United States v. Musa

P U B L I S H

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-1779

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

GOWON JACK MUSA, a/k/a Jack
Spencer, a/k/a Ike,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

(February 10, 1995)

Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit
Judges.

POLITZ, Chief Judge:

Gowon Jack Musa appeals his conviction for conspiracy to

import in excess of one kilogram of heroin in violation of

21 U.S.C. §§ 952(a), 960, and 963. We affirm.

Background

On November 18, 1992, agents of the Drug Enforcement

Administration and the United States Customs Service arrested Musa,

a/k/a Jack Spencer, for conspiring to import in excess of one

kilogram of heroin. His arrest followed an intensive investigation
into the recruitment of individuals in the Dallas area to smuggle

heroin from source countries,1 such as Thailand or Burma, via

non-source countries, such as Switzerland or Austria.

The investigation revealed that Musa's alleged coconspirators

would recruit couriers, ostensibly to smuggle diamonds into the

United States from Switzerland or Austria. Once recruited, the

couriers would fly to Los Angeles where Musa would help them obtain

passports, airplane tickets, and cash to cover travel expenses.

One pair of couriers would then travel to Thailand or Burma to

retrieve false-sided suitcases containing heroin for transport to

Austria or Switzerland. Upon arrival in the prearranged non-source

country, the couriers would exchange the bags with another set of

couriers who had traveled directly to the non-source country. That

pair would then bring the bags into the United States, avoiding the

heightened scrutiny that the DEA and Customs place on persons and

packages arriving from source countries. Once back in the United

States, the couriers turned the bags over to Musa or other

coconspirators and received payment via wire fund transfers

arranged by Musa.

On the day of Musa's arrest, agents approached him as he

exited his 1989 red Chevrolet Corvette convertible outside a

Denny's restaurant in Hawthorne, California. The agents read Musa

his Miranda rights, made a brief search of his Corvette, and

transported him to a local police station for questioning. One of

1
A "source country" is one recognized by the DEA as a primary
location for the manufacture and distribution of Southeast Asian
heroin.

2
the agents drove the Corvette to the police station where Musa

signed a waiver-of-rights form and a form consenting to the search

of his Corvette and his apartment in Culver City, California.

Agents drove Musa's car to his apartment which they searched

for evidence implicating Musa in the heroin smuggling operation.

After collecting various items from the apartment, agents drove

Musa's car to the federal building in Los Angeles where it was

searched. The next morning agents again searched the Corvette,

finding a Swiss Air Global Hotel Guide on which Musa had written2

a reference to "The Heroin Connection," a television documentary on

the recruitment of individuals in the Dallas area to smuggle heroin

into the United States through non-source countries.3 Musa had

also written a phone number for Donald Iwegbu, an alleged

coconspirator who had admitted that the goal of the operation was

to smuggle heroin into the United States.

Musa was indicted for conspiring to import in excess of one

kilogram of heroin in violation of 21 U.S.C. §§ 952(a), 960, and

963. He was found guilty by a jury and was sentenced to 324 months

in prison followed by five years of supervised release. Musa

timely appealed, challenging the admission into evidence of the

Hotel Guide, the sufficiency of the evidence supporting his

conviction, and the district court's upward adjustment of his base

2
An expert document examiner compared the writing on the Hotel
Guide with an exemplar taken from Musa and testified that Musa
wrote both.
3
Written on the Hotel Guide were the name of the show, an
address for ordering transcripts, and an "800" number for ordering
a videotape copy.

3
offense level on the basis that he was an organizer or leader in

the conspiracy.

Analysis

Musa contends that the district court erred in denying his

motion to suppress the admission of the Hotel Guide. Contending

that the initial warrantless seizure of his Corvette at the time of

his arrest was illegal, he maintains that the Hotel Guide was

inadmissible as the fruit of an illegal search. We review this

contention for plain error; there was no objection at trial to the

initial seizure of the Corvette.4 Musa objected only on the basis

that the search of his car was not done with his consent or "in

compliance with any inventory or forfeiture proceedings."5

To find plain error we must conclude that there was an error,

which was so conspicuous that the trial judge and prosecutor were

derelict in countenancing it, which compromised a substantial right

4
Fed.R.Crim.P. 52(b). See United States v. Calverley, 37 F.3d
160 (5th Cir. 1994) (en banc), petition for cert. filed (Jan. 18,
1995) (No. 94-7792).
5
To preserve an issue for review on appeal, the defendant's
objection must fully apprise the trial judge of the grounds for the
objection so that evidence can be taken and argument received on
the issue. United States v. Maldonado, No. 94-60234, 1995 WL 3841
(5th Cir. Jan. 6, 1995) (applying plain error review to fourth
amendment claim not specifically brought to attention of district
court). Musa objected to the admission of the Hotel Guide on the
grounds set forth in his pretrial motion to suppress. By the terms
of that motion, and statements in open court, this objection
applies only to the "search" of the Corvette; it does not encompass
the existence of probable cause at the time of the car's seizure
with sufficient specificity "to present the trial court with a
sufficient basis to identify and correct the purported infirmity."
United States v. Berry, 977 F.2d 915, 918 (5th Cir. 1992). This is
particularly true in light of the complete absence of discussion on
this issue at the pretrial suppression hearing.

