United States v. Suado Ali ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4630
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SUADO MOHAMED ALI, a/k/a Suada Mohamed Ali, a/k/a Sue,
Defendant - Appellant.
No. 12-4631
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AHMED ALI HASSAN, a/k/a Dirir,
Defendant - Appellant.
No. 12-4632
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABDIRAHMAN ABSHIR JIBRIL, a/k/a Abdi Ali Mire,
Defendant - Appellant.
No. 12-4657
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARUN SALHAN,
Defendant - Appellant.
No. 12-4672
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HIBO MUSSE SAMANTAR, a/k/a Fadumo,
Defendant - Appellant.
No. 12-4674
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
2
ABOKOR GURREH, a/k/a Mohamed Farhan, a/k/a Mubarak, a/k/a
Farhan M. Mohamed,
Defendant - Appellant.
No. 12-4675
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NAGI MANSOR SEAA ALASHMALI, a/k/a Mohamed Albokhiti,
Defendant - Appellant.
No. 12-4676
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.
No. 12-4679
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
3
ISMAIL MOHAMUD ABDI,
Defendant - Appellant.
No. 12-4682
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABDI MUHUMED, a/k/a Juba,
Defendant - Appellant.
No. 12-4687
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUTF MOHAMED ALBUKHAITI,
Defendant - Appellant.
No. 12-4699
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
4
ABDI OMAR ABDI,
Defendant - Appellant.
No. 12-4700
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSMAN YUSUF,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:11-cr-00261-TSE-4; 1:11-cr-00261-TSE-6;
1:11-cr-00261-TSE-8; 1:11-cr-00261-TSE-9; 1:11-cr-00261-TSE-5;
1:11-cr-00261-TSE-17; 1:11-cr-00261-TSE-1; 1:11-cr-00261-TSE-15;
1:11-cr-00261-TSE-11; 1:11-cr-00261-TSE-12; 1:11-cr-00261-TSE-
13; 1:11-cr-00261-TSE-16; 1:11-cr-00261-TSE-7)
Argued: September 19, 2013 Decided: November 14, 2013
Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Gregory and Judge Floyd joined.
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
5
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.
6
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.
7
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,
see 21 C.F.R. § 1308.11(f)(3), and the less-potent cathine in
stale khat is a Schedule IV controlled substance, see 21 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
8
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
9
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
∗
Thirteen of the seventeen defendants were named defendants
in both Counts 1 and 2: Abdi Omar Abdi, Ismail Mohamud Abdi,
Lutf Mohamed Albukhaiti, Suado Mohamed Ali, Abokor Gurreh,
Hassan Hassan, Khaled Ahmed Isa, Yonis Muhudin Ishak, Abdulkadir
Ali Isse, Abdirahman Abshir Jibril, Abdi Muhumed, Harun Salhan,
and Osman Yusuf. And four defendants were named defendants only
in Count 1: Nagi Mansor Seaa Alashmali, Ahmed Ali Hassan,
Moheeb Ahmed Mohammed Nasser, and Hibo Musse Samantar.
Defendants Ishak, Ali Isse, Hassan Hassan, and Nasser pleaded
guilty to Count 1, pursuant to a plea agreement, and the
remaining defendants were convicted by the jury on all counts,
except that Harun Salhan was acquitted on Count 2.
10
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.
11
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 defendants argue that “the
government bore the burden of proving [that they] knew cathinone
was a controlled substance and that it was contained in khat.”
As they point out, Count 1 of the indictment charged that the
defendants did
unlawfully, knowingly, and intentionally . . .
conspire . . . to unlawfully, knowingly and
intentionally distribute, and to possess with intent
to distribute, a mixture and substance containing a
detectable amount of cathinone, a Schedule I
controlled substance.
(Emphasis added). They note that the indictment did not charge
that they conspired to distribute or to possess with intent to
distribute khat, a fact that the government clearly proved.
12
They rightly state that it would not be sufficient for the
government to prove scienter as to the distribution of khat
because khat itself is not listed as a controlled substance.
