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 ---------------------------------------- Page Break ---------------------------------------- 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) ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 2 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. ---------------------------------------- Page Break ---------------------------------------- 3 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, ---------------------------------------- Page Break ---------------------------------------- 4 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 ---------------------------------------- Page Break ---------------------------------------- 5 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 ---------------------------------------- Page Break ---------------------------------------- 6 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 ---------------------------------------- Page Break ---------------------------------------- 7 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- ---------------------------------------- Page Break ---------------------------------------- 8 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. ---------------------------------------- Page Break ---------------------------------------- 9 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. . . ) ---------------------------------------- Page Break ---------------------------------------- 10 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. ---------------------------------------- Page Break ---------------------------------------- 11 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 ---------------------------------------- Page Break ---------------------------------------- 12 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 ---------------------------------------- Page Break ---------------------------------------- 13 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. ---------------------------------------- Page Break ---------------------------------------- 14 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. ---------------------------------------- Page Break ---------------------------------------- 15 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