07-4483-cr
USA v. Muse (Hussein)
UNITED STATES COURT OF APPEALS
F OR T HE S ECOND C IRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 11 th day of March, two thousand and ten.
Present: JOHN M. WALKER, JR.,
GUIDO CALABRESI,
RICHARD C. WESLEY,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee-Cross-Appellant,
Nos. 07-4483-cr (L), 07-
4539-cr (Con), 07-5060-cr
(XAP), 07-5067-cr (Con),
- v. - 07-5068-cr (XAP), 07-5758-
cr (Con), 08-1581-cr (Con),
08-1615-cr (Con), 08-1629-
cr (Con), 08-1640-cr (Con)
ALI AWAD, ABDI EMIL MOGE,
ABDULAHI HUSSEIN,
Defendants-Appellants-Cross-Appellees,
BASHI MUSE, OSMAN OSMAN,
ABDINUR AHMED DAHIR,
ALI DUALEH, OMER ALI ABDIRIZAH,
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MOHAMED AHMED, SAEED BAJUUN,
SOFIA ROBLES, ISSE ALI SALAD,
HASSAN SADIQ MOHAMED, LIBAN HASHI,
BASHIR AHMED, MOHAMED ALI,
AHMED ISMAIL, AHMED SHERIF HASHIM,
MAXAMED ABSHAR, ABSIR AHMED,
LIBAN ABDULLE, ISMACIIL GEELE,
MOHAMED ABDILLAHI MOHAMED,
ISMAIL ALI MOHAMED, MOHAMED SHIREH,
DEKO OHERSI, ABDUL HERSI,
WELI MOHAMED ABDI, WARFA ABDI DIRIE,
HASSAN YUSUF, MAHAMUD AFDHUB,
WARSAME GULED, ISSE ABDIWAAB,
YOUNAS HAJI, MOHAMED MOHAMED,
ABDIAZIS SALEH MOHAMED,
OMAR OSMAN MOHAMED,
Defendants,
MOHAMED JAMA, AHMED M. EGAL,
DAHIR ABDULLE SHIRE,
MUHIDIN MOHAMED,
Defendants-Appellants.
__________________________________________________
Appearing for Appellee-
Cross-Appellant: DANIEL L. STEIN, Assistant
United States Attorney, United
States Attorney’s Office,
S.D.N.Y., New York, New York;
ANJAN SAHNI, Assistant United
States Attorney, United States
Attorney’s Office, S.D.N.Y., New
York, New York.
Appearing for Appellant-
Cross-Appellee Awad: MICHAEL O. HUESTON, Law Office
of Michael O. Hueston, New York,
New York.
Appearing for Appellant-
Cross-Appellee Moge: ROBERT J. BOYLE, Law Office of
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Robert, J. Boyle, Esq., New
York, New York.
Appearing for Appellant-
Cross-Appellee Hussein: NEIL B. CHECKMAN, Law Office of
Neil B. Checkman, Esq., New
York, New York.
Appearing for Appellant
Shire: LAURIE S. HERSHEY, Law Office of
Laurie S. Hershey, Esq.,
Manhasset, New York.
Appearing for Appellant
Jama: ROBIN C. SMITH, Law Office of
Robin Smith, Brooklyn, New York.
Appearing for Appellant
Mohamed: MARTIN R. STOLAR, Law Office of
Martin R. Stolar, Esq., New
York, New York.
Appearing for Appellant
Egal: HOWARD L. JACOBS, Law Office of
Howard L. Jacobs, Esq., New
York, New York.
Appearing for Appellant-
Cross-Appellees on Cross-
Appeal: NEIL B. CHECKMAN, Law Office of
Neil B. Checkman, Esq., New
York, New York.
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Appeal from the United States District Court for the
Southern District of New York (Cote, J.).
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
2 AND DECREED that the judgment of the United States District
3 Court for the Southern District of New York be AFFIRMED in
4 part and VACATED and REMANDED in part.
5 Ali Awad, Abdi Moge and Abdulahi Hussein appeal, and
6 the United States cross-appeals, from judgments of
7 conviction, entered as to Hussein and Moge on October 11,
8 2007, and entered as to Awad on October 15, 2007, in the
9 United States District Court for the Southern District of
10 New York. Mohamed Jama, Ahmed Egal, Dahir Abdulle Shire,
11 and Muhidin Mohamed appeal from judgments of conviction,
12 entered as to Jama and Shire on April 1, 2008, and as to
13 Egal and Mohamed on April 2, 2008, in the United States
14 District Court for the Southern District of New York. We
15 presume the parties’ familiarity with the underlying facts,
16 the procedural history of the case, and the issues on
17 appeal.