They argue that rather than instructing the jury on scienter as
to the trafficking in cathinone, the district court relieved the
government of this burden by instructing the jury as follows:
The phrase “knowingly and intentionally,” as used in
the offense charged in Count 1 of the superseding
indictment, requires the government to prove beyond a
reasonable doubt that a defendant knew that what he or
she conspired to distribute or to possess with intent
to distribute was or contained a controlled substance,
meaning a substance that is illegal under the U.S.
drug laws.
* * *
However, as long as you find that the government has
proven beyond a reasonable doubt that a defendant knew
that what he or she had conspired to distribute or to
possess with intent to distribute contained a
substance that is illegal under the U.S. drug laws,
you do not need to find that a particular defendant
knew the precise nature or chemical name of the
specific controlled substance.
In other words, the government is not required to
prove that the defendants knew that khat may contain a
controlled substance with the chemical name of
cathinone, but the government must prove beyond a
reasonable doubt that the defendant knew that some
controlled substance, that is, a substance that is
illegal under the U.S. drug laws, was contained in the
khat they allegedly conspired to distribute or to
possess with intent to distribute. The law does not
require that a defendant . . . knew the proper
chemical name of a substance so long as the defendant
knew that a substance was illegal under the U.S. drug
laws.
(Emphasis added).
13
In short, the defendants maintain that “because conspiracy
is a specific intent crime, . . . the government must prove
[that the defendants] specifically knew cathinone, the substance
alleged by the grand jury in Count One, was a controlled
substance and that it was contained in khat.” They argue that
the jury could have “relied on evidence that khat was a
controlled substance” because of the nature of the district
court’s instruction. They conclude that “this allowed an
impermissible constructive amendment of the indictment.”
Generally, we review a district court’s decision whether to
give an instruction or how to formulate an instruction for abuse
of discretion. See, e.g., Noel v. Artson, 641 F.3d 580, 586
(4th Cir. 2011). But we review the correctness of a jury
instruction regarding the elements of an offense de novo, as a
question of law. See United States v. Horton, 321 F.3d 476, 479
(4th Cir. 2003).
Count 1 of the superseding indictment charged the
defendants with conspiring, under 21 U.S.C. § 846, to violate
the drug trafficking prohibitions contained in 21 U.S.C.
§ 841(a)(1). Because § 846 looks to an underlying offense, the
mens rea of § 846 is derived from that of the underlying
offense, in this case § 841(a). See United States v.
Deffenbaugh, 709 F.3d 266, 272 (4th Cir. 2013).
14
The mens rea of § 841(a) is articulated explicitly in the
statute. Section 841(a) makes it unlawful for a person
“knowingly or intentionally to . . . distribute . . . a
controlled substance” or “knowingly or intentionally to . . .
possess with intent to . . . distribute . . . a controlled
substance.” 21 U.S.C. § 841(a)(1). Thus, while the statute
requires specific intent to distribute a controlled substance or
to possess with intent to distribute a controlled substance, it
does not require that the defendant have, within that intent,
specific knowledge of the controlled substance or any of the
chemicals, derivatives, isomers, esters, ethers, or salts that
constitute the controlled substance. See 21 U.S.C. § 812.
Of course, the fact that the defendant must only know that
the khat he is distributing or possessing with intent to
distribute contains an unspecified controlled substance does not
relieve the government of proving that that substance was in
fact on the controlled substance list. Thus, in this case it
would not be sufficient for the government to prove that the
substance distributed was khat, because khat is not listed as a
controlled substance. Rather, the government had to prove that
the khat it seized from the defendants actually contained
cathinone, a controlled substance. As for mens rea, though, the
government need only prove that the defendants knew that their
15
khat contained some controlled substance, which it could do
without showing that the defendants had ever heard of cathinone.
This scope of scienter for a violation of § 841 is not only
provided by the text of the statute but is also the view taken
by every court of appeals that has considered the issue. For
instance, in United States v. Abdulle, 564 F.3d 119 (2d Cir.
