USA v HINTON, 9910344
U.S. 9th Circuit Court of Appeals
USA v HINTON
9910344
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 99-10344
v. D.C. No.
CR 98-280 MMC
QUENTIN HINTON, aka RONNIE
BALDWIN, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted
April 10, 2000--San Francisco, California
Filed July 25, 2000
Before: A. Wallace Tashima and Susan P. Graber,
Circuit Judges, and Robert J. Kelleher, 1
Senior District Judge.
Opinion by Judge Kelleher
able privacy interest in the outside of a package placed in a
parcel locker in a post office.
A warrant was issued for appellant Quentin Hinton's proba-
tion violation. Deputy marshals, believing that he was in San
Francisco, conducted surveillance on a post office box in a
San Francisco postal annex.
Postal employees gave the deputies access to the open end
of the post office box on the mail sorting side. Deputies saw
that Hinton's box contained a key to a parcel locker. They
went to Hinton's parcel locker, which was enclosed but not
locked on the mail sorting side of the locker. Inside was a
package addressed to "Mr. Hinton" with a return address of
"Ron Baldwin" in Alva, Oklahoma. The manager of the post
office permitted deputies to replace Hinton's locker key with
a yellow slip. The yellow slip required Hinton to wait in line
to get his package, and limited his access to it to business
hours. The manager placed the package in her office.
Hinton picked up his mail during regular business hours,
but did not redeem the slip for his package. When he was
arrested as he left the post office, he was carrying a driver's
license that bore his photo, but the name "Ronnie Baldwin,"
and a bus ticket showing travel between Oklahoma and San
Francisco.
A deputy notified the post office manager that Hinton had
been arrested. A postal inspector picked up the package and
applied to a federal magistrate for a search warrant. The
search warrant affadavit did not include information about the
removal of the locker key from the mailbox and of the pack-
age from the parcel locker.
The search warrant was issued; a search of the package pro-
duced a revolver and twelve rounds of ammunition.
A search warrant was issued to search the house in Okla-
homa to establish the identity of the owner. During the search,
officers discovered additional weapons and ammunition.
Hinton was charged with three counts: (1) causing the
delivery by mail of a revolver; (2) causing the delivery by
mail of ammunition; and (3) shipping and transporting a fire-
arm in interstate commerce on or about August 14, 1998, in
San Francisco.
Hinton moved to suppress the package and its contents,
arguing that the package was unlawfully seized when the yel-
low slip was substituted for the parcel locker key in his mail-
box. The district court denied the motion, ruling that, even if
the postal authorities were alerted to the package by the mar-
shals, ultimately the decision to search the package was made
independently by the postal authorities and not at the insis-
tence or instruction of the marshals.
A jury convicted Hinton on all three counts. He appealed,
challenging the sufficiency of the evidence on all three
counts, and the district court's denial of his motion to sup-
press.
[1] "Deliver" simply means to give, transfer, yield posses-
sion or control of, make or hand over, or to send to an
intended destination. [2] The government proved that the
package containing the guns and ammunition were sent by
Hinton and arrived at the mailbox address according to the
direction on the package. The government presented sufficient
evidence for a reasonable jury to find that Hinton caused a
firearm and ammunition to be delivered by mail, as required
by the statute.
[3] Under federal statute, it is unlawful for a convicted
felon or a fugitive to ship or transport any firearm or ammuni-
tion in interstate or foreign commerce. The verb "ship" is
defined as "to cause to be transported." By bringing his pack-
age to the post office and beginning the mailing process, Hin-
ton caused the package to be transported by the United States
postal system. Hinton shipped the package as that term is used
in the statute.
[4] A legally sufficient indictment must state the elements
of the offense charged with sufficient clarity to apprise a
defendant of the charge against which he must defend and to
enable him to plead double jeopardy. The test of sufficiency
of the indictment is not whether it could have been framed in
a more satisfactory manner, but whether it conforms to mini-
mal constitutional standards.
[5] The discrepancy between the date as charged and the
date actually mailed was not significant. The government only
had to prove that Hinton shipped the package reasonably near
the date specified in the indictment. [6] The reasonably near
standard provides the government a significant amount of lee-
way in drafting its indictments.
[7] The difference between the date stated on the indict-
ment and the date on which Hinton initiated the shipping pro-
cess was only eighteen days. In addition, the wording of the
indictment gave notice that the date stated in the indictment
may not be the precise date on which the event actually
occurred. Because the difference in date was not very signifi-
cant and because the indictment provided notice that the date
was not precisely known, the date on the indictment was rea-
sonably near to the date the shipping process began.
[8] The difference in the location as charged and the loca-
tion in which the shipping was initiated also was not signifi-
cant.
