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United States v. Abdulle

April 22, 2009

UNITED STATES OF AMERICA, APPELLEE,
v.
LIBAN M. ABDULLE, HASSAN SADIQ MOHAMED, MUHIDIN A. MOHAMED, DEFENDANTS,
ISMAIL ALI MOHAMED DEFENDANT-APPELLANT.



SYLLABUS BY THE COURT

Defendant-appellant Ismail Ali Mohamed appeals from a July 31, 2006 judgment of the United States District Court for the Eastern District of New York (Amon, J.) convicting him, following a jury trial, of conspiracy to distribute and possess with intent to distribute a Schedule I controlled substance, cathinone, in violation of 21 U.S.C. §§ 841(a)(1), 846, and possession with intent to distribute a Schedule I controlled substance, cathinone, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Defendant-appellant argues that the trial evidence was insufficient to prove that he knew that cathinone was a controlled substance or that he conspired to distribute and possess with the intent to distribute that specific substance. We disagree and affirm the judgment of conviction.

The opinion of the court was delivered by: Sotomayor, Circuit Judge

On Submission: April 18, 2008

Before NEWMAN, SOTOMAYOR and KATZMANN, Circuit Judges.

Defendant-appellant Ismail Ali Mohamed ("Mohamed") appeals from a July 31, 2006 judgment of the United States District Court for the Eastern District of New York (Amon, J.) convicting him, following a jury trial, of conspiracy to distribute and possess with intent to distribute a Schedule I controlled substance, cathinone, in violation of 21 U.S.C. §§ 841(a)(1), 846, and possession with intent to distribute a Schedule I controlled substance, cathinone, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).

On appeal, Mohamed argues that the trial evidence was insufficient to sustain the charges against him because the government failed to prove that he knew that cathinone was a controlled substance or that he conspired to deal in that particular substance. Because we conclude that the government's evidence was sufficient to show both that Mohamed knew that cathinone was a controlled substance and that he conspired to possess and distribute that specific substance, we affirm the judgment of conviction.

BACKGROUND

I. MOHAMED'S TRIAL

We recount the evidence presented at trial "'in the light most favorable to the government, drawing all inferences in the government's favor.'"*fn1 United States v. Parkes, 497 F.3d 220, 225 (2d Cir. 2007) (citing United v. Arena, 180 F.3d 380, 391 (2d Cir. 1999)).

A. The August 18, 2005 Arrests and Preceding Events

In January 2005, the Nassau County Police Department ("NCPD") began a series of investigations into the importation and distribution of khat, a leafy plant native to East Africa and the Arabian Pennisula that can contain substances regulated by United States law. The NCPD learned that khat was frequently transported into the United States through overnight delivery services such as the FedEx Corporation ("Federal Express"), the United Parcel Service, and DHL International ("DHL"). In April 2005, the NCPD received information about a specific khat shipment that DHL was scheduled to deliver to Hassan Sadiq Mohamed ("Sadiq"), one of Mohamed's alleged co-conspirators. On April 22,NCPD officers visited DHL's sorting facility and confirmed the existence of a thirty to thirty-five pound package of khat addressed to a street location on the border of Rosedale and Valley Stream, New York. The officers arranged for a controlled delivery*fn2 of the package, and when the DHL truck arrived at the destination, Sadiq was already waiting in a silver Toyota 4-Runner ("4-Runner") with Massachusetts license plates. Sadiq stepped out of the 4-Runner, picked up the package directly from the delivery truck, and drove away. The 4-Runner was registered and owned by Liban Abdulle ("Abdulle"), another alleged co-conspirator.

Later that year, on August 16, 2005, NCPD officers discovered that Sadiq had listed 49 Nixon Court, Brooklyn, New York ("Nixon Court") as his home address on an unrelated police report.At 5:30 A.M. on August 18, 2005, an NCPD surveillance team traveled to that location. Although neither Sadiq nor the 4-Runner was seen, the team noticed a white Ford Explorer ("Explorer") with a Minnesota license plate adjacent to the Nixon Court address.Because the NCPD's investigation had discovered that a suspected khat distribution ring frequented a number of hotels near John F. Kennedy International Airport ("JFK") to receive international couriers and to facilitate the domestic distribution of khat, NCPD Detectives Thomas Kelly, Patrick Ryder, and Joseph Lore moved their surveillance activities to the JFK Inn, located next to the airport.Once there, the surveillance team noticed the 4-Runner that Sadiq had driven on April 22, which was now being operated by Abdulle.A few minutes later, they saw the Explorer with Minnesota license plates that they had seen earlier that morning outside of Nixon Court arrive at the JFK Inn as well. Detective Ryder testified that he could see that the Explorer was being driven by Sadiq, and that the man later identified as Mohamed was sitting in the back seat. Detective Ryder also testified that he was able to observe that the rear cargo area of the Explorer was empty. Shortly thereafter, the Explorer left the JFK Inn. After a few minutes, the Explorer returned, and both vehicles drove away from the hotel.

The detectives lost sight of the 4-Runner in traffic, but were able to follow the Explorer to Five Star Printing, a store on Queens Boulevard that offered photocopying, rental mailboxes, and other business services. Sadiq left the Explorer, entered Five Star Printingbriefly, and then returned to the street. In the interim, Detective Ryder left his own vehicle to conduct surveillance of the scene on foot. Detective Ryder stated that, at one point, when Mohamed lowered his window to talk to Sadiq, Ryder was able to walk past the Explorer and observe a person chewing khat in the front seat, a bundle of khat and banana leaves next to Mohamed in the back seat, and several brown boxes in the rear cargo area similar to ones that frequently contain khat. Ryder relayed this information to the other law enforcement officers and told them to prepare to make arrests.

The 4-Runner, still driven by Abdulle, then arrived to join the Explorer on the street, and the officers moved in and arrested Mohamed and the others. Detective Kelly confirmed what Detective Ryder had seen earlier, testifying that when he took the men into custody he observed that "[t]o the left of Mr. Mohamed was a white plastic-type garbage bag. Protruding out of the garbage bag was a bundle of khat," and there "were boxes containing khat" in the cargo area.Mohamed, the others, and the two vehicles were subsequently taken to law enforcement offices in Manhattan. Once interviewed, Mohamed admitted that he had rented the Explorer with cash and had driven it to New York to visit an acquaintance. He also claimed that he had intended to drive the khat back to Minnesota for personal use.

Detective Lore testified that he drove the Explorer following the arrests and that the vehicle had a "pungent" smell, which he attributed to the khat.Whenthe Explorer's contents were catalogued, the boxes were found to contain approximately forty-five kilograms of khat wrapped in banana leaves. Shirley George ("George"), a Drug Enforcement Agency ("DEA") forensic chemist, testified that she performed chemical analyses on khat samples seized from the Explorer. The samples contained both cathinone, a substance listed on Schedule I of the Controlled Substances Act ("CSA"), and cathine, listed on Schedule IV. She was unable to identify the purity or concentration of either substance in the samples.George also explained to the jury that cathine's listing on Schedule IV ...


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