2009), then-Judge Sotomayor stated:
[T]he law is settled that a defendant need not know
the exact nature of a drug in his possession to
violate § 841(a)(1); it is sufficient that he [or she]
be aware that he [or she] possesses some controlled
substance. Because khat is not listed on the
controlled substance schedules, the mens rea
requirement of § 841(a) cannot be satisfied merely by
proving that the defendant knowingly possessed khat.
Instead, where the government seeks to satisfy the
mens rea requirement of § 841(a) for a khat-related
offense, the government must prove that the defendant
knew he or she possessed some regulated substance.
Id. at 125-26 (internal quotation marks and citations omitted)
(emphasis added); see also United States v. Mire, 725 F.3d 665,
679 (7th Cir. 2013) (“It does not matter whether Mire knew that
khat contained cathinone or cathine; all that matters is Mire
knew that khat contained an illegal substance”); United States
v. Hassan, 578 F.3d 108, 123 (2d Cir. 2008) (Specific intent
requires “that the defendant ‘knowingly or intentionally’
imported or possessed with intent to distribute khat with a
controlled substance”); United States v. Caseer, 399 F.3d 828,
841 (6th Cir. 2005) (Defendant must only “actually [know] that
16
khat contained a controlled substance”); United States v.
Hussein, 351 F.3d 9, 11 (1st Cir. 2003) (“[T]he government can
satisfy the scienter requirement . . . notwithstanding the fact
that the accused was unaware of the drug’s precise identity so
long as it is able to prove beyond a reasonable doubt that he
knew he was dealing with a substance regulated by federal drug
abuse laws”); United States v. Carrera, 259 F.3d 818, 830 (7th
Cir. 2001) (“The government need only prove that the defendant
was aware that some controlled substance was involved”).
Accordingly, we conclude that the district court did not
err in instructing the jury on scienter.
B
With respect to the willful blindness instruction, the
defendants argue that the district court abused its discretion
in giving the instruction. The court told the jury:
Now, the government may prove that a defendant acted
knowingly by proving beyond a reasonable doubt that
the defendant deliberately closed his or her eyes to
what would otherwise have been obvious to him or her.
No one can avoid responsibility for a crime by
deliberately ignoring what is obvious. A finding
beyond a reasonable doubt of an intent of the
defendant to avoid knowledge or enlightenment would
permit the jury to infer knowledge. Stated another
way, a defendant’s knowledge of a particular fact may
be inferred from a deliberate or intentional ignorance
or deliberate or intentional blindness to the
existence of that fact.
The defendants point out that such an instruction should not
have been given without evidence that they deliberately ignored
17
relevant facts. They maintain that in this case, “[t]here
simply is no evidence in record supporting the position that any
[defendant] understood khat contained cathinone or any
controlled substance.”
Inasmuch as the defendants’ challenge focuses on whether
the court should have given the instruction, and not on its
substance, we review the court’s decision for abuse of
discretion. See United States v. Jinwright, 683 F.3d 471, 478
(4th Cir. 2012).
It is well established that where a defendant asserts that
he did not have the requisite mens rea to meet the elements of
the crime but “evidence supports an inference of deliberate
ignorance,” a willful blindness instruction to the jury is
appropriate. United States v. Ruhe, 191 F.3d 376, 384 (4th Cir.
1999) (quoting United States v. Gruenberg, 989 F.2d 971, 974
(8th Cir. 1993)) (internal quotation marks omitted). To be
sure, caution must be exercised in giving a willful blindness
instruction, and therefore it is appropriate only in rare
circumstances. Id. at 385. But we have affirmed its use in
circumstances much like those presented here. In Ruhe, the
owner of an aircraft repair facility was convicted for
conspiring to transport stolen airplane parts in interstate
commerce. Although the owner of the facility did not himself
know that the parts were stolen, he ignored warning signs from
18
his employees, such as a lack of documentation for the parts and
labels of “To be scrapped” on the parts. Id. at 380-81. With
those warning signs, we upheld the use of a willful blindness
instruction.
