United States v. Ali, No. 12-4630 (4th Cir. 2013)
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Defendants appealed their convictions related to their participation in a conspiracy to traffic in khat, a plant containing the controlled substance cathinone. The court concluded that the district court did not err in instructing the jury on scienter; the district court did not abuse its discretion by giving a willful blindness instruction; the evidence was sufficient to convict defendants of conspiring to traffic in the controlled substance of cathinone; the court affirmed the district court's two procedural rulings at issue; and because the court concluded that Count 2 adequately informed 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, the court rejected defendants' challenge. Accordingly, the court affirmed the judgment of the district court.
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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-TSE13; 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 opinion, in which Judge Gregory and Judge Floyd joined. the 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 Yemen, were individuals, indicted for all originally their from participation Somalia in a or 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. court s In jury blindness. a similar instructions vein, they relating challenge to the scienter and district willful 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, severance. 7 to deny a motion for 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 Ethiopia, Yemen, and Kenya. alkaloid cathinone, which Arabian peninsula, principally in When khat is fresh, it contains the 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. khat is typically not stored. Because it is perishable, 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 operation. Ishak, the head of a large-scale distribution 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 sufficiency to of renew their arguments the evidence motion at under trial through Federal Rule a 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 Gurreh s interest. had presented evidence antagonistic The district court denied the motion. to 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 controlled substance and that khat contained cathinone. a 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. jury to that effect. instruction on willful It also instructed the In the same vein, it gave the jury an 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 distribute it. to possess cathinone with intent to 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 12 government clearly proved. They rightly government to state prove that it scienter would as not to be the sufficient distribution for the 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 substance and that it was contained in khat. the jury could controlled court s have relied substance because instruction. They on of evidence the that that controlled They argue that nature conclude a of khat the this was a district 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. (4th Cir. See, e.g., Noel v. Artson, 641 F.3d 580, 586 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 of § in this rea offense, 846 is case derived from § 841(a). that of See United Deffenbaugh, 709 F.3d 266, 272 (4th Cir. 2013). 14 the underlying States v. The mens rea of § 841(a) is articulated explicitly in the statute. Section knowingly or 841(a) intentionally makes to it . . unlawful . for distribute a . person . . 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. the khat it seized Rather, the government had to prove that from the defendants cathinone, a controlled substance. actually contained 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 imported that or the possessed defendant with knowingly intent to or distribute intentionally 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 discretion. review the court s decision for abuse of 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 ignorance, a appropriate. evidence willful supports blindness an inference instruction to of deliberate the jury is 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, circumstances. circumstances owner of and therefore it Id. at 385. much like is appropriate only in rare But we have affirmed its use in those presented here. In Ruhe, convicted the an aircraft repair facility was conspiring to transport stolen airplane parts commerce. Although the owner of the facility did not himself in for interstate 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. contained The defendants here also had warning signs that khat 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 of circumstances, discretion for the we court believe to have it was given not a an willful abuse 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 controlled substance. defendants knew that khat contained a 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. 20 See United States v. 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. his Numerous recorded telephone calls between him and 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 trafficking. designed It is to almost avoid any impossible linkage to with conclude khat 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 discussing interrogation, id.; with other conspirators how to best evade detection, see United States v. Awad, 518 F. Supp. 2d 577 distribution States v. in (S.D.N.Y. 2007); or a as to evade 9, 20 Hussein, way 351 so F.3d carefully orchestrating detection, (1st Cir. see 2003). United 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 produce highs. customs is are non-controlled substances that also Similarly, the fact that khat has been seized at ambiguous, as agricultural products that otherwise non-controlled substances may also be seized. Caseer, 399 F.3d at 844. are See 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. admitted to purchasing and using khat Eventually, he 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. frequently with Moreover, all four of these defendants spoke 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. 24 In 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 amounts, khat. . . . instead of big Osman [Yusuf]. . . . names. [I]t s better amounts. . . . to send it I learned in small that from When I give money I also give him two 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 25 in acquiring khat or 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, indicators Jibril s conduct demonstrating controlled substance. his involved knowledge a that combination khat of contained a 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 different information. Dahabshil, Jibril was us separately and we might give Additionally, as part of his job at 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, Samantar while were the defendants less deeply involved Alashmali, in the Salhan, and 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, evidence showed a UPS that store, and shipments his to mislabeled to conceal their contents. brother s his store. brother s store And were 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. enterprise; he He knew the extent of the khat distribution knew that khat had been seized by customs officials; and twice he sent khat money overseas, using a wire transfer. khat Finally, Samantar resold khat; spoke with Ishak about trafficking; sent wire transfers 27 overseas for Ishak 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 court made doubt. See Campbell, 977 F.2d at 856. IV During trial, the district rulings that the defendants now challenge. two procedural 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 previously been identified to testify. to have him testify that khat witness who had not The defendants proposed 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 28 scheduled substance PPA, which government s case. . . . is a direct defense to the 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. the evidence was irrelevant. It also ruled that The court observed that it invited the defendants to articulate the reasons for the testimony s relevancy and found them unpersuasive. On the discretion untimeliness to manage the issue, docket the and limits on the disclosure of evidence. court to clearly impose had binding broad time 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. 29 We also agree that the proffered evidence would not have been relevant. The defendants knowingly distribute a burden of issue in distributed controlled this or that was possessed substance. demonstrating case The the whether with the intent to had the government 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 government s proof as to the defendant s mental state. to the 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 Ismail Abdi and Gurreh. antagonistic defenses as to 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 crossexamination 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 31 on Ishak s testimony on direct, there was little Instead, the primary doubt issue about raised by Gurreh s Gurreh involvement. 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 32 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 including the financial transactions unlawful all allegations activity; of that involving that they the the elements, defendants the statutory conducted proceeds transmitted of monetary specified 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 paragraphs of Count alleged 2 incorporated in the by reference introductory the portion 37 of other the indictment, where the specific transactions, funds, and related unlawful activity were described. These paragraphs spelled out in detail the factual circumstances describing: 33 how the co- 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 Virginia; through and the Dahabshil s specific office dates of in Falls transfers, Church, 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), conspiracy. as defined in § 1961(1), does not include 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 35
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