USA v. Muse (Hussein), No. 07-4483 (2d Cir. 2010)

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07-4483-cr (L) USA v. Muse (Hussein) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: October 21, 2009 Decided: March 11, 2010) Docket Nos. 07-4483-cr (L); 07-4539-cr (Con); 07-5067-cr (Con); 07-5068-cr (XAP) UNITED STATES OF AMERICA, Appellee-Cross-Appellant, v. ALI AWAD, ABDI EMIL MOGE, ABDULAHI HUSSEIN, Defendants-Appellants-Cross-Appellees, BASHI MUSE, OSMAN OSMAN, ABDINUR AHMED DAHIR, ALI DUALEH, OMER ALI ABDIRIZAH, 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, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 MOHAMED JAMA, AHMED M. EGAL, DAHIR ABDULLE SHIRE, MUHIDIN MOHAMED, Defendants-Appellants. Before: WALKER, CALABRESI, and WESLEY, Circuit Judges. Appellants Ali Awad and Abdi Emil Moge appeal from an Opinion and Order of the District Court for the Southern District of New York (Cote, J.), entered on October 24, 2007, ordering criminal forfeitures against them pursuant to 21 U.S.C. § 853. We hold, consistent with the other courts of appeal that have considered this issue, that the imposition of the forfeiture orders was proper. We therefore affirm. AFFIRMED. MICHAEL HUESTON, New York, New York, for Defendant-Appellant-Cross-Appellee Awad. ROBERT J. BOYLE, New York, New York, for Defendant-Appellant-Cross-Appellee Moge. DANIEL L. STEIN, ANJAN SAHNI and JESSE M. FURMAN, Assistant United States Attorneys, United States Attorneys Office for the Southern District of New York, for Preet Bharara, United States Attorney, Southern District of New York, for Appellee-Cross-Appellant United States of America. P ER C URIAM: Appellants Ali Awad and Abdi Emil Moge were tried -2- 1 before a jury as alleged participants in a criminal 2 conspiracy to distribute and possess with intent to 3 distribute a controlled substance, namely mixtures and 4 substances containing a detectable amount of cathinone, a 5 Schedule I controlled substance, in a form commonly known as 6 khat. 7 distribute and possess with intent to distribute cathinone, 8 in violation of 21 U.S.C. § 846, and conspiracy to import 9 cathinone, in violation of 21 U.S.C. § 963. Appellant Awad was convicted of conspiracy to Appellant Moge 10 was convicted of conspiracy to distribute and possess with 11 intent to distribute cathinone, in violation of 21 U.S.C. § 12 846, conspiracy to import cathinone, in violation of 21 13 U.S.C. § 963, and conspiracy to commit money laundering in 14 violation of 18 U.S.C. § 1956(h). 1 15 entered forfeiture orders against appellants Awad and Moge 1 The district court also In this opinion, we resolve only the propriety of the forfeiture orders entered by the district court pursuant to 21 U.S.C. § 853(a). On appeal, appellants raise a host of other challenges to their convictions and sentences. The government cross-appeals with respect to the sentences imposed on appellants Moge, Awad and Hussein. Except for our resolution of the propriety of the forfeiture orders, we resolve all of the challenges to appellants convictions and sentences in a separate summary order filed today. That summary order pertains to docket number 07-4483-cr (L) and all associated cases. -3- 1 under 21 U.S.C. § 853(a). 2 2 properly imposed forfeiture money judgments as part of 3 appellants sentences and that the propriety of an order 4 imposed pursuant to 21 U.S.C. § 853(a) does not depend on a 5 defendant s assets at the time of sentencing. BACKGROUND 6 7 We hold that the district court In the fall of 2005, law enforcement officers, led by 8 the Drug Enforcement Administration (the DEA ), began an 9 investigation into a network of people involved in the 10 importation and distribution of khat plants in the United 11 States. 12 khat plants. 13 effect, but khat itself is not a controlled substance. 14 Rather, cathinone, a constituent of the khat plant, is a 15 Schedule I controlled substance. 