We conclude that Ruhe justifies the court’s instruction in
this case. The defendants here also had warning signs that khat
contained an unlawful substance. The record is filled with
evidence about how khat was transferred in discreet handoffs and
unmarked packages; how the money obtained from khat sales was
carefully broken up and hidden; how various defendants described
methods for avoiding detection; how khat had drug-like
properties like other controlled substances; and how defendants
sought fresh khat to maximize those drug-like properties. In
these circumstances, we believe it was not an abuse of
discretion for the court to have given a willful blindness
instruction, particularly since the court also gave a cautionary
instruction to the jury:
It is, of course, entirely up to you as to whether you
find any deliberate ignorance or deliberate closing of
the eyes and the inferences to be drawn from any such
evidence. You may not infer that a defendant had
knowledge, however, from proof of a mistake or
negligence or carelessness or a belief in an
inaccurate proposition.
19
III
For their principal argument on appeal, the defendants
contend that even under our announced standard, the evidence was
insufficient to convict them on Count 1, which charged them with
conspiring to traffic in the controlled substance of cathinone.
They do not suggest that the evidence was insufficient to show
that they possessed khat with intent to distribute it but
rather, that the evidence was insufficient to prove that they
knew that khat contained a controlled substance. The
sufficiency of the evidence, which we take in the light most
favorable to the government, is a question of law that we review
de novo. See United States v. Campbell, 977 F.2d 854, 856 (4th
Cir. 1992).
It is true that the record contains only limited direct
evidence that the defendants knew that khat contained a
controlled substance. Gurreh clearly knew, as he had previously
been convicted of trafficking in khat, and Ismail Abdi admitted
in an interview with the FBI that he believed that khat was
unlawful. Similarly, Jibril and Yusuf both worked for a money
transfer business, and as part of their employment, both men
received training in identifying money transfers related to khat
trafficking. Nonetheless, all defendants conducted themselves
in a manner that indicated circumstantially that they knew that
khat contained a controlled substance. See United States v.
20
Santos, 553 U.S. 507, 521 (2008) (“[Scienter] will be provable
(as knowledge must always be proved) by circumstantial
evidence”).
Critically, the head of the conspiracy, Ishak, testified on
behalf of the government and implicated all defendants in the
conspiracy. Numerous recorded telephone calls between him and
his co-conspirators were introduced into evidence indicating
that all conspirators were aware of the structure of Ishak’s
enterprise and participated in various aspects of it. The
enterprise involved importing khat from Kenya, through Europe,
and into the United States via couriers, who carried packages
designed to disguise their contents. Individual deliveries of
khat to various conspirators were often made in circumstances
that were surreptitious and totally distinguishable from open
and normal channels of business, such as from a public store or
a publicly accessible shopping site. Telephone conversations
among conspirators often referred to methods of avoiding police
suspicion and to interceptions of khat at the border. While
interceptions at the border could, no doubt, be attributable to
the enforcement of benign agricultural regulations, see Caseer,
399 F.3d at 844, none of the many conversations among
conspirators even suggested that agricultural regulations were
the cause of their concerns. When the conspirators did discuss
law enforcement, their concerns focused on avoiding detection by
21
state and local police officers, who presumably would be
uninterested in enforcing U.S. customs regulations related to
the importation of non-descript plants. Money collected from
the sale of khat was also treated surreptitiously and awkwardly
to avoid suspicion, as payments were broken into parts and sent
to suppliers in the United Kingdom and Africa under altered or
false names, and the record is replete with evidence of how such
payments were designed to avoid any linkage with khat
trafficking. It is almost impossible to conclude that any
defendant did not know of at least some illegal aspects of the
enterprise because the conspiracy continued for years.
We find support in this regard in the decisions of numerous
other courts that have accepted circumstantial evidence in khat
cases of this type to prove scienter. Courts have concluded,
for example, that evasive behavior that seeks to avoid police
detection of khat activity, including a denial of owning khat,
evinces knowledge that khat contains a controlled substance.
