fairly.

Conclusion

For the foregoing reasons, the defendants’ motions in limine

(document nos. 19 and 20) are DENIED.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

July 27, 2006

cc: Stanley W. Norkunas, Esquire

Alfred J.T. Rubega, Esquire

U.S. Probation

U.S. Marshal

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