Saturday, August 29th, 2009

Khat Man, Two

United States v. Hassan, No. 05-6949 (2d Cir. August 21, 2009) (Calabresi, Pooler, CJJ)

Hassan was convicted of three conspiracy counts – (1) importation of a controlled substance (2) distribution of a controlled substance, and (3) money laundering – along with forty-one substantive money laundering counts, in connection with his importation of khat into the United States. In September of 2008, the court of appeals reversed his conviction on the substantive money laundering counts due to insufficient evidence, and remanded for a new trial on all of the conspiracy convictions because of an erroneous jury instruction. See “Krazy Khat,” posted September 27, 2008.

Both sides sought rehearing, and this amended opinion, which deals with the claims raised in the rehearing petitions, supersedes the original without changing the outcome. In the court’s own words, here is the difference between the original opinion and the new one:

[T] his amended opinion replaces in its entirety our earlier decision in United States v. Hassan, 542 F.3d 968 (2d Cir. 2008) (“Hassan I”), to which both parties petitioned for rehearing. Having reviewed the petitions, we have concluded that each presents at least one valid ground for granting rehearing and have amended the opinion accordingly. We grant Hassan’s request that we consider the sufficiency of the evidence for the single count of money laundering conspiracy because we agree that we are required to reach that issue since Hassan’s retrial would be barred by Double Jeopardy if the evidence presented by the government was insufficient. See United States v. Riggi, 541 F.3d 94, 108 (2d Cir. 2008). We conclude that the trial evidence was sufficient to support a conviction on this count. We decline Hassan’s invitation to revisit our conclusion that the trial evidence was sufficient to prove that he was dealing with khat containing cathinone. We grant the government’s request that we amend the opinion’s description of the elements of a Controlled Substances Act (“CSA”) conspiracy and have deleted that language in Hassan I indicating that there is an overt act requirement for conspiracies charged under the Controlled Substances Act (“CSA”). See United States v. Shabani, 513 U.S. 10, 15 (1994). We also grant the government’s request that we amend the opinion to clarify that “scienter with respect to the type and quantity of controlled substance is not required to convict a defendant under the CSA,” Gov’t Pet. for Reh’g at 5-6, but make only limited amendments as we think our decision read as a whole makes clear that we adhere to that rule. However, we deny the government’s request that we revisit our conclusion that a “conviction based on cathine, rather than cathinone, would have been an impermissible constructive amendment of the indictment.” Hassan I, 542 F.3d at 991. We adhere to that conclusion. See United States v. Abdulle, 564 F.3d 119, 126-27 (2d Cir. 2009) (explaining why conviction based on cathine, rather than cathinone, is constructive amendment rather than variance). We deny the government’s and Hassan’s petitions in all other respects.

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