Opinion
No. CR14-63-LTS
2022-12-14
UNITED STATES of America, Plaintiff, v. Mohammad AL SHARAIREI, Defendant.
Dan Chatham, Matthew J Cole, Adam John Vander Stoep, US Attorney's Office, Northern District of Iowa, 111 7th Avenue SE, Box 1, Cedar Rapids, IA 52401, for Plaintiff. Jill M Johnston, Federal Public Defender's Office, 222 Third Avenue SE, Suite 290, Cedar Rapids, IA 52401, Melanie S Keiper, Federal Public Defender's Office, 400 Locust Street, Suite 340, Des Moines, IA 50309, Mark C. Meyer, Kinnamon Kinnamon Russo Meyer, 425 2nd Street SE, Suite 425, Cedar Rapids, IA 52401, Adam John Vander Stoep, US Attorney's Office, 111 7th Avenue SE, Box 1, Cedar Rapids, IA 52401, for Defendant.
Dan Chatham, Matthew J Cole, Adam John Vander Stoep, US Attorney's Office, Northern District of Iowa, 111 7th Avenue SE, Box 1, Cedar Rapids, IA 52401, for Plaintiff. Jill M Johnston, Federal Public Defender's Office, 222 Third Avenue SE, Suite 290, Cedar Rapids, IA 52401, Melanie S Keiper, Federal Public Defender's Office, 400 Locust Street, Suite 340, Des Moines, IA 50309, Mark C. Meyer, Kinnamon Kinnamon Russo Meyer, 425 2nd Street SE, Suite 425, Cedar Rapids, IA 52401, Adam John Vander Stoep, US Attorney's Office, 111 7th Avenue SE, Box 1, Cedar Rapids, IA 52401, for Defendant.
ORDER ON DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL
Leonard T. Strand, Chief Judge
I. INTRODUCTION
This matter is before me on a motion (Doc. 141) in arrest of judgment or, in the alternative, a new trial by defendant Mohammad Al Sharairei. The Government has filed a resistance (Docs. 151, 154). Oral argument is not necessary. See Local Rule 7(c).
While labeling his filing as "a motion in arrest of judgment," Al Sharairei invokes Federal Rule of Criminal Procedure 29(c). Doc. 141 at 1. Given the nature of the arguments, and Al Sharairei's citation to Rule 29(c), I will treat the motion as a motion for judgment of acquittal, not a motion arresting judgment under Federal Rule of Criminal Procedure 34.
II. FACTUAL AND PROCEDURAL BACKGROUND
Al Sharairei was charged in a superseding indictment (Doc. 40) with:
• Count 1 - maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1)Doc. 40. Counts 3 and 4 were later dismissed upon the Government's motion. Doc. 78. The superseding indictment also contained a forfeiture allegation. Id.
• Count 2 - conspiracy to distribute controlled substance analogues in violation of 21 U.S.C. §§ 841(a)(1) and 846
• Count 3 - engaging in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. § 1957
• Count 4 - conducting an illegal gambling business in violation of 18 U.S.C. § 1955.
At trial on Counts 1 and 2, the Government presented testimony from 16 witnesses and admitted 38 exhibits (two of which were demonstrative). Al Sharairei presented testimony from three witnesses and admitted six exhibits (one of which was demonstrative). See Doc. 129-1. On September 12, 2022, the jury returned verdicts of guilty as to both counts. Doc. 130.
The Government provided the following testimony relevant for purposes of Al Sharairei's motion. Special Agent Kelly Meggers with the Iowa Division of Narcotics and the Cedar Rapids Drug Enforcement Administration (DEA) Task Force testified regarding the nature of synthetic cannabinoids (SCs) and the market for them. She testified that SCs are drugs that are chemically similar to THC. They are a powdered chemical that is dissolved in acetone and then sprayed on a green, leafy substance. SCs are packaged and sold under a variety of names such as "Scooby Snacks" or "Diablo." The labels indicate they are "not for human consumption." They are typically sold in convenience stores or head shops and advertised as potpourri or incense. Meggers testified that during the 2012-2014 time period, distributors of SCs would utilize commercial laboratories to test the products they were selling. The laboratories would produce "does contain" reports or, more often "does not contain" reports.
