U.S. v. Hassan, Docket No. 05-6949-cr.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Pooler
• Citation: 578 F.3d 108
• Parties: UNITED STATES of America, Appellee, v. Abdirashid Mohamed HASSAN, Defendant-Appellant.
• Docket Number: Docket No. 05-6949-cr.
• Decision Date: 19 September 2008

578 F.3d 108 UNITED STATES of America, Appellee,
v.
Abdirashid Mohamed HASSAN, Defendant-Appellant. Docket No. 05-6949-cr. United States Court of Appeals, Second Circuit. Argued: May 4, 2007. Decided: September 19, 2008. Petitions for Rehearing Decided: August 21, 2009.

[578 F.3d 112]

Ira M. Feinberg, Hogan & Hartson, L.L.P., New York, NY, for Defendant-Appellant.

Mary K. Barr, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Barbara D. Underwood, Counsel to the United States Attorney, on the brief), Brooklyn, NY, for Appellee.

Before: CALABRESI and POOLER, Circuit Judges.^*

Amended Opinion

POOLER, Circuit Judge:

Defendant-Appellant Abdirashid Mohamed Hassan appeals from the November 28, 2005 judgment of the United States District Court for the Eastern District of New York (Garaufis, J.), convicting him, following a jury trial, of one count of conspiracy to import cathinone, in violation of 21 U.S.C. §§ 952(a), 963, one count of conspiracy to distribute and to possess with intent to distribute cathinone in violation of 21 U.S.C. §§ 841(a), 846, one count of conspiracy to launder money in violation of 18 U.S.C. § 1956(a)(1), (h), and forty-one substantive counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1). On

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appeal, Hassan argues that: (1) the district court erred in its instructions to the jury; (2) the statute and regulations governing cathinone do not provide fair warning as to what conduct is unlawful; (3) the evidence was insufficient to support his convictions; (4) the government's failure to correct false and misleading testimony denied him a fair trial; (5) trial counsel provided ineffective assistance; (6) the district court erred in admitting a chemist's testimony and exhibits regarding the testing of three samples of khat; and (7) the district court's sentencing determination was erroneous and unreasonable. Because we conclude that the evidence was insufficient to convict Hassan of the forty-one substantive counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1), we REVERSE the judgment on these counts, and direct the district court to enter an order of acquittal. Because we conclude that the district court made a fundamental error in its jury instructions, we now VACATE the judgment as to the remaining counts.¹

I. BACKGROUND

A. Khat

Hassan was convicted of controlled substance and money laundering offenses involving cathinone, a stimulant that is sometimes present in "khat." Khat is the leaf of the plant catha edulis, a shrub that grows in parts of East Africa and the Arabian Peninsula. See United States Food and Drug Administration, Basis for the Recommendation for Control of Cathinone into Schedule I of the Controlled Substance Act 9 (Nov. 5, 1992) [hereinafter "FDA Report"]; United States v. Hassan, 03-cr-567, slip op. at 1, 2005 WL 6222864 (E.D.N.Y. Oct. 12, 2005). "The plant's leaves are chewed or brewed in tea and, once ingested, produce a stimulant effect on the central nervous system." Id.

While "khat is ... ingested as regularly in East African countries (such as Somalia,

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where the defendant is from) as coffee is ingested in the United States," id. at 8, 2005 WL 6222864, the two stimulants that can sometimes be found within khat, cathinone and cathine, have nonetheless been deemed "controlled substances" under United States law, see 21 C.F.R. §§ 1308.11(f), 1308.14(e); see also 21 U.S.C. § 812. Cathinone, which has properties similar to those of amphetamines, is the stronger of the two substances. It is "very unstable" and "rapidly decomposes into less potent substances," including cathine. See FDA Report at 9. According to the Drug Enforcement Administration, "[w]ithin 48 hours of harvest Khat's chemical composition breaks down and at that point Khat contains only Cathine, the schedule IV substance." U.S. Drug Enforcement Administration, Fact Sheet, Khat, AKA: Catha Edulis, http://www.dea. gov/pubs/pressrel/pr072606a.html (last visited August 10, 2008); see also FDA Report at 11-12 ("Khat leaves have been reported to lose their effect within ... three days after harvesting."); Hassan, 03-cr-567, slip op. at 1, 2005 WL 6222864 ("When the leaves are first cut, they contain a stimulant called cathinone. Over a period of approximately 48-72 hours, the cathinone in the plant degrades into cathine, a milder stimulant."). Moreover, according to a recent article in the Journal of Drug Issues, "[a]ny claim that khat always contains cathine is unsubstantiated." Edward G. Armstrong, Research Note: Crime, Chemicals, and Culture: On the Complexity of Khat, 2008 J. Drug Issues 639. Additionally, as the Fourth Circuit has noted: "At this juncture, there is no reasonable basis for the conclusion that khat always contains cathine." Argaw v. Ashcroft, 395 F.3d 521, 526 (4th Cir.2005).

