United States v. James J. Lyons , 898 F.2d 210 ( 1990 )

TORRUELLA, Circuit Judge.

James Lyons appeals his conviction on eight counts of an indictment arising from the seizure of large quantities of cash, cocaine, weapons and explosives. Most of these items were removed from two storage compartments. Lyons raises four issues as grounds for reversal: (I) that the insertion of a key into the padlock securing one of the storage compartments was an unreasonable search; (II) that his pretrial stipulation of facts was an unknowing and involuntary waiver of his right to cross examine witnesses; (III) that the court erred in failing to appoint counsel to represent him on his post-conviction motion for a new trial; and (IV) that his sentencing hearing was improper.

We consider his contentions seriatim.

I. The Padlock to Storage Unit #633

—A—

Lyons was arrested on April 2, 1986, in Seekonk, Massachusetts, by FBI agents pursuant to an arrest warrant issued September 12, 1985, involving drug trafficking charges. At the time of his arrest, the agents seized the Oldsmobile he had been driving and the suitcase he was carrying. A search of his person incident to his arrest yielded a collection of six keys, among which were two standard padlock keys with no distinctive markings. The suitcase was searched later that day pursuant to a search warrant and among the items found was a rental agreement in the name of John North from the E-Z Mini Storage Company in Warwick, Rhode Island, (“EZ/Warwick”) for storage compartment #792.

On April 2, prior to the search of the suitcase — and apparently by means other than knowledge of the compartment #792 rental agreement¹ — certain FBI agents made their way to E-Z/Warwick. The proprietor at E-Z/Warwick positively identified Lyons from a photograph “as a person being present on the premises.” A review of E-Z/Warwick rental records showed that locker # 633 was rented in the name of Larry Gallo, whom the agents understood through informant information to be an associate of Lyons. Based on this information, the agents inserted one of the keys they had seized from Lyons earlier that day into the padlock securing compartment # 633. The key turned the tumbler; the agents then relocked the padlock without opening the compartment, and left the premises to apply for a search warrant. The compartment itself was opened April 3 when a warrant was obtained. The search of the compartment # 633 yielded a cache of cocaine and weapons.

On April 4, the automobile Lyons had been driving when arrested was searched pursuant to a search warrant and EZ/Warwick rental documents for storage unit # 633 in the name of Larry Gallo were seized.

—B—

Appellant challenges the insertion of the key into the lock to storage compartment # 633 as a warrantless and unreasonable search. The district court ruled that the insertion of a key into a lock solely for the purposes of identifying ownership, as in this case, did not constitute a search at all. We agree.

“A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) because public exposure vitiates any reasonable expectation of privacy. Certainly, whether trying the key in order to identify the lock’s owner was a “search” is a tricky question. But even if it was a search, it was a unique form of one which, as in the case of a sniff by a dog, and is not unreasonable because there is no expectation of privacy involved. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

In United States v. DeBardeleben, 740 F.2d 440 (6th Cir.1984), cert. denied, 469 U.S. 1028, 105 S.Ct. 448, 83 L.Ed.2d 373 (1984), the defendant was arrested for passing counterfeit currency at a shopping mall. Incident to his arrest, a collection of car keys was seized from the defendant. After the mall closed, agents returned to the parking lot and saw three cars. The license plate for one vehicle was not on file. Using the keys seized from the defendant, the agents were able to unlock the passenger door lock and the trunk lock of the vehicle. The agents immediately locked the passenger door without opening it and closed the trunk without examination of its contents. A warrant to search the vehicle was later obtained. The Sixth Circuit, holding that the agents acted reasonably to identify the proper vehicle to search, id., n. 1, p. 443, said:

In the instant case, the insertion of the keys into the Chrysler was merely a minimal intrusion, justified by a ‘founded suspicion’ and by the legitimate crime investigation. The agent, acting on a reasonable belief that the car belonged to defendant, did not search the Chrysler but merely identified it as belonging to defendant. Defendant by the use of a stolen license plate prevented the agent from using that method of determining ownership.

Id. at 445.

In the instant case, the insertion of the key into the padlock was merely a means of identifying a storage unit to which Lyons had access. Just as the vehicle in DeBardeleben was not registered to that defendant, the storage unit in this case was not leased in Lyons’ name. Just as the contents of the vehicle in DeBardeleben were not searched or seized prior to the issuance of the search warrant, neither were the contents of the storage unit searched or seized prior to the issuance of the search warrant.

