                             PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT

                            No. 12-4630

UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

SUADO MOHAMED ALI, a/k/a Suada Mohamed Ali, a/k/a Sue,

               Defendant - Appellant.

                            No. 12-4631

UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

AHMED ALI HASSAN, a/k/a Dirir,

               Defendant - Appellant.

                            No. 12-4632

UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.
ABDIRAHMAN ABSHIR JIBRIL, a/k/a Abdi Ali Mire,

                Defendant - Appellant.

                            No. 12-4657

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HARUN SALHAN,

                Defendant - Appellant.

                            No. 12-4672

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HIBO MUSSE SAMANTAR, a/k/a Fadumo,

                Defendant - Appellant.

                            No. 12-4674

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

                                 2
ABOKOR GURREH, a/k/a Mohamed Farhan, a/k/a Mubarak, a/k/a
Farhan M. Mohamed,

               Defendant - Appellant.

                            No. 12-4675

UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

NAGI MANSOR SEAA ALASHMALI, a/k/a Mohamed Albokhiti,

               Defendant - Appellant.

                            No. 12-4676

UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

KHALED AHMED ISA, a/k/a Hamza, a/k/a Adnan, a/k/a Khalid
Ahmed Aesaa, a/k/a Khaled A. Aesa,

               Defendant - Appellant.

                            No. 12-4679

UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

                                 3
ISMAIL MOHAMUD ABDI,

               Defendant - Appellant.

                            No. 12-4682

UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

ABDI MUHUMED, a/k/a Juba,

               Defendant - Appellant.

                            No. 12-4687

UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

LUTF MOHAMED ALBUKHAITI,

               Defendant - Appellant.

                            No. 12-4699

UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

                                 4
ABDI OMAR ABDI,

                  Defendant - Appellant.

                               No. 12-4700

UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

OSMAN YUSUF,

                  Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.    T. S. Ellis, III, Senior
District   Judge.     (1:11-cr-00261-TSE-4;   1:11-cr-00261-TSE-6;
1:11-cr-00261-TSE-8;   1:11-cr-00261-TSE-9;   1:11-cr-00261-TSE-5;
1:11-cr-00261-TSE-17; 1:11-cr-00261-TSE-1; 1:11-cr-00261-TSE-15;
1:11-cr-00261-TSE-11;   1:11-cr-00261-TSE-12;   1:11-cr-00261-TSE-
13; 1:11-cr-00261-TSE-16; 1:11-cr-00261-TSE-7)

Argued:   September 19, 2013              Decided:   November 14, 2013

Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.

Affirmed by published opinion.        Judge Niemeyer wrote         the
opinion, in which Judge Gregory and Judge Floyd joined.

ARGUED:   Joseph John McCarthy, DELANEY, MCCARTHY & COLTON, PC,
Alexandria, Virginia;   Thomas Brian Walsh, PETROVICH & WALSH,
PLC, Fairfax, Virginia;      William B. Cummings, WILLIAM B.
CUMMINGS, PC, Alexandria, Virginia, for Appellants.     Michael
John Frank, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.    ON BRIEF:   Michael S. Arif, ARIF &
ASSOCIATES, PC, Springfield, Virginia, for Appellant Ahmed Ali

                                    5
Hassan. Bruce M. Cooper, Washington, D.C., for Appellant Harun
Salhan.   Alfred L. Robertson, Jr., ROBERTSON LAW OFFICE, PLLC,
Alexandria, Virginia, for Appellant Hibo Musse Samantar.     John
O. Iweanoge, II,   THE IWEANOGE’S FIRM, P.C., Washington, D.C.,
for Appellant Suado Mohamed Ali. Frank Salvato, Alexandria,
Virginia, for Appellant Ismail Mohamud Abdi.        Anser Ahmad,
ADVANCED IMMIGRATION LAW GROUP, PC, Harrisburg, Pennsylvania,
for Appellant Abdi Muhumed.     Daniel T. Lopez, BRIGLIA HUNDLEY
NUTALL & KAY PC, Vienna, Virginia, for Appellant Osman Yusuf.
John L. Machado, LAW OFFICE OF JOHN MACHADO, Washington, D.C.,
for Appellant Abokor Gurreh.      Gary H. Smith, GARY H. SMITH
ATTORNEY AT LAW, Alexandria, Virginia, for Appellant Abdi Omar
Abdi.     Robert L. Jenkins, Jr., BYNUM & JENKINS, PLLC,
Alexandria, Virginia, for Appellant Lutf Mohamed Albukhaiti.
Neil H. MacBride, United States Attorney, Kyle Maurer, Special
Assistant United States Attorney, Mary K. Daly, Assistant United
States   Attorney,  OFFICE   OF   THE  UNITED  STATES   ATTORNEY,
Alexandria, Virginia, for Appellee.

                                6
NIEMEYER, Circuit Judge:

     Seventeen        individuals,      all     originally      from      Somalia       or

Yemen,    were   indicted        for    their     participation          in    a    large

conspiracy to traffic in khat, a leafy plant native to the Horn

of Africa.       Khat contains the controlled substance cathinone,

which is desired for the euphoria it provides when khat leaves

are chewed.      Thirteen of the defendants were also charged with

conspiracy to commit money laundering.

     After four of the defendants pleaded guilty pursuant to

plea agreements, the remaining thirteen proceeded to trial and

were convicted of all charges, except one, who was acquitted of

the money laundering charge.             All thirteen defendants filed this

appeal, arguing principally that the evidence was insufficient

to convict them because it failed to show that they knew that

cathinone was a controlled substance and that khat contained

cathinone.       In    a   similar     vein,    they     challenge       the   district

court’s   jury    instructions         relating     to      scienter     and       willful

blindness.    The defendants convicted of money laundering contend

that the indictment failed to adequately identify the financial

transactions and other details so as to give them sufficient

notice of the charges.            And finally, the defendants challenge

the district court’s procedural rulings to exclude their expert

witness   and,    as       to   one    defendant,      to    deny    a    motion       for

severance.

                                          7
     After       careful   consideration           of   the    defendants’     arguments

and the large record in this case, we affirm.

                                              I

     Khat (pronounced “cot”) is a leafy shrub that grows in East

Africa     and    part     of    the     Arabian        peninsula,    principally    in

Ethiopia, Yemen, and Kenya.              When khat is fresh, it contains the

alkaloid     cathinone,         which    is    a   stimulant,       and   chewing   khat

leaves causes excitement, loss of appetite, and euphoria.                            The

cathinone in khat degrades after it is picked, breaking down

after    a    few       days     into    the       less    potent     drug,     cathine.