[9] Shipping is a continuous offense. Whether the informa-
tion specified the point of origin or the point of destination
did not matter. Hinton knew that the action he began in Kan-
sas would become final in San Francisco because he
addressed the package to San Francisco. When Hinton read
the indictment, there could have been no confusion as to what
charges he would need to defend against. The facts as
presented to the jury were legally sufficient to uphold a con-
viction of count three of the indictment.
[10] To obtain information to locate a fugitive, postal regu-
lations allow for a "mail cover" by which a nonconsensual
record is made of data appearing on the outside cover of any
sealed or unsealed class of mail matter. Mail covers may be
ordered only pursuant to a written request to the Chief Postal
Inspector or his authorized agents specifying the reasonable
grounds necessary for the cover. The regulations state that
under no circumstances may a postmaster or postal employee
furnish information as defined by regulations to any person,
except as authorized by mail cover order.
[11] The deputies did not follow the proper procedures for
obtaining a mail cover, however suppression was not the
appropriate remedy for a failure to follow agency regulations.
[12] The question was whether Hinton had a constitutional
right to privacy to the information on the outside of a fourth-
class package found in a partially secure parcel locker.
[13] There is no expectation of privacy in the addresses on
a package, regardless of its class. Hinton did not have a rea-
sonable expectation of privacy in the address affixed the out-
side of his package. [14] There also is no reasonable
expectation of privacy in a parcel locker. [15] One may not
claim an objectively reasonable expectation of privacy in a
parcel locker that cannot be individually rented, and from
which the contents can be moved at employees' discretion.
[16] Federal agents may not unduly detain or seize mail
while waiting to seek a search warrant. [17] Because Hinton
went to the post office during regular business hours, no
actual detention by the marshals occurred. Even if the substi-
tution of the yellow slip for the parcel locker key could have
been considered a detention, a detention of a couple of hours
to ensure that a fugitive is found is reasonable. Hinton's pri-
vacy rights were not violated.
_________________________________________________________________
COUNSEL
Geoffrey A. Hansen, Chief Assistant Federal Public Defender,
Steven G. Kalar, Assistant Federal Public Defender, San
Francisco, California, for the defendant-appellant.
Miranda Kane, Assistant United States Attorney, San Fran-
cisco, California, for the plaintiff-appellee.
_________________________________________________________________
OPINION
KELLEHER, District Judge:
Appellant Quentin Hinton, aka Ronnie Baldwin ("Hinton"),
appeals his conviction prosecuted from a three-count indict-
ment. The jury returned a guilty verdict for the following
three counts: (1) causing the delivery by mail of a revolver
(18 U.S.C. S 1715 (1999)); (2) causing the delivery by mail
of ammunition (18 U.S.C. S 1716(i)(2)); and (3) shipping and
transporting a firearm in interstate commerce (18 U.S.C.
S 922(g)(1)). Hinton challenges the sufficiency of the evi-
dence for all three counts, as well as the district court's denial
of his motion to suppress evidence obtained from a package
that was retrieved without a search warrant. He does not
appeal his sentence. We affirm the district court's holdings as
to all three counts.
FACTS AND PROCEDURAL BACKGROUND
A. Underlying Offense
A number of years ago, Hinton was found guilty of crimes
in both federal and state courts. After completing his prison
terms, Hinton was required to report to a federal probation
officer. He did not, and an arrest warrant was issued for his
probation violation. Deputy marshals began a search for him
and, five years later, the Marshal's Service had reason to
believe that Hinton was in the San Francisco area. Based upon
information received from the Social Security Administration,
three deputy marshals began surveillance of a certain post
office box in a San Francisco postal annex.
On August 6, 1998, two deputies went to the postal annex
on a routine check of the post office box. They were given
access by postal employees to the mail sorting area, which is
closed to the public. At this postal annex, the post office
boxes are closed and locked to the outside, but are open and
in plain view to the postal workers in the mail sorting area.
From the sorting side, the deputies could see that Hinton's
box contained a key for one of the parcel lockers. A key to
a parcel locker allowed patrons to have access to oversize
packages without having to wait in line for a postal clerk.
One of the marshals took the locker key from Hinton's box,
and was escorted by a postal employee to the parcel lockers.
Like the mailboxes, the parcel lockers have solid doors facing
the lobby. However, unlike the mailboxes, the interior sides
of the parcel lockers are not open to the mail sorting area.
Rather, the backsides of the oversized lockers have solid
doors that can be opened without a key from the postal
employees' side. Hinton's package was removed from the
employees' side without using the key from Hinton's mail-
box. The marshals copied the information on the outside of
the package, which showed that the package was addressed to
"Mr. Hinton" with a return address of "Ron Baldwin" in Alva,
Oklahoma.
The manager of the postal annex gave permission to one of
the marshals to remove the locker key from Hinton's mailbox
and replace it with a yellow slip. The yellow slip required
Hinton to wait in line to receive his package and limited the
time during which Hinton could retrieve his package to regu-
lar business hours. The manager stored Hinton's package in
her office.