4
of the defendant, and seriously affected the fairness, integrity,

or public reputation of the judicial proceedings.6

We cannot say that it is clear that the district court erred

in the admission of the evidence. Although the government did not

have a warrant for the seizure of the Corvette at the time of

Musa's arrest, we have upheld the warrantless seizure of cars for

forfeiture under 21 U.S.C. § 881 when there was probable cause to

believe that the vehicle had been used to facilitate the sale,

receipt, or possession of controlled substances.7 The probable

cause necessary to support a seizure of a vehicle under that

statutory provision is "a reasonable ground for belief of guilt,

supported by less than prima facie proof but more than mere

suspicion."8 Contraband need not be found in the car provided the

vehicle facilitated a sale, receipt, or possession of a controlled

substance.9 The government introduced substantial evidence,

gathered prior to the seizure at issue, of Musa's use of the

Corvette in preparing couriers for their trips to smuggle heroin.10

6
Calverley.
7
United States v. One 1978 Mercedes Benz, Four-Door Sedan,
VIN: 116-036-12-004084, 711 F.2d 1297 (5th Cir. 1983).
8
United States v. One 1978 Chevrolet Impala, VIN-
1L69U8S156817, 614 F.2d 983, 984 (5th Cir. 1980).
9
See United States v. One 1979 Mercury Cougar XR-7, VIN:
9H93F720727, 666 F.2d 228, 230 (5th Cir. 1982) ("[F]orfeiture is
proper if the car is used `in any manner' to facilitate the sale or
transportation of a controlled substance.").
10
Melanie Applegate testified that Musa transported her in the
Corvette to a travel agent to purchase tickets to Switzerland and
to the passport office. Ricky Medack testified that Musa drove the
Corvette to meet him in Los Angeles to discuss getting a passport.

5
Having held that similar preparations for a smuggling operation

supply probable cause for a warrantless seizure of a car,11 we are

not prepared to accept the suggestion that there was error.

But even if we assume error, such error clearly was not plain

or conspicuous in light of the substantial evidence of Musa's use

of the Corvette in outfitting couriers for their smuggling trips

and our precedents supporting the conclusion that such would be

sufficient to establish probable cause for seizure for forfeiture

purposes. Accordingly, we proceed no further with the plain error

analysis;12 the district court's admission of evidence found in the

second search of Musa's seized Corvette, despite the car's initial

warrantless seizure, was not plain error.

At oral argument Musa also contended that the second search of

the Corvette was illegal because the agents lacked a warrant or

legal justification. The only issue raised in brief, however, is

the legality of the initial seizure. Indeed, Musa maintains in

brief that because the initial seizure was illegal, whether he

consented to the search or whether the search was a valid inventory

search were "not in issue." Although we liberally construe briefs

in determining issues presented for review, issues which are not

Kelly Dillard testified that Musa drove the Corvette to meet a
group of couriers and give them directions on what they were to do.
Melissa Martin testified that Musa drove "a little red RX-7" when
he brought her money and airplane tickets prior to her overseas
trip.
11
One 1979 Mercury Cougar XR-7, VIN: 9H93F720727.
12
Maldonado, 1995 WL 3841, *6 (proceeding no further in plain
error analysis when error clearly not plain).

6
raised, and those expressly disavowed, are not considered on

appeal.13 Musa's remaining challenges to the admissibility of the

Hotel Guide are not properly before us.

Musa next contends that the evidence is insufficient to

sustain the verdict. It is our task to inquire whether a

reasonable trier of fact could find that the evidence established

guilt beyond a reasonable doubt, viewing the evidence in the light

most favorable to the verdict.14 We are mindful that the evidence

need not exclude every reasonable hypothesis of innocence or be

totally inconsistent with every conclusion except that of guilt.15

In our review we must resolve all credibility determinations in

favor of supporting the jury's verdict.

