                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                      June 7, 2006
                          FOR THE FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                                                                        Clerk

                               No. 05-10250



     UNITED STATES OF AMERICA,


                                         Plaintiff-Appellee,


           versus


     MOHAMMED KHALIL GHALI

                                         Defendant-Appellant.



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



Before GARWOOD, HIGGINBOTHAM and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:*

     Mohammed Khalil Ghali appeals his bench-trial conviction on

fifteen counts of a nineteen-count indictment, arguing that the

district court erred by denying his motion to suppress evidence and

also that the evidence was insufficient to support his conviction

on counts ten through eighteen, the “money laundering–sting” counts




     *
       Pursuant to 5TH CIR. 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should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.
(18 U.S.C. § 1956(a)(3)(A)),1 because it did not show he was

expressly informed the goods in question were stolen.               Ghali also

appeals his sentence, arguing that the district court erred by

applying sentence enhancements for the use of a minor to commit an

offense and for obstruction of justice.           We hold that the district

court properly denied the motion to suppress evidence, we reject

Ghali’s contentions as to the sufficiency of the evidence, and we

conclude that the district court did not err in applying the

challenged sentence enhancements.           Accordingly, we affirm.

                       Facts and Proceedings Below

      Mohammed Khalil Ghali (Ghali)2 owned and operated Sunshine

Market, a convenience store in Arlington, Texas, and Sunshine

Wholesale, a wholesale business in a warehouse in Grand Prairie,

Texas.3   Ghali also owned A-1 Market, another convenience store in

Arlington, Texas. The government suspected that Ghali, through his

convenience stores and wholesale business, was buying and reselling

stolen goods. Beginning September 12, 2001, the Ghali organization

was   investigated      by    a   federal    task    force     consisting     of


      1
        In this opinion, we adopt the indictment’s description of a violation of
18 U.S.C. § 1956(a)(3)(A) — “money laundering–sting.” Section 1956(a)(3)(A)
criminalizes conducting a financial transaction involving property that is
represented by federal law enforcement agents to be the proceeds of specified
unlawful activity.
      2
       Of the Ghali family members mentioned in this opinion, only Mohammed Ghali
will be referred to simply as “Ghali.” All others will be referred to by their
full name or by their first name.
      3
       The record shows that Stephanie Ghali (Stephanie), the second wife of
Ghali, was the record owner of Sunshine Market and Sunshine Wholesale.
Regardless, Mohammed Ghali effectively owned and controlled these businesses.

                                       2
representatives         from    the    FBI,           the     U.S.     Food     and      Drug

Administration’s Office of Criminal Investigations, the Internal

Revenue Service’s Criminal Investigation Division, the U.S. Customs

Service, and the Fort Worth Police Department.                         The task force’s

investigation continued until Ghali’s arrest on May 21, 2003.

      The      investigation      included            a     sting      operation         using

confidential informants as well as an undercover officer.                             During

the course of the sting operation, Ghali’s organization paid

approximately $230,000 for property that was represented by task

force agents to have been stolen in Oklahoma and then brought from

Oklahoma to Texas for sale.4           There were numerous transactions in

which somebody in the Ghali organization, although never Ghali in

person, purchased property thus represented as stolen.                             Nine of

these transactions, occurring from November 2002 to May 2003,

involved property valued at more than $5,000, which led to the nine

counts    of    money    laundering–sting.                  Although    Ghali      did    not

personally make the payments in these nine transactions, the

government      connected      Ghali   to       the       approval     of   each   charged

transaction through recorded phone calls.                     On May 14, 2003, after

one of the largest of these transactions, Ghali instructed his

brother Luai Ghali (Luai) to use Ghali’s minor son Amir to help

move the property represented to be stolen into a storage facility.



      4
        It appears that in most of these transactions the representation to the
Ghali organization was that the seller had purchased the property in Texas from
the thief (or another party) who had brought it from Oklahoma.

                                            3
Amir did in fact help Luai store 936 cases of infant formula and

712 cartons of cigarettes.

      The federal task force’s investigation also included the

inspection of outbound shipments from Sunshine Wholesale to various

entities via Federal Express (FedEx). The first of these searches,

all of which were conducted without a warrant, occurred on May 6,

2002, after FedEx employees in Irving noticed that a shipment of

infant formula from Sunshine Wholesale in Grand Prairie, Texas, to

United Trading in Lexington, Kentucky, was mislabeled as baby

products.5     A federal task force officer had previously alerted

FedEx to be on the lookout for suspicious shipments of infant

formula, and so this shipment was brought to the attention of the

federal task force, which then searched the shipment and found cans

of infant formula that had previously been represented as stolen.

