United States v. Ali, Nos. 12-4630, 12-4361, 12-4632, 12-4657, 12-4672, 12-4674, 12-4675, 12-4676, 12-4679, 12-4682, 12-4687, 12-4699, 12-4700

Decided: November 14, 2013

Addressing appeals by thirteen individuals involved in conspiracy to traffic khat, a leafy plant containing the controlled substance cathinone, the Fourth Circuit affirmed the district court’s rulings as to all challenges.

In August 2008, federal law enforcement began an investigation into the importation of khat into the United States and its subsequent distribution. The investigation ultimately led to Yonis Ishak, the head of a large-scale distribution operation. The investigation also revealed 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 June 2011, seventeen individuals, including Ishak, were indicted for their participation in the operation. Thirteen were also charged with conspiracy to commit money laundering. After four defendants, including Ishak, pleaded guilty pursuant to plea agreements, the remaining thirteen proceeded to trial. Pursuant to his plea agreement, Ishak served as the government’s principal witness. At trial, after the prosecution rested, the defendants sought to present an expert witness that had not previously been identified to testify. However, citing untimeliness and irrelevancy, the district court excluded the expert’s testimony. At the conclusion of the trial, all thirteen defendants were convicted of all charges, except one, who was acquitted of the money laundering charge.

All defendants appealed, arguing 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; that the district court erred in its instructions to the jury relating to scienter and willful blindness; and that the district court erred in excluding their expert witness. In addition, the defendants convicted of money laundering argued that the indictment failed to adequately identify the financial transaction and other details so as to give them sufficient notice of the charges. One defendant, Abokor Gurreh (“Gurreh”), also appealed the district court’s denial of his motion for severance made following counsel for Ismail Abdi’s cross-examination of Ishak.

On appeal, the Fourth Circuit first addressed the district court’s jury instruction on both scienter and willful blindness. With respect to scienter, the court rejected the defendants’ argument, noting that the government need only prove that the defendants knew that their khat contained some controlled substance, which it could do without showing that the defendants had ever heard of cathinone. With respect to willful blindness, despite noting that such an instruction is only appropriate in rare circumstances, the court found the district court’s instruction appropriate because numerous circumstances contained in the record demonstrated that there were sufficient warning signs that khat contained an unlawful substance.

Next, the Fourth Circuit addressed the defendants’ primary contention: that although the evidence was sufficient to show they possessed khat with the intent to distribute, the evidence was insufficient to convict them with conspiring to traffic cathinone. The court disagreed, however, holding that all defendants conducted themselves in a manner that indicated circumstantially that they knew that khat contained a controlled substance. In so holding, the court relied not only on Ishak’s testimony implicating all defendants in the conspiracy, but also on individualized evidence as to each defendant. The court then rejected the defendants’ challenge based on the district court excluding their expert witness, and agreed that the proffered testimony was both untimely and irrelevant. Next, it moved to Gurreh’s challenge based on the district court’s denying his motion to sever and found that, because Ishak’s cross examination by counsel for defendant Ismail Abdino did not prejudice Gurreh, the district court did not abuse its discretion.

Lastly, the Fourth Circuit rejected the challenge based on the alleged insufficiency of the indictment. Noting that the defendants failed to recognize that the first paragraph of the money laundering count incorporated by reference the other 37 paragraphs alleged in the introductory portion of the indictment, where the specific transactions, funds, and related unlawful activity were described, the court concluded that the defendants were adequately informed of the charges against them and were therefore provided with sufficient detail to enable them to plead an acquittal. Accordingly, the judgments of the district court were affirmed.

Full Opinion

-W. Ryan Nichols

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