3 The investigation resulted in dozens of seizures of Khat leaves are chewed for their stimulant United States v. Abdulle, 2 Although he did not brief the issue before this Court, pursuant to Federal Rule of Appellate Procedure 28(I), appellant Moge has joined the arguments of his coappellants that apply to him. The district court entered a forfeiture order against Moge. Therefore, to the extent that he appeals that order, this opinion also applies to him. 3 As the district court acknowledged, when the khat plant is cut, the cathinone begins to degrade. See United States v. Awad, No. 06-CR-600 (DLC), 2007 WL 1988382, at *12 (S.D.N.Y. July 3, 2007); see also United States v. Hassan, -4- 1 564 F.3d 119, 125 (2d Cir. 2009). 2 nervous system stimulant, and Schedule I criminalizes its 3 possession in any quantity. 4 Cathinone is a central 21 C.F.R. § 1308.11(f)(3). Prior to sentencing, the district court conducted an 5 evidentiary hearing pursuant to United States v. Fatico, 579 6 F.2d 707 (2d Cir. 1978), to determine, among other things, 7 the amount of khat attributable to each defendant for 8 purposes of calculating his offense level under the United 9 States Sentencing Guidelines. United States v. Awad, No. 10 06-CR-600 (DLC), 2007 WL 3120907, at *1 (S.D.N.Y. Oct. 24, 11 2007). 12 forfeiture order against appellant Awad in the amount of 13 $10,000,000 and a proposed order against appellant Moge in 14 the amount of $9,458,000. 15 proposed forfeiture orders by multiplying the drug 16 quantities it had argued were attributable to each defendant At this time, the government submitted a proposed The government calculated the 578 F.3d 108, 114 (2d Cir. 2008). In another case involving cathinone, expert testimony was offered to explain that cathinone is present in khat for forty-eight hours after harvesting, at which point the chemical weakens and eventually dissipates entirely. United States v. Abdulle, 564 F.3d 119, 124 (2d Cir. 2009). In this case, forensic chemists testified that all but one of the seized shipments of khat tested positive for cathinone. -5- 1 by the street value of khat. 2 sentencing hearing, the district court imposed a forfeiture 3 order in the amount of $10,000,000 as to Awad and $4,646,000 4 as to Moge. 5 Id. At the October 5, 2007 Id. at *2. Awad and Moge challenged the imposition of the 6 forfeiture orders before the district court. Id. As 7 characterized by the district court, appellants argued that 8 a defendant in a drug case [is] not subject to forfeiture 9 in the form of a money judgment, where the defendant does 10 not . . . have assets to satisfy the money judgment at the 11 time of sentencing. 12 this contention and held that forfeiture orders can be 13 entered under 21 U.S.C. § 853 in drug cases regardless of 14 the defendant s assets at the time of sentencing. 15 court also rejected Awad s challenge to the amount of the 16 forfeiture order, determining that it was supported by the 17 preponderance of the evidence. 4 Id. at *1. 4 The district court rejected Id. The Id. Focusing solely on the propriety of the imposition of the forfeiture order, appellant Awad does not appear to challenge the amount of the order before this Court. In a footnote to his brief, appellant Moge does contend that the district court erred in its determination of the amount of khat attributable to him and that, therefore, the order should be vacated. We find that the district court -6- DISCUSSION 1 2 The criminal forfeiture statute provides that an 3 individual convicted of a drug offense punishable by 4 imprisonment for more than one year shall forfeit to the 5 United States . . . any property constituting, or derived 6 from, any proceeds the person obtained, directly or 7 indirectly, as the result of such violation. 8 853(a)(1). 9 that § 853 permits imposition of a money judgment on a 21 U.S.C. § We join our sister courts of appeal in holding 10 defendant who possesses no assets at the time of sentencing. 11 See United States v. Vampire Nation, 451 F.3d 189, 201-02 12 (3d Cir. 2006); United States v. Casey, 444 F.3d 1071, 1077 13 (9th Cir. 2006); United States v. Hall, 434 F.3d 42, 59 (1st 14 Cir. 2006); United States v. Baker, 227 F.3d 955, 970 (7th 15 Cir. 2000). 