With the manager's permission, for a week, deputy mar-
shals surveilled Hinton's mailbox from within the employee
area. In order to facilitate their surveillance efforts, one of
them pulled a piece of mail partially out of Hinton's box so
that they would notice if there was movement in the box.
B. Hinton's Arrest
On August 13, 1998, Hinton picked up his mail but did not
redeem the yellow slip for his package. The deputy marshal
on surveillance and a local police officer arrested Hinton as
he left the postal annex. At the time of his arrest, Hinton car-
ried a Nevada driver's license bearing his own picture, but the
name "Ronnie Baldwin," and a Greyhound bus ticket receipt
showing travel between Oklahoma and San Francisco. On that
same day, he was processed and transported to the North Ala-
meda County Jail. The deputies had procured no search war-
rant to this point.
After Hinton was arrested, a deputy notified the manager of
the postal annex of the arrest and told her to keep Hinton's
package in case the postal inspectors were interested in it.
Within a day, a postal inspector picked up the package.
C. The Search of the Package
On August 17, 1998, the postal inspector applied to a fed-
eral magistrate judge for a warrant to search the package
seized from Hinton's locker. In the search warrant affidavit,
the postal inspector reported that the package's weight and the
shifting of its contents appeared suspicious. Because it was a
fourth-class package, it was subject to inspection by autho-
rized postal employees. The postal inspector reported that a
colleague had x-rayed the package and saw what he believed
to be a revolver. The postal investigator also discussed Hin-
ton's probation violation and the surveillance and arrest of
Hinton. He did not include any information regarding the
removal of the key from the mailbox and of the package from
the parcel box.
On that same day, a magistrate judge authorized a search
warrant for the package, based on this affidavit. A search of
the package produced the revolver and twelve rounds of
ammunition which form the basis for the charges against the
defendant.
D. The Search of the Oklahoma House
Multiple sources, including the postmaster for the only post
office in the area, confirmed that "Ronnie Baldwin" was the
occupant of the Alva, Oklahoma, address listed as the return
address on the package. Accordingly, a search warrant was
issued allowing the postal inspector to seize documents and
records that would establish the identity of the owner/
occupant of the Alva, Oklahoma, house. When the search
warrant was executed at the house, law enforcement officers
discovered numerous items in the name of Ronnie Baldwin,
as well as a pistol, two rifles, a bayonet, and ammunition hid-
den under the house.
E. Motion to Suppress
On September 23, 1998, Hinton filed a motion to suppress
the package and its contents, arguing that the package was
unlawfully seized when the yellow slip was substituted for the
parcel locker key in Hinton's mailbox. The district court
denied the motion, ruling that, even if the postal authorities
were alerted to the package by the marshals, "ultimately the
decision to search [the package] was made independently by
the postal authorities and not at the insistence or instruction
of the United States Marshals."
F. The Trial
Hinton concedes that, at trial,"[t]aken in the light most
favorable to the government, the evidence tended to show that
Mr. Hinton mailed a gun from Hardtner, Kansas. The
addresses on the package listed `Ron Baldwin,' an alias of
Mr. Hinton, as the sender, and Mr. Hinton as the intended
recipient." Nevertheless, Hinton challenges the sufficiency of
the evidence for all three of the following counts: (1) causing
the delivery by mail of a revolver (18 U.S.C. S 1715); (2)
causing the delivery by mail of ammunition (18 U.S.C.
S 1716(i)(2)); and (3) shipping and transporting a firearm in
interstate commerce (18 U.S.C. S 922(g)(1)). He also chal-
lenges the district court's denial of his motion to suppress.
DISCUSSION
A. The government presented sufficient evidence for a
reasonable jury to find that Hinton caused to be
delivered a revolver and ammunition in San
Francisco on or about August 14, 1998.
This court reviews de novo the district court's ruling on a
Federal Rule of Criminal Procedure 29 motion. See United
States v. Yankowski, 184 F.3d 1071, 1072 (9th Cir. 1999).
There is sufficient evidence to support a conviction if, view-
ing the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the essential
elements of the offenses charged beyond a reasonable doubt.
See United States v. Nelson, 137 F.3d 1094, 1103 (9th Cir.
1998).
Hinton was convicted of one count of violating 18 U.S.C.
S 1715 and one count of violating 18 U.S.C.S 1716. Section
1715 provides, in pertinent part:
Whoever knowingly deposits for mailing or deliv-
ery, or knowingly causes to be delivered by mail
according to the direction thereon, or at any place to
which it is directed to be delivered by the person to
whom it is addressed, any pistol, revolver, or firearm
declared nonmailable by this section, shall be fined
under the title or imprisoned not more than two
years, or both.
Section 1716 uses the same wording to criminalize the mail-
ing of "injurious articles," although it generally provides for
a lesser penalty unless there was an intent to kill.