Consequently, fresh khat is more desirable to its users and thus

more expensive and more profitable to its sellers.

     While       khat    itself     is    not      a    controlled    substance,     the

cathinone in fresh khat is a Schedule I controlled substance,

see 21 C.F.R. § 1308.11(f)(3), and the less-potent cathine in

stale khat is a Schedule IV controlled substance, see 21 C.F.R.

§ 1308.14(f)(1).               Accordingly,        it     is   illegal    to   possess,

distribute, buy, or sell khat, although the defendants point out

that khat is not illegal in some east African countries, and in

those countries, its use is common in social settings.

     Typically, khat is harvested in Kenya and flown in bundles,

first to Europe and then to the United States.                             Each bundle

typically contains 40 to 60 stems and leaves and is bound by

                                              8
banana leaves to preserve freshness.           Because it is perishable,

khat is typically not stored.            During the period relevant to

this case, fresh khat in the United States sold for up to $60

per bundle at retail and $50 at wholesale.

     In August 2008, federal law enforcement officers began an

investigation   into   the   importation       of   khat   into    the   United

States and its subsequent distribution, ultimately leading them

to   Yonis   Ishak,    the   head   of     a    large-scale       distribution

operation.   Ishak’s enterprise distributed some 10 to 11 million

grams of khat over a period from February 2005 to May 2011 in

the Baltimore/Washington area (including northern Virginia), New

York City, and Columbus, Ohio.          Law enforcement also discovered

that proceeds from the sale of khat were laundered through the

Virginia branch of Dahabshil, Inc., a wire transfer service, and

sent to Ishak’s overseas suppliers in the United Kingdom and

Africa.

     In June 2011, Ishak and 16 co-conspirators were indicted

for conspiracy to possess with intent to distribute cathinone,

in violation of 21 U.S.C. §§ 841(a) and 846, and 13 of the

defendants were also indicted for conspiracy to commit money

laundering, in violation of 18 U.S.C. § 1956(h).                    Ishak and

three other defendants pleaded guilty to Count 1 pursuant to

plea agreements, and the remaining 13 defendants proceeded to

                                    9
trial on April 17, 2012.           Pursuant to his plea agreement, Ishak

served as the government’s principal witness. ∗

     At the outset of trial, the defendants charged with money

laundering moved to dismiss that count because the indictment

neglected     to    allege       “which    of     the    qualifying      financial

transactions the defendant conducted or attempted to conduct.”

They argued that the deficiency left open the possibility that

the jury could make a finding not charged by the grand jury, in

derogation    of    each   defendant’s         Fifth   Amendment   rights.       The

district court denied the motion as untimely but invited these

defendants    to     renew       their    arguments      at    trial   through    a

sufficiency    of    the     evidence      motion      under   Federal   Rule     of

Criminal Procedure 29.

     Prior to the conclusion of trial, defendant Abokor Gurreh

filed a motion for severance of his trial on the ground that

another     defendant      had     presented       evidence     antagonistic      to

Gurreh’s interest.         The district court denied the motion.                Also

     ∗
       Thirteen of the seventeen defendants were named defendants
in both Counts 1 and 2:     Abdi Omar Abdi, Ismail Mohamud Abdi,
Lutf Mohamed Albukhaiti, Suado Mohamed Ali, Abokor Gurreh,
Hassan Hassan, Khaled Ahmed Isa, Yonis Muhudin Ishak, Abdulkadir
Ali Isse, Abdirahman Abshir Jibril, Abdi Muhumed, Harun Salhan,
and Osman Yusuf. And four defendants were named defendants only
in Count 1:     Nagi Mansor Seaa Alashmali, Ahmed Ali Hassan,
Moheeb   Ahmed   Mohammed  Nasser,   and  Hibo   Musse  Samantar.
Defendants Ishak, Ali Isse, Hassan Hassan, and Nasser pleaded
guilty to Count 1, pursuant to a plea agreement, and the
remaining defendants were convicted by the jury on all counts,
except that Harun Salhan was acquitted on Count 2.

                                          10
during     trial,     the   court     excluded       the        testimony     of     the

defendants’ expert witness regarding the chemical nature of khat

on the basis that the defendants’ designation of the expert at

trial    was   not    timely    and   that,    in    addition,       the    proffered

testimony was not relevant.

     At the conclusion of the evidence, the defendants moved for

acquittal under Rule 29, arguing that the government did not

present sufficient evidence of scienter because it failed to

establish      that   the      defendants     knew       that    cathinone     was     a

controlled substance and that khat contained cathinone.                              The

court denied the motion, concluding that, to prove scienter, the

government was required only to show that defendants knew that

khat contained a controlled substance.                   It also instructed the

jury to that effect.            In the same vein, it gave the jury an

instruction     on    willful     blindness,        to    which    the      defendants

objected.

        The jury convicted the 13 defendants on all counts, except

Harun Salhan, who was acquitted on Count 2 (the money laundering

count), and the court imposed prison sentences on the defendants

ranging from 3 months to 12 months and a day.

        These appeals followed.

                                        11
                                          II

       The defendants first contend that the district court erred

in instructing the jury on both scienter and willful blindness.

They argue that, by allowing the government to prove simply that

they    trafficked    in    khat       and       knew    that   khat   contained    a

controlled substance, the court reduced the government’s burden

to prove that the defendants conspired knowingly to distribute

cathinone    or   knowingly       to   possess          cathinone   with   intent   to

distribute it.       The defendants also contend that the evidence

did not support a willful blindness instruction.                           We address

these challenges seriatim.

                                             A

       With respect to scienter, the defendants argue that “the

government bore the burden of proving [that they] knew cathinone

was a controlled substance and that it was contained in khat.”

As they point out, Count 1 of the indictment charged that the

defendants did

       unlawfully,   knowingly, and   intentionally   .  .   .
       conspire   .   .   .  to  unlawfully,   knowingly   and
       intentionally distribute, and to possess with intent
       to distribute, a mixture and substance containing a
       detectable   amount   of  cathinone,   a   Schedule   I
       controlled substance.

(Emphasis added).         They note that the indictment did not charge

that they conspired to distribute or to possess with intent to

distribute   khat,    a    fact    that      the    government      clearly   proved.

                                          12
They   rightly    state   that   it   would   not   be   sufficient    for   the

government   to   prove   scienter     as   to    the   distribution   of    khat

because khat itself is not listed as a controlled substance.