See Mire, 725 F.3d at 679. Likewise does misleading the police
during interrogation, id.; discussing with other conspirators
how to best evade detection, see United States v. Awad, 518 F.
Supp. 2d 577 (S.D.N.Y. 2007); or carefully orchestrating
distribution in a way so as to evade detection, see United
States v. Hussein, 351 F.3d 9, 20 (1st Cir. 2003). Other
indicators have also been accepted as circumstantial evidence of
22
scienter, such as knowledge that khat produces a high much like
other controlled substances, see id.; knowledge that khat can be
seized at customs, see Hassan, 578 F.3d at 126; or the presence
of defendant’s prior convictions involving khat or cathinone,
Abdulle, 564 F.3d at 127. To be sure, because some of these
indicators may be ambiguous, they must be taken in context and
evaluated as to whether they in fact contribute to scienter.
For example, simply recognizing that khat produces a high is
ambiguous, as there are non-controlled substances that also
produce highs. Similarly, the fact that khat has been seized at
customs is ambiguous, as agricultural products that are
otherwise non-controlled substances may also be seized. See
Caseer, 399 F.3d at 844. But when considered in the context
provided by other evidence, even these facts may be probative of
scienter. See, e.g., Hassan, 578 F.3d at 126.
In addition to the generalized evidence about the structure
and operation of the enterprise, aspects of which each defendant
had knowledge, the government produced individualized evidence
as to each defendant. To be sure, the amount of evidence unique
to each defendant varied, but even so, when it is considered in
the overall context and in a light most favorable to the
government, it is, we conclude, sufficient as to each defendant
to support a conviction.
23
First, Ismail Abdi, Gurreh, Albukhaiti, and Hassan
demonstrated their knowledge that khat was illegal through their
direct behavior with law enforcement officers. Ismail Abdi
misled FBI agents during an interview, initially claiming that
he did not chew khat but later admitting to khat use after being
informed that agents had intercepted his telephone calls. He
also admitted to agents that he believed that khat was unlawful
and that transferring the proceeds of khat sales overseas was
unlawful. Likewise, Hassan initially claimed to FBI agents that
he had never chewed or distributed khat, but then later claimed
that he had used khat on “one or two occasions.” Eventually, he
admitted to purchasing and using khat more frequently.
Albukhaiti, when stopped on a trip to New Jersey to pick up
khat, lied to police, telling them that he was there to pick up
a friend. Gurreh had a prior state conviction for khat
trafficking, which provided direct evidence that he knew that
khat was illegal. Moreover, all four of these defendants spoke
frequently with Ishak regarding khat, and some of those
discussions were about how to orchestrate khat transfers so as
to avoid detection by using unmarked or mislabeled packages or
by using fake names.
Second, Ali and Yusuf demonstrated their knowledge that
khat was illegal during wiretap-recorded telephone conversations
in which they discussed the concealment of khat proceeds. In
24
one such conversation, Ali and Ishak discussed how to break the
money transfers into smaller amounts so as to avoid detection,
explaining that they learned the technique from Yusuf: “If I
would say 1,000 dollar he would have asked me if I got the money
from selling khat. . . . [I]t’s better to send it in small
amounts, instead of big amounts. . . . I learned that from
Osman [Yusuf]. . . . When I give money I also give him two
names.” In another conversation, Yusuf discussed khat in code,
using the term “CDs” to refer to khat because he and Ishak
worried that authorities might be listening to their calls. In
addition to these conversations, other circumstantial evidence
demonstrated Ali’s and Yusuf’s knowledge of khat’s illegality.
Ali used names other than her own to send proceeds from khat
sales to Ishak’s suppliers and allowed Ishak to use her credit
cards to rent cars in her name to conceal Ishak’s identity when
distributing khat. And Yusuf advised Ishak not to meet him at
Yusuf’s Dahabshil office because it was known that Ishak was a
khat dealer. As noted, Yusuf was also trained as part of his
Dahabshil employment to identify khat-related transfers, which
is more direct evidence that he knew that it contained a
controlled substance.
