45 F.3d 922 (5th Cir. 1995), 93-1779, United States v. Musa

Docket Nº:93-1779.
Citation:45 F.3d 922
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gowon Jack MUSA, a/k/a Jack Spencer, a/k/a Ike, Defendant-Appellant.
Case Date:February 10, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 922

45 F.3d 922 (5th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

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

No. 93-1779.

United States Court of Appeals, Fifth Circuit

February 10, 1995

Page 923

Harold J. Laine, Jr., Beaumont, TX, Louis J. Sandbote (Court-appointed), Dallas, TX, for appellant.

Joe C. Lockhart, John Lydick, Asst. U.S. Attys., Paul E. Coggins, U.S. Atty., Dallas, TX, for appellee.

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

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. Secs. 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 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 written 2 a reference to "The Heroin Connection,"

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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. Secs. 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 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 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...

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