They argue that rather than instructing the jury on scienter as

to the trafficking in cathinone, the district court relieved the

government of this burden by instructing the jury as follows:

       The phrase “knowingly and intentionally,” as used in
       the offense charged in Count 1 of the superseding
       indictment, requires the government to prove beyond a
       reasonable doubt that a defendant knew that what he or
       she conspired to distribute or to possess with intent
       to distribute was or contained a controlled substance,
       meaning a substance that is illegal under the U.S.
       drug laws.

                                 *     *      *

       However, as long as you find that the government has
       proven beyond a reasonable doubt that a defendant knew
       that what he or she had conspired to distribute or to
       possess   with  intent   to   distribute contained   a
       substance that is illegal under the U.S. drug laws,
       you do not need to find that a particular defendant
       knew the precise nature or chemical name of the
       specific controlled substance.

       In other words, the government is not required to
       prove that the defendants knew that khat may contain a
       controlled  substance   with  the  chemical   name  of
       cathinone, but the government must prove beyond a
       reasonable doubt that the defendant knew that some
       controlled substance, that is, a substance that is
       illegal under the U.S. drug laws, was contained in the
       khat they allegedly conspired to distribute or to
       possess with intent to distribute.   The law does not
       require that a defendant . . . knew the proper
       chemical name of a substance so long as the defendant
       knew that a substance was illegal under the U.S. drug
       laws.

(Emphasis added).

                                       13
       In short, the defendants maintain that “because conspiracy

is a specific intent crime, . . . the government must prove

[that the defendants] specifically knew cathinone, the substance

alleged      by     the      grand       jury     in    Count       One,    was      a    controlled

substance and that it was contained in khat.”                                   They argue that

the    jury       could      have        “relied       on   evidence        that       khat    was    a

controlled        substance”          because      of       the    nature       of   the      district

court’s      instruction.                 They    conclude         that     “this        allowed     an

impermissible constructive amendment of the indictment.”

       Generally, we review a district court’s decision whether to

give an instruction or how to formulate an instruction for abuse

of discretion.               See, e.g., Noel v. Artson, 641 F.3d 580, 586

(4th   Cir.       2011).           But    we     review      the    correctness          of    a   jury

instruction regarding the elements of an offense de novo, as a

question of law.                 See United States v. Horton, 321 F.3d 476, 479

(4th Cir. 2003).

       Count        1       of     the     superseding            indictment           charged       the

defendants with conspiring, under 21 U.S.C. § 846, to violate

the    drug       trafficking            prohibitions             contained       in     21    U.S.C.

§ 841(a)(1).            Because § 846 looks to an underlying offense, the

mens   rea     of       §    846    is    derived       from       that    of    the     underlying

offense,       in       this       case     § 841(a).              See     United        States      v.

Deffenbaugh, 709 F.3d 266, 272 (4th Cir. 2013).

                                                   14
      The mens rea of § 841(a) is articulated explicitly in the

statute.       Section      841(a)   makes       it   unlawful    for   a   person

“knowingly    or    intentionally     to     .    .   .   distribute    .   .    .    a

controlled substance” or “knowingly or intentionally to . . .

possess with intent to . . . distribute . . . a controlled

substance.”        21 U.S.C. § 841(a)(1).             Thus, while the statute

requires specific intent to distribute a controlled substance or

to possess with intent to distribute a controlled substance, it

does not require that the defendant have, within that intent,

specific knowledge of the controlled substance or any of the

chemicals, derivatives, isomers, esters, ethers, or salts that

constitute the controlled substance.              See 21 U.S.C. § 812.

      Of course, the fact that the defendant must only know that

the   khat    he   is   distributing       or    possessing      with   intent       to

distribute contains an unspecified controlled substance does not

relieve the government of proving that that substance was in

fact on the controlled substance list.                    Thus, in this case it

would not be sufficient for the government to prove that the

substance distributed was khat, because khat is not listed as a

controlled substance.         Rather, the government had to prove that

the   khat    it   seized    from    the    defendants       actually   contained

cathinone, a controlled substance.               As for mens rea, though, the

government need only prove that the defendants knew that their

                                       15
khat   contained    some   controlled    substance,   which    it   could    do

without showing that the defendants had ever heard of cathinone.

       This scope of scienter for a violation of § 841 is not only

provided by the text of the statute but is also the view taken

by every court of appeals that has considered the issue.                    For

instance, in United States v. Abdulle, 564 F.3d 119 (2d Cir.

2009), then-Judge Sotomayor stated:

       [T]he law is settled that a defendant need not know
       the exact nature of a drug in his possession to
       violate § 841(a)(1); it is sufficient that he [or she]
       be aware that he [or she] possesses some controlled
       substance.     Because khat is not listed on the
       controlled   substance   schedules,    the   mens  rea
       requirement of § 841(a) cannot be satisfied merely by
       proving that the defendant knowingly possessed khat.
       Instead, where the government seeks to satisfy the
       mens rea requirement of § 841(a) for a khat-related
       offense, the government must prove that the defendant
       knew he or she possessed some regulated substance.

Id. at 125-26 (internal quotation marks and citations omitted)

(emphasis added); see also United States v. Mire, 725 F.3d 665,

679 (7th Cir. 2013) (“It does not matter whether Mire knew that

khat contained cathinone or cathine; all that matters is Mire

knew that khat contained an illegal substance”); United States

v. Hassan, 578 F.3d 108, 123 (2d Cir. 2008) (Specific intent

requires    “that    the    defendant    ‘knowingly   or      intentionally’

imported   or   possessed   with   intent   to   distribute    khat   with   a

controlled substance”); United States v. Caseer, 399 F.3d 828,

841 (6th Cir. 2005) (Defendant must only “actually [know] that

                                    16
khat    contained   a   controlled     substance”);      United   States    v.

Hussein, 351 F.3d 9, 11 (1st Cir. 2003) (“[T]he government can

satisfy the scienter requirement . . . notwithstanding the fact

that the accused was unaware of the drug’s precise identity so

long as it is able to prove beyond a reasonable doubt that he

knew he was dealing with a substance regulated by federal drug

abuse laws”); United States v. Carrera, 259 F.3d 818, 830 (7th

Cir. 2001) (“The government need only prove that the defendant

was aware that some controlled substance was involved”).

       Accordingly, we conclude that the district court did not

err in instructing the jury on scienter.