Hinton argues that the district court wrongly denied his
motion for acquittal pursuant to Federal Rule of Criminal Pro-
cedure 29 because the government failed to prove that the
firearm and ammunition were "delivered" for purposes of 18
U.S.C. SS 1715 and 1716. Hinton's argument rests upon the
definition of "delivered." As far as we can determine, no court
has ever defined "deliver" for the purposes ofSS 1715 and
1716. The statute itself does not define "delivered," and the
wording of the statute does not give a clear indication of the
meaning.
Hinton argues that we should adopt the definition of "deliv-
ered" that has been developed for 18 U.S.C. S 1702, which
prohibits obstruction of mail delivery. Under this line of
cases, defendants who have removed mail from apartment
mailboxes or tables in common areas have argued unsuccess-
fully that delivery was complete when it arrived at the loca-
tion, so that they could not be convicted under the statute. See,
e.g., United States v. Brown, 425 F.2d 1172, 1174 (9th Cir.
1970). In upholding the conviction in Brown, the Ninth Cir-
cuit held that "S 1702 protects the mail until it is actually
received by the addressee." Id. (emphasis added).
Hinton urges that the same definition of "deliver " should
apply when used in SS 1715 and 1716. He claims that,
because the marshals seized the package before Hinton him-
self actually received it, he did not knowingly cause the pack-
age to be delivered "according to the direction thereon, or at
any place to which it is directed to be delivered by the person
to whom it is addressed," as required by the statute. See 18
U.S.C. SS 1715, 1716(h). Under Hinton's reading, delivery
"according to the directions thereon" requires receipt by the
addressee. Consequently, because Hinton himself never actu-
ally received the package, he cannot be guilty of violating
either SS 1715 or 1716.
Hinton's reliance on S 1702 is unavailing. Both the pur-
poses and the wording of the statutes are distinctly different,
and they do not support the grafting of S 1702's definition of
"delivered" onto SS 1715 and 1716.
Congress, in enacting 18 U.S.C. S 1702 and its predecessor
statutes, intended to "insure that correspondence between a
sender and an addressee be unobstructed until . . . delivered
to the addressee and that any person . . . who in any manner
interfered with or prevented such delivery, violated the statute
which was designed to protect the mail from every kind of
danger, theft, or taking." United States v. Wade, 364 F.2d 931,
934 (6th Cir. 1966). Consequently, this section defines "deliv-
ery" according to the purpose of the statute. Section 1702 spe-
cifically prohibits the removal of mail "before it has been
delivered to the person to whom it was directed." (Emphasis
added). As Congress recognized in its definition, it is logi-
cally impossible to find a defendant guilty of "obstruction of
correspondence" when the package reached the intended
addressee before any interference could occur.
[1] By contrast, SS 1715 and 1716 punish the act of mailing
guns and injurious articles. Whether the articles arrive at the
intended person or even the intended destination matters less
than that they were mailed at all. Sections 1715 and 1716
merely punish those who cause packages of guns or injurious
articles to be delivered "according to the direction thereon."
In the context of SS 1715 and 1716, "deliver" is used in its
common form, without the further narrowing necessary under
S 1702. We will not impute a narrowed definition where Con-
gress has not provided for one. "Deliver" simply means to
"give; transfer; yield possession or control of; make or hand
over; [or] . . . to send to an intended destination . . . ." Web-
ster's Third International Dictionary Unabridged 597 (1966)
(hereinafter "Webster's Third").
[2] The government proved that the package containing the
guns and ammunition were sent by Hinton and arrived at the
mailbox address according to the direction on the package.
Thus, the government presented sufficient evidence for a rea-
sonable jury to find that Hinton caused a firearm and ammuni-
tion to be delivered by mail, as required by 18 U.S.C. SS 1715
and 1716.
B. The government presented sufficient evidence for a
reasonable jury to find that Hinton shipped and
transported in interstate commerce a firearm in San
Francisco on or about August 14, 1998.
Count Three involves the following charges under 18
U.S.C. S 922(g)(1) and (2), which forbids the unlawful ship-
ment and transportation of a firearm by a felon and fugitive:
The Grand Jury Further charges that:
On or about August 14, 1998, in the City and
County of San Francisco, State and Northern District
of California, QUENTIN HINTON, aka RONNIE
BALDWIN, defendant herein, having previously
been convicted of a felony punishable by imprison-
ment for a term exceeding one year, and being a
fugitive from justice, knowingly did ship and trans-
port in interstate commerce a firearm, to wit, a Ruger
Redhawk .44 magnum revolver, serial number 502-
90981, and twelve (12) rounds of .44 magnum
ammunition, all in violation of Title 18, United
States Code, Section 922(g)(1) and (2).