16 This interpretation is in accord with the statute s 17 language and with its purpose. See 21 U.S.C. § 853(o). 18 Indeed, the statutory text at issue makes it clear that 19 Congress conceived of forfeiture as punishment for the committed no error in this regard. See United States v. Fruchter, 411 F.3d 377, 380 (2d Cir. 2005). -7- 1 commission of various drug . . . crimes. 2 at 1073 (quoting Libretti v. United States, 516 U.S. 29, 39 3 (1995)); see also Hall, 434 F.3d at 59. 4 Casey, 444 F.3d As the district court reasoned, when a defendant lacks 5 the assets to satisfy the forfeiture order at the time of 6 sentencing, the money judgment . . . is effectively an in 7 personam judgment in the amount of the forfeiture order. 8 2007 WL 3120907, at *2; accord Vampire Nation, 451 F.3d at 9 202. This is so because [m]andatory forfeiture is 10 concerned not with how much an individual has but with how 11 much he received in connection with the commission of the 12 crime. 13 could have the undesirable effect of creating an incentive 14 for an individual involved in a criminal enterprise to 15 rid[] himself of his ill-gotten gains to avoid the 16 forfeiture sanction. 17 Casey, 444 F.3d at 1077. A contrary interpretation Hall, 434 at 59. Notwithstanding appellants arguments to the contrary, 18 this Court s decision in United States v. Robilotto, 828 19 F.2d 940 (2d Cir. 1987), supports our view. 20 in the context of interpreting the RICO forfeiture 21 provision, 18 U.S.C. § 1963, we concluded that the statute -8- In Robilotto, 1 imposes forfeiture directly on an individual as part of a 2 criminal prosecution rather than in a separate proceeding in 3 rem. 4 In other words, the forfeiture constitutes a sanction 5 against the individual defendant rather than a judgment 6 against the property itself. 7 forfeiture need not be traced to identifiable assets in a 8 defendant s possession. 9 this context. 5 828 F.2d at 948 (internal quotation marks omitted). Id. Consequently, criminal Id. at 949. The same is true in In fact, this Court has previously noted 10 that the statutory provision governing forfeitures under 11 RICO and criminal forfeiture orders imposed pursuant to § 12 853 are so similar in legislative history and plain 13 language as to warrant similar interpretation. 14 LLC v. United States, 496 F.3d 175, 183 n.11 (2d Cir. 2007) 15 (quoting United States v. Ribadeneira, 105 F.3d 833, 835 n.2 16 (2d Cir. 1997)). 17 18 DSI Assoc. The statute at issue in this case instructs that we interpret its terms liberally. 5 21 U.S.C. § 853(o). As We are aware of the thorough discussion and contrary interpretation advanced in United States v. Surgent, No. 04CR-364 (JG) (SMG), 2009 WL 2525137 (E.D.N.Y. Aug. 17, 2009), upon which appellant Awad relies heavily. In the end, however, we find it unpersuasive. -9- 1 the district court and other courts of appeal that have 2 addressed this issue have reasoned, section 853 does not 3 contain any language limiting the amount of money available 4 in a forfeiture order to the value of the assets a defendant 5 possesses at the time the order is issued. 6 451 F.3d at 201; accord Baker, 227 F.3d at 970. 7 interpretation of the criminal forfeiture provision 8 ensur[es] that all eligible criminal defendants receive the 9 mandatory forfeiture sanction Congress intended and ensures Vampire Nation, Thus, our 10 that there is a mechanism by which the government may 11 disgorge their ill-gotten gains, even those already spent. 12 Casey, 444 F.3d at 1074. CONCLUSION 13 14 We have reviewed all of appellants arguments and find 15 them to be without merit. Accordingly, for the foregoing 16 reasons, the district court s opinion and order of October 17 24, 2007, holding that a defendant who is convicted of a 18 violation under the Controlled Substances Act, 21 U.S.C. § 19 801 et seq., punishable by a term of imprisonment of more 20 than a year, is subject to the forfeiture provision of 21 21 U.S.C. § 853, irrespective of his assets at the time of 22 sentencing, is hereby AFFIRMED. -10-

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