United States v. Ali

• Decision Date: 14 November 2013
• Docket Number: 12–4674,12–4631,12–4672,12–4632,12–4657,12–4679,12–4700.,12–4676,12–4699,12–4687,12–4682,12–4675,Nos. 12–4630,s. 12–4630
• Citation: 735 F.3d 176
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Suado Mohamed ALI, a/k/a Suada Mohamed Ali, a/k/a Sue, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Ahmed Ali Hassan, a/k/a Dirir, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Abdirahman Abshir Jibril, a/k/a Abdi Ali Mire, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Harun Salhan, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Hibo Musse Samantar, a/k/a Fadumo, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Abokor Gurreh, a/k/a Mohamed Farhan, a/k/a Mubarak, a/k/a Farhan M. Mohamed, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Nagi Mansor Seaa Alashmali, a/k/a Mohamed Albokhiti, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Khaled Ahmed Isa, a/k/a Hamza, a/k/a Adnan, a/k/a Khalid Ahmed Aesaa, a/k/a Khaled A. Aesa, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Ismail Mohamud Abdi, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Abdi Muhumed, a/k/a Juba, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Lutf Mohamed Albukhaiti, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Abdi Omar Abdi, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Osman Yusuf, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

735 F.3d 176

UNITED STATES of America, Plaintiff–Appellee,

v.Suado Mohamed ALI, a/k/a Suada Mohamed Ali, a/k/a Sue, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Ahmed Ali Hassan, a/k/a Dirir, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Abdirahman Abshir Jibril, a/k/a Abdi Ali Mire, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Harun Salhan, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Hibo Musse Samantar, a/k/a Fadumo, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Abokor Gurreh, a/k/a Mohamed Farhan, a/k/a Mubarak, a/k/a Farhan M. Mohamed, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Nagi Mansor Seaa Alashmali, a/k/a Mohamed Albokhiti, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Khaled Ahmed Isa, a/k/a Hamza, a/k/a Adnan, a/k/a Khalid Ahmed Aesaa, a/k/a Khaled A. Aesa, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Ismail Mohamud Abdi, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Abdi Muhumed, a/k/a Juba, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Lutf Mohamed Albukhaiti, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Abdi Omar Abdi, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Osman Yusuf, Defendant–Appellant.

Nos. 12–4630, 12–4631, 12–4632, 12–4657, 12–4672, 12–4674, 12–4675, 12–4676, 12–4679, 12–4682, 12–4687, 12–4699, 12–4700.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 19, 2013.

Decided: Nov. 14, 2013.

ARGUED:Joseph John McCarthy, Delaney, McCarthy & Colton, PC, Alexandria, Virginia; Thomas Brian Walsh, Petrovich & Walsh, PLC, Fairfax, Virginia; William B. Cummings, William B. Cummings, PC, Alexandria, Virginia, for Appellants. Michael John Frank, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF:Michael S. Arif, Arif & Associates, PC, Springfield, Virginia, for Appellant Ahmed Ali Hassan. Bruce M. Cooper, Washington, D.C., for Appellant Harun Salhan. Alfred L. Robertson, Jr., Robertson Law Office, PLLC, Alexandria, Virginia, for Appellant Hibo Musse Samantar. John O. Iweanoge, II, The Iweanoge's Firm, P.C., Washington, D.C., for Appellant Suado Mohamed Ali. Frank Salvato, Alexandria, Virginia, for Appellant Ismail Mohamud Abdi. Anser Ahmad, Advanced Immigration Law GROUP, PC, Harrisburg, Pennsylvania, for Appellant Abdi Muhumed. Daniel T. Lopez, Briglia Hundley Nutall & Kay PC, Vienna, Virginia, for Appellant Osman Yusuf. John L. Machado, Law Office of John Machado, Washington, D.C., for Appellant Abokor Gurreh. Gary H. Smith, Gary H. Smith Attorney At Law, Alexandria, Virginia, for Appellant Abdi Omar Abdi. Robert L. Jenkins, Jr., Bynum & Jenkins, PLLC, Alexandria, Virginia, for Appellant Lutf Mohamed Albukhaiti. Neil H. MacBride, United States Attorney, Kyle Maurer, Special Assistant United States Attorney, Mary K. Daly, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.

Affirmed by published opinion.

Judge NIEMEYER wrote the opinion, in which Judge GREGORY and Judge FLOYD joined.

NIEMEYER, Circuit Judge:

Seventeen individuals, all originally from Somalia or Yemen, were indicted for their participation in a large conspiracy to traffic in khat, a leafy plant native to the Horn of Africa. Khat contains the controlled substance cathinone, which is desired for the euphoria it provides when khat leaves are chewed. Thirteen of the defendants were also charged with conspiracy to commit money laundering.

