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United States v. Muse

July 3, 2007

UNITED STATES OF AMERICA
v.
BASHI MUSE, ET AL., DEFENDANTS.



MEMORANDUM OPINION

This indictment charges forty-four defendants with violations of the Controlled Substance Act relating to the importation and distribution of khat containing cathinone. Cathinone is a Schedule I controlled substance. The first trial in the case, which involved four of the defendants, began on June 4, 2007, and ended with a verdict on June 26. A conference will be held with the remaining defendants on July 27. To assist counsel in advising those clients who are awaiting trial about the law which will be applied in this case, the charge as given to the jury at the June 4 trial is attached.

Among the issues addressed in this charge are the following:

1) While cathinone is a controlled substance, neither khat nor cathine is.*fn1 (page 10)

2) A multiple conspiracy charge was given. (pages 14 to 16)

UNITED STATES OF AMERICA v. ALI AWAD, ABDI EMIL MOGE, ABDINUR AHMED DAHIR, and ABDULAHI HUSSEIN, Defendants.

06 Cr. 600 (DLC)

Jury Charge June 20, 2007

I. Introductory Instructions Role of the Court

It is my duty at this point to instruct you as to the law. It is your duty to accept these instructions of law and apply them to the facts as you determine them. Regardless of any opinion that you may have as to what the law may be -- or ought to be -- it would violate your sworn duty to base a verdict upon any other view of the law than the one I give you. If an attorney has stated a legal principle different from any that I state to you in my instructions, it is my instructions that you must follow.

You should not single out any instruction as alone stating the law, but you should consider my instructions as a whole when you retire to deliberate in the jury room. You may take a copy of these instructions with you into the jury room.

Role of the Jury Your role is to decide the fact issues that are in the case. You are the sole and exclusive judges of the facts. You must determine the facts based solely on the evidence received in this trial.

In determining the facts, you must rely upon your own recollections of the evidence. What the lawyers have said, for instance, in opening statements, in closing arguments, in objections, or in questions is not evidence. You should bear in mind particularly that a question put to a witness is never evidence. It is only the answer that is evidence.

I remind you also that nothing I have said during the trial or will say during these instructions is evidence. Similarly, the rulings I have made during the trial are not any indication of my views of what your decision should be.

The evidence before you consists of the answers given by witnesses, the exhibits, and the stipulations that were received in evidence. If I have sustained an objection to a question or stricken testimony, the answers given by a witness are no longer part of the evidence in this case and may not be considered by you.

Improper Considerations

Your verdict must be based solely upon the evidence, or the lack of evidence. It would be improper for you to consider any personal feelings you may have about a defendant's race, religion, or national origin. It would be equally improper for you to allow any feelings you might have about the nature of the crimes charged to interfere with your decision-making process.

The Parties

The fact that the prosecution is brought in the name of the United States of America entitles the Government to no greater consideration than that given to any other party to a litigation. By the same token, the Government is entitled to no less consideration.

The Indictment charges four defendants who are on trial together. In reaching a verdict, however, you must bear in mind that guilt is individual. Your verdict as to each defendant must be determined separately with respect to him solely on the evidence, or lack of evidence, presented against him without regard to the guilt of anyone else.

Presumption of Innocence and Burden of Proof

The defendants have pleaded not guilty to the charges against them. As a result of a plea of not guilty, the burden is on the Government to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant for the simple reason that the law never imposes upon a defendant in a criminal case the burden or duty of testifying, or calling any witness, or locating or producing any evidence.

The law presumes each defendant to be innocent of each charge against him. This presumption of innocence alone is sufficient to acquit the defendant. This presumption was with each defendant when the trial began and remains with each defendant unless and until you are convinced that the Government has proven that defendant's guilt beyond a reasonable doubt.

Reasonable Doubt

The question that naturally arises is, "What is a reasonable doubt?" What does that term mean? The words almost define themselves. It is a doubt based in reason and arising out of the evidence in the case, or the lack of evidence. It is a doubt that a reasonable person has after carefully weighing all of the evidence in the case.

Reasonable doubt is a doubt that appeals to your reason, your judgment, your experience, and your common sense. If, after a fair and impartial consideration of all the evidence, you can candidly and honestly say that you are not satisfied with the guilt of a defendant, that you do not have an abiding and firm belief of that defendant's guilt; in other words, if you have such a doubt as would reasonably cause a prudent person to hesitate in acting in matters of importance in his or her own affairs, then you have a reasonable doubt, and in that circumstance it is your duty to acquit.