                                       B

       With   respect   to   the   willful   blindness    instruction,     the

defendants argue that the district court abused its discretion

in giving the instruction.         The court told the jury:

       Now, the government may prove that a defendant acted
       knowingly by proving beyond a reasonable doubt that
       the defendant deliberately closed his or her eyes to
       what would otherwise have been obvious to him or her.
       No one can avoid responsibility for a crime by
       deliberately ignoring what is obvious.       A finding
       beyond a reasonable doubt of an intent of the
       defendant to avoid knowledge or enlightenment would
       permit the jury to infer knowledge.     Stated another
       way, a defendant’s knowledge of a particular fact may
       be inferred from a deliberate or intentional ignorance
       or   deliberate  or   intentional  blindness   to  the
       existence of that fact.

The defendants point out that such an instruction should not

have been given without evidence that they deliberately ignored

                                      17
relevant       facts.        They    maintain      that      in    this    case,       “[t]here

simply is no evidence in record supporting the position that any

[defendant]          understood        khat     contained          cathinone           or        any

controlled substance.”

       Inasmuch as the defendants’ challenge focuses on whether

the court should have given the instruction, and not on its

substance,       we     review       the   court’s           decision      for        abuse       of

discretion.       See United States v. Jinwright, 683 F.3d 471, 478

(4th Cir. 2012).

       It is well established that where a defendant asserts that

he did not have the requisite mens rea to meet the elements of

the    crime    but     “evidence      supports         an   inference         of    deliberate

ignorance,”       a    willful       blindness      instruction           to    the    jury       is

appropriate.          United States v. Ruhe, 191 F.3d 376, 384 (4th Cir.

1999) (quoting United States v. Gruenberg, 989 F.2d 971, 974

(8th    Cir.    1993))       (internal     quotation         marks   omitted).              To    be

sure, caution must be exercised in giving a willful blindness

instruction,          and    therefore     it      is    appropriate           only    in     rare

circumstances.          Id. at 385.           But we have affirmed its use in

circumstances         much    like    those     presented         here.         In    Ruhe,      the

owner    of     an      aircraft      repair       facility        was         convicted         for

conspiring       to    transport      stolen       airplane       parts        in    interstate

commerce.        Although the owner of the facility did not himself

know that the parts were stolen, he ignored warning signs from

                                              18
his employees, such as a lack of documentation for the parts and

labels of “To be scrapped” on the parts.                      Id. at 380-81.           With

those warning signs, we upheld the use of a willful blindness

instruction.

     We conclude that Ruhe justifies the court’s instruction in

this case.     The defendants here also had warning signs that khat

contained    an   unlawful     substance.         The    record         is   filled    with

evidence about how khat was transferred in discreet handoffs and

unmarked packages; how the money obtained from khat sales was

carefully broken up and hidden; how various defendants described

methods     for     avoiding        detection;     how    khat          had    drug-like

properties like other controlled substances; and how defendants

sought fresh khat to maximize those drug-like properties.                               In

these     circumstances,       we    believe      it    was       not    an    abuse    of

discretion    for    the   court      to   have   given       a   willful      blindness

instruction, particularly since the court also gave a cautionary

instruction to the jury:

     It is, of course, entirely up to you as to whether you
     find any deliberate ignorance or deliberate closing of
     the eyes and the inferences to be drawn from any such
     evidence.   You may not infer that a defendant had
     knowledge, however, from proof of a mistake or
     negligence   or  carelessness  or   a  belief   in  an
     inaccurate proposition.

                                           19
                                          III

       For   their    principal       argument    on     appeal,   the   defendants

contend that even under our announced standard, the evidence was

insufficient to convict them on Count 1, which charged them with

conspiring to traffic in the controlled substance of cathinone.

They do not suggest that the evidence was insufficient to show

that   they     possessed      khat     with    intent    to   distribute   it    but

rather, that the evidence was insufficient to prove that they

knew    that     khat       contained     a     controlled     substance.         The

sufficiency of the evidence, which we take in the light most

favorable to the government, is a question of law that we review

de novo.       See United States v. Campbell, 977 F.2d 854, 856 (4th

Cir. 1992).

       It is true that the record contains only limited direct

evidence      that    the     defendants       knew    that    khat   contained     a

controlled substance.          Gurreh clearly knew, as he had previously

been convicted of trafficking in khat, and Ismail Abdi admitted

in an interview with the FBI that he believed that khat was

unlawful.       Similarly, Jibril and Yusuf both worked for a money

transfer business, and as part of their employment, both men

received training in identifying money transfers related to khat

trafficking.         Nonetheless, all defendants conducted themselves

in a manner that indicated circumstantially that they knew that

khat contained a controlled substance.                     See United States v.

                                          20
Santos, 553 U.S. 507, 521 (2008) (“[Scienter] will be provable

(as   knowledge       must     always      be      proved)    by     circumstantial

evidence”).

      Critically, the head of the conspiracy, Ishak, testified on

behalf of the government and implicated all defendants in the

conspiracy.        Numerous recorded telephone calls between him and

his   co-conspirators        were   introduced       into    evidence     indicating

that all conspirators were aware of the structure of Ishak’s

enterprise    and    participated       in     various     aspects   of   it.     The

enterprise involved importing khat from Kenya, through Europe,

and into the United States via couriers, who carried packages

designed to disguise their contents.                  Individual deliveries of

khat to various conspirators were often made in circumstances

that were surreptitious and totally distinguishable from open

and normal channels of business, such as from a public store or

a publicly accessible shopping site.                     Telephone conversations

among conspirators often referred to methods of avoiding police

suspicion and to interceptions of khat at the border.                           While

interceptions at the border could, no doubt, be attributable to

the enforcement of benign agricultural regulations, see Caseer,

399   F.3d    at     844,    none    of      the    many     conversations      among

conspirators even suggested that agricultural regulations were

the cause of their concerns.              When the conspirators did discuss

law enforcement, their concerns focused on avoiding detection by

                                          21
state     and    local       police       officers,         who    presumably       would    be

uninterested in enforcing U.S. customs regulations related to

the importation of non-descript plants.                            Money collected from

the sale of khat was also treated surreptitiously and awkwardly

to avoid suspicion, as payments were broken into parts and sent

to suppliers in the United Kingdom and Africa under altered or

false names, and the record is replete with evidence of how such

payments        were    designed          to     avoid      any        linkage     with     khat

trafficking.           It    is    almost       impossible        to    conclude    that    any

defendant did not know of at least some illegal aspects of the

enterprise because the conspiracy continued for years.

     We find support in this regard in the decisions of numerous

other courts that have accepted circumstantial evidence in khat

cases of this type to prove scienter.                             Courts have concluded,

for example, that evasive behavior that seeks to avoid police

detection of khat activity, including a denial of owning khat,

evinces    knowledge         that    khat       contains     a     controlled      substance.