Wayne House, a prior special agent criminal investigator with Homeland Security Investigations, testified that he was involved in the investigation of SCs in the St. Louis area in 2012 and 2013. At some point, his investigation became focused on Charles Wolfe. Al Sharairei, as the owner of Puff N Stuff, a head shop in Cedar Rapids, was one of Wolfe's customers. House interviewed Al Sharairei on March 10, 2014, and learned that he began purchasing SCs from Wolfe in June 2013. During the interview, Al Sharairei stated that Wolfe knew all the tricks to getting around legal issues involving the sale of SCs. Wolfe would jingle change in his pockets in case someone was wearing a body wire and he taught clients to avoid using certain language so as not to acknowledge the true purposes of SCs, such as smoking them. For instance, they were to use the term "scents" instead of "flavors" and to talk about how to make the product work better rather than how to increase the high it provided.
Bryan Furman, a Cedar Rapids police officer, testified that he was investigating the sales of SCs in the area in May 2013. On May 28, 2013, he went undercover with Meggers to Puff N Stuff and asked an employee about the different SC products. He purchased two packages and sent them to the DEA laboratory. Furman interviewed Al Sharairei on January 9, 2014, during which Al Sharairei stated they had tested their products in laboratories.
Kenneth Booker, a forensic chemist with the DEA, testified about the lab procedures and the types of analyses he performs on substances that are sent in to be tested. He testified that each of the Government's exhibits that he analyzed for this case contained 5F-PB-22.
Jessie Anderson managed Puff N Stuff during the relevant time frame. She testified about the packages of "potpourri" that were sold at the store. She explained that they did not contain traditional potpourri with dried flowers and plants, but instead a type of plant matter in brightly colored packages that was sold in grams. Some of the names of the packages included "Lights Out," "Freedom," "Head Trip," "Bizarro," and "Devil's Dank." She testified that one of the store rules was that the staff was not supposed to talk about how these products were used. She stated Al Sharairei's wife had posted a disclaimer around the store stating: "All products within are incense and should be discussed as such. Consuming these products is illegal. Referring to them in a consumable way whatsoever can get you removed from this store. Consuming these products is dangerous and probably not the brightest idea. We have the right to refuse service to anyone. Please do not make us exercise it." See Gov. Ex. 7.
Anderson believed that customers were purchasing the "potpourri" to smoke it, partly because of the amount of money it cost. She also testified that customers were not allowed to purchase "potpourri" and smoking paraphernalia together. The "potpourri" or incense was the store's most popular product and generated the most money. She also observed Al Sharairei smoke the potpourri on occasion at work.
Ivan Clay was housed with Al Sharairei at the Linn County jail. Al Sharairei told him about his charges and admitted to trying SCs. He also told Clay he thought he could beat the charges by claiming ignorance. When Clay asked him whether he really did not know the SCs were illegal, Al Sharairei admitted that his cousin had previously gotten in trouble for selling them.
Dr. Trudy Amin, a chemist with the DEA, testified about the Controlled Substances Act (CSA) and emergency scheduling. She explained that part of her job is to review drugs and other substances for their control status under the CSA. She testified that PB-22 is a cannabinoid that became a Schedule I controlled substance in February 2014. She testified that its chemical structure is substantially similar to JWH-018, a Schedule I controlled substance as of March 1, 2011 (under emergency scheduling) and July 9, 2012 (under permanent scheduling).
Amin testified that 5F-PB-22 is a Scheduled I controlled substance as of February 2014. She opined that in June 2013, 5F-PB-22 was an analogue (to the extent it had a similar chemical structure) to AM-2201, a Schedule I controlled substance as of July 9, 2012. Amin then explained how the chemical structures of PB-22 and 5F-PB-22 were substantially similar to JWH-018 and AM-2201, respectively. She explained that JWH-018 has an indole core. At the 1 position, there is a nitrogen atom connected to an alkyl group. At the 3 position, there is a linker, in this case a carbonyl group, that ties the core to a fused ring system. She provided the following comparison in the Government's demonstrative Exhibit 119:
Image materials not available for display. Amin identified the similarities with PB-22 as the indole core group, an alkyl group at the N1 position, a carbonyl linker and a fused ring system. In terms of differences, PB-22 has an additional oxygen attached to the linker and it has a nitrogen atom that replaces a carbon atom in the fused ring system.