On the other hand, if, after a fair and impartial consideration of all the evidence, you can candidly and honestly say that you do have an abiding belief of the defendant's guilt, such a belief as a prudent person would be willing to act upon in important matters in the personal affairs of his or her own life, then you have no reasonable doubt, and under such circumstances it is your duty to convict.

One final word on this subject: Reasonable doubt is not whim or speculation. It is not an excuse to avoid the performance of an unpleasant duty. Nor is it sympathy for a defendant. Beyond a reasonable doubt does not mean a positive certainty, or beyond all possible doubt. After all, it is virtually impossible for a person to be absolutely and completely convinced of any contested fact that by its nature is not subject to mathematical proof and certainty. As a result, the law in a criminal case is that it is sufficient if the guilt of a defendant is established beyond a reasonable doubt, not beyond all possible doubt.

II. Charges Summary of the Charges

The Indictment contains five separate charges or counts. Each of these counts constitutes a separate offense, which must be considered separately by you. Those five counts, in the order in which this charge will address them, are as follows.

Counts One and Two charge each of the four defendants with conspiring, respectively, to distribute cathinone and to import cathinone. Count Three charges two of the defendants -- Abdi Emil Moge and Abdinur Ahmed Dahir -- with conspiring to violate the money laundering laws. Counts Four and Five charge Ali Awad and Abdi Emil Moge, respectively, with engaging in what is called a continuing criminal enterprise.

Count One: Conspiracy to Distribute a Controlled Substance: Elements of the Conspiracy

Count One charges each of the defendants with participating in a conspiracy to distribute or to possess with intent to distribute the controlled substance cathinone in a form commonly known as khat. The federal criminal statute known as the Controlled Substances Act classifies certain drugs and substances into five schedules, or lists. Khat is not included on those lists and is not a controlled substance. Cathinone, a stimulant, is a controlled substance. You have also heard testimony that the khat plant can contain cathine. Cathine is also a stimulant, but like khat, it is not a controlled substance. Thus, the crime charged in Count One is a conspiracy to distribute or possess with intent to distribute a controlled substance, specifically cathinone.

In order to find the defendant you are considering guilty of Count One, you must find that the Government has proven each of the following beyond a reasonable doubt:

First: That the conspiracy charged in Count One existed -- that is, that an agreement or understanding between two or more persons existed from in or about December 2004 to July 2006 to distribute or to possess with intent to distribute a controlled substance.

Second: That the defendant you are considering knowingly, willfully, and unlawfully became a member of the conspiracy.

Before I explain the elements of conspiracy in greater detail, let me make one point: in a conspiracy you do not have to find that the "substantive" crime which is the object of the conspiracy has been committed because it is the agreement itself -- the agreement with others to commit the crime -- along with the second element of conspiracy, that the law forbids and defines as a crime.

Count One: Conspiracy to Distribute a Controlled Substance: Existence of the Agreement

The first element that the Government must prove beyond a reasonable doubt is that two or more persons entered into the unlawful agreement charged in the Indictment, that is, an agreement to distribute or possess with intent to distribute a controlled substance. Simply defined, a conspiracy is an agreement by two or more persons to violate the law.

A conspiracy has sometimes been called a partnership for criminal purposes in which each partner becomes the agent of every other partner. To establish the existence of a conspiracy, the Government is not required to show that two or more people sat around a table and entered into a formal contract. Indeed, it would be extraordinary if there was such a formal document or specific agreement. From its very nature, a conspiracy is almost always characterized by secrecy, which makes detection difficult. A conspiracy can exist even if there is no formal organization or structure. It is sufficient if two or more persons, in any manner, whether they say so directly or not, come to a common understanding to violate the law. In determining whether two or more people reached an agreement, you may not include anyone who was a Government agent or informant at that time.

Because a conspiracy is an entirely separate offense from the "substantive" crime, that is, the distribution of a controlled substance, that is the object of the conspiracy, if a conspiracy exists, it is punishable as a crime even if it should fail in its purpose. Thus, if you find that two or more persons agreed to work together to distribute a controlled substance, they have committed a crime even if they fail to achieve their goal and do not actually succeed in distributing any controlled substance. Of course, proof that the object of a conspiracy was achieved may be the most persuasive evidence of the existence of the conspiracy. In other words, success of the venture, if you believe it was successful, is often the best proof of the conspiratorial agreement.