The jury found Hinton guilty of the above offense. How-
ever, the facts proved at trial showed that (1) on August 14,
1998, Hinton was in the custody of the United States Mar-
shals and was unable to mail anything in San Francisco; and
(2) Hinton had mailed the package at issue at a post office in
Hardtner, Kansas, on July 27, 1998. Further, unlike in Counts
One and Two, in Count Three, the government did not
employ any of the usual catch-all phrases. In Counts One and
Two, the government charged that Hinton "cause[d the pack-
age] to be delivered" in San Francisco " and elsewhere." No
such language was included under Count Three.
Hinton attacks Count Three in two ways. He claims that,
because he was already in custody on August 14, and the
package was sent from Kansas, there are not sufficient facts
to support a conviction on Count Three. Further, he argues
that, even if the erroneous location and date are insufficient
to acquit, Hinton cannot be guilty of "shipping " as used in the
statute.
1. The plain meaning of "ship" applies to violations of
18 U.S.C. S 922(g)(1) and (2).
a. United States v. Mohrbacher is not instructive.
Hinton argues that he did not "ship" the package; he caused
the gun to be shipped by placing the gun and ammunition into
the control of the post office. Because he was not charged
with "causing" the package to be shipped, Hinton argues, he
cannot be found guilty of Count Three.
Hinton discusses at length United States v. Mohrbacher,
182 F.3d 1041 (9th Cir. 1999), a case in which we conducted
an exhaustive dissection of another statute that punishes for
shipping and transporting certain items. In Mohrbacher, the
defendant had been found guilty of transporting, receipt and
possession of child pornography. See id. at 1044-46. We
reversed the conviction for transporting and shipping the por-
nography, because we determined that there was no proper
distinction between S 2252(a)(1)'s shipping provision and
S 2252(a)(2)'s receiving provision. See id. at 1050. The defen-
dant had ordered and subsequently downloaded pictures from
a pre-existing network on the Internet. We determined that the
act was "more analogous to ordering materials over the phone
and receiving materials through the mail than to sending or
shipping such materials." Id.
Mohrbacher is readily distinguishable. First, the processes
involved in downloading from the Internet are very different
from the act of shipping a package in the United States mail.
In the Internet context, a party initiating contact will stay
within the confines of his home, office, or other personal
space and request that a pre-existing network send an item of
information to him. But in the postal system, a party affirma-
tively acquires the package himself, and then physically
enters the package into the mail system so that the object goes
away from the person initiating the conduct, rather than
toward him. These are completely different processes.
Further, downloading by definition is the act of "receiv-
[ing] information, typically a file, from another computer to
yours via your modem. . . . The opposite term is upload which
means to send a file to another computer." Id. at 1048 (citing
to Alan Freedman, Computer Words You Gotta Know! Essen-
tial Definitions for Survival in a High-Tech World 49 (1993))
(emphasis added). Consequently, a crime involving down-
loading more readily conforms to a charge of receipt than to
one for transporting or shipping.
Finally, in the statute at issue in Mohrbacher , "Congress
chose to separate the provision that makes transporting or
shipping unlawful from the subsection that criminalizes
receiving or distributing." Id. Under 18 U.S.C. S 2252, a
defendant could be charged with one count of transporting
and another count of receiving and another count of possess-
ing all for the same underlying offense. But Congress did not
differentiate between the actions under S 922(g) as it did
under S 2252. Hinton would be guilty of only one count under
18 U.S.C. S 922(g) whether he ships, possesses, or receives
any firearm or ammunition. It does not matter which of these
words is used to signify the violation of the statutory section;
the violation still exists. Because of these substantial differ-
ences between the statutes at issue in the two cases, the opin-
ion in Mohrbacher does not control.
b. Hinton shipped the package containing guns and
ammunition.
[3] Instead, the plain text of the statute dictates whether
Hinton could be convicted of shipping the package. Subsec-
tions 922(g)(1) and (2) provide that it is unlawful for a con-
victed felon or a fugitive to "ship or transport any firearm or
ammunition in interstate or foreign commerce." 18 U.S.C.
S 922(g)(1) & (2). Webster's Third defines the verb "ship" as
"to cause to be transported." Webster's Third, supra, at 2096.
Transport means to "transfer or convey from one person or
place to another: to CARRY, MOVE." Id. at 2430. By bring-
ing his package to the post office and beginning the mailing
process, Hinton definitely caused the package to be trans-
ported by the United States postal system. Consequently, Hin-
ton shipped the package as that term is used inS 922(g)(1) &
(2).
2. The indictment was legally sufficient to apprise the
Defendant of the charges against which he must
defend.
Hinton also argues that there were not sufficient facts
proved at trial that supported his conviction of Count Three
as the indictment described it. Although we agree that Count
Three of the indictment could have been more artful, we con-
clude that there were sufficient facts to support the conviction.
[4] Federal Rule of Criminal Procedure 7(c)(1) requires that
an indictment be a "plain, concise and definite written state-
ment of the essential facts constituting the offense charged."
