                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            AUGUST 2, 2005
                              No. 04-16116                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 03-20916-CR-UUB

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                   versus

AYO ABRAHAM OKHIKU,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (August 2, 2005)


Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Ayo Abraham Okhiku appeals his convictions for possession of 15 or more
unauthorized access devices, and possession of stolen mail. See 18 U.S.C. §§

1029(a)(3) and 1708.     Because the district court did not er when it denied

Okhiku’s motion to suppress, and the evidence presented at trial was sufficient to

support his conviction for possession of stolen mail, we affirm.

                                I. BACKGROUND

      Okhiku and a codefendant were indicted and charged with possession of 15

or more unauthorized access devices (count 1). Okhiku was also charged with

using, without lawful authority, a means of identification of another person with

intent to commit wire fraud (count 2). Okhiku moved to suppress evidence seized

from his apartment. Based on the recommendation of the magistrate judge, the

district court denied the motion to suppress.

      After Okhiku’s codefendant pleaded guilty, a superceding indictment added

a third count and charged Okhiku with possession of stolen mail (count 3). Okhiku

proceeded to trial, and, after the government rested, Okhiku moved for judgment of

acquittal. The district court denied the motion, and Okhiku was convicted by a

jury of counts 1 and 3 and acquitted of count 2.

      The district court sentenced Okhiku to 37 months of imprisonment on each

count, to run concurrently, followed by supervised release for 3 years. The court

also ordered Okhiku to pay restitution in the amount of $8, 601.50 to the victims of



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his crimes. Okhiku appeals his convictions.

                                  II. DISCUSSION

      Okhiku makes two arguments on appeal. He first contends that the district

court erred when it denied his motion to suppress because he did not voluntarily

consent to a search of his apartment. Okhiku also argues that the evidence

presented at trial was insufficient to support his conviction for possession of stolen

mail. We address each argument in turn.

                                A. Motion to Suppress

      Because “rulings on motions to suppress involve mixed questions of fact and

law, the district court’s factual findings are reviewed under the clearly erroneous

standard, while that court’s application of the law is subject to de novo review.”

United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994) (citation omitted).

“When considering a ruling on a motion to suppress, the court must construe all

facts in the light most favorable to the party prevailing in the district court.”

United States v. Mikell, 102 F.3d 470, 474 (11th Cir. 1996). The question we must

consider is whether the district court clearly erred when it found that Okhiku

voluntarily consented to the search of his apartment.

      Although “searches undertaken without a warrant issued upon probable

cause are per se unreasonable,” United States v. Alexander, 835 F.2d 1406, 1408



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(11th Cir. 1988) (quotations omitted), law enforcement officers may conduct a

search without a warrant if they first obtain voluntary consent to the search.

United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). Voluntary consent is

“the product of an essentially free and unconstrained choice.” United States v.

Garcia, 890 F.2d 355, 360 (11th Cir. 1989). To determine whether consent was

freely given, this Court must scrutinize the facts and balance the suspect’s right to

be free from coercive conduct and the legitimate need of the government to

conduct lawful searches. Id. Although not dispositive, the following several

factors are relevant in determining voluntariness: (1) the voluntariness of the

defendant’s custodial status, (2) the presence of coercive police procedure, (3) the

extent and level of the defendant’s cooperation with police, (4) the defendant’s

awareness of his right to refuse to consent to the search, (5) the defendant’s

education and intelligence, and (6) the defendant’s belief that no incriminating

evidence will be found. United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir.

1984).

         Exceptionally clear evidence is required to establish consent. United States

v. Lopez-Pages, 767 F.2d 776, 779 (11th Cir. 1985). The government bears the

burden of proving both the existence of consent and that the consent was not a

function of acquiescence to a claim of lawful authority, but was given freely and



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voluntarily. United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). The

government is not required to prove that the suspect was aware of the right to

refuse consent. Chemaly, 741 F.2d at 1353.

      There are two reasons that the district court did not clearly err when it

determined that Okhiku voluntarily consented to a search of his apartment. First,

the magistrate judge found, and the district court agreed, that the testimony of the

government agents that Okhiku verbally consented to the search of his apartment

was more credible than Okhiku’s version of the events. Such a credibility finding

is within the province of the fact-finder. United States v. Ramirez-Chilel, 289 F.3d

744, 749 (11th Cir.2002). The testimony of both agents was substantially

consistent, and both testified that they did not enter Okhiku’s apartment or begin

the search until Okhiku granted them oral permission to search. Nothing in the

record undermines the veracity of the agents’ testimony, other than Okhiku’s self-

serving recollection of the events.

      Second, the record suggests that there was nothing inherently coercive about

the search. Although Okhiku alleged that he was placed in handcuffs when the

agents searched his apartment, the district court found his testimony incredible. On

the other hand, the credible testimony of the agents established that Okhiku was

not touched or restrained in any way, and none of the officers unholstered their



                                          5
weapons. The record clearly supports the finding that the consent granted by

Okhiku was the product of a free and unconstrained choice and not the result of

allegedly coercive tactics employed by the law enforcement agents.

                            B. Sufficiency of the Evidence

      Okhiku concedes that mail addressed to persons other than himself was

found in his apartment, but argues that the evidence at trial was insufficient to

show that the credit cards were stolen from the mail or that he knew the mail in his

possession was stolen. Whether the evidence presented at trial is sufficient to

support the criminal conviction is a question of law subject to de novo review.

United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). “The evidence is

viewed in the light most favorable to the government and all reasonable inferences

and credibility choices are made in the government’s favor.” Id.

      To support a conviction for possession of stolen mail, “the evidence must

show beyond a reasonable doubt that: (1) appellant possessed the items alleged to

have been stolen from the mail; (2) the items were stolen from the mail; (3)

appellant knew the items were stolen; and (4) appellant specifically intended to

possess the items unlawfully.” United States v. Henry, 920 F.2d 875, 877 (11th

Cir. 1991). The “use of the mails may be established, like most other facts, by

circumstantial evidence, even if the jury might draw other reasonable inferences



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from the circumstantial evidence.” Id. at 877 (quotations and citation omitted).

      Okhiku argues that the government did not establish beyond a reasonable

doubt that the items were stolen from the mail and that Okhiku knew that they

were stolen. We disagree. The record shows that Okhiku possessed a significant

amount of postal materials that were addressed to persons other than himself. His

codefendant testified that Okhiku had access to all the mailboxes at the apartment

complex and often retrieved mail that did not have his name on it. Based on this

circumstantial evidence, the jury could have drawn a reasonable inference that the

items found in Okhiku’s possession were stolen from the mail.

      As to whether Okhiku knew the mail was stolen, a “jury is entitled to infer

that, absent a satisfactory explanation, a person who possesses [mail] which has

been recently stolen has knowledge of the stolen character.” United States v.

Sanders, 639 F.2d 268, 270 (5th Cir. Mar. 12, 1981) (citation omitted). The

quantity of postal evidence addressed to other individuals in Okhiku’s apartment

supports a conclusion that the mail was stolen and that Okhiku knew it was stolen.

The jury could have drawn a reasonable inference that Okhiku knew the mail was

stolen. The district court, therefore, did not err when it denied Okhiku’s motion for

judgment of acquittal.




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                                 III. CONCLUSION

        Because the district court did not er when it denied Okhiku’s motion to

suppress, and the evidence presented at trial was sufficient to support his

conviction for possession of stolen mail, we affirm Okhiku’s convictions for

possession of 15 or more unauthorized access devices, and possession of stolen

mail.

        AFFIRMED.




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