In determining whether there has been an unlawful agreement, you may judge the acts and conduct of the alleged members of the conspiracy that are done to carry out an apparent criminal purpose. The adage "actions speak louder than words" is applicable here. When taken together and in connection with the reasonable inferences that flow from them, those acts may show a criminal agreement as satisfactorily and conclusively as more direct proof.

If, upon consideration of all the evidence, direct and circumstantial, you find beyond a reasonable doubt that the minds of two or more alleged conspirators met -- that is, that they agreed, as I have explained a conspiratorial agreement to you, to work together in furtherance of the unlawful scheme alleged in the Indictment -- then proof of the existence of the conspiracy is established.

Count One charges a single conspiracy to distribute or possess with intent to distribute a controlled substance. You may not convict a defendant of the crime charged in Count One if you find that he was a member of a different conspiracy than the one charged in the Indictment.

You may find that there is a single conspiracy if you find that the evidence shows that there was a mutual dependence among the participants in the criminal activity, or that they shared a common aim or purpose, or that when you examine the nature and scope of the operations of the criminal activity you find it reasonable to infer that each member of the conspiracy was aware that he or she was playing a part in a larger venture where others performed roles that were also important to the success of the venture. To prove the existence of a single conspiracy the Government must show beyond a reasonable doubt that each member of the conspiracy agreed to participate in what he or she knew was a collective venture directed toward a common goal.

A single conspiracy can exist even though its members change over time. Accordingly, you may find that there was a single conspiracy even if there were changes in personnel, the addition or subtraction of members, shifting emphasis in the location of operations, or an evolution in the activities undertaken by the conspirators, so long as you find that some core members of the conspiracy continued to act throughout its existence to accomplish the purposes charged in the Indictment. A single conspiracy may exist without each member conspiring directly with every other member of the conspiracy. Indeed, a person can be a member of the same conspiracy without even knowing who all the conspirators are. The members of a conspiracy need not have agreed on the details of the conspiracy, or even know of the identity or of the activities of all of the other members of the conspiracy so long as the members agree on the essential nature of the conspiratorial plan.

Multiple conspiracies exist where the evidence shows separate, unlawful agreements operating independently of each other to achieve distinct purposes. Whether the conspiracy charged in the Indictment existed, or whether there were several different criminal conspiracies or no conspiratorial agreement at all, is a question of fact for you, the jury, to decide.

If you find that there were multiple conspiracies, and that none of these conspiracies was the conspiracy charged in Count One, then you must acquit the defendants on Count One. If you find that there were multiple conspiracies and that one of the conspiracies was the conspiracy charged in Count One then you must consider the second element of the crime charged in Count One and determine whether each of the defendants was a knowing and intentional member of the conspiracy charged in Count One.

Count One: Conspiracy to Distribute a Controlled Substance: Object of the Conspiracy

The object of the conspiracy charged in Count One is distribution of or possession of with intent to distribute a controlled substance. The word "distribution" means the actual, constructive, or attempted transfer of a controlled substance. In order to have possession with intent to distribute, a person must exercise control over the controlled substance with the state of mind or purpose to transfer it to another person. Control may be demonstrated by showing the existence of a working relationship between the person with the power to control the movement of the controlled substance and another person who has physical custody of the controlled substance. More than one person can have control over the same controlled substances. To find that a person possessed a substance, it is not necessary that the person was the only one with control over it, but there must be evidence that the person did exercise control.

The Government need prove only that the object of the conspiracy was to distribute some controlled substance or to possess some controlled substance with the intent to distribute it. The Government need not prove both. You must be unanimous as to which objective you find to have been proven.

Count One: Conspiracy to Distribute a Controlled Substance: Knowledge of Cathinone

As I have instructed you, Count One charges the defendants with conspiring to distribute and to possess with intent to distribute a controlled substance. The Government may satisfy its burden in this regard by proving beyond a reasonable doubt that two or more persons either (a) agreed to distribute khat knowing that it contained cathinone or (b) agreed to distribute khat understanding that it contained some substance controlled under American drug abuse law. In other words, the Government does not have to show that the conspirators knew the word cathinone or knew of the statute entitled the Controlled Substances Act. The Government must show, however, that it was an object of the conspiracy to distribute or possess with intent to distribute either cathinone or some substance controlled by American drug abuse law.