An indictment "should be read in its entirety, construed
according to common sense, and interpreted to include facts
which are necessarily implied." United States v. Givens, 767
F.2d 574, 584 (9th Cir. 1985) (citations omitted). In essence,
a legally sufficient indictment must state the elements of the
offense charged with sufficient clarity to apprise a defendant
of the charge against which he must defend and to enable him
to plead double jeopardy. See id. Further, the test of suffi-
ciency of the indictment is not whether it could have been
framed in a more satisfactory manner, but whether it con-
forms to minimal constitutional standards. See United States
v. Rossi, 27 F.3d 409, 415 (9th Cir. 1994).
a. The difference between the dates is not
significant.
[5] The discrepancy between the date as charged and the
date actually mailed is not significant. It is well-settled that
the government need prove only that Hinton shipped the
package "reasonably near" the date specified in the indict-
ment. See United States v. Tsinhnahijinnie, 112 F.3d 988, 991
(9th Cir. 1997) ("The government ordinarily need prove only
that the crime occurred on a date reasonably near the one
alleged in the indictment, not on the exact date.").
[6] The "reasonably near" standard provides the govern-
ment a significant amount of leeway in drafting its indict-
ments. For example, a nineteen-day variance was held
immaterial in Lelles v. United States, 241 F.2d 21, 25 (9th Cir.
1957), and evidence specifying only "July 1995 " was consid-
ered "reasonably near" the indictment's July 10, 1995 charge
in United States v. Alviso, 152 F.3d 1195, 1197 (9th Cir.
1998). By contrast, cases in which we have found variances
in dates to be prejudicial have involved large differences
between the facts proved and the dates alleged in the indict-
ment. See, e.g., Tsinhnahijinnie, 112 F.3d at 991-92 (disal-
lowing a two year variance); United States v. Casterline, 103
F.3d 76, 78-79 (9th Cir. 1996) (excluding conduct that
occurred seven months before the date charged in the indict-
ment).
[7] In this case, the indictment stated that Hinton was
charged with shipping the package "on or about August 14."
The difference between the date stated on the indictment and
the date on which Hinton initiated the shipping process is only
eighteen days. In addition, the wording of the indictment
gives notice that the date stated in the indictment may not be
the precise date on which the event actually occurred.
Because the difference in date is not very significant and
because the indictment provides notice that the date is not pre-
cisely known, the date on the indictment is "reasonably near"
to the date the shipping process began. Further, as discussed
below, given the continuing nature of the offense, and the dif-
ference in the date on the indictment and the date(s) of ship-
ping, there is even less of a variance than the parties argue.
b. The difference between the locations.
[8] The difference in the location as charged and the loca-
tion in which the shipping was initiated also is not significant.
At first glance it appears that although he was charged as
shipping in San Francisco, his affirmative actions within the
shipping process actually occurred halfway across the country
in Kansas. However, the purpose of including the location of
the shipment in the information is to apprise the defendant of
the charge against which he must defend. See Givens, 767
F.2d at 584. That goal was accomplished in this case.
Although normally an indictment that charges an action in
San Francisco, California, will not clearly apprise a defendant
that he is being charged with actions originating in Hardtner,
Kansas, in this case, it did.2
[9] Shipping is a continuous offense. By definition, it
entails transferring from "one . . . place to another." Web-
ster's Third, supra, at 2430 (emphasis added). Hinton caused
the package to be transported from Hardtner, Kansas, to San
Francisco, California. Whether the information specified the
point of origin or the point of destination does not matter.
Hinton knew that the action he began in Hardtner, Kansas
would become final in San Francisco, California, because he
addressed the package to San Francisco. When Hinton read
the indictment, there could have been no confusion as to what
charges he would need to defend against. In this case and
under the text of this statute, the facts as presented to the jury
were legally sufficient to uphold a conviction of Count Three
of the indictment.
C. The district court did not err in denying defendant's
motion to suppress evidence obtained from a package
that was removed from a post office parcel locker and
examined without a search warrant.
We review de novo the validity of a warrantless search and
review for clear error any underlying factual findings. See
United States v. Montero-Camargo, 190 F.3d 1041, 1045 (9th
Cir. 1999).
Hinton challenges the district court's denial of his motion
to suppress. He claims that the warrantless search and seizure
of a package delivered to a locked and enclosed postal locker
violated his legitimate expectation of privacy. Hinton believes
that he has a legitimate expectation of privacy in a postal
package delivered to the post office since the mailbox was
locked to the public, and the parcel locker was not exposed to
the employee area.
In support of his contention that his privacy interest in the
package was violated, Hinton makes the following three argu-
ments. First, he contends that extensive postal regulations
were developed to protect privacy interests in mail, and were
violated by the marshals in this case. Second, he argues that
a postal customer has a legitimate privacy interest in the
address information on mail that is already enclosed and
locked in a mailbox, so that copying the information on the
package was a violation of that privacy interest. And third, he
claims that the replacement of the locker key by a yellow slip
limits the hours for package recovery, resulting in an infringe-
ment on privacy.