Third, three other defendants, Muhumed, Isa, and Abdi Omar
Abdi, demonstrated their knowledge that khat was illegal through
their attempts to evade detection in acquiring khat or
25
laundering khat proceeds. All three regularly purchased khat
and helped send money to Ishak’s suppliers. Muhumed regularly
met Ishak in out-of-the-way locations, including bus stations
and gas stations, to cover the purpose of their meetings. Isa
received suspiciously packed shipments of khat from Ishak and
also wrote checks to Ishak for khat, but concealed the purpose
of the payments by writing “ATM” on the memo line. Abdi Omar
Abdi was instructed by Ishak on how to conceal the transfer of
money to avoid police detection by not sending the same amount
of money on multiple occasions; by not sending it repeatedly to
the same person; and by not using the recipient’s real name.
Both Abdi Omar Abdi and Isa also knew that khat packages had
been, on occasion, seized by customs.
Fourth, Jibril’s conduct involved a combination of
indicators demonstrating his knowledge that khat contained a
controlled substance. In one recorded telephone conversation,
Ishak discussed with Jibril how Ishak would avoid being detected
by police while he traveled to distribute khat: “I do not like
people with me because . . . if something happens and you get
stopped they cross-examine us separately and we might give
different information.” Additionally, as part of his job at
Dahabshil, Jibril was trained to recognize and avoid
inadvertently aiding money laundering and trafficking, including
trafficking related to khat. He then completed transactions by
26
breaking them into smaller dollar amounts to avoid detection,
and on at least one occasion, he used a false name to send the
money. One can infer that from Jabril’s training, he knew that
the transactions were for the purpose of concealing illicit khat
money.
Finally, while the defendants Alashmali, Salhan, and
Samantar were less deeply involved in the conspiracy, they
nonetheless maintained regular contact with Ishak and knew the
extent of the khat distribution operation that Ishak ran.
Alashmali was aware of the suspicious circumstances under which
khat was transferred from Ishak to the co-conspirators, as he
himself received shipments from Ishak at diverse locations, such
as his store, a UPS store, and his brother’s store. And
evidence showed that shipments to his brother’s store were
mislabeled to conceal their contents. Moreover, Alashmali spoke
with Ishak almost daily, and Ishak knew that khat was illegal.
Alashmali also interacted regularly with his brother Albukhaiti,
who demonstrated his knowledge of khat’s illegal nature by lying
to police. Likewise, Salhan discussed khat with Ishak regularly
and sold khat. He knew the extent of the khat distribution
enterprise; he knew that khat had been seized by customs
officials; and twice he sent khat money overseas, using a wire
transfer. Finally, Samantar resold khat; spoke with Ishak about
khat trafficking; sent wire transfers overseas for Ishak
27
approximately three times; and knew that customs officials had,
on occasion, seized khat packages. Indeed, she inquired about a
khat shipment with concern, “Was it caught?”
When viewing the evidence in a light most favorable to the
government, we conclude that a rational trier of fact could have
found the defendants guilty beyond a reasonable doubt. See
Campbell, 977 F.2d at 856.
IV
During trial, the district court made two procedural
rulings that the defendants now challenge. It denied (1) the
defendants’ request to put on an expert witness who was first
disclosed at trial, and (2) Gurreh’s motion to sever his trial
from the larger one. We affirm both rulings.
A
After the government rested its case, the defendants sought
to present the testimony of an expert witness who had not
previously been identified to testify. The defendants proposed
to have him testify that khat contained, in addition to
cathinone, the stimulant phenylpropanolamine (“PPA”), which is
not a controlled substance and which contributes to the high
produced by khat. They argued that because PPA is not a
controlled substance and also produces a high, “there could be a
conspiracy to possess with intent to distribute an uncontrolled
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scheduled substance PPA, which is a direct defense to the
government’s case. . . . PPA is a stimulant and you can get
high and it’s not controlled. So how do you separate the two?”