After this, the FedEx employees in Irving contacted a member of the

federal task force every time that Sunshine Wholesale made a

shipment, or received an interstate shipment, via FedEx.                       In

response to these contacts, a member of the task force would go to

the FedEx warehouse to search the shipment.

      Although    the   record   indicates      that   the    task   force   made

numerous     warrantless    searches       of   Sunshine     Wholesale’s     FedEx

shipments, only the evidence from certain of these searches was



      5
       According to the unchallenged testimony of a FedEx witness, a shipment of
baby products can be shipped in the same trailer as hazardous material, but a
shipment of food products, such as infant formula, cannot.

                                       4
introduced       in     the    guilt-innocence           phase     of       the     trial.

Specifically, the introduced evidence was obtained in January,

February, and March of 2003 from the searches of FedEx shipments

from Sunshine Wholesale to Power Supply, a company in Florida owned

by the family of Mirco Vietti (Vietti).              Prior to these particular

searches, the federal task force had obtained the full cooperation

of   Vietti     in     support    of   its     investigation           of     the   Ghali

organization.

      Ghali moved to suppress the evidence obtained during the task

force’s      warrantless      searches,   arguing        that    the    searches     were

unconstitutional.        Following a pre-trial suppression hearing, the

district court denied the motion to suppress after finding that,

due to Vietti’s close cooperation, the evidence from the shipments

to   Power    Supply    inevitably     would      have    been    discovered.          The

district      court    alternatively      found    that    Vietti       had    impliedly

consented to the government’s warrantless searches at FedEx.

      Following a bench trial, Ghali was convicted of one count of

conspiring to commit offenses against the United States (18 U.S.C.

§ 371), one count of possessing goods stolen from an interstate

shipment (§ 659), three counts of transporting stolen property in

interstate commerce (§ 2314), nine counts of money laundering–sting

(§ 1956(a)(3)(A)), and one count of conspiring to commit a money-

laundering offense (§ 1956(h)).               At sentencing, post-Booker, the

district court determined the advisory guideline range by applying



                                          5
the following offense-level enhancements: fourteen levels for a

loss amount of $528,627 (U.S.S.G. § 2B1.1(b)(1)(H)); two levels for

receiving and selling stolen property (§ 2B1.1(b)(4)); two levels

for a conviction under § 1956 (§ 2S1.1(b)(2)(B)); four levels for

being an organizer or leader (§ 3B1.1(a)); two levels for using a

minor to commit a crime (§ 3B1.4); and two levels for obstruction

of justice (§ 3C1.1). The court sentenced Ghali to 168 months’

imprisonment (stating that “[t]his consists of” concurrent terms of

60 months on count 1, 120 months on each of counts 6-9, and 168

months on each of counts 10-19) followed by concurrent three year

terms of supervised release on each such count and a $1500 special

assessment ($100 for each of the counts of conviction).     Certain

forfeitures were also ordered.

                            Discussion

A.   The motion to suppress evidence

     Reviewing a district court’s ruling on a motion to suppress,

this court accepts the district court’s factual findings “unless

clearly erroneous or influenced by an incorrect view of the law.”

United States v. Alvarez, 6 F.3d 287, 289 (5th Cir. 1993).        The

district court’s conclusions of law are reviewed de novo.   Id.   “In

reviewing a ruling on a motion to suppress, this Court views the

evidence taken at trial as well as the evidence taken at the

suppression hearing.”   Id. (citing United States v. Rideau, 969

F.2d 1572 (5th Cir. 1992) (en banc)).


                                 6
       Ghali moved to suppress all evidence seized without a warrant

from    the   shipments     of    Sunshine    Wholesale.6      Following    the

suppression hearing, the district court denied the motion to

suppress      because   the      evidence    inevitably     would   have   been

discovered, and also because the addressee, Mirco Vietti, had

impliedly consented to the searches.              While the district court

orally denied the motion to suppress prior to commencement of the

trial, it also informed the parties that it would issue a written

opinion and order, which it did on April 2, 2004, after the

conclusion of the trial.

       In   analyzing   whether      the    inevitable-discovery     exception

applied to the exclusionary rule, the district court relied on the

legal standard from our decision in United States v. Cherry, 759

F.2d 1196 (5th Cir. 1985): “In order for the [inevitable-discovery]

exception     to   apply,   the    prosecution   must     demonstrate   both   a

reasonable probability that the evidence would have been discovered

in the absence of police misconduct and that the government was

actively pursuing a substantial alternate line of investigation at

the time of the constitutional violation.”              Id. at 1205–06.     The

prosecution must make this demonstration by a preponderance of the

evidence.     Nix v. Williams, 104 S.Ct. 2501, 2509 (1984).