18 Defendants were charged with violations of federal drug
19 and money laundering statutes in connection with a
4
1 conspiracy to import and distribute cathinone in a form
2 commonly known as khat. Khat is a plant that is grown in
3 various African countries; its leaves are chewed for their
4 stimulant effect. Khat is not a controlled substance, but
5 cathinone, a constituent of the khat plant, is a Schedule I
6 controlled substance. United States v. Abdulle, 564 F.3d
7 119, 125 (2d Cir. 2009).
8 At the first trial, a jury convicted Awad, Moge, and
9 Hussein of conspiracy to distribute cathinone under Count
10 One of the Indictment, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),
11 846; convicted Awad and Moge of conspiracy to import
12 cathinone under Count Two of the Indictment, 21 U.S.C. §§
13 952(a), 963; and convicted Moge of conspiracy to commit
14 money laundering under Count Three of the Indictment, 18
15 U.S.C. § 1956(h). In response to a special interrogatory,
16 the jury concluded that the government did not prove beyond
17 a reasonable doubt that the conspiracy succeeded in
18 distributing cathinone.
19 At the sentencing proceeding following the first trial,
20 the district court concluded that, in light of the jury’s
21 answer to the special interrogatory, the maximum sentence it
5
1 could impose on Count One was 12 months’ imprisonment. The
2 court sentenced Awad to 12 months’ imprisonment for his
3 conviction pursuant to Count One, 121 months’ imprisonment
4 for his conviction under Count Two, to be served
5 concurrently, and three years of supervised release to
6 follow his term of imprisonment. The court sentenced Moge
7 to 12 months’ imprisonment on Count One and 121 months’
8 imprisonment on Counts Two and Three, all to be served
9 concurrently, to be followed by three years of supervised
10 release. The district court also entered forfeiture orders
11 against Awad and Moge pursuant to 21 U.S.C. § 853(a). 1 The
12 court sentenced Hussein to 12 months’ imprisonment on Count
13 One, to be followed by one year of supervised release.
14 At a second trial, Jama, Shire, and Mohamed were
15 convicted by a jury under Counts One and Two of the
16 Indictment. Egal was convicted by the jury under Count One
17 of the Indictment — the only Count on which he was indicted.
18 The district court sentenced Jama and Shire to 15 months’
19 imprisonment on Counts One and Two, to be served
1
We resolve the challenge to forfeiture orders imposed
by the district court in a separate per curiam opinion filed
today.
6
1 concurrently, to be followed by three years of supervised
2 release. The court sentenced Mohamed to 51 months’
3 imprisonment on Counts One and Two, to be served
4 concurrently, to be followed by three years of supervised
5 release. Egal was sentenced to 15 months’ imprisonment for
6 his conviction under Count One, to be followed by three
7 years of supervised release.
8 As an initial matter, at oral argument, defendants
9 conceded, as they must, that this Court’s decision in United
10 States v. Hassan, 578 F.3d 108 (2d Cir. 2008), is
11 controlling with respect to their claim that, as applied,
12 the Controlled Substances Act (“CSA”) is unconstitutionally
13 vague and fails to provide fair notice of what conduct it
14 makes criminal. As we held in Hassan, “what saves the
15 statute at issue here — the CSA as it relates to khat — from
16 constitutional trouble is the fact that scienter is required
17 for a conviction.” Id. at 120. Indeed, in an opinion
18 issued prior to our decision in Hassan, the district court
19 properly noted that “[w]hen a compound is listed as a
20 Schedule I controlled substance, that listing ‘automatically
21 put[s] the public on clear notice that those chemicals . . .
7
1 would be treated for the purposes of federal law as a
2 Schedule I controlled substance.’” United States v. Muse,
3 No. 06-Cr.-600 (DLC), 2007 WL 391563, at *2 (S.D.N.Y. Jan.
4 30, 2007) (quoting United States v. Roberts, 363 F.3d 118,
5 124 n.3 (2d Cir. 2004)).