(Emphasis added).
The district court, in ordering that the expert testimony
be excluded, ruled that the defendants’ request was untimely,
pointing out that notice of expert testimony had to be provided
no later than 10 business days before trial. It also ruled that
the evidence was irrelevant. The court observed that it invited
the defendants to articulate the reasons for the testimony’s
relevancy and “found them unpersuasive.”
On the untimeliness issue, the court clearly had broad
discretion to manage the docket and to impose binding time
limits on the disclosure of evidence. See, e.g., United States
v. Goodson, 204 F.3d 508 (4th Cir. 2000); Fed. R. Crim. P. 16.
The court pointed out that the defendants had received notice of
the fact that PPA was in khat many months before trial and could
well have identified their expert on the subject in a timely
fashion. It did not agree that their failure to do so was
excused by the fact that not until trial did they realize that
they would be unable to question the government’s expert about
PPA. We conclude the court did not abuse its discretion in
excluding this evidence as untimely.
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We also agree that the proffered evidence would not have
been relevant. The issue in this case was whether the
defendants knowingly distributed or possessed with intent to
distribute a controlled substance. The government had the
burden of demonstrating that the defendants knowingly
distributed or possessed with intent to distribute a controlled
substance, and the mere fact that khat also contained other
chemicals and substances that were not controlled but that were
sought by defendants would not provide a defense to the
government’s proof as to the defendant’s mental state. Thus, we
conclude that the district court did not abuse its discretion in
also basing its ruling on a lack of relevance. See General
Electric Co. v. Joiner, 522 U.S. 136, 138-39 (1997); Friendship
Heights Assocs. v. Vlastimil Koubek, A.I.A., 785 F.2d 1154, 1159
(4th Cir. 1986).
B
During the government’s case, counsel for Ismail Abdi
cross-examined Ishak with respect to Gurreh’s involvement in the
conspiracy, allegedly creating antagonistic defenses as to
Ismail Abdi and Gurreh. The cross-examination mainly covered
the extent of Gurreh’s relationship with Ishak, the amount of
khat Gurreh sold, and the extent of Gurreh’s money laundering.
Following this cross-examination, Gurreh filed a motion to sever
his trial, which the district court denied.
30
Federal Rule of Criminal Procedure 14(a) provides, “If the
joinder of offenses or defendants in an indictment, an
information, or a consolidation for trial appears to prejudice a
defendant or the government, the court may order separate trials
of counts, sever the defendants’ trials, or provide any other
relief that justice requires.” A severance under Rule 14(a) is
warranted in cases where there is a “serious risk that a joint
trial would compromise a specific trial right of one of the
defendants,” Zafiro v. United States, 506 U.S. 534, 539 (1993),
but the standard raises a high bar, as “[m]utually antagonistic
defenses are not prejudicial per se,” id. at 538. Indeed, we
have found it decidedly preferential to try jointly defendants
who have been indicted together. See, e.g., United States v.
Singh, 518 F.3d 236, 255 (4th Cir. 2008).
In this case, the testimony elicited about Gurreh during
the cross-examination of Ishak by counsel for Ismail Abdi was
very likely not prejudicial for at least two reasons. First,
nearly the exact same testimony raised on Ismail Abdi’s cross-
examination of Ishak was also permissibly brought out during the
government’s direct examination of Ishak. Second, the testimony
brought out during Ismail Abdi’s cross-examination of Ishak did
not make a meaningful contribution to the case against Gurreh.
Gurreh’s involvement with Ishak and the khat enterprise was not
seriously disputed at trial. Based on Ishak’s testimony on
31
direct, there was little doubt about Gurreh’s involvement.
Instead, the primary issue raised by Gurreh was scienter --
whether he knew that khat contained a controlled substance. To
that end, Gurreh’s prior conviction for khat trafficking was
very strong evidence -- so much so that the additional evidence
of Gurreh’s involvement with Ishak brought out on Ismail Abdi’s
cross-examination was of minimal importance.