      6
        Specifically, Ghali’s motion addressed the following: “Evidence seized
without a warrant on February 11th and 28th, and March 24th, 2003, and other
times unknown from Federal Express Co., the United States Mail, and other
carriers by ‘ICE agents’ Ft. Worth Police, Customs, Immigration and the Dept. Of
‘Homeland Security’.”

                                        7
     In its opinion, the district court noted that Ghali’s motion

to suppress was directed to the warrantless searches conducted in

early   2003   of   Sunshine   Wholesale’s   FedEx    shipments   to   Mirco

Vietti’s company,      Power   Supply.   Based   on    evidence   that   the

government was actively pursuing a substantial alternate line of

investigation through Vietti in Florida, and based on evidence of

Vietti’s full cooperation with the government, the district court

found that the government had met its burden to establish that the

evidence from the shipment to Vietti inevitably would have been

discovered.     Based on our review of the record, the district

court’s findings were neither clearly erroneous nor the result of

an incorrect view of the law.

     Ghali’s appeal on this issue does not seriously challenge the

district court’s finding that the evidence obtained from the

warrantless search of the FedEx shipments to Vietti inevitably

would have been discovered.       Instead, Ghali argues that the trial

court erred by focusing only on the FedEx shipments to Vietti.

Ghali conclusorily states, “It is undisputed that the Government

introduced evidence, not only coming from Vietti in Florida, but

from the Shallash family in Kentucky and others in an effort to

convince the court that everything Appellant did with connection to

Sunshine Wholesale was tainted by stolen property.”          Ghali argues

that evidence from warrantless searches of Sunshine Wholesale’s

FedEx shipments to other customers should not have been admitted

because Vietti’s cooperation had nothing to do with the search of

                                     8
those shipments.     However, contrary to Ghali’s assertions, none of

the evidence from the other warrantless searches was admitted

during the guilt-innocence phase of the trial.

      Ghali has pointed to no evidence that was admitted during the

trial that was obtained during a warrantless search of a FedEx

shipment that was not going to Vietti’s company. The only specific

evidence that Ghali has come close to complaining of is the May 6,

2002 FedEx shipment of infant formula from Sunshine Wholesale to

United   Trading,    which    was   owned    by   “the   Shallash   family    in

Kentucky.”    After reviewing the record, however, we agree with the

government that the evidence from the May 6, 2002 shipment was not

introduced during the trial, although it was properly introduced

during the suppression hearing.             While Ghali speaks vaguely of

evidence from other searches, he has not shown that any such

evidence was admitted, nor has he argued that the evidence that was

admitted was obtained from illegal searches (other than those in

2003 of shipments to Vietti’s company).7            In summary, because the


      7
        At oral argument, Ghali’s counsel contended that he did indeed make a
“fruit of the poisonous tree” argument by quoting in his Appellant’s Brief the
following language from the district court opinion: “While FedEx may have been
suspicious of Sunshine Wholesale based on the odd appearance of its May 6, 2002
shipment of baby formula, this suspicion was insufficient to permit FedEx to
initiate an open-ended consent to inspection by the U.S. Customs Service of all
packages from Sunshine Wholesale.” Even if quoting portions of the district
court opinion could be considered making an argument, this language does not
constitute a “fruit of the poisonous tree” argument. Indeed, the warrantless
search of the May 6, 2002 shipment was valid due to its suspicious nature. See
United States v. Blum, 329 F.2d 49, 52 (2d Cir. 1964) (upholding a U.S. Customs
warrantless search of a package that the carrier could tell without opening
contained contents that had been misdeclared). Therefore, the warrantless search
of the May 6, 2002 shipment is not itself a “poisonous tree.” The district court
found subsequent warrantless searches at FedEx to be improper (and the government
does not challenge this ruling), but found that, for the evidence the government

                                       9
only evidence obtained during the government’s improper warrantless

searches of the FedEx shipments that was admitted during the guilt-

innocence phase of the trial came from the shipments to a company

controlled    by   a   fully     cooperating     individual     (Vietti),    that

evidence inevitably would have been discovered.                 Therefore, the

district court did not err in denying Ghali’s motion to suppress

evidence.