Amin did a similar comparison of 5F-PB-22 and AM-2201, shown below:
Image materials not available for display. She identified the similarities between these substances as the indole core structure, a substitution at the N1 position with an alkyl group, a fluorine atom at the bottom of that alkyl group, a carbonyl linker and a fused ring system. The differences are that 5F-PB-22 has an extra oxygen atom in its linker group, and an additional nitrogen atom in the fused ring system.
Amin opined that PB-22 has a chemical structure that is substantially similar to JWH-018 and 5F-PB-22 has a chemical structure that is substantially similar to AM-2201. She explained that the extra oxygen on 5F-PB-22 is known as an ester group, whereas in AM-2201, with just the carbon and oxygen, this is known as a ketone. Similarly, the extra oxygen in PB-22 makes an ester group, whereas it is a ketone in JWH-018. In summary, she testified that PB-22 and 5F-PB-22, when compared to their scheduled controlled substance counterparts, are identical but for two atoms.
Dr. Jordan Trecki, a pharmacologist with the DEA, testified about the effects of these substances. He explained that compared to delta-9-tetrahydrocannabinol (THC), these substances (PB-22, 5F-PB-22, JWH-018 and AM-2201) are much more potent because they are considered full agonists, rather than partial agonists, like THC. After outlining his research process, Trecki concluded it was his opinion that PB-22 has a substantially similar effect on the central nervous system as JWH-018 and 5F-PB-22 has a substantially similar effect on the central nervous system as AM-2201.
Heather Harris, an assistant professor of forensic science at Arcadia University, testified on behalf of Al Sharairei. She conducted comparisons of PB-22 to JWH-018 and 5F-PB-22 to AM-2201. She explained that her comparison was based on work that was developed by another group of scientists, specifically a group of researchers from Procter & Gamble who developed a method for comparing molecules. Harris focused on the structural comparison aspect of their research to guide her comparison of the molecules at issue. Thus, her testimony focused solely on the structural similarity issue. She used the PubChem database to obtain structures and other information about the molecules. She also used PubMed to review scientific literature articles related to PB-22 and 5F-PB-22.
Harris stated she had reached an opinion about the structural similarity between PB-22 and JWH-018 and 5F-BB-22 and AM-2201 that was further supported by the opinion of Dr. John W. Huffman. Prior to 2014, Harris was aware of only one article and one abstract that examined PB-22. The article examined how PB-22 was metabolized and the abstract provided some preliminary information about PB-22, based on a 2013 presentation. She provided the following comparison of JWH-018 and PB-22:
Huffman, who is now deceased, created JWH-018 and gave this opinion in another case.
Image materials not available for display.
Harris explained that one of the main differences is that an ester group in PB-22 has replaced the ketone in JWH-018. She considered this a fundamental difference and noted it was reflected in the names assigned by the International Union of Pure and Applied Chemistry (IUPAC) which, she explained, represent the actual structural components found in the molecules. She observed that the Naphthalen and Quinolin references in the names refer to the fused ring structure and that these also differ based on the nitrogen in the PB-22 fused ring structure. She explained that the difference is that a carbon holds the structure together while the nitrogen can cause chemical activity. The nitrogen in the quinoline of PB-22 would therefore be a reactive spot in that molecule.
Harris also stated that the ketones in the linkage for JWH-018 would have very different chemical activity compared to the esters in the linkage for PB-22. She explained that she relied on the Proctor & Gamble research to determine that the core structure of these molecules is also different. That research defined the core structure as all ring systems and the chains that link them, meaning it would include the linker (differing in ketone versus ester) and the fused ring system (differing in the naphthalene versus quinoline). Specifically, the Proctor & Gamble group identified three criteria for comparing chemical structures: differences in the core structural group, functional groups and the present and location of double bonds. Harris also testified that the mass spectral fragments differed as well. She explained that because AM-2201 is JWH-018 with a fluorine atom on the end of the alkane chain, while 5F-PB-22 is PB-22 with the addition of the same fluorine atom, the analysis was essentially the same. She concluded that JWH-018 and AM-2201 were not substantially similar in structure to PB-22 and 5F-PB-22.
Dr. James O'Donnell, an assistant professor of pharmacology at Rosalind Franklin University of Medicine and Science, also testified on behalf of Al Sharairei. O'Donnell testified he reviewed the chemical structure of each of the four substances, as well as Huffman's testimony, other expert reports and pharmacological literature. He opined that there are important structural differences between the sets of molecules, primarily in that one has a ketone group and the other an ester group. Pharmacologically, he explained the ester is much more unstable and chemically reactive and results in different metabolism. The other difference he identified is between the bicyclic aromatic group, noting that one is a naphthol and the other is a quinolyl group. O'Donnell had no dispute with Harris' analysis.