See Mire, 725 F.3d at 679.                  Likewise does misleading the police

during    interrogation,           id.;    discussing         with      other    conspirators

how to best evade detection, see United States v. Awad, 518 F.

Supp.     2d     577    (S.D.N.Y.         2007);       or     carefully         orchestrating

distribution       in    a   way    so     as    to   evade       detection,      see     United

States    v.    Hussein,      351     F.3d      9,    20    (1st       Cir.   2003).       Other

indicators have also been accepted as circumstantial evidence of

                                                22
scienter, such as knowledge that khat produces a high much like

other controlled substances, see id.; knowledge that khat can be

seized at customs, see Hassan, 578 F.3d at 126; or the presence

of defendant’s prior convictions involving khat or cathinone,

Abdulle, 564 F.3d at 127.                 To be sure, because some of these

indicators may be ambiguous, they must be taken in context and

evaluated as to whether they in fact contribute to scienter.

For example, simply recognizing that khat produces a high is

ambiguous,       as    there   are    non-controlled      substances   that      also

produce highs.          Similarly, the fact that khat has been seized at

customs     is        ambiguous,     as    agricultural     products    that     are

otherwise non-controlled substances may also be seized.                          See

Caseer, 399 F.3d at 844.                  But when considered in the context

provided by other evidence, even these facts may be probative of

scienter.    See, e.g., Hassan, 578 F.3d at 126.

      In addition to the generalized evidence about the structure

and operation of the enterprise, aspects of which each defendant

had knowledge, the government produced individualized evidence

as to each defendant.          To be sure, the amount of evidence unique

to each defendant varied, but even so, when it is considered in

the   overall     context      and    in    a    light   most   favorable   to   the

government, it is, we conclude, sufficient as to each defendant

to support a conviction.

                                            23
     First,        Ismail       Abdi,      Gurreh,     Albukhaiti,        and     Hassan

demonstrated their knowledge that khat was illegal through their

direct   behavior        with    law    enforcement     officers.         Ismail    Abdi

misled FBI agents during an interview, initially claiming that

he did not chew khat but later admitting to khat use after being

informed that agents had intercepted his telephone calls.                             He

also admitted to agents that he believed that khat was unlawful

and that transferring the proceeds of khat sales overseas was

unlawful.     Likewise, Hassan initially claimed to FBI agents that

he had never chewed or distributed khat, but then later claimed

that he had used khat on “one or two occasions.”                      Eventually, he

admitted      to    purchasing          and    using    khat       more     frequently.

Albukhaiti, when stopped on a trip to New Jersey to pick up

khat, lied to police, telling them that he was there to pick up

a   friend.        Gurreh       had    a   prior     state   conviction      for    khat

trafficking, which provided direct evidence that he knew that

khat was illegal.           Moreover, all four of these defendants spoke

frequently     with       Ishak       regarding    khat,     and     some    of    those

discussions were about how to orchestrate khat transfers so as

to avoid detection by using unmarked or mislabeled packages or

by using fake names.

     Second,       Ali   and     Yusuf     demonstrated      their   knowledge      that

khat was illegal during wiretap-recorded telephone conversations

in which they discussed the concealment of khat proceeds.                            In

                                              24
one such conversation, Ali and Ishak discussed how to break the

money transfers into smaller amounts so as to avoid detection,

explaining that they learned the technique from Yusuf:                            “If I

would say 1,000 dollar he would have asked me if I got the money

from    selling   khat. . . .       [I]t’s      better    to   send   it    in    small

amounts,    instead   of    big   amounts. . . .          I    learned     that    from

Osman [Yusuf]. . . .         When I give money I also give him two

names.”     In another conversation, Yusuf discussed khat in code,

using the term “CDs” to refer to khat because he and Ishak

worried that authorities might be listening to their calls.                          In

addition to these conversations, other circumstantial evidence

demonstrated Ali’s and Yusuf’s knowledge of khat’s illegality.

Ali used names other than her own to send proceeds from khat

sales to Ishak’s suppliers and allowed Ishak to use her credit

cards to rent cars in her name to conceal Ishak’s identity when

distributing khat.         And Yusuf advised Ishak not to meet him at

Yusuf’s Dahabshil office because it was known that Ishak was a

khat dealer.      As noted, Yusuf was also trained as part of his

Dahabshil employment to identify khat-related transfers, which

is   more   direct    evidence      that   he    knew     that   it   contained       a

controlled substance.

       Third, three other defendants, Muhumed, Isa, and Abdi Omar

Abdi, demonstrated their knowledge that khat was illegal through

their     attempts    to    evade    detection       in       acquiring     khat     or

                                       25
laundering khat proceeds.        All three regularly purchased khat

and helped send money to Ishak’s suppliers.                Muhumed regularly

met Ishak in out-of-the-way locations, including bus stations

and gas stations, to cover the purpose of their meetings.                  Isa

received suspiciously packed shipments of khat from Ishak and

also wrote checks to Ishak for khat, but concealed the purpose

of the payments by writing “ATM” on the memo line.                  Abdi Omar

Abdi was instructed by Ishak on how to conceal the transfer of

money to avoid police detection by not sending the same amount

of money on multiple occasions; by not sending it repeatedly to

the same person; and by not using the recipient’s real name.

Both Abdi Omar Abdi and Isa also knew that khat packages had

been, on occasion, seized by customs.

     Fourth,     Jibril’s     conduct      involved    a     combination      of

indicators   demonstrating     his    knowledge   that     khat   contained    a

controlled substance.       In one recorded telephone conversation,

Ishak discussed with Jibril how Ishak would avoid being detected

by police while he traveled to distribute khat:               “I do not like

people with me because . . . if something happens and you get

stopped   they   cross-examine       us   separately   and   we   might    give

different information.”        Additionally, as part of his job at

Dahabshil,     Jibril   was     trained      to   recognize       and     avoid

inadvertently aiding money laundering and trafficking, including

trafficking related to khat.          He then completed transactions by

                                      26
breaking them into smaller dollar amounts to avoid detection,

and on at least one occasion, he used a false name to send the

money.     One can infer that from Jabril’s training, he knew that

the transactions were for the purpose of concealing illicit khat

money.

       Finally,        while       the    defendants            Alashmali,        Salhan,     and

Samantar    were       less     deeply     involved         in     the    conspiracy,        they

nonetheless maintained regular contact with Ishak and knew the

extent     of   the     khat       distribution           operation       that     Ishak     ran.

