United States v. Sanni-Shittu

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 21, 2009
No. 08-20316
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
USMAN BANKOLE SANNI-SHITTU,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-371-2
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Proceeding pro se with standby counsel, Usman Bankole Sanni-Shittu was
convicted in a bench trial of conspiracy, 18 U.S.C. § 371; mail fraud, 18 U.S.C.
§§ 1341 and 2; bank fraud, 18 U.S.C. §§ 1344 and 2; possession of stolen mail, 18
U.S.C. §§ 1708 and 2; and aggravated identity theft, 18 U.S.C. §§ 1028A and 2.
The district court sentenced Sanni-Shittu to an 84-month term of imprisonment.
Sanni-Shittu appeals his conviction and sentence.
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5th Cir. R. 47.5.4.
No. 08-20316
Sanni-Shittu asserts that evidence seized during a consensual search of
an apartment he occupied and statements he made to authorities during the
search should have been suppressed because his consent to the search and his
statements were involuntary. Sanni-Shittu argues for the first time on appeal
that he signed the consent forms at gunpoint and in fear of his life and that his
statements were made under similar duress. He further argues that he was not
the lessor of the apartment; the absence of a warrant was unreasonable; the
manager of the apartment complex thought the officers had a warrant; and there
were no exigent circumstances justifying a warrantless search.
Following a hearing, the district court found that Sanni-Shittu consented
to the search and that his statements were made voluntarily. Whether Sanni-
Shittu’s failure to argue in the trial court that his consent and statements were
obtained at gunpoint waived the issue, see United States v. Pope, 467 F.3d 912,
917-20 (5th Cir. 2006), or whether the claim is reviewed for plain error, see
United States v. Baker, 538 F.3d 324, 328-29 (5th Cir. 2008), cert. denied, 129 S.
Ct. 962 (2009), Sanni-Shittu has failed to rebut the district court’s determination
that he consented to the search and his statements were made voluntarily.
Consequently, we find it unnecessary to address Sanni-Shittu’s other
suppression arguments.
Sanni-Shittu argues that his arrest was not supported by probable cause.
Without citing legal authority or evidence to support the argument, he asserts
that an investigation of computer and telephone records that allegedly led
authorities to a computer located in the apartment that he occupied was a sham
and that he was arrested simply because he is Nigerian. We conclude that
Sanni-Shittu has waived this issue by failing to brief it adequately. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also United States v.
Tomblin, 46 F.3d 1369, 1376 n.13 (5th Cir. 1995). Sanni-Shittu contends that
his arrest lacked probable cause because officers had no evidence that he
committed a crime when they entered the apartment. His contention ignores
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No. 08-20316
evidence that internet tracking indicated that a computer used to open
fraudulent bank accounts was located in the apartment he occupied; the district
court’s finding that he voluntarily consented to the search and gave
incriminating statements to officers; and evidence that Sanni-Shittu was not
arrested until after the consensual search revealed incriminating items in the
apartment. The arrest was supported by probable cause. United States v.
Wadley, 59 F.3d 510, 512 (5th Cir. 1995).
Sanni-Shittu urges that his rights under the Sixth Amendment were
violated because he was denied the right to fire his appointed attorney and
proceed with retained counsel of his choice. He argues that his decision to
represent himself was not informed and voluntary and that he was forced into
the decision because the trial court would not allow him to be represented by
counsel of his choice. After reviewing the extensive district court proceedings
concerning Sanni-Shittu’s representation, we find no violation of Sanni-Shittu’s
rights under the Sixth Amendment. See United States v. Joseph, 333 F.3d 587,
589-90 (5th Cir. 2003); United States v. Davis, 269 F.3d 514, 518 (5th Cir. 2001).
We reject Sanni-Shittu’s challenge to the sufficiency of the evidence that
he participated in a conspiracy. The record evidence supports the conviction of
conspiracy. See United States v. Serna-Villarreal, 352 F.3d 225, 234 (5th Cir.
2003). We do not address Sanni-Shittu’s arguments concerning his sentence
because he has not provided a record of the sentencing hearing or offered an
explanation for this omission from the record. United States v. Hinojosa, 958
F.2d 624, 632 (5th Cir. 1992).
AFFIRMED.
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