Al Sharairei made an oral motion for judgment of acquittal at the close of the Government's case. Doc. 139 at 21-22. I denied the motion. Id. at 26. Al Sharairei renewed the motion at the close of the defense case and the Government's rebuttal. I again denied the motions. Id. at 85, 92.
On September 12, 2022, the jury returned a verdict (Doc. 130) finding Al Sharairei guilty on both counts. Al Sharairei now moves for judgment of acquittal or, in the alternative, a new trial. Doc. 141.
III. DISCUSSION
A. Applicable Standards
1. Motion for Judgment of Acquittal
Rule 29 provides that "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). Such a motion is permitted after trial, in which case the court may set aside the verdict and enter a judgment of acquittal. See Fed. R. Crim. P. 29(c). Jury verdicts are not lightly overturned. See, e.g., United States v. Peneaux, 432 F.3d 882, 890 (8th Cir. 2005); United States v. Stroh, 176 F.3d 439, 440 (8th Cir. 1999). The Government, as the prevailing party, is entitled to have the evidence viewed in the light most favorable to it. See United States v. Peters, 462 F.3d 953, 957 (8th Cir. 2006). The court must uphold the jury's verdict so long as a reasonable-minded jury could have found the defendant guilty beyond a reasonable doubt. Id. Moreover, courts "must uphold the jury's verdict even where the evidence 'rationally supports two conflicting hypotheses' of guilt and innocence." Id. (quoting United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004)). Additionally, courts should not reconsider the credibility of the witnesses, as that is a task for the jury. United States v. Hayes, 391 F.3d 958, 961 (8th Cir. 2004).
2. Motion for New Trial
Rule 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "The decision to grant or deny a motion for a new trial based upon the weight of the evidence is within the sound discretion of the trial court." United States v. Knight, 800 F.3d 491, 504 (8th Cir. 2015) (internal citations omitted). A district court may "weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict." United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002) (quoting White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992)). However, the court should grant a new trial only if "the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred." United States v. Rodriguez, 812 F.2d 414, 417 (8th Cir. 1987). "The standard for granting a motion for new trial is more lenient than for a judgment of acquittal; the court is allowed to vacate any judgment if the interests of justice so require." United States v. Dean, 810 F.3d 521, 532 (8th Cir. 2015) (internal citations). However, "[m]otions for new trials based on the weight of the evidence are generally disfavored." Campos, 306 F.3d at 579. District courts "must exercise the Rule 33 authority 'sparingly and with caution.' " Id. (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). B. Analysis
1. Motion for Judgment of Acquittal
Al Sharairei argues the evidence was insufficient to convict him of Counts 1 and 2 because, viewing it in the light most favorable to the prosecution, it does not support a finding beyond a reasonable doubt that the prosecution proved that (1) the substances are controlled substance analogues or (2) Al Sharairei had knowledge that the substances had substantially similar chemical structures.
a. Whether the Substances are Controlled Substance Analogues
The parties agree that to prove a substance is a controlled substance analogue, the Government had to prove beyond a reasonable doubt that (1) it was intended for human consumption, (2) it is substantially similar in chemical structure to a controlled substance and (3) it is substantially similar in pharmacological effect to a controlled substance. See Doc. 120-1 at 8. Al Sharairei argues the evidence was insufficient as to the second factor.
The Government's expert DEA chemist testified that the chemical structures of PB-22 and 5F-PB-22 were substantially similar in chemical structure to controlled substances JWH-018 and AM-2201. The defense expert chemists testified that the chemical structures of PB-22 and 5F-PB-22 were not substantially similar to controlled substances JWH-018 and AM-2201. Al Sharairei argues the defense witnesses were as qualified or more qualified than the Government's expert witnesses. He notes they relied on fundamental principles of the science of chemistry and cited core structural classification and functional grouping differences that are reflected in the IUPAC name of the substances in question and their testimony went unrebutted. While he does not dispute that the Government's expert witness is also qualified, he notes that she relied primarily on the 2-D and 3-D modeling to support her opinion.