Alashmali was aware of the suspicious circumstances under which

khat was transferred from Ishak to the co-conspirators, as he

himself received shipments from Ishak at diverse locations, such

as   his   store,       a    UPS    store,      and       his     brother’s      store.       And

evidence    showed          that   shipments         to     his    brother’s       store     were

mislabeled to conceal their contents.                           Moreover, Alashmali spoke

with Ishak almost daily, and Ishak knew that khat was illegal.

Alashmali also interacted regularly with his brother Albukhaiti,

who demonstrated his knowledge of khat’s illegal nature by lying

to police.       Likewise, Salhan discussed khat with Ishak regularly

and sold khat.              He knew the extent of the khat distribution

enterprise;       he    knew       that    khat       had       been    seized     by     customs

officials; and twice he sent khat money overseas, using a wire

transfer.       Finally, Samantar resold khat; spoke with Ishak about

khat     trafficking;          sent      wire     transfers            overseas     for     Ishak

                                                27
approximately three times; and knew that customs officials had,

on occasion, seized khat packages.                Indeed, she inquired about a

khat shipment with concern, “Was it caught?”

      When viewing the evidence in a light most favorable to the

government, we conclude that a rational trier of fact could have

found   the    defendants      guilty      beyond    a   reasonable      doubt.       See

Campbell, 977 F.2d at 856.

                                           IV

      During       trial,   the      district     court    made      two     procedural

rulings that the defendants now challenge.                       It denied (1) the

defendants’ request to put on an expert witness who was first

disclosed at trial, and (2) Gurreh’s motion to sever his trial

from the larger one.         We affirm both rulings.

                                            A

      After the government rested its case, the defendants sought

to   present       the   testimony    of    an    expert   witness       who   had    not

previously been identified to testify.                   The defendants proposed

to   have     him    testify      that     khat     contained,      in     addition     to

cathinone, the stimulant phenylpropanolamine (“PPA”), which is

not a controlled substance and which contributes to the high

produced      by    khat.    They     argued      that    because    PPA     is   not   a

controlled substance and also produces a high, “there could be a

conspiracy to possess with intent to distribute an uncontrolled

                                           28
scheduled      substance         PPA,   which    is    a    direct   defense   to    the

government’s case. . . .                 PPA is a stimulant and you can get

high and it’s not controlled.               So how do you separate the two?”

(Emphasis added).

       The district court, in ordering that the expert testimony

be excluded, ruled that the defendants’ request was untimely,

pointing out that notice of expert testimony had to be provided

no later than 10 business days before trial.                       It also ruled that

the evidence was irrelevant.               The court observed that it invited

the defendants to articulate the reasons for the testimony’s

relevancy and “found them unpersuasive.”

       On    the    untimeliness        issue,   the       court   clearly   had   broad

discretion         to   manage    the   docket    and      to   impose   binding    time

limits on the disclosure of evidence.                      See, e.g., United States

v. Goodson, 204 F.3d 508 (4th Cir. 2000); Fed. R. Crim. P. 16.

The court pointed out that the defendants had received notice of

the fact that PPA was in khat many months before trial and could

well have identified their expert on the subject in a timely

fashion.       It did not agree that their failure to do so was

excused by the fact that not until trial did they realize that

they would be unable to question the government’s expert about

PPA.        We conclude the court did not abuse its discretion in

excluding this evidence as untimely.

                                            29
       We also agree that the proffered evidence would not have

been     relevant.          The    issue      in     this    case        was   whether     the

defendants      knowingly         distributed       or   possessed        with   intent      to

distribute      a     controlled       substance.           The    government       had    the

burden     of        demonstrating         that       the       defendants         knowingly

distributed or possessed with intent to distribute a controlled

substance,      and       the   mere   fact   that       khat     also    contained      other

chemicals and substances that were not controlled but that were

sought     by   defendants         would      not     provide      a     defense    to      the

government’s proof as to the defendant’s mental state.                              Thus, we

conclude that the district court did not abuse its discretion in

also basing its ruling on a lack of relevance.                                 See General

Electric Co. v. Joiner, 522 U.S. 136, 138-39 (1997); Friendship

Heights Assocs. v. Vlastimil Koubek, A.I.A., 785 F.2d 1154, 1159

(4th Cir. 1986).

                                              B

       During       the    government’s       case,      counsel         for   Ismail      Abdi

cross-examined Ishak with respect to Gurreh’s involvement in the

conspiracy,         allegedly      creating         antagonistic         defenses     as    to

Ismail Abdi and Gurreh.                The cross-examination mainly covered

the extent of Gurreh’s relationship with Ishak, the amount of

khat Gurreh sold, and the extent of Gurreh’s money laundering.

Following this cross-examination, Gurreh filed a motion to sever

his trial, which the district court denied.

                                              30
     Federal Rule of Criminal Procedure 14(a) provides, “If the

joinder     of   offenses    or   defendants   in    an   indictment,     an

information, or a consolidation for trial appears to prejudice a

defendant or the government, the court may order separate trials

of counts, sever the defendants’ trials, or provide any other

relief that justice requires.”         A severance under Rule 14(a) is

warranted in cases where there is a “serious risk that a joint

trial would compromise a specific trial right of one of the

defendants,” Zafiro v. United States, 506 U.S. 534, 539 (1993),

but the standard raises a high bar, as “[m]utually antagonistic

defenses are not prejudicial per se,” id. at 538.               Indeed, we

have found it decidedly preferential to try jointly defendants

who have been indicted together.           See, e.g., United States v.

Singh, 518 F.3d 236, 255 (4th Cir. 2008).

     In this case, the testimony elicited about Gurreh during

the cross-examination of Ishak by counsel for Ismail Abdi was

very likely not prejudicial for at least two reasons.               First,

nearly the exact same testimony raised on Ismail Abdi’s cross-

examination of Ishak was also permissibly brought out during the

government’s direct examination of Ishak.           Second, the testimony

brought out during Ismail Abdi’s cross-examination of Ishak did

not make a meaningful contribution to the case against Gurreh.

Gurreh’s involvement with Ishak and the khat enterprise was not

seriously    disputed   at   trial.    Based   on   Ishak’s   testimony   on

                                      31
direct,    there      was    little      doubt    about       Gurreh’s    involvement.

Instead,     the    primary    issue     raised    by     Gurreh   was    scienter    --

whether he knew that khat contained a controlled substance.                          To

that end, Gurreh’s prior conviction for khat trafficking was

very strong evidence -- so much so that the additional evidence

of Gurreh’s involvement with Ishak brought out on Ismail Abdi’s

cross-examination was of minimal importance.

      Given our strong preference for jointly trying defendants

who   have    been     indicted     together,        we   conclude       that   in   the

circumstances of this case, the district court did not abuse its

discretion in denying Gurreh’s motion to sever.