During the suppression hearing, Lyons testified as follows concerning the storage unit:

Q. Was the area — did that area contain items which were yours?

A. Yes, it did.

Q. Did you expect that that area would be your private area?

A. Yes, I did_

Q. And you wanted to secure what was inside of the bin; is that right?

A. Yes.

Clearly, the padlock was placed on the door to protect the contents of the storage unit. When viewed objectively, it is those contents that are the object of the lessee’s privacy expectations, not the padlock. By placing personal effects inside the storage unit, Lyons manifested an expectation that the contents would be free from public view. See United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538 (1976). We conclude that this course of investigation did not constitute a search. United States v. Place, 462 U.S. at 707, 103 S.Ct. at 2644, or at least, not an unreasonable search protected by the Fourth Amendment.

Since we find that the insertion of the key into the padlock was not a search, Lyons argument that the affidavit in support of the search warrant did not establish probable cause because it relied on the allegedly tainted information gathered from the padlock, fails.²

II. Stipulation of Facts

Prior to trial, on November 25, 1986, Lyons, his counsel, and the Government signed a stipulation of facts and expressly waived his right to trial by jury. Several days later on December 1, 1986, after a lengthy colloquy between Lyons and the trial judge regarding Lyons’ understanding of the stipulation and his various waivers, the trial judge found Lyons “thoroughly competent” and his waiver voluntary. After accepting the waiver, the trial judge inquired whether either party wished to be heard further. Neither the government nor Lyons’ counsel requested that opportunity and the trial judge found Lyons guilty on all counts. Lyons made no objection at that time. However, on December 19, 1986, he filed a motion for a new trial in which he contended that because his custodial treatment rendered his “brain [ ...] like a marshmallow,” his stipulation was not knowing and voluntary.

A review of the colloquy demonstrates that the trial judge made full inquiry concerning the voluntariness of Lyons’ choice to submit the case on stipulated facts. This colloquy included (1) a forewarning to the defendant that the court could decide the case on the stipulated facts alone and could find him guilty on that basis and (2) inquiry of defendant’s counsel in defendant’s presence whether he wished to be heard further.³

Lyons argues now, however, that the colloquy failed to touch upon the effect of the stipulation on his right to cross examine witnesses and was, therefore, inadequate. He contends that a full blown inquiry under Fed.R.Crim.P. 11(c)(3) was required as a matter of law to determine whether his waiver was voluntary and knowing because his trial by stipulation was equivalent to a plea of guilty. A Rule 11 inquiry is mandated when a defendant by plea does not contest a guilty finding; a court’s noncompliance with that mandate can constitute reversible error. McCarthy v. United States, 394 U.S. 459, 471-72, 89 S.Ct. 1166, 1173-74, 22 L.Ed.2d 418 (1969); Mack v. United States, 635 F.2d 20, 24 (1st Cir.1980).⁴ However, Rule 11 does not by its terms apply to circumstances other than formal pleas of guilty or nolo contendere.

Trial stipulations can run the gamut from modest accommodations designed to avoid unnecessary consumption of time in resolving minor matters over which there is no true contest to agreements which are the functional equivalent of a guilty plea.⁵ Justice Harlan marked this spectrum as encompassing, on the one hand, an “agreement between ... counsel and the trial court ... involving] no more than a matter of trial procedure” to, on the other hand, the structuring of a proceeding “involv[ing] so significant a surrender of the rights normally incident to a trial that it amounted almost to a plea of guilty or nolo con-tendere.” Brookhart v. Janis, 384 U.S. 1, 8-9, 86 S.Ct. 1245, 1249, 16 L.Ed.2d 314 (1966) (separate opinion of Harlan, J.).

We have not had occasion to decide whether, when, or to what degree a trial stipulation must be accompanied by the full panoply of advices required under Rule 11 for a guilty plea. Other circuits, however, have been reluctant to mandate a complete Rule 11 inquiry when faced with a pretrial stipulation even if that stipulation contains all the facts necessary for a determination of guilt. See, e.g., United States v. Schmidt, 760 F.2d 828, 834-35 (7th Cir.), cert. denied, 474 U.S. 827, 106 S.Ct. 86, 88 L.Ed.2d 71 (1985); United States v. Schuster, 734 F.2d 424 (9th Cir.), cert. denied, 469 U.S. 1189, 105 S.Ct. 959, 83 L.Ed.2d 965 (1984); United States v. Robertson, 698 F.2d 703, 707-09 (5th Cir.1983); United States v. Stalder, 696 F.2d 59 (8th Cir.1982); United States v. Lawson, 682 F.2d 1012 (D.C.Cir.1982); Witherspoon v. United States, 633 F.2d 1247 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1396, 67 L.Ed.2d 367 (1981). See generally Annotation: Standards of Rule 11 of Federal Rules of Criminal Procedure, Requiring Personal Advice to Accused From Court Before Acceptance of Guilty Plea, As Applicable Where Accused’s Stipulation or Testimony Allegedly Amounts to Guilty Plea, 53 A.L.R.FED. 919 (1981 & 1989 Supp.).