6 Defendant Jama moved to suppress evidence that was
7 obtained as a result of his arrest, which he contends was
8 not supported by probable cause. The district court found
9 that the circumstances surrounding Jama’s arrest provided
10 reasonable cause to conclude that an offense was being
11 committed. United States v. Muse, No. 06-Cr.-600 (DLC),
12 2007 WL 781200, at *1-2 (S.D.N.Y. Mar. 16, 2007); see also
13 United States v. Patrick, 899 F.2d 169, 171-72 (2d Cir.
14 1990). For substantially the reasons stated by the district
15 court, we agree.
16 In the applications it submitted to conduct electronic
17 surveillance, the government incorrectly stated that the
18 targets of the surveillance were engaged in narcotics
19 trafficking and incorrectly described the controlled
20 substance as khat. Consequently, defendants moved to
21 suppress the evidence obtained through the wiretaps on the
8
1 grounds that it was obtained in violation of 18 U.S.C. §
2 2518 and in violation of the Fourth Amendment. The district
3 court denied the joint motion to suppress the evidence
4 gathered through the wiretaps. United States v. Muse, No.
5 06-Cr.-600 (DLC), 2007 WL 853437, at *6 (S.D.N.Y. Mar. 21,
6 2007). We affirm for reasons stated in the district court’s
7 decision. We also agree with the district court’s reasons
8 for denying a motion for reconsideration of its decision
9 with respect to the evidence obtained from the wiretaps.
10 United States v. Muse, No. 06-Cr.-600 (DLC), 2007 WL
11 1536704, at *2-4 (S.D.N.Y. May 29, 2007); see also United
12 States v. Morgan, 385 F.3d 196, 206 (2d Cir. 2004); United
13 States v. Awadallah, 349 F.3d 42, 64-65 (2d Cir. 2003).
14 Defendants Awad and Moge both challenge the admission
15 of statements made by Awad pursuant to Federal Rule of
16 Evidence 403. We affirm the district court’s decision to
17 admit these statements because the district judge was within
18 her “wide discretion” in balancing the probative value of
19 the evidence against the potential for unfair prejudice.
20 Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384
21 (2008) (internal quotation marks omitted). Similarly, the
9
1 district court acted within its discretion in permitting the
2 government to introduce evidence at trial of Mohamed’s
3 criminal acts that predate the beginning of the conspiracy
4 charged in the Indictment. See United States v. Rigas, 490
5 F.3d 208, 238 (2d Cir. 2007).
6 With respect to defendants’ challenge to the
7 sufficiency of the evidence, we conclude that defendants
8 have not satisfied their burden to demonstrate that the
9 evidence presented to establish their knowledge was
10 insufficient as a matter of law. Based on the evidence
11 presented, a rational trier of fact could have properly
12 found that the essential element of scienter was proven
13 beyond a reasonable doubt. See Jackson v. Virginia, 443
14 U.S. 307, 319 (1979).
15 Several defendants contend that the evidence was
16 insufficient for the juries to find a single conspiracy.
17 The juries at both trials were given instructions on
18 multiple conspiracies. “Whether the government has proved a
19 single conspiracy or has instead proved multiple other
20 independent conspiracies is a question of fact for a
21 properly instructed jury.” United States v. Aracri, 968
10
1 F.2d 1512, 1519 (2d Cir. 1992) (internal quotation marks
2 omitted). The jury verdict, finding a single conspiracy as
3 charged, was adequately supported by the evidence.
4 Defendants maintain that the district court’s
5 instructions to the jury were in error. We disagree.
6 “[T]he law is settled that a defendant need not know the
7 exact nature of a drug in his possession to violate §
8 841(a)(1); it is sufficient that he be aware that he
9 possesses some controlled substance.” Abdulle, 564 F.3d at
10 125 (alteration omitted) (quoting United States v. Morales,
11 577 F.2d 769, 776 (2d Cir. 1978)). The district court
12 properly instructed the juries that the government “need
13 prove only that the object of the conspiracy was to
14 distribute some controlled substance or to possess some
15 controlled substance with the intent to distribute it.”
16 United States v. Muse, No. 06-Cr.-600 (DLC), 2007 WL
17 1989313, at *6 (S.D.N.Y. July 3, 2007) (emphasis in
18 original). The district court further clarified its
19 instruction by noting that, in order to meet its burden, the
20 government was required to prove that the defendants
21 possessed khat knowing that it contained a regulated
11
1 substance. Id. at *7; see also Abdulle, 564 F.3d at 126.
2 Moreover, the district court stated that neither khat nor
3 cathine is a controlled substance, which left cathinone as
4 the only controlled substance upon which the jury could have
5 based its conviction.