The Government also presented expert testimony from a DEA pharmacologist, but his testimony was primarily related to a comparison of the pharmacological effects of the substances, rather than their chemical structures.
The Government argues that Al Sharairei essentially asks the court to weigh the credibility of the expert witnesses, which is impermissible on a motion for judgment for acquittal. It argues the jury was entitled to credit Dr. Amin's opinion.
It is clearly established that a "district court does not assess the credibility of witnesses or weigh evidence in deciding a motion for judgment of acquittal." United States v. Magallon, 984 F.3d 1263, 1288 (8th Cir. 2021) (citing United States v. Starr, 533 F.3d 985, 997 (8th Cir. 2008)). See also United States v. Never Misses a Shot, 781 F.3d 1017, 1025 (8th Cir. 2015) ("[i]t is for the jury, not a reviewing court, to evaluate the credibility of witnesses and to weigh their testimony."). Any evidentiary conflicts must be viewed in the light most favorable to the government on a motion for judgment of acquittal. United States v. Aungie, 4 F.4th 638, 643 (8th Cir. 2021) (citing United States v. Benton, 890 F.3d 697, 708 (8th Cir. 2018)). I agree with the Government that I cannot disturb the jury's evaluation of the credibility of the competing expert witness testimony. Al Sharairei does not challenge the Government's expert's qualifications and the jury's acceptance of her testimony over that of the defense experts' testimony must stand. See Never Misses a Shot, 781 F.3d at 1026 ("The jury is the final arbiter of the witnesses' credibility, and we will not disturb that assessment."). Al Sharairei's motion on this basis is denied.
b. Whether Al Sharairei Had Knowledge of Chemical Structures
Al Sharairei argues the evidence did not establish his knowledge that the substances in question had substantially similar chemical structures to scheduled controlled substances. He states the only evidence on this point was from experts and does not establish how a lay person would be aware of such similarities. He contends it was not until after the search of his store in June 2013 that anyone could have had reliable information about the chemical structures and pharmacological effects of PB-22 and 5F-PB-22 because there was limited literature about them at that point.
The jury was instructed as follows as to the requisite knowledge that the Government had to prove:
The Controlled Substances Act makes it unlawful for any person to knowingly or intentionally distribute a controlled substance . . . substances can be controlled substances even if they are not specifically listed. If a substance is an "analogue" of a scheduled controlled substance, it shall, to the extent intended for human consumption, be treated for the purposes of any federal law as a controlled substance.Doc. 120-1 at 7-8. Also:
The prosecution may demonstrate the defendant's knowledge under this element in one of the two following ways:
(a) By demonstrating that the defendant knew that the substance with which he was dealing is subject to federal drug laws, regardless of whether he knew the particular identity of the substance; or,
(b) By demonstrating that the defendant knew the identity of the specific controlled substance analogue that he was dealing with, even if he did not know its
legal status as a controlled substance analogue.Id. at 8-9.
The defendant knows the specific controlled substance analogue he was dealing with if he knew:
(i) that the substance had a chemical structure that was substantially similar to any controlled substance in Schedule I or II of the Controlled Substances Act; and,
(ii) that the substance either actually had, or the defendant represented or intended it to have, an effect on the central nervous system that is substantially similar to or greater than any controlled substance in Schedule I or II of the Controlled Substances Act.
The Government argues that under the jury instructions, it was not required to prove actual knowledge of the substances' chemical structures. It contends that such proof was necessary only if the jury was determining, under subsection (b), whether the defendant "knew the identity of the specific controlled substance analogue that he was dealing with." The Government argues it could have met the knowledge requirement under subsection (a) without proof that Al Sharairei even knew the particular identity of the substance. In other words, the jury could have found the Government proved that Al Sharairei knew that the substance with which he was dealing was subject to federal drug laws. See McFadden v. United States, 576 U.S. 186, 194, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015) ("That knowledge requirement can be established in two ways. First, it can be established by evidence that a defendant knew that the substance with which he was dealing is some controlled substance - that is, one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act - regardless of whether he knew the particular identity of the substance."). While Al Sharairei makes no argument as to subsection (a), the Government argues the evidence was sufficient to prove that Al Sharairei knew the substances with which he was dealing were subject to federal drug laws.