Khat itself is not a controlled substance under United States law. However, khat is subject to an unusual and, indeed, unique dual regulatory scheme that employs a distinction based upon the chemical composition of khat. "When khat contains cathinone, khat is a Schedule I substance," and "[w]hen khat does not contain cathinone, but does contain cathine, khat is a Schedule IV substance." Schedules of Controlled Substances: Placement of Cathinone and 2, 5-Dimethoxy-4-ethylamphetamine Into Schedule I, 58 Fed.Reg. 4316, 4317 (Jan. 14, 1993); see also United States v. Caseer, 399 F.3d 828, 833 (6th Cir.2005) ("[N]either the U.S.Code nor the Code of Federal Regulations controlled substances schedules refers to the plant from which cathinone is derived, Catha edulis, commonly known as `khat.'"); Argaw, 395 F.3d at 527 ("[K]hat is not a controlled substance ...."); United States v. Hussein, 351 F.3d 9, 17 (1st Cir.2003) ("[K]hat, unlike cocaine, is not a controlled substance per se ...."). Importation or distribution of cathinone, the Schedule I substance, is subject to a maximum penalty of twenty years, see 21 U.S.C. § 960(b)(3) (importation); 21 U.S.C. § 841(b)(1)(C) (distribution), while importation of cathine, which was "temporarily" placed on Schedule IV in 1988,² see 53 Fed.Reg. 17,459 (May 17, 1988), is subject to a maximum penalty of five years, see 21 U.S.C. § 960(b)(4); see also 21 U.S.C. § 841(b)(2) (maximum penalty for possessing cathine with intent to distribute is three years' imprisonment).

B. Hassan's Trial

1. The Evidence

The evidence at trial demonstrated that Hassan had been importing khat into the

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United States for several years with the assistance of a United States Customs broker named Patrick Fuller. Fuller provided Hassan with counterfeit customs stamps, which helped release goods from United States Customs quickly and without inspection. Hassan's khat shipments were falsely labeled as printed matter, or similar material, and used fake return addresses. Hassan, who was first introduced to Fuller in 1997 or 1998, was one of Fuller's principal clients. Fuller estimated that he helped Hassan import two to three shipments of khat per week, and Hassan paid Fuller $1,500 for each successful shipment. Hassan also took Fuller to London and introduced him to a man named Omar Hashi who told Fuller that he was Hassan's khat supplier.

Fuller worked with several other khat importers, including a man named Mohamed Hassan — no relation to defendant — who cooperated with the government [hereinafter "the cooperator"]. The cooperator testified that, like a number of other khat importers, he regularly took waybills to Fuller to be stamped with the counterfeit customs stamps. In 2002, another khat importer, Ahmed Mussa, introduced the cooperator to a man named Leban. The cooperator met with Leban several times, but, ultimately, the two did not successfully negotiate a deal. The cooperator later identified defendant Hassan as Leban in a photo array; however, when asked to identify Leban in the courtroom during trial, the cooperator failed to identify defendant Hassan as Leban.

Prior to his arrest in 2003, Hassan had two khat-related encounters with law enforcement authorities. On April 4, 2001, Hassan was briefly detained at John F. Kennedy Airport ("JFK") when he and another individual tried to pick up two shipments of khat from a cargo facility. At the time, Hassan told United States Customs Special Agent Paul Kastava that he thought that khat was legal in the United States, because it was legal in Great Britain. In response, Special Agent Kastava informed Hassan that khat is illegal in the United States.³ However, Kastava did not inform Hassan that khat is illegal because it is, or can be, a controlled substance. Rather, he simply told Hassan that khat is illegal.

Although the shipment of khat was seized, Hassan was not arrested. The government argues, and the district court found, that testimony about this encounter supports the argument that Hassan knew "that khat contains a controlled substance." Hassan, 03-cr-567, slip. op. at 12, 2005 WL 6222864. Hassan, on the other hand, argues that this encounter actually supports his assertion that he was not aware that khat is, or can be, a controlled substance in the United States. Special Agent Kastava did not state that khat was a controlled substance, and Hassan was not arrested, although one would expect to be, if caught importing controlled substances into the United States by a United States Customs Agent. Thus, Hassan argues that his encounter at JFK with Special Agent Kastava merely proves that he was aware that importing khat violates U.S. Customs laws.

Hassan's second encounter with law enforcement regarding khat was on May 9, 2002, at a bond hearing for fellow khat importer Ahmed Mussa. Having been caught importing khat into the United States, Mussa was not charged with violating United States drug laws, but rather was charged with importing merchandise

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into the United States, by means of a false...