1. A violation of a postal regulation does not warrant
suppression of the evidence.
[10] Title 39, Section 233.3 of the Code of Federal Regula-
tions, regulates the use of "mail covers." 39 C.F.R. S 233.3
(1999). A "mail cover" is a term of art within the postal sys-
tem "by which a nonconsensual record is made of any data
appearing on the outside cover of any sealed or unsealed class
of mail matter . . . to obtain information in order to . . .
[l]ocate a fugitive." The regulation applies to all classes of
mail, including fourth-class mail, which was used in this case.
See id. at S 233.3(c)(2). Mail covers may be ordered only pur-
suant to a written request to the Chief Postal Inspector or his
authorized agents specifying the reasonable grounds neces-
sary for the cover. See id. at S 233.3(d) and (e). Exceptions
apply to undelivered mail, damaged mail, and mail that poses
an immediate threat to persons or property. See id. at
S 233.3(f)(1) and (2). The regulations further state that
"[u]nder no circumstances may a postmaster or postal
employee furnish information as defined in S 233.3(c)(1) to
any person, except as authorized by mail cover order." Id. at
S 233.3(g)(4). Hinton claims that, because the marshals did
not follow the proper procedures for initiating a mail cover,
the evidence taken from the search should be suppressed.
[11] Although it is undisputed that the officers did not fol-
low the proper procedures for obtaining a mail cover, suppres-
sion is not the appropriate remedy for a failure to follow
agency regulations. See United States v. Ani, 138 F.3d 390,
392 (9th Cir. 1998). In Ani, we held that the exclusionary rule
was not triggered when a customs inspector searched a pack-
age sent via international mail without reasonable cause and
contrary to postal regulations. Rather, we held that, because
border searches of international mail do not require probable
cause, the customs inspector's search did not violate a consti-
tutional mandate. See id. In fact, we specifically held that,
"[a]bsent a constitutional violation or a congressionally cre-
ated remedy, violation of an agency regulation does not
require suppression of the evidence." Id. (citations omitted).
We are aware that, in Ani, although the search was assumed
to violate the postal regulation, the search was conducted by
a person authorized to conduct border searches--a customs
inspector. In this case, while a postal employee would be
authorized to determine the mailability of a package, a United
States marshal probably would not.
Nevertheless, a violation of a regulation does not mandate
suppression of the evidence. In United States v. Caceres, 440
U.S. 741 (1979), the Supreme Court held that the exclusion-
ary rule did not apply to tape recordings by IRS agents which
were obtained in violation of agency regulations. The Court
feared that rigid application of the exclusionary rule would
have a serious deterrent effect on the formulation of addi-
tional standards and regulations by agencies. See id. at 756.
Because the defendant's constitutional and statutory rights
were not violated, exclusion of the evidence was improper.
See id. at 744.
[12] Hence, the relevant query is whether a constitutional
right, not an agency regulation, has been violated. Conse-
quently, rather than automatically suppress the evidence due
to a violation of agency regulations, we must determine
whether Hinton has a constitutional right of privacy to the
information on the outside of a fourth-class package found in
a partially secure parcel locker.
a. There is no expectation of privacy in the outside
of a package.
[13] There is no expectation of privacy in the addresses on
a package, regardless of its class. The Supreme Court has held
that the inspection of the outside of first-class mail did not
disturb any privacy interest. See United States v. Van Leeu-
wen, 397 U.S. 249, 250- 52 (1970), cited in United States v.
Choate, 576 F.2d 165, 177 (9th Cir. 1978) (en banc) (reason-
ing reinforced in United States v. Choate, 619 F.2d 21, 22
(9th Cir. 1980)). This court specifically held in Choate, 576
F.2d at 167, that the mail cover regulations do not violate the
Fourth Amendment. We stated that "[s]enders knowingly
exposed the outsides of the mail to postal employees and oth-
ers, and defendant could not keep those areas private." Id. at
177. Because Hinton exposed the outside of his package to
postal employees and others, Hinton did not have a reasonable
expectation of privacy in the address affixed thereon.
b. There is no expectation of privacy in a parcel
locker.
[14] There also is no reasonable expectation of privacy in
a parcel locker. Under United States v. Kyllo , 190 F.3d 1041,
1045 (9th Cir. 1999), in order to find governmental intrusion
into Hinton's privacy, we must find both that society has a
reasonable expectation of privacy in a parcel locker and that
Hinton himself had a subjective expectation of privacy. See
id. (citing Katz v. United States, 389 U.S. 347, 361 (1967)).
Hinton claims that, because the parcel locker was enclosed on
all sides and locked to the public, he had a reasonable expec-
tation of privacy in that locker. The government, in contrast,
argues that, because the parcel locker was accessible to postal
employees, the locker was not protected. Both parties cite
United States v. Osunegbu, 822 F.2d 472 (5th Cir. 1987), in
support of their respective positions.