I agree that the Government was not required to prove Al Sharairei had knowledge of the chemical structure of the analogue so long as it proved that Al Sharairei knew the substance with which he was dealing was subject to federal drug laws. Al Sharairei does not make any argument as to that alternative of the knowledge requirement. I also agree with the Government that the evidence was sufficient to prove that Al Sharairei knew the substances with which he was dealing were subject to federal drug laws. House testified that distributors and manufacturers of SCs were sharing information and changing the chemical they used when a previous chemical was "getting too much attention." Doc. 137 at 88-89. During his interview of Al Sharairei in 2014, Al Sharairei stated he had been referred to Wolfe by another supplier because that supplier had been receiving a lot of attention from law enforcement and was getting out of the business. Id. at 77-78. Al Sharairei also told House that Wolfe knew all the tricks to getting around law enforcement's attention, and the relevant legal issues, and had tutored Al Sharairei and his other customers on these tactics. Id. at 78-79. The jury could also infer that Al Sharairei knew that his customers smoked the products, see Government Exhibit 121d, and his former employee testified that she had observed Al Sharairei smoke the products himself. Doc. 137 at 195. Al Sharairei's cellmate also testified that they discussed whether Al Sharairei knew SCs were illegal and he stated that his cousin had gotten in trouble years before in connection with SCs. Id. at 227.
This evidence was sufficient for a jury to conclude that Al Sharairei knew the substances with which he was dealing were subject to federal drug laws. As such, the Government was not required to prove that Al Sharairei knew that the substance was substantially similar in chemical structure to a controlled substance. Al Sharairei's motion on this basis is denied.
2. Motion for New Trial
Al Sharairei moves for a new trial on two grounds: (1) the weight of the evidence does not support a finding that the substances involved were controlled substance analogues and (2) the weight of the evidence does not support a finding that Al Sharairei knew that the substances in question had similar chemical structure. I will address each argument separately.
a. Weight of the Evidence on Whether the Substances Were Controlled Substance Analogues
With regard to the weight of the evidence, Rule 33 notably provides a "less restrictive standard" than Rule 29. However, to grant a new trial, the evidence must weigh so heavily against the verdict that "a miscarriage of justice may have occurred." Rodriguez, 812 F.2d at 417. Al Sharairei argues the legal standard of a substantially similar chemical structure is not one that a jury can apply based on their own experiences and asserts there is no scientific standard to apply to the question of whether molecules are analogues of one another. Based on the lack of a scientific standard, he argues it is not surprising that the experts offered differing opinions. He suggests that the defense expert witness testimony was more reliable because they were just as or more qualified than the Government experts, they based their opinions on Huffman's 2014 testimony and their testimony went unrebutted.
The Government notes that Amin testified that PB-22 and JWH-018 have nearly identical parts, except that PB-22 has one extra oxygen atom attached to a linker group and one different atom (nitrogen) in a ring system that is otherwise identical to JWH-018. Similarly, 5F-PB-22 and AM-2201 have an identical indole core structure, have substitutions at the same place of that core structure and were substituted with similar features in those places. The defense experts considered factors beyond number, type and arrangement of atoms in evaluating "substantial similarity." The Government observes Harris considered the chemical activity of the substances, molecular weight and mass spectral fragments in forming her opinion.
The Government argues these are irrelevant to chemical structure. Harris also used terminology and methodology of industrial researchers who were not interpreting or applying the Controlled Substance Analogue Act and flipped and turned her diagrams of the substances to make them appear more dissimilar. Finally, the Government argues that reliance on Huffman's testimony is essentially meaningless as the jury did not review his testimony and had no basis to assert whether it was credible. O'Donnell's testimony was also unhelpful on the issue of chemical structure because he is a pharmacologist and his opinion was largely based on agreement with Harris' opinion.
To the extent Al Sharairei is challenging the legal standard of "substantial similarity" based on vagueness, the Eighth Circuit has considered and rejected similar arguments:
The term 'substantially similar,' as used in the statute, does not mean 'exactly the same.' There obviously will be differences in chemical structures between an 'analogue' chemical and a schedule I or II chemical. If two chemicals' structures are exactly the same, the chemical in question would no longer be an 'analogue,'
but instead it would be the same chemical as the listed chemical. Thus, some level of difference is acceptable between an analogue's chemical structure and a proscribed chemical's structure.United States v. Washam, 312 F.3d 926, 930-31 (8th Cir. 2002) (internal citations omitted). See also United States v. McKinney, 79 F.3d 105, 108 (8th Cir. 1996), vacated on other grounds, 520 U.S. 1226, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997) (rejecting argument that analogue provision was unconstitutionally vague because experts disagreed as to whether the alleged analogue's chemical structure was substantially similar to an existing controlled substance).
