         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,


                                                            1
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

                             2
                            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.




                             3
          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
6
7
8




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