Count One: Conspiracy to Distribute a Controlled Substance: Participation in the Conspiracy

The second element that the Government must prove beyond a reasonable doubt is that the defendant you are considering knowingly, willfully, and unlawfully joined in the conspiracy charged in Count One. A person acts "knowingly" if he acts intentionally, voluntarily, and deliberately, and not because of mistake or accident, mere negligence, or other innocent reason. A person's conduct is "willful" if it is purposeful and if a person acts with the general awareness that his conduct is unlawful and with the intention to commit an act which the law forbids. It is not necessary that the defendant you are considering was aware that he was violating any particular statute. But you must be convinced beyond a reasonable doubt that he was aware what he was doing was, in general, unlawful. "Unlawfully" simply means contrary to law, that is, to do something which the law forbids.

In determining whether the defendant you are considering became a member of the conspiracy, you must determine not only whether he participated in it, but whether he did so with knowledge of its illegal objective. Did the defendant join the conspiracy with an awareness of its aim and purpose and with the specific intent of furthering that purpose? Knowledge is a matter of inference from facts proved.

In determining whether a defendant knew that the object of the conspiracy was to distribute some substance controlled by American drug abuse law you may consider the defendant's sophistication, knowledge of khat, his awareness of the intended use of khat, his familiarity with the effects of khat on those who used it, his awareness of and involvement in efforts to avoid detection, his financial stake in the activities of the conspiracy, and his awareness of law enforcement efforts to police the possession or sale of the substance. You may consider these and any other factors that you believe shed light on the defendant's knowledge of the object of the conspiracy.

To have guilty knowledge, a defendant need not know the full extent of the conspiracy or even who all the co-conspirators are. Similarly, a defendant need not know all of the activities of the conspiracy. Indeed, a single act may be enough to bring one within the membership of the conspiracy, provided that the defendant was aware of the conspiracy and knowingly associated himself with its criminal aims.

Of course, mere presence at the scene of a crime or mere association with a conspirator does not make one a member of the conspiracy. Nor is knowledge without participation sufficient. What is necessary is that the defendant participate in a conspiracy with knowledge of its unlawful purpose and with intent to aid in the accomplishment of that end.

It is not necessary that the defendant you are considering receive or even anticipate any financial benefit from his participation in the conspiracy so long as he participated in it in the way that I have explained. If you find that the conspiracy existed and that the defendant you are considering participated knowingly and intentionally in it, that defendant is culpable even if his participation in the conspiracy was more limited than that of another co-conspirator. The question then is this: has the Government proven beyond a reasonable doubt that the defendant you are considering joined the conspiracy and participated in it with the awareness of its basic purpose and as something he wished to bring about?

Count One: Conspiracy to Distribute a Controlled Substance: Conscious Avoidance

You have heard arguments from counsel as to whether the defendants knew that khat or a substance in khat was controlled by American drug abuse law, and thus whether the defendants knew that the object of the conspiracy was to distribute some substance controlled by American drug abuse law. As I have already instructed you, in deciding whether the defendant you are considering became a member of the conspiracy charged in Count One, you should bear in mind that the Government need not show that a defendant knew the word cathinone or was aware of the Controlled Substances Act. You must find, however, that the defendant was aware that the object of the conspiracy that he was joining was to distribute or to possess with intent to distribute either cathinone or some substance controlled by American drug abuse law.

In determining whether a defendant joined the conspiracy with knowledge of its unlawful objectives you may consider whether that defendant deliberately closed his eyes to what otherwise would have been obvious. The necessary knowledge cannot be established by showing that the defendant you are considering was careless, negligent, or foolish. A defendant may not, however, willfully and intentionally remain ignorant of a fact material and important to his own conduct in order to escape the consequences of criminal law. If you find beyond a reasonable doubt that the defendant you are considering was aware of a high probability that the object of the conspiracy was to distribute some substance controlled by American drug abuse law but deliberately and consciously avoided confirming that fact, then you may treat this deliberate avoidance of positive knowledge as the equivalent of knowledge, unless you find that he actually believed that this was not the object of the conspiracy.

Count Two: Conspiracy to Import a Controlled Substance: Elements of the Conspiracy

Count Two charges each of the defendants with participating in a conspiracy to import a controlled substance. In order to find the defendant you are considering guilty of Count Two, the Government must prove ...


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