United States v. Nweke , 340 F. App'x 237 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 6, 2009
No. 08-30920
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ASIKA M NWEKE,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:06-CR-50099-1
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Asika M. Nweke appeals his conviction on 11 of 12 counts of selling
counterfeit merchandise in violation of 18 U.S.C. § 2320. For the reasons set
forth below, we affirm the trial court’s judgment.
Two Immigration and Custom Enforcement agents entered Nweke’s retail
booth after being tipped off that counterfeit merchandise was being sold. The
agents discovered counterfeit merchandise for sale, and they seized it.
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-30920
Nweke filed a motion to suppress, arguing that the agents violated his
right to be free from unreasonable searches and seizures by entering his store
and seizing his merchandise without consent or a warrant. He argued that the
seizure was governed by 19 U.S.C. § 1959 and was unlawful since no warrant
was issued until after the seizure transpired. The Government responded that
the seizure was lawful because the items were available for sale, in plain sight.
The district court held a hearing on the motion. The parties briefed their
positions on the suppression issue, and the magistrate judge recommended that
the district court deny the motion under the plain view doctrine. Neither party
objected to the magistrate judge’s recommendation, and the district court denied
Nweke’s motion. A jury convicted Nweke on 11 of the 12 counts with which he
was charged.
Nweke now argues that the district court erred in denying his motion to
suppress. Because he did not object to the magistrate judge’s report and
recommendation, we review the denial of the motion to suppress for plain error.
See United States v. Seeley, 331 F.3d 471, 471 (5th Cir. 2003). To show plain
error, Nweke must show a forfeited error that is clear or obvious and that affects
his substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
“The plain view doctrine will support a warrantless seizure if: (1) the
officer was lawfully in the position from which the object was plainly seen; (2)
the object was in plain view; (3) the object’s incriminating nature was
immediately apparent; and (4) the officer had a lawful right of access to the
object itself.” Waltman v. Payne, 535 F.3d 342, 347 (5th Cir. 2008). “[T]he
incriminating nature of an object is immediately apparent if the officers had
probable cause to believe that the object was contraband or evidence of a crime.”
Id.The agents involved in the seizure of Nweke’s goods were lawfully in the
booth area where the goods were on display to the public. The agents testified
at the suppression hearing that, based on their experience and training, the
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No. 08-30920
counterfeit nature of the merchandise was immediately apparent to them. The
district court concurred with the magistrate judge’s finding that, when
considered in combination with the agents’ experience and training, “the
merchandise’s counterfeit nature was immediately apparent.” Nweke has not
shown plain error in this credibility judgment. See United States v. Botello, 991
F.2d 189, 194 (5th Cir. 1993).
Nweke also argues that the evidence was insufficient to support his
conviction because some of the counterfeit merchandise was of such inferior
quality that it would not have been mistaken for genuine designer clothing. The
elements the Government must prove to convict a defendant of violating § 2320
are that “(1) the defendant trafficked or attempted to traffic in goods or services;
(2) such trafficking, or the attempt to traffic, was intentional; (3) the defendant
used a counterfeit mark on or in connection with such goods or services; and (4)
the defendant knew that the mark so used was counterfeit.” United States v.
Hanafy, 302 F.3d 485, 487 (5th Cir. 2002). “A counterfeit mark is defined as a
spurious mark used in connection with trafficking that is identical or
indistinguishable from a registered trademark and the use of which is likely to
confuse, cause mistake, or deceive.” Id. (internal quotation marks and citation
omitted).
Nweke moved for a directed verdict at the close of the Government’s case
solely on the ground that the Government failed to prove beyond a reasonable
doubt that he “knew or had any intent or knowledge that he was selling
counterfeit clothes.” The entire premise of Nweke’s defense and his motion for
directed verdict was that he believed the goods were authentic, which is
inconsistent with his argument on appeal that the counterfeit merchandise could
not have been mistaken for genuine designer clothing. Thus, he waived that
objection, and our review is “limited to determining whether . . . the record is
devoid of evidence pointing to guilt.” United States v. Herrera, 313 F.3d 882,
884-85 (5th Cir. 2002).
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No. 08-30920
Nweke testified that he inspected the clothing before selling it, he had no
reason to believe the items were counterfeit, and that he was surprised to
discover that the items were counterfeit. When directed to specific counterfeit
items, Nweke asserted that it was not obvious to him that the items were
counterfeit, explaining that he did not have the expertise of the government’s
witnesses.
Additionally, the Government presented an expert who testified to the
deceptive nature of at least some of the goods. Nweke has failed to point out
specifically any counts as to which the record is devoid of evidence to support the
verdict. See United States v. Avants, 367 F.3d 433, 442-43 (5th Cir. 2004)(failure
to adequately brief an issue waives that issue).
We conclude that the record is not devoid of evidence that Nweke’s goods
were likely to confuse, cause mistake, or deceive. The judgment of the district
court is AFFIRMED.
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