We too decline to extend Rule 11 to cover trial by stipulation. The proper approach, and the one we adopt, is that first articulated by the District of Columbia Circuit in United States v. Strother, 578 F.2d 397, 404 (D.C.Cir.1978):

[W]aiver of jury trial in this context is freighted with what is perhaps more than ordinary significance, and the trial judge should arguably be at some special pains to satisfy himself that the defendant is fully informed about precisely what it is that he is giving up. One way of doing that would be to take heed of at least some of the advices enumerated in Rule 11(c) ... [to] impress[ ] upon defendant the significance of the choice he has purportedly made.

We thus look to the record in this case to determine whether the district judge took “special pains to satisfy himself” that the waiver was knowing and voluntary to impress upon the defendant the significance of the choice to proceed by stipulation. Here, as the partial colloquy set forth in note 4 supra illustrates, the district judge made extensive and pertinent inquiry of Lyons prior to accepting the stipulation, and the record demonstrates that Lyons satisfied the judge that he understood the nature and scope of his stipulation. Cf. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (defendant did not knowingly waive rights when he kept insisting he was not making equivalent of guilty plea). Lyons’ belated complaint regarding the stipulation seems wholly contrived to relieve him of the consequences of his decision. The record fully supports the trial judge’s finding on the defendant’s motion for a new trial that Lyons

was thoroughly competent to make the decision that he did and that he took the action voluntarily ... [The] Defendant knew and understood the proceedings against him and he possessed the ability to consult with his lawyer with a reasonable degree of rational understanding. His present protestations are obviously the result of afterthought and the hope that somehow his present predicament can be improved. The Defendant’s responses demonstrate clearly that his “marshmallow’ analogy lacks an essential ingredient, that of truth.

Of course, there is no harm in conducting a complete Rule 11 inquiry particularly when a trial stipulation contains all the facts necessary for a guilty finding. But that particular form of inquiry is not mandated so long as the trial judge conducts a colloquy with the defendant sufficient to demonstrate that the defendant has executed the stipulation freely with knowledge of the consequences of what he is doing. We hold that the trial judge’s inquiry here to determine whether Lyons’ stipulation was knowing and voluntary was fully sufficient and find no extraordinary circumstances to justify permitting the defendant to withdraw the considered decision he made with the advice of counsel regarding the manner of proceeding on the charges against him.

III. Appointment of Counsel on the New Trial Motion

After his conviction, Lyons moved pro se for appointment of new counsel under 18 U.S.C. § 3006A. Lyons’ counsel at the time filed a motion to withdraw which the district court refused to allow until new counsel filed an appearance. At a hearing on the motion for appointment of new counsel, Lyons filed an affidavit of indigency which the Government contested, pointing to a claim filed by Lyons in response to a forfeiture complaint with respect to $318,000 that had been seized in connection with his arrest. Lyons was called to substantiate the affidavit through testimony and he invoked his fifth amendment privilege. In denying the § 3006A motion, the district court observed that Lyons had had appointed counsel at the beginning of the proceedings against him but had later elected to retain private counsel instead, thereby suggesting he was not indigent.

The district court ruled that while Lyons had the right to invoke the Fifth Amendment, that privilege could not “be used as a shield to avoid disclosure of assets.” Cf. United States v. Krzyske, 836 F.2d 1013, 1018-19 (6th Cir.), cert. denied, — U.S. -, 109 S.Ct. 89, 102 L.Ed.2d 65 (1988) (defendant cannot decline to present additional information about indigency when any conflict with fifth amendment “is speculative and prospective only”). The district court thereafter denied the Motion to Proceed in forma pauperis on March 27,1987. The district court then took up the motion for a new trial at a hearing on May 11, 1987, at which the attorneys previously retained by Lyons appeared. In a comprehensive Opinion issued June 17, 1987, the trial judge denied Lyons’ motion for a new trial.⁶

The dispute over Lyons’ right to proceed in forma pauperis was reignited in connection with his appeal. Upon Lyons’ motion to proceed in forma pauperis on appeal, the trial judge ordered appellant’s private counsel to disclose their fee arrangement, an order which appellant attempted unsuccessfully to have reviewed in this court. Once the fee arrangement had been disclosed, the district court denied the in forma pauperis application on appeal and ordered counsel to remit $7,000 to Lyons so that he might hire new counsel to represent him on appeal.