                                            V

      Finally, the nine defendants convicted on Count 2 challenge

the sufficiency of the indictment, alleging that its lack of

specificity        “left    open   the   real    possibility       the    [defendants]

were convicted on the basis of facts not found by and perhaps

not even presented to, the grand jury which indicted them.”                           In

particular, they contend that the indictment neglected to allege

the   financial      transactions        involved,      the    monetary    instruments

and funds transferred, and the related unlawful activity.                            See

18 U.S.C. § 1956(c)(4)-(5), (7).

      We have previously articulated the standard for assessing

the specificity of an indictment, stating that “[a]n indictment

                                           32
is sufficient if it, first, contains the elements of the offense

charged and fairly informs a defendant of the charge against

which   he    must        defend,      and,    second,       enables     him    to    plead   an

acquittal or conviction in bar of future prosecutions for the

same offense.”            United States v. Brandon, 298 F.3d 307, 310 (4th

Cir. 2002) (quoting Hamling v. United States, 418 U.S. 87, 117

(1974)) (internal quotation marks omitted); see also Fed. R.

Crim. P. 7(c)(1).

       In Count 2, the grand jury charged a violation of 18 U.S.C.

§ 1956(h),      setting        forth          all     of     the     statutory       elements,

including       the        allegations         that         the     defendants       conducted

financial      transactions            involving        the       proceeds     of     specified

unlawful      activity;       that      they    transmitted          monetary       instruments

and funds from the United States to places outside of the United

States to promote the carrying on of the unlawful activity; and

that    the   underlying          unlawful      activity          was   the    conspiracy     to

distribute or to possess with intent to distribute a controlled

substance.           In    arguing      that        these    allegations       were    fatally

nonspecific, the defendants fail to recognize that the first

paragraph      of    Count    2     incorporated           by     reference    the    37    other

paragraphs          alleged       in     the        introductory         portion       of     the

indictment, where the specific transactions, funds, and related

unlawful activity were described.                      These paragraphs spelled out

in detail the factual circumstances describing:                                 how the co-

                                                33
conspirators            derived     proceeds        from     the     sale        of     khat    and

transmitted them to their khat suppliers in England, Somalia,

Uganda, and Kenya; the fact that the transfers of proceeds were

accomplished            through       Dahabshil’s          office        in     Falls      Church,

Virginia;         and    the    specific       dates       of    transfers,           giving    the

countries to which the transfers were made.

          We have routinely found indictments with this degree of

specificity, or less, to be adequate.                              See United States v.

Bolden, 325 F.3d 471, 490-91 (4th Cir. 2003); United States v.

Am.       Waste    Fibers      Co.,    809    F.2d        1044   (4th         Cir.    1987)    (per

curiam).

          Defendants also argue that the required unlawful activity

of    §    1956(c)(7),         as   defined    in     §    1961(1),       does       not   include

conspiracy.         We rejected similar reasoning, however, in United

States v. Tillett, 763 F.2d 628, 633 (4th Cir. 1985), and other

circuits have directly rejected this very argument.                                   See, e.g.,

United States v. Echeverri, 854 F.2d 638, 648-49 (3d Cir. 1988)

(describing         §    1961(D)      as     “broad       language”       that        encompasses

conspiracy); United States v. Weisman, 624 F.2d 1118, 1124 (2d

Cir.      1980),    abrogated         on   other     grounds        by    United       States    v.

Indelicato, 865 F.2d 1370 (2d Cir. 1989) (en banc) (“[W]e think

that conspiracy can properly be charged as a predicate act of

racketeering under RICO, at least when it involves any of the

substantive offenses listed in section 1961(1)(D) . . . This

                                               34
language    is     certainly    broad   enough     on   its   face   to    include

conspiracies involving securities and bankruptcy fraud and drug

related offenses”).       We now also reject the argument.

     Because we conclude that Count 2 adequately informed the

defendants    of    the   money    laundering    charges      against     them   and

provided sufficient detail to enable them to plead an acquittal

or conviction in bar of future prosecution for the same offense,

we reject their challenge.

     The     judgments     of     the   district    court      are   accordingly

affirmed.

