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United States v. Awad

October 3, 2007


The opinion of the court was delivered by: Denise Cote, District Judge


This Opinion and Order addresses mid-trial and post-trial motions by the three defendants in this case who were convicted of crimes at the conclusion of a jury trial running from June 4 through June 26, 2007. All of the mid-trial and post-trial motions are denied.


As explained in prior opinions in this action and at trial, cathinone is a stimulant and a Schedule I controlled substance. It occurs naturally in the leaves of the khat plant but racemizes over time to form other chemicals. Users of khat chew the plant's leaves. Khat is grown in the Horn of Africa. United States v. Muse, No. 06 Cr. 600, 2007 WL 391563, at *1 (S.D.N.Y. Jan. 30, 2007).

The three defendants whose motions are at issue were tried on charges contained in the first superseding indictment*fn1 ("Indictment"). As relevant here, Counts I and II charged all three defendants -- Ali Awad ("Awad"), Abdi Emil Moge ("Moge"), and Abdulahi Hussein ("Hussein") -- with conspiring to distribute or possess with intent to distribute cathinone and with conspiring to import cathinone. Count III charged Moge with a money laundering conspiracy.*fn2

Briefly, the evidence at trial established that Awad was involved with the khat business beginning in 1999. He principally imported khat through express mail packages received in New York, eventually becoming a significant organizer of the New York importation and distribution network. Moge worked principally from Minnesota, where a large community of Somalis lives in the Twin City area. Moge played a central role distributing khat within this community, having arranged to receive the khat through couriers and by express mail packages sent from abroad. Hussein worked in the khat business on the East Coast, and was a retail seller of khat in Portland, Maine.

On June 14, at the close of the Government's case-in-chief, Awad, Moge, and Hussein made oral motions for acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure. The Court reserved decision on these motions pursuant to Rule 29(b).

On June 26, the jury found all three defendants guilty of conspiring to distribute or to possess with intent to distribute cathinone, and found that the Government had not proven that the Count I conspiracy succeeded in distributing cathinone. The jury found Awad and Moge, but not Hussein, guilty of conspiring to import cathinone, and found that the Count II conspiracy succeeded in importing cathinone. Finally, the jury found Moge guilty of conspiring to launder money.

Moge and Awad filed timely post-trial motions.*fn3 On July 3, Moge filed a post-trial motion for a judgment of acquittal pursuant to Rule 29(c) and a motion for a new trial, presumably pursuant to Rule 33. Also on July 3, Awad filed a Rule 29(c) motion. Moge submitted a memorandum in support of his Rule 29 and 33 motions on August 8, followed by an amended version filed on August 13.*fn4


A defendant who challenges the sufficiency of the evidence to support his conviction "bears a heavy burden." United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003) (citation omitted).

In deciding such a motion, the court must "view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor." United States v. Tubol, 191 F.3d 88, 97 (2d Cir. 1999) (citation omitted). "Under Rule 29, a district court will grant a motion to enter a judgment of acquittal on grounds of insufficient evidence if it concludes that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt." Jackson, 335 F.3d at 180.

Rule 33 authorizes a district court to grant a new trial "if the interests of justice so require." Fed. R. Crim. P. 33. A motion for a new trial may be granted only with "great caution and in the most extraordinary circumstances." United States v. Stewart, 433 F.3d 273, 296 (2d Cir. 2006) (citation omitted). The motion should be granted, however, where there has been a "manifest injustice," that is, "a real concern that an innocent person may have been convicted." United States v. Snype, 441 F.3d 119, 140 (2d Cir. 2006) (citation omitted).

The plain error standard used in appellate review applies in the trial court to post-trial claims that could have been but were not raised during trial. United States v. Blade, 336 F.3d 754, 757 (8th Cir. 2003); see also United States v. Lombardozzi, 491 F.3d 61, 72-73 (2d Cir. 2007) (plain error in context of appellate review).

That standard is not met unless there is, inter alia, (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, [a] court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Reversal for plain error should be used ...

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