6 Defendant Mohamed separately raises two objections to
7 the district court’s jury instructions. First, he argues
8 that the conscious avoidance charge was improperly given to
9 the jury. Second, he asserts that the court erred in
10 refusing to give an instruction regarding the public
11 authority defense. Both of these contentions lack merit.
12 This Court has held that “[w]hen a defendant charged
13 with knowingly possessing contraband items takes the stand
14 and admits possession of the contraband but denies having
15 known of the nature of the items, a conscious avoidance
16 charge is appropriate in all but the highly unusual —
17 perhaps non-existent — case.” United States v. Aina-
18 Marshall, 336 F.3d 167, 171 (2d Cir. 2003). That principle
19 is applicable to the case at bar because Mohamed admitted
20 possessing khat but denied any knowledge that it contained a
21 controlled substance.
12
1 The district court also properly concluded that the
2 evidence presented to support a public authority defense was
3 insufficient as a matter of law. See United States v. Paul,
4 110 F.3d 869, 871 (2d Cir. 1997). Further, failure to give
5 the instruction at issue does not provide a basis for
6 overturning the conviction because the requested instruction
7 does not “represent[] a theory of defense with basis in the
8 record that would lead to acquittal.” United States v.
9 Doyle, 130 F.3d 523, 540 (2d Cir. 1997) (internal quotation
10 marks omitted).
11 The government’s cross-appeal is based on the district
12 court’s conclusion that the maximum sentence that it could
13 impose on defendants Awad, Moge, and Hussein for Count One
14 of the Indictment was one year. The government argues, and
15 we agree, that because cathinone is a Schedule I controlled
16 substance, the statutory maximum sentence is 20 years. See
17 21 U.S.C. § 841(b)(1)(C).
18 Cathinone was the only controlled substance charged in
19 Count One of the Indictment; therefore, there was no danger
20 that defendants’ sentence would be based on a fact that had
21 not been submitted to the jury and proven beyond a
13
1 reasonable doubt. Cf. Apprendi v. New Jersey, 530 U.S. 466,
2 490 (2000). Indeed, although there was testimony about
3 cathine, another stimulant contained in the khat plant, at
4 trial, the district court specifically instructed the jury
5 that cathine is not a controlled substance. There was no
6 risk that defendants would be subjected “to a greater
7 punishment than that authorized by the jury’s guilty
8 verdict.” See United States v. Gonzalez, 420 F.3d 111, 123
9 (2d Cir. 2005) (quoting Apprendi, 530 U.S. at 494).
10 The fact that the jury’s answer to the special
11 interrogatory indicated that the government did not prove
12 beyond a reasonable doubt that the conspiracy succeeded in
13 distributing cathinone has no legal relevance to defendants’
14 sentence because, under the law, the existence of a
15 conspiracy does not depend on its success. See United
16 States v. Jimenez Recio, 537 U.S. 270, 274 (2003). In
17 vacating the sentence imposed under Count One with respect
18 to Awad, Moge, and Hussein, we express no view on the
19 sentence that should be imposed by the district court. 2
2
We note in this respect that as to two of the
defendants, the district court made the sentences run
concurrently with sentences on other counts.
14
1 Rather, we remand solely so that defendants can be sentenced
2 pursuant to the proper statutory provision.
3 Defendants Awad and Moge contend that the district
4 court improperly made their national origin a basis for
5 their sentences. In United States v. Kaba, we cautioned
6 that “[i]t has long been settled in this Circuit that
7 although [r]eference to national origin . . . is permissible
8 during sentencing, it is allowed only so long as it does not
9 become the basis for determining the sentence.” 480 F.3d
10 152, 156 (2d Cir. 2007) (internal quotation marks omitted
11 and alteration in original). We conclude that the record
12 does not support a finding that the district court in fact
13 relied on defendants’ national origin in imposing their
14 sentences. Nevertheless, we caution against creating “even
15 the appearance that the sentence reflects a defendant’s race
16 or nationality.” United States v. Leung, 40 F.3d 577, 586
17 (2d Cir. 1994).
18 The Court has reviewed defendants’ remaining arguments
19 and finds them to be without merit. The judgment of the
20 district court is hereby AFFIRMED in part and VACATED and
21 REMANDED in part so that the district court can sentence
15
1 defendants Awad, Moge, and Hussein for their convictions
2 pursuant to Count One of the Indictment in a manner
3 consistent with this order.
4 For the Court
5 Catherine O’Hagan Wolfe, Clerk
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