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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. 壯 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
1A "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. 壯 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
2An expert document examiner compared the writing on the Hotel
Guide with an exemplar taken from Musa and testified that Musa
wrote both.
3Written 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
4Fed.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).
5To 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
6Calverley.
7United States v. One 1978 Mercedes Benz, Four-Door Sedan,
VIN: 116-036-12-004084, 711 F.2d 1297 (5th Cir. 1983).
8United States v. One 1978 Chevrolet Impala, VIN-
1L69U8S156817, 614 F.2d 983, 984 (5th Cir. 1980).
9See 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.").
10Melanie 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.
11One 1979 Mercury Cougar XR-7, VIN: 9H93F720727.
12Maldonado, 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
13See 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).
14United States v. Benbrook, 40 F.3d 88, 93 (5th Cir. 1994).
15Id. (citing United States v. Maseratti, 1 F.3d 330, 337 (5th
Cir. 1993), cert. denied, 114 S.Ct. 1096 (1994)).
16United 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,
17United 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
18Cardenas; United States v. Hernandez-Palacios, 838 F.2d 1346
(5th Cir. 1988).
19The 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.
20U.S.S.G. � 3B1.1(a).
21United States v. Watson, 988 F.2d 544 (5th Cir. 1993), cert.
denied, 114 S.Ct. 698 (1994).
22U.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