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United States v. Hamdan

United States Court of Appeals, Seventh Circuit

December 11, 2018

United States of America, Plaintiff-Appellee,
v.
Khalid Hamdan, Defendant-Appellant.

          Argued September 25, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16 CR 252 - Manish S. Shah, Judge.

          Before Kanne, Rovner, and Barrett, Circuit Judges.

          Kanne, Circuit Judge.

         Khalid 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.

         I. Background

         Khalid 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.

         Police 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 card.

         Fadel 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.

         When 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.

         On 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.

         While 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.

         The 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 prejudicial.

         On June 20, 2017, the district court excluded evidence of Hamdan's previous non-prosecution and spice's ...


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