We have held that all experts need not agree on whether two drugs' chemical structures are 'substantially similar' in order to affirm a conviction under the Analogue Statute. Rather than unanimous expert ratification, we look to whether the statute gave adequate warning, under a specific set of facts, that the defendant's behavior was a criminal offense.
With regard to the weight of the evidence, it does not weigh so heavily against the verdict that a miscarriage of justice may have occurred. Amin provided a thorough and rational explanation as to why PB-22 had a substantially similar chemical structure to JWH-018 and why 5F-PB-22 had a substantially similar chemical structure to AM-2201. She provided two-and three-dimensional models of each substance and explained the similarities and differences. While the defense experts had different opinions, their opinions did not undermine Amin's, as they all agreed on the structures of the substances. The issue came down to whether the extra oxygen atom in the linker and the extra nitrogen atom in the fused ring system meant the chemical structures were not substantially similar. Amin focused her analysis on the entirety of the chemical structures and how the atoms are connected to each other. She reasoned that chemical reactivity and other factors were not relevant to the chemical structure. This evidence, even when weighed against the defense experts' testimony, does not weigh so heavily against the verdict to indicate that a miscarriage of justice may have occurred. Al Sharairei's motion for a new trial on this basis is denied.
b. Weight of the Evidence on Al Sharairei's Knowledge
Al Sharairei relies on the same arguments as his motion for judgment for acquittal as to why he should be granted a new trial based on lack of evidence as to the knowledge requirement. As explained above, Al Sharairei's arguments address only one of the two ways the Government could prove knowledge. The evidence was sufficient to meet the Government's burden as to one of those ways - the one that did not require proof that Al Sharairei had knowledge of the chemical structures of the substances. The evidence does not weigh so heavily against the verdict to indicate that a miscarriage of justice may have occurred. Al Sharairei's motion for new trial on this basis will be denied.
3. Challenge to Willful Blindness Instruction
I gave the following willful blindness instruction:
You may find that the defendant acted with the requisite "knowledge" as to the nature of the substances for either Count 1 or 2 if you find beyond a reasonable doubt that the defendant believed there was a high probability that the substances were regulated by federal drug abuse laws and that he took deliberate actions to avoid learning that fact.
Knowledge can be inferred if the defendant deliberately closed his eyes to what would otherwise have been obvious to him. A willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts. You may not find the defendant acted "knowingly" if you find he was merely negligent, careless, or mistaken.Doc. 120-1 at 11. Al Sharairei argues the record failed to support an inference of willful blindness and that this instruction was inconsistent with the knowledge element for both counts.
Willful blindness can be defined as being "aware of facts that put [defendant] on notice that criminal activity was probably afoot and deliberately fail[ing] to make further inquiries, intending to remain ignorant." United States v. Chavez-Alvarez, 594 F.3d 1062, 1067 (8th Cir. 2010); see also United States v. Hansen, 791 F.3d 863, 868 (8th Cir. 2015) (willful blindness exists when "(1) the defendant . . . subjectively believe[s] that there is a high probability that a fact exists and (2) the defendant . . . take[s] deliberate actions to avoid learning of that fact."); United States v. Whitehill, 532 F.3d 746, 751 (8th Cir. 2008) ("Ignorance is deliberate if the defendants were presented with facts putting them on notice criminal activity was particularly likely and yet intentionally failed to investigate."). "A willful-blindness instruction is particularly relevant in a case where the defendant 'assert[s] a lack of guilty knowledge in the face of immense evidence supporting an inference of deliberate indifference.' " United States v. Burns, 990 F.3d 622, 628 (8th Cir. 2021) (quoting United States v. Atkins, 881 F.3d 621, 627 (8th Cir. 2018)).
Al Sharairei argues the willful blindness instruction was not appropriate because there were not enough "warning signs" prior to the search of Puff N Stuff. Rather, he argues the "signs" suggested he believed he was operating within the law, as he sold the substances openly, had them tested at a laboratory and employees observed police inspecting inventory at the store and were never warned to stop the sale of the potpourri/incense.