After four of the defendants pleaded guilty pursuant to plea agreements, the remaining thirteen proceeded to trial and were convicted of all charges, except one, who was acquitted of the money laundering charge. All thirteen defendants filed this appeal, arguing principally that the evidence was insufficient to convict them because it failed to show that they knew that cathinone was a controlled substance and that khat contained cathinone. In a similar vein, they challenge the district court's jury instructions relating to scienter and willful blindness. The defendants convicted of money laundering contend that the indictment failed to adequately identify the financial transactions and other details so as to give them sufficient notice of the charges. And finally, the defendants challenge the district court's procedural rulings to exclude their expert witness and, as to one defendant, to deny a motion for severance.

After careful consideration of the defendants' arguments and the large record in this case, we affirm.

I

Khat (pronounced “cot”) is a leafy shrub that grows in East Africa and part of the Arabian peninsula, principally in Ethiopia, Yemen, and Kenya. When khat is fresh, it contains the alkaloid cathinone, which is a stimulant, and chewing khat leaves causes excitement, loss of appetite, and euphoria. The cathinone in khat degrades after it is picked, breaking down after a few days into the less potent drug, cathine. Consequently, fresh khat is more desirable to its users and thus more expensive and more profitable to its sellers.

While khat itself is not a controlled substance, the cathinone in fresh khat is a Schedule I controlled substance, see21 C.F.R. § 1308.11(f)(3), and the less-potent cathine in stale khat is a Schedule IV controlled substance, see21 C.F.R. § 1308.14(f)(1). Accordingly, it is illegal to possess, distribute, buy, or sell khat, although the defendants point out that khat is not illegal in some east African countries, and in those countries, its use is common in social settings.

Typically, khat is harvested in Kenya and flown in bundles, first to Europe and then to the United States. Each bundle typically contains 40 to 60 stems and leaves and is bound by banana leaves to preserve freshness. Because it is perishable, khat is typically not stored. During the period relevant to this case, fresh khat in the United States sold for up to $60 per bundle at retail and $50 at wholesale.

In August 2008, federal law enforcement officers began an investigation into the importation of khat into the United States and its subsequent distribution, ultimately leading them to Yonis Ishak, the head of a large-scale distribution operation. Ishak's enterprise distributed some 10 to 11 million grams of khat over a period from February 2005 to May 2011 in the Baltimore/Washington area (including northern Virginia), New York City, and Columbus, Ohio. Law enforcement also discovered that proceeds from the sale of khat were laundered through the Virginia branch of Dahabshil, Inc., a wire transfer service, and sent to Ishak's overseas suppliers in the United Kingdom and Africa.

In June 2011, Ishak and 16 co-conspirators were indicted for conspiracy to possess with intent to distribute cathinone, in violation of 21 U.S.C. §§ 841(a) and 846, and 13 of the defendants were also indicted for conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). Ishak and three other defendants pleaded guilty to Count 1 pursuant to plea agreements, and the remaining 13 defendants proceeded to trial on April 17, 2012. Pursuant to his plea agreement, Ishak served as the government's principal witness. ^*

At the outset of trial, the defendants charged with money laundering moved to dismiss that count because the indictment neglected to allege “which of the qualifying financial transactions the defendant conducted or attempted to conduct.” They argued that the deficiency left open the possibility that the jury could make a finding not charged by the grand jury, in derogation of each defendant's Fifth Amendment rights. The district court denied the motion as untimely but invited these defendants to renew their arguments at trial through a sufficiency of the evidence motion under Federal Rule of Criminal Procedure 29.

Prior to the conclusion of trial, defendant Abokor Gurreh filed a motion for severance of his trial on the ground that another defendant had presented evidence antagonistic to Gurreh's interest. The district court denied the motion. Also during trial, the court excluded the testimony of the defendants' expert witness regarding the chemical nature of khat on the basis that the defendants' designation of the expert at trial was not timely and that, in addition, the proffered testimony was not relevant.

At the conclusion of the evidence, the defendants moved for acquittal under Rule 29, arguing that the government did not present sufficient evidence of scienter because it failed to establish that the defendants knew that cathinone was a controlled substance and that khat contained cathinone. The court denied the motion, concluding that, to prove scienter, the government was required only to show that defendants knew that khat contained a controlled substance. It also instructed the jury to that effect. In the same vein, it gave the jury an instruction on willful blindness, to which the defendants objected.

The jury convicted the 13 defendants on all counts, except Harun Salhan, who was acquitted on Count 2 (the money laundering count), and the court imposed prison sentences on the defendants ranging from 3 months to 12 months and a day.

These appeals followed.

II

The defendants first contend that the district court erred in instructing the jury on both scienter and willful blindness. They argue that, by allowing the government to prove simply that they trafficked in khat and knew that khat contained a controlled substance, the court reduced the government's burden to prove that the defendants conspired knowingly to distribute cathinone or knowingly to possess cathinone with intent to distribute it. The defendants also contend that the evidence did not support a willful blindness instruction. We address these challenges seriatim.

A

With respect to scienter, the...