To sustain a conviction for conspiracy to import in excess of

one kilogram of heroin, the government had to prove beyond a

reasonable doubt that Musa (1) knew that the conspiracy existed,

(2) knew of its purpose or object, and (3) willfully participated

therein.16 Musa maintains that the government failed to show that

he knew that the object of the alleged conspiracy was the

importation of heroin. In arguing that the evidence proved only

13
See Atwood v. Union Carbide Corp., 847 F.2d 278, 280 (5th
Cir. 1988) ("[I]ssues not briefed, or set forth in the list of
issues presented, are waived."), cert. denied, 489 U.S. 1079
(1989).
14
United States v. Benbrook, 40 F.3d 88, 93 (5th Cir. 1994).
15
Id. (citing United States v. Maseratti, 1 F.3d 330, 337 (5th
Cir. 1993), cert. denied, 114 S.Ct. 1096 (1994)).
16
United States v. Palella, 846 F.2d 977 (5th Cir.), cert.
denied, 488 U.S. 863 (1988).

7
that he believed that the object of the conspiracy was to smuggle

diamonds, he points out that no heroin was found on his person or

in his apartment or car, and that no one testified that he ever

discussed heroin.

We first note that a jury may infer the knowledge and

participation elements from circumstantial evidence such as the

concert of action of the parties.17 The government introduced

evidence that Musa helped couriers obtain passports and tickets to

source countries for heroin. One of the couriers testified that

Musa gave her directions to pick up a package from a man in Geneva

and that man identified the contents of the package as heroin. Two

couriers testified that Musa instructed them to pack "the stuff" on

their bodies in girdles for transport into the United States and

that "the stuff" was a white powder; these same witnesses also

testified that Musa told them that "they [Musa and alleged

coconspirators] had to get rid of it [the white powder] or do

whatever they had to do to get their money" before the couriers

could get paid. The two couriers also testified that Musa

ultimately took possession of the duffle bag containing the powder

that they smuggled into the United States. The government

introduced evidence that Musa helped a courier obtain his passport

in Los Angeles and that Austrian police shortly thereafter arrested

this same courier for possession of over 3400 grams of heroin.

The government also introduced evidence of Musa's erratic,

17
United States v. Cardenas, 9 F.3d 1139 (5th Cir. 1993), cert.
denied, 114 S.Ct. 2150 (1994); United States v. Restrepo-Granda,
575 F.2d 524 (5th Cir.), cert. denied, 439 U.S. 935 (1978).

8
evasive, and nervous behavior as evidence of his guilty knowledge.18

A courier testified that Musa became very nervous after learning

that some couriers had been searched at the airport. Another

courier testified that Musa told a courier not to worry when asked

if the smuggling actually involved drugs.

The government also provided evidence of Musa's guilty

knowledge by introducing the Hotel Guide containing his written

reference to "The Heroin Connection" documentary and Donald

Iwegbu's telephone number.19 Testimony identified Iwegbu as one of

the recruiters in the Dallas area who admitted that the object of

the operation was to smuggle heroin. The jury had before it ample

evidence of an awareness on the part of Musa that the object of the

conspiracy was to import heroin. Viewing the evidence in a light

most favorable to the verdict, we must conclude that a reasonable

jury could have found Musa guilty of conspiring to import in excess

of one kilogram of heroin.

In his final assignment of error, Musa asserts that the

district court erred in finding that as an organizer or leader of

the conspiracy he was subject to a four-level increase in the

sentencing base offense level. U.S.S.G. § 3B1.1 provides that to

be eligible for such an increase, the defendant must be an

organizer or leader of a criminal activity that involved five or

18
Cardenas; United States v. Hernandez-Palacios, 838 F.2d 1346
(5th Cir. 1988).
19
The government also connected Musa to the smuggling operation
by introducing telephone records from his apartment showing calls
to Thailand, Switzerland, and Texas.

9
more participants or was otherwise extensive.20 Musa insists that

the evidence supported, at most, the conclusion that he supervised

the obtaining of passports and hotel rooms in Los Angeles for

couriers.

We review the finding under the clear error standard.21 When

determining such, the district court should consider, among other

things, a defendant's exercise of decision-making authority, the

nature of his participation in the offense, the degree of

participation in planning the offense, and the degree of control or

authority exercised over others in the conspiracy. The evidence

produced at trial, discussed above, adequately supports the

district court's finding that Musa was an organizer or leader of

the conspiracy.22

Finding no error, we AFFIRM the conviction and sentence.

20
U.S.S.G. § 3B1.1(a).
21
United States v. Watson, 988 F.2d 544 (5th Cir. 1993), cert.
denied, 114 S.Ct. 698 (1994).
22
U.S.S.G. § 3B1.1, Application Note 4. There must also be at
least five participants subject to control or authority. The
number of recruiters and couriers reflected in the evidence far
exceeds this number.

10