                                                                          AFFIRMED

                                        35


207 F.Supp. 193 (1962)
EVANS-HAILEY COMPANY, Inc.
v.
CRANE COMPANY.
Mrs. Herman MERRITT
v.
John H. WOODY et al.
Herman MERRITT
v.
John H. WOODY et al.
Steven Eugene MERRITT
v.
John H. WOODY et al.
John L. MANNING
v.
LION OIL, INC.
Lucy MANNING
v.
LION OIL, INC.
Fred D. SULLIVAN
v.
LOUISVILLE & NASHVILLE RAILROAD CO.
Mrs. Mary Bell REHORN
v.
TERMINAL TRANSPORT CO., Inc.
Samuel Ralph REHORN
v.
TERMINAL TRANSPORT COMPANY, Inc.
Edward Earl REHORN
v.
TERMINAL TRANSPORT COMPANY, Inc.
Reba FALSTER
v.
TRAVELERS INSURANCE CO.
Mrs. Josephine CHEEK
v.
CHESTERS, INC.
Robert MURDIC
v.
LOUISVILLE & NASHVILLE RAILROAD CO.
George B. FLIPPEN et ux.
v.
TEXAS EASTERN TRANSMISSION CORP. et al.
Mrs. Robert M. STRUBE, Sr.
v.
LOUISVILLE & NASHVILLE RAILROAD CO. et al.
Elroy ROWLETT, b/n/f
v.
Oscar J. KILBURN et al.
Mary Ruth BURGESS, Administratrix
v.
LOUISVILLE & NASHVILLE RAILROAD CO.
Mrs. D. L. WARREN, Sr., et al.
v.
UNITED STATES FIDELITY & GUARANTY CO.
Mrs. Muriel M. SEYFERT, Executrix
v.
NEWARK INSURANCE CO.
T. W. TAYLOR
v.
GREAT AMERICAN INSURANCE CO.
T. W. TAYLOR
v.
STATE FARM FIRE & CASUALTY CO.
John L. JENNINGS, Administrator
v.
LOUISVILLE & NASHVILLE RAILROAD CO. (three cases).
John Henry BUCHANAN, Jr.
v.
CONTINENTAL SOUTHERN LINES, INC.
Edward MUNDY
v.
LOUISVILLE & NASHVILLE RAILROAD CO.
Civ. Nos. 2730, 2759, 2760, 2761, 2781, 2782, 2828, 2835, 2836, 2837, 2847, 2874, 2886, 2901, 2906, 2909, 2978, 2985, 3032, 3050, 3052, 3058, 3059, 3060, 3156, 3167.
United States District Court M. D. Tennessee, Nashville Division.
June 28, 1962.
*194 *195 No. 2730:
Hofstetter & Hofstetter, Nashville, Tenn., for plaintiff.
Cecil Sims, Bass, Berry & Sims, Nashville, Tenn., for defendant, Crane Co.
Charles H. Warfield, Warfield & Entrekin, Nashville, Tenn., for third-party defendant, Modern Welding Co., Inc.
Nos. 2759-2761:
Jack Norman, Jr., Nashville, Tenn., for plaintiffs.
Watkins, McGugin & Stewart, Nashville, Tenn., for defendants.
Nos. 2781 and 2782:
Collier Goodlett, Sr., Goodlett & Goodlett, Clarksville, Tenn., and Williams, Howser & Thomas, and Z. T. Osborn, Jr., Nashville, Tenn., for plaintiffs.
Frank C. Gorrell, Bass, Berry & Sims, Nashville, Tenn., for defendant.
No. 2828:
Joseph L. Lackey and Karl Bishop, Nashville, Tenn., for plaintiff.
S. McP. Glasgow, Jr., Glasgow & Adams, and David M. Keeble, Nashville, Tenn., for defendant.
Nos. 2835-2837:
Jack Norman and Williams, Howser & Thomas, Nashville, Tenn., and McAllester & McAllester, Chattanooga, Tenn., for plaintiffs.
Glasgow & Adams, Nashville, Tenn., for defendant.
No. 2847:
Charles F. Galbreath and Joseph L. Lackey, Nashville, Tenn., for plaintiffs.
S. McP. Glasgow, Jr., Glasgow & Adams, Nashville, Tenn., for defendant.
No. 2874:
James B. Ross, Columbia, Tenn., for plaintiff.
H. Francis Stewart, Watkins, McGugin & Stewart, Nashville, Tenn., for defendant.
No. 2886:
Harris Gilbert, Barksdale & Hudgins, Nashville, Tenn., for plaintiff.
David M. Keeble, Nashville, Tenn., for defendant.
*196 No. 2901:
Elmer Woolard, Lebanon, Tenn., and Solon Fitzpatrick, Carthage, Tenn., for plaintiffs.
Tom Stewart and George H. Armistead, Jr., Nashville, Tenn., for defendants.
No. 2906:
William S. Bruce, Jr., and J. C. Summers, Nashville, Tenn., for plaintiff.
David M. Keeble, Nashville, Tenn., for defendant.
No. 2909:
C. Allen High and Dan Garfinkle, Nashville, Tenn., for plaintiff.
J. Ross Cheshire, Jr., and T. T. McCarley, Nashville, Tenn., for defendants.
No. 2978:
Clement, Sanford & Fisher, Nashville, Tenn., for plaintiff.
David M. Keeble, Nashville, Tenn., for defendant.
No. 2985:
Frank L. Hollis, Peeler & Hollis, Camden, Tenn., for plaintiffs.
Wirt Courtney, Jr., Goodpasture, Carpenter, Woods & Courtney, Nashville, Tenn., for defendant.
No. 3032:
Goodpasture, Carpenter, Woods & Courtney, Nashville, Tenn., for plaintiff.
Charles L. Cornelius, Jr., Nashville, Tenn., for defendant.
Nos. 3050 and 3052:
James Cunningham, Jr., and Marks & Fleming, Clarksville, Tenn., for plaintiff.
Goodpasture, Carpenter, Woods & Courtney, Nashville, Tenn., and Malcolm Y. Marshall, Ogden, Brown, Robertson & Marshall, Louisville, Ky., for defendant, Great American Insurance Co.
Nos. 3058-3060:
John T. Conners, Jr., Davis, Boult, Hunt & Cummings, Nashville, Tenn., for defendant, State Farm Fire & Casualty Co.
Rupert W. Leslie, Waller, Davis & Lansden, Nashville, Tenn., for plaintiff.
David M. Keeble, Nashville, Tenn., for defendant.
No. 3156:
Karl L. Bishop, Nashville, Tenn., for plaintiff.
Phillips, Gullett & Steele, Nashville, Tenn., for defendant.
No. 3167:
Harsh, Kelly & Harsh, Gallatin, Tenn., for plaintiff.
Woodall Murrey, Gallatin, Tenn., and David M. Keeble, Nashville, Tenn., for defendant.
GRAY, District Judge.
All of these twenty-six cases have been brought here from various state courts by petitions for removal in which defendants sought to invoke this court's diversity jurisdiction under 28 U.S.C. §§ 1332, 1441 and 1446.
On its own motion June 1, 1962, the court ordered all of the defendants to appear June 15, 1962, to show why the cases should not be remanded because of failure of the allegations of the citizenship of corporate parties to meet the requirements of 28 U.S.C. § 1332 as amended by Public Law 85-554, 72 Stat. 415, effective July 25, 1958.
The order called the attention of counsel to F. & L. Drug Corp. v. American Central Ins. Co., 200 F.Supp. 718 (D. Conn.1961), wherein the problem involved was discussed at length. In the covering letter to counsel, those removing defendants "desiring to file either motions to amend their petitions, with accompanying briefs, or briefs in support of the petitions as presented" were asked to do so by June 8, 1962. Plaintiffs were given until the hearing to file briefs as they might be advised. A few defendants submitted motions to amend, some of them accompanied by briefs as required by the standing rules of the court, and a few submitted briefs in support of unamended petitions within the time requested. At the hearing, others presented similar papers or asked leave to do so. A few plaintiffs responded with briefs, none with motions to remand. *197 To get the benefit of maximum assistance from counsel on the problem, the court allowed additional time to those requesting it for the filing of motions and briefs, and all of these have now been received and fully considered.
In four of the cases, the court has found it unnecessary to reach the issue that gave rise to the order of June 1, 1962, because further examination of the records discloses affirmatively that the court does not have jurisdiction. These will be disposed of first.
In the companion cases Nos. 2759, 2760, and 2761, (Merritt v. Woody) the record discloses that the cases were removed before the declarations were filed in the state court. In Tennessee the time for removing a case begins to run from the filing of the declaration, not the summons. Munsey v. Testworth Laboratories, 227 F.2d 902 (6 Cir. 1956). These cases were therefore prematurely removed. Milton A. Jacobs, Inc. v. Manning Mfg. Corp., 171 F.Supp. 393 (D.C. 1959). Since this court has no jurisdiction in these cases, except the limited jurisdiction necessary to determine whether