In prior proceedings in this case, we held that the district court has “jurisdiction to make inquiries which are necessary and relevant to an evaluation of a party’s alleged inability to pay,” In re James Lyons, No. 87-8042, (1st Cir. Sept. 10, 1987) at 2. This is a determination that will “not be lightly overturned.” United States v. Harris, 707 F.2d 653, 660 (2d Cir.), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983).

Deference to the district court is especially appropriate in this area. The opportunities are manifest for disappointed defendants to manipulate the timing of proceedings and to open new fronts for attack on previous rulings by efforts to discharge counsel and seek new counsel. It is perhaps a testament to the high regard in which attorneys available for appointment under the Criminal Justice Act are held that claims of . indigency are used to assist in this manipulation. The trial judge is in the best position to evaluate whether the desire for new and appointed counsel is well founded. We recognize, of course, the need to assure that the right to counsel not be infringed. But “the important right to counsel of choice is not absolute; it must be balanced against the court’s authority to control its own docket, and a court must beware that a demand for counsel may be utilized as a way to delay proceedings or trifle with the court.” Krzyske, 836 F.2d at 1013. Restraints on periodic efforts to change counsel are necessary to ensure that the “right [to counsel] is not manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.” United States v. Allen, 789 F.2d 90, 92 n. 4 (1st Cir.1986).

The district court’s rulings on the in forma pauperis issue as it relates to appeal have already been affirmed by this court. United States v. Lyons, No. 87-1575, slip op. (1st Cir. Nov. 24, 1987) (concurring in denial of appellant’s motion to proceed in forma pauperis and affirming the $7,000 refund). We similarly affirm the district court’s earlier resolution of Lyons’ in forma pauperis request as it related to the motion for a new trial.

IV. The Sentencing Hearing

A. Matters Considered

At his sentencing hearing, appellant objected to a paragraph in his presentence report which stated that he intended to bomb state police barracks in Rhode Island. Upon that objection the sentencing judge was required to make a finding of fact as to the allegation of inaccuracy, or alternatively to determine that no finding was necessary because “the matter controverted w[ould] not be taken into account in sentencing.” Fed.R.Crim.P. 32(c)(3)(D). The judge was further required to append a written record of his finding or determination to the presentence report. Id.

In this case, the district judge merely made a note in the presentence report that appellant denied the bombing plan. This did not meet the requirements of Rule 32(c)(3)(D).

Because it is unclear whether the challenged information affected the nature or length of the sentence imposed on appellant, remand is necessary on that issue. See generally United States v. López-Peña, No. 87-2003, slip op. at 17 (1st Cir. Nov. 22, 1989). United States v. Levy, 870 F.2d 37, 39 (1st Cir.1989); United States v. Jiménez-Rivera, 842 F.2d 545, 551-52 (1st Cir.), cert. denied, 487 U.S. 1223, 108 S.Ct. 2882, 101 L.Ed.2d 917 (1988); United States v. Serino, 835 F.2d 924, 932 (1st Cir.1987). We do not order a new sentencing hearing at this time. If on remand the district court indicates it did not rely on the disputed information, it will make that determination in writing and append it to the presentence report. Jiménez-Rivera, 842 F.2d at 552. If the court did rely on the information, however, it will “vacate the sentence and hold a new sentencing hearing” in compliance with the rule. Id.

B. Conduct of Hearing

Appellant also challenges his sentencing hearing on grounds he was denied his rights to counsel and to present mitigating evidence. Appellant’s contentions are meritless. Not only was he represented by counsel who spoke on his behalf, but his counsel (Edward J. Romano) spoke vigorously and pointedly — notwithstanding the reluctance he expressed at the beginning of the hearing to continue to represent appellant pending disposition of his motion to withdraw as counsel. Appellant has failed to overcome the heavy presumption of adequate representation articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), nor has he shown any prejudice resulting from his counsel’s alleged inadequacy. Id. at 693, 104 S.Ct. at 2067.

Similarly, appellant’s contention that he was denied the opportunity to present mitigating evidence does not withstand scrutiny. Mr. Romano addressed the court at length regarding appellant's troubled childhood and background. Appellant has set forth no other factors he would have presented to mitigate the outcome.