The Government argues there was significant evidence to support an inference of deliberate indifference, including:
• Al Sharairei told House that his prior supplier got out of the business because of increased pressure from law enforcement and referred him to WolfeThe Government notes Al Sharairei could have had the products tested for the substances they contained, sought an opinion from the DEA as to the legality of the substances or hired a lawyer to assist in determining the legality of his products. The Government argues that he instead made the choice to avoid learning the full truth about his products and sought to avoid law enforcement through the tactics taught by Wolfe.
• Al Sharairei told House that in at least spring or early summer 2013, Wolfe tutored Al Sharairei on methods to avoid being caught by law enforcement
• Al Sharairei had rules for employees and customers to avoid any references to smoking products
• Al Sharairei and his wife intermittently obtained lab reports that did not identify the substances in their products, but the substances that were not included in the products
I agree that the above-described evidence was sufficient to warrant a willful blindness instruction. In addition, there was evidence Al Sharairei knew his cousin had previously faced legal trouble over a similar matter, the labels on the packages often had marijuana references or innuendos, the products sold for a greater price than potpourri from other stores (and were sold by the gram) and Al Sharairei had smoked the products himself, according to an employee. All of this evidence combined put Al Sharairei on notice that selling the products was illegal. There was also evidence that he intentionally failed to make further inquiries and chose to remain ignorant. He ordered "does not contain" reports from laboratories and implemented "rules" suggested by his supplier so as to appear compliant with the law without actually determining whether the products he sold were legal. The evidence provided a sufficient factual basis to warrant an instruction on willful blindness.
Al Sharairei also argues the willful blindness instruction was inconsistent with the mens rea elements of both counts. He relies on a comment in the Eighth Circuit pattern jury instructions, citing United States v. Chen, 913 F.2d 183, 190 (5th Cir. 1990). In Chen, the court concluded that a deliberate ignorance instruction was not appropriate for a violation under 21 U.S.C. § 856 (the same statute charged in Count 1) because one cannot be deliberately ignorant and still have the purpose of engaging in illegal drug activities.
I considered this argument prior to trial and ultimately agreed with the Government that the purpose for which this instruction was offered, and ultimately given, was different than the issue in Chen. As explained in my order on the final jury instructions, in Chen, the substance at issue (cocaine) was unquestionably a controlled substance. When the court discussed the knowledge element, it referred to knowingly maintaining a premises for the purpose of unlawfully using, storing, or distributing a controlled substance. While that knowledge element was present in this case, the element for which the Government sought a willful blindness/deliberate ignorance instruction was "knowing that the substances were intended for human consumption," as this case involves controlled substance analogues. I relied on United States v. Anwar, 880 F.3d 958 (8th Cir. 2018), in which the Government demonstrated deliberate indifference to knowledge of the illegality of the products the defendant trafficked by:
• an admission that he knew people ingested or smoked the products despite their being marketed as incenseId. at 967. For these same reasons, I find that the willful blindness instruction was permissible to prove Al Sharairei's knowledge as to the nature of the substances.
• instructing store owners to conceal these products from the general public and the police
• knowledge that the items had been seized by law enforcement
• knowledge that the products were selling at prices as much as 10 to 20 times higher than traditional incense products
• admitting that he was ignorant of what was in the products because they were selling.
With regard to the conspiracy count, Al Sharairei relies on the same argument. For that count, the Government had to prove that: (1) two persons reached an agreement or came to an understanding to distribute a controlled substance analogue, (2) the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect and (3) at the time the defendant joined in the agreement or understanding, he knew the purpose of the agreement or understanding. Doc. 120-1 at 10. The Government relies on United States v. Sharp, 879 F.3d 327, 335 (8th Cir. 2018), and other cases, to argue that the Eighth Circuit has recognized the appropriateness of a willful blindness instruction in Section 846 conspiracy cases.
Again, the willful blindness/deliberate ignorance instruction was limited to finding Al Sharairei acted with the requisite knowledge as to the "nature of the substances." It did not extend to the mens rea requirements of knowingly joining an agreement or understanding or knowing the purpose of the agreement or understanding. For the reasons stated above, I find the willful blindness instruction was appropriate as to that limited issue and does not justify a new trial on either count. Al Sharairei's motion on this basis is denied.
IV. CONCLUSION
For the reasons set forth herein, defendant's motion (Doc. 141) for judgment of acquittal or, in the alternative, a new trial is denied.
IT IS SO ORDERED.