B.    Sufficiency of the evidence

      Ghali challenges the sufficiency of the evidence for his

conviction on nine counts of violating 18 U.S.C. § 1956(a)(3)(A).8

Specifically, Ghali argues that the government failed to prove that

the   items   purchased     by    Ghali     or   his   agents   were   actually

represented to him as stolen.          When reviewing a challenge to the

sufficiency of the evidence, we view the evidence in the light most

favorable to the verdict and affirm if a rational trier of fact


sought to admit, the exclusionary rule did not apply (and in any event Vietti’s
implied consent sustained those searches of shipments to his company). Ghali has
not argued that the admitted evidence was obtained from such improper searches
(other than those of the 2003 shipments to Vietti).
      8
        These counts are the money laundering-sting counts, count ten through
count eighteen of the superseding indictment. The relevant portion of the money-
laundering statute provides:

      “Whoever, with the intent – (A) to promote the carrying on of
      specified unlawful activity . . . conducts or attempts to conduct a
      financial transaction involving property represented to be the
      proceeds of specified unlawful activity, or property used to conduct
      or facilitate specified unlawful activity, shall be fined under this
      title or imprisoned for not more than 20 years, or both. For
      purposes of this paragraph and paragraph (2), the term ‘represented’
      means any representation made by a law enforcement officer or by
      another person at the direction of, or with the approval of, a
      Federal official authorized to investigate or prosecute violations
      of this section.” 18 U.S.C. § 1956(a)(3)(A).

                                       10
could have found that the government proved all essential elements

of   the    crime   beyond   a   reasonable   doubt.   United    States    v.

Puig-Infante, 19 F.3d 929, 937 (5th Cir. 1994).

      Ghali argues that the property involved was not represented to

him as stolen, as was alleged in the indictment and as is required

by section 1956(a)(3).       He concedes that the property involved was

probably represented to his co-indictees as stolen, but he argues

that there is no proof in the record that it was ever represented

to him that the property was stolen.            Ghali claims that “the

Government had the duty to explicitly represent that the property

was proceeds of an unlawful activity (actually stolen).”           However,

in United States v. Castaneda-Cantu, 20 F.3d 1325 (5th Cir. 1994),

we rejected an argument similar to the one made by Ghali:

      “Law enforcement agents do not have to make express
      representations that the funds to be laundered were
      proceeds of specified unlawful activity. ‘It is enough
      that the government prove that an enforcement officer or
      other authorized person made the defendant aware of
      circumstances from which a reasonable person would infer
      that the property was drug proceeds.’” Id. at 1331
      (quoting United States v. Kaufmann, 985 F.2d 884, 893
      (7th Cir. 1993)).

In this case, the evidence showed that a reasonable person in

Ghali’s circumstances would infer that the property involved was

stolen     property.    Ghali’s    specific   argument   on     this   issue,

therefore, fails.      Aside from this argument, Ghali has explicitly

conceded every element of the government’s case on these counts.




                                     11
We    affirm   Ghali’s    convictions           on   the    nine   counts     of   money

laundering–sting.

C.    The sentence enhancements

       Ghali also argues that the district court erred by enhancing

his   sentence    for    the   use    of    minors         (U.S.S.G.   §    3B1.4)   and

obstruction      of   justice    (§    3C1.1).              The    district    court's

interpretation and application of the guidelines is reviewed de

novo and its factual findings are reviewed for clear error. United

States v. Infante, 404 F.3d 376, 393–94 (5th Cir. 2005).

       There was evidence presented that Ghali’s minor children were

frequently     included    (albeit      at       a   low     level)    in   the    Ghali

organization’s operations in furtherance of the conspiracy.                          For

example, Ghali’s children were used for unloading and storing

stolen property and for counting out large amounts of cash to be

paid for the stolen property.9             We find no error in the district

court’s application of the § 3B1.4 enhancement.




      9
        Ghali argues that he did not personally use or attempt to use any of his
minor children to commit any of the offenses or to assist in avoiding detection
of, or apprehension for, the offenses, and that his sentence should not be
enhanced under § 3B1.4 simply because his co-conspirators so used the minor
children. For support, Ghali cites to United States v. Pojilenko, 416 F.3d 243
(3d Cir. 2005), a case in which the court did indeed hold that that the § 3B1.4
enhancement is not appropriate based only on a co-conspirator’s reasonably
foreseeable use of a minor. The Pojilenko court acknowledged that its holding
on this issue was in conflict with the Eleventh Circuit’s opinion in United
States v. McClain, 252 F.3d 1279 (11th Cir. 2001). We need not decide between
the reasoning of Pojilenko and McClain in this case, however, because there is
evidence that Ghali personally instructed Luai to use Ghali’s minor son Amir to
help unload the “stolen” property into a storage facility and that Amir did so
help.

                                           12
     There was also evidence that Stephanie had received threats as

a result of her decision to testify against Ghali and that, during

the trial testimony of a confidential informant, a spectator in the

courtroom   made   a   throat-slashing   gesture   that   frightened   the

witness.    In the circumstances of this case, we cannot say it was

clearly erroneous for the court to infer that Ghali was indirectly

attempting to threaten or intimidate witnesses.           Accordingly, we

find no error in the district court’s application of the § 3C1.1

enhancement.

                               Conclusion

     For the foregoing reasons, we affirm the judgment of the

district court.

                               AFFIRMED.




                                   13