Affirmed, but remanded for action consistent with Part IV-A above.

1 . Because of the manner in which the district court resolved the issues, the record does not fully develop the facts relating to how the agents came to make their way to E-Z/Warwick. The record does, however, indicate that the discovery of the storage compartment # 792 rental agreement seized in the suitcase search did not play a role in initially bringing agents to that facility.

2 . In Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), the Supreme Court held that, absent probable cause, the "plain view” doctrine did not permit police officers to move some stereo components slightly to reveal the serial numbers underneath. See id. at 325, 107 S.Ct. at 1153 (“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”). In the present case, defendant argues that the "plain view” doctrine also did not permit the police officers to test defendant’s key with the storage look.

We decline to address this issue because we do not rest our holding on the "plain view” exception to the warrant requirement, nor do we undertake to enlarge the contours of that exception. Instead, we hold that the insertion of a key into a lock, followed by the turning of its tumbler in order to determine the fit, is so minimally intrusive that it does not implicate a reasonable expectation of privacy. See United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644 (holding that the exposure of defendant’s luggage, which was located in a public place, to a trained canine does not constitute a search within the meaning of the Fourth Amendment).

3 .The colloquy included the following:

THE COURT: And I’m going to ask you, please — hand this to the Defendant, please. Handing you a document from the file which bears the signature James Lyons on the last page, have you seen that before?

MR. LYONS: Yes.

THE COURT: And is that your signature?

MR. LYONS: Yes.

THE COURT: And did you put that, your signature on that page?

MR. LYONS: Yes.

THE COURT: On the 25th of November?

MR. LYONS: Yes.

THE COURT: Did you read that document before you signed it?

MR. LYONS: Yes.

THE COURT: Did you understand that you were not required to sign it?

MR. LYONS: Yes.

THE COURT: Did you take this action voluntarily?

MR. LYONS: Yes.

THE COURT: Do you understand that on the basis of that statement that I could decide this case and could find you guilty of all the charges contained in the indictment?

MR. LYONS: Yes.

THE COURT: Did you have that understanding before you signed it?

MR. LYONS: Yes.

THE COURT: I'm going to enter this stipulation. Counsel wish to be heard?

THE COURT: Does this stipulation contain facts upon which the Defendant must be found guilty on all counts of the indictment?

MR. MADDEN: Yes, your Honor.

THE COURT: Do you wish to be heard, Mr. Egbert?

MR. EGBERT: I do not, your Honor.

4 . The addition of Fed.R.Crim.P. 11(h) in 1983, which provides that ”[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded,” put in question the per se reversible error standard articulated in McCarthy and Mack. United States v. Goldberg, 862 F.2d 101, 106 (6th Cir.1988).

5 . The need for the use of trial by stipulation in order to preserve appellate issues has been diminished as a result of the 1983 amendment to Rule 11, which now permits a conditional plea of guilty. The new conditional plea provision, Fed.R.Crim.P. 11(a)(2) allows a defendant to reserve the right to appeal an adverse determination of a pre-trial motion and permits the defendant to withdraw his plea if he prevails on appeal. Rule 11(a)(2) requires the approval of the court and the consent of the government before a conditional plea can be entered. The record does not disclose whether the conditional plea avenue was explored by the defendant here. Even after the adoption of Rule 11(a)(2), however, there remain a number of reasons why trial by stipulation would be used rather than conditional plea: for example, the necessary approval and consent of the court and the government may not be forthcoming; the defendant may be seeking to preserve for appeal a question of sufficiency of evidence rather than merely a pre-trial ruling issue; the defendant may wish to demonstrate some degree of acceptance of responsibility as a mitigating factor at sentencing by agreeing to steps which minimize the consumption of time in the disposition of his case; or the defendant may be interested in controlling the evidence regarding his actions which the trial judge evaluates in order to limit the judge’s exposure to aggravating circumstances which may be developed more vividly during live testimony at a full trial.

6 . Appellant also argues that the Government's failure to hold him in a facility closer to Rhode Island and his repeated transfers denied him effective assistance of counsel before trial. This contention is without merit. We agree with the district judge that appellant’s reliance on Cobb v. Aytch, 643 F.2d 946 (3rd Cir.1981), is misplaced. Cobb was premised on a finding that the relationship between the pretrial detainees and their counsel had been prejudiced by their transfers, id., an element entirely missing from this case. In fact, as the trial judge below stated, there was “absolutely nothing to show that the assistance rendered to the defendant by counsel was less than professionally competent." Appellant's motion for new trial was correctly denied on the merits.