Given our strong preference for jointly trying defendants
who have been indicted together, we conclude that in the
circumstances of this case, the district court did not abuse its
discretion in denying Gurreh’s motion to sever.
V
Finally, the nine defendants convicted on Count 2 challenge
the sufficiency of the indictment, alleging that its lack of
specificity “left open the real possibility the [defendants]
were convicted on the basis of facts not found by and perhaps
not even presented to, the grand jury which indicted them.” In
particular, they contend that the indictment neglected to allege
the financial transactions involved, the monetary instruments
and funds transferred, and the related unlawful activity. See
18 U.S.C. § 1956(c)(4)-(5), (7).
We have previously articulated the standard for assessing
the specificity of an indictment, stating that “[a]n indictment
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is sufficient if it, first, contains the elements of the offense
charged and fairly informs a defendant of the charge against
which he must defend, and, second, enables him to plead an
acquittal or conviction in bar of future prosecutions for the
same offense.” United States v. Brandon, 298 F.3d 307, 310 (4th
Cir. 2002) (quoting Hamling v. United States, 418 U.S. 87, 117
(1974)) (internal quotation marks omitted); see also Fed. R.
Crim. P. 7(c)(1).
In Count 2, the grand jury charged a violation of 18 U.S.C.
§ 1956(h), setting forth all of the statutory elements,
including the allegations that the defendants conducted
financial transactions involving the proceeds of specified
unlawful activity; that they transmitted monetary instruments
and funds from the United States to places outside of the United
States to promote the carrying on of the unlawful activity; and
that the underlying unlawful activity was the conspiracy to
distribute or to possess with intent to distribute a controlled
substance. In arguing that these allegations were fatally
nonspecific, the defendants fail to recognize that the first
paragraph of Count 2 incorporated by reference the 37 other
paragraphs alleged in the introductory portion of the
indictment, where the specific transactions, funds, and related
unlawful activity were described. These paragraphs spelled out
in detail the factual circumstances describing: how the co-
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conspirators derived proceeds from the sale of khat and
transmitted them to their khat suppliers in England, Somalia,
Uganda, and Kenya; the fact that the transfers of proceeds were
accomplished through Dahabshil’s office in Falls Church,
Virginia; and the specific dates of transfers, giving the
countries to which the transfers were made.
We have routinely found indictments with this degree of
specificity, or less, to be adequate. See United States v.
Bolden, 325 F.3d 471, 490-91 (4th Cir. 2003); United States v.
Am. Waste Fibers Co., 809 F.2d 1044 (4th Cir. 1987) (per
curiam).
Defendants also argue that the required unlawful activity
of § 1956(c)(7), as defined in § 1961(1), does not include
conspiracy. We rejected similar reasoning, however, in United
States v. Tillett, 763 F.2d 628, 633 (4th Cir. 1985), and other
circuits have directly rejected this very argument. See, e.g.,
United States v. Echeverri, 854 F.2d 638, 648-49 (3d Cir. 1988)
(describing § 1961(D) as “broad language” that encompasses
conspiracy); United States v. Weisman, 624 F.2d 1118, 1124 (2d
Cir. 1980), abrogated on other grounds by United States v.
Indelicato, 865 F.2d 1370 (2d Cir. 1989) (en banc) (“[W]e think
that conspiracy can properly be charged as a predicate act of
racketeering under RICO, at least when it involves any of the
substantive offenses listed in section 1961(1)(D) . . . This
34
language is certainly broad enough on its face to include
conspiracies involving securities and bankruptcy fraud and drug
related offenses”). We now also reject the argument.
Because we conclude that Count 2 adequately informed the
defendants of the money laundering charges against them and
provided sufficient detail to enable them to plead an acquittal
or conviction in bar of future prosecution for the same offense,
we reject their challenge.
The judgments of the district court are accordingly
affirmed.
AFFIRMED
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