September 25, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 16 CR 252 -
Manish S. Shah, Judge.
Kanne, Rovner, and Barrett, Circuit Judges.
Hamdan appeals his 2014 conviction on three counts related to
his activities involving XLR-11, a Schedule I synthetic
cannabinoid used to make the street drug "spice."
On appeal, Hamdan argues the district court abused its
discretion by granting the government's motion to quash
Hamdan's subpoenas of two Wisconsin state troopers. The
troopers previously arrested and questioned Hamdan after a
2012 traffic stop where Hamdan possessed a different
synthetic cannabinoid. According to Hamdan, this evidence
would have supported his defense that he honestly believed
synthetic cannabinoids were legal substances and he therefore
lacked the requisite mens rea to commit the alleged
crimes. Hamdan similarly argues that the district court
abused its discretion in failing to grant his motion for a
new trial because the district court's evidentiary
rulings jeopardized his right to present his theory of
defense. Because the district court did not abuse its
discretion, we affirm.
Hamdan was arrested after an October 30, 2014, traffic stop
revealed he was driving on a suspended license. In the
vehicle with Hamdan at the time was a man named Fadel Yahia
and a shoebox on the backseat containing more than $67, 000
in cash. Officers discovered the money after Hamdan consented
to their search of his car. Although Hamdan's explanation
of the money's origin and purpose would change over time,
he generally claimed it constituted proceeds from past sales
of dollar store businesses.
additionally found a business card for a Public Storage
business inscribed with unit and access code information.
After Hamdan denied knowledge of the storage unit, police
obtained a search warrant. Despite Hamdan's denial, one
of the keys he was carrying during the arrest opened the lock
at the storage unit identified on the Public Storage business
Yahia, on the other hand, cooperated with law enforcement. He
told them that he was employed by Hamdan (who paid Yahia in
cash) and alerted them to the existence of a second,
"U-Stor It" storage unit. The second unit was
rented in Yahia's name, but Yahia insisted Hamdan
controlled it. Another of Hamdan's keys opened the
unit's lock. With Yahia's consent, police searched
the second storage unit and discovered boxes inside
emblazoned with Hamdan's name and address.
examining both storage units, the officers discovered a total
of approximately 20, 000 packages of spice. Officers also
found the necessary tools and ingredients to make spice: a
blue tarp, a digital scale, bottles of acetone, bottles of
flavoring, boxes containing a green leafy substance, and a
plastic bag filled with a white powdery substance containing
the synthetic cannabinoid XLR-11. Officers also recovered
handwritten ledgers detailing sales and inventory.
April 12, 2016, a grand jury indicted Hamdan in two counts of
possession of a controlled substance with intent to
distribute and one count of conspiracy to manufacture a
controlled substance in violation of 21 U.S.C. §§
841 & 846, respectively. The indictment charged Hamdan
for his activities ranging from April 2014 until his arrest
in October 2014.
mustering his defense, Hamdan indicated he would argue that
he did not know or believe that his spice-related activities
were illegal. Hamdan planned to introduce, among other
things, evidence that he was previously arrested-but not
prosecuted or convicted-for activities related to spice in
Illinois in 2011 and in Wisconsin in 2012. Accordingly,
Hamdan sought to subpoena two Wisconsin state troopers who
arrested and interviewed him, in part, on synthetic
cannabinoid charges following a June 2, 2012, traffic stop.
In the 2012 case, Hamdan ultimately pled guilty to
misdemeanor possession of THC and the prosecution dropped a
controlled substance analogue charge for Hamdan's
possession of another synthetic cannabinoid. Hamdan contended
that evidence of his non-prosecution for other synthetic
cannabinoids supported his claim that he sincerely believed
his conduct in 2014 was legal. Additionally, Hamdan sought to
argue that XLR-11 was not a Schedule I controlled substance
prior to May 16, 2013.
government opposed Hamdan's proposed evidence and filed
motions in limine urging the district court to
exclude evidence that spice was previously "legal."
The government also moved the court to exclude evidence
showing that in the past other jurisdictions declined to
prosecute Hamdan for offenses related to different synthetic
cannabinoids. Similarly, the government filed a motion to
quash Hamdan's subpoenas of the Wisconsin state troopers,
arguing that Hamdan's 2012 interactions with the
Wisconsin officers were irrelevant to Hamdan's arrest on
October 30, 2014 and that their testimony would be
20, 2017, the district court excluded evidence of
Hamdan's previous non-prosecution and spice's ...