In Osunegbu, the Fifth Circuit upheld a warrantless search
of a private post office box during which postal inspectors
examined the exterior of the mail inside the box. In its analy-
sis, the Fifth Circuit gave a lengthy explanation of the postal
annex room's layout and the procedure employed by the
annex's manager of mail delivery. The court noted that the
manager would often have to look at the addresses on enve-
lopes to confirm that they were properly distributed, and
would move packages from one mailbox to another if a box
became over-filled. Consequently, because of the minimal
expectation of privacy as to the contents placed in the mail-
box, and the manager's unfettered access to the mail in the
locked mailboxes, the Fifth Circuit concluded that the mail-
box manager could consent to the search of the mailbox. See
id. at 480.
Hinton argues, however, that in his case the parcel locker
was analogous to the "locked locker, a hotel room, or an
apartment" that the Osunegbu court mentioned in dictum,
rather than to the private mailbox actually at issue in the case.
Before commenting on the validity of the search of the mail-
box rented in Osunegbu, the court distinguished the Osunegbu
situation from other situations in which the defendants did
have reasonable expectations of privacy. The Fifth Circuit
noted
[C]ourts have recognized both that renters of[locked
lockers, hotel rooms, or apartments] have a reason-
able expectation of privacy protected under the
Fourth Amendment and that this expectation of pri-
vacy is not destroyed by the fact that the lessor or
landlord possesses a key and has maintained a lim-
ited right to enter the rental premises for repair,
inspection, and similar purposes.
Id. at 478 (footnote omitted). Because the parcel locker was
enclosed on all sides, including the side facing the employee
area, and the package had already arrived at its location await-
ing pick-up, Hinton argues that his package was in the equiva-
lent of a locked locker and deserves protection.
[15] Hinton's argument is unpersuasive. A further compari-
son between the facts in Osunegbu and those at bar reveals
that there is not a substantial difference between the two
cases. As in Osunegbu, the San Francisco postal employees
presumably may relocate any packages placed within the par-
cel lockers at any time. The parcel lockers are not individually
rented, but are provided as a service and a substitute for wait-
ing in the regular postal line. The postal employees would
have the right to move the packages whether the parcel locker
has a back door facing the employee area or not, because the
right to move the packages exists irrespective of a locker's
enclosure. In sum, one may not claim an objectively reason-
able expectation of privacy in a parcel locker that cannot be
individually rented, and from which the contents can be
moved at employees' discretion.
Because there is no reasonable expectation of privacy in a
parcel locker at a post office, we need not determine if Hinton
had a subjective expectation of privacy therein.
2. There are no privacy implications in the
substitution of a yellow slip for a locker key.
[16] Hinton claims that his privacy was infringed when the
locker key was replaced by the delivery slip, because it lim-
ited Hinton's access to his package. Hinton relies on United
States v. Dass, 849 F.2d 414 (9th Cir. 1988), in support of his
contention. In Dass, we made clear that federal agents may
not unduly detain or seize mail while waiting to seek a search
warrant. See id. at 415. Hinton claims that, by switching the
delivery slip for the locker key, there was an impermissible
detention of Hinton's package under Dass.
[17] Dass is distinguishable. In Dass, the packages were
actually detained from seven to twenty-three days prior to
obtaining search warrants. In this case, because Hinton went
to the post office during regular business hours, the detention
was theoretical at most; and even in theory, the detention was
minimal because of the post office's hours. At the time he
picked up his mail, including his yellow slip, Hinton could
have gone to the postal clerk to pick up his package immedi-
ately. Consequently, no actual detention by the marshals
occurred. Moreover, even if the substitution of the yellow slip
for the parcel locker key could be considered a "detention,"
a package may be detained for a reasonable amount of time.
See Van Leeuwen, 397 U.S. at 249 (upholding a twenty-nine
hour seizure of a mailed package prior to the issuance of a
search warrant based upon the specific facts of the case). A
detention of a couple of hours (the difference between regular
postal hours and mail room hours) to ensure that a fugitive is
found is reasonable; Hinton's privacy rights were not vio-
lated.
CONCLUSION
We affirm the district court's conviction, holding that the
government presented sufficient evidence to convict Hinton
of all three counts. In addition, the district court properly
denied Hinton's motion to suppress because Hinton did not
have a reasonable privacy interest in the outside of a package
placed in a parcel locker at a post office.
AFFIRMED.
_______________________________________________________________
FOOTNOTES
1 The Honorable Robert J. Kelleher, Senior United States District Judge
for the Central District of California, sitting by designation.
2 It is certainly true that the information could have included an explana-
tion that would indicate that the location was not precisely known. For
example, the indictment could have stated that Hinton shipped the package
from "San Francisco, California or elsewhere," rather than only that he
shipped from "from San Francisco, California." However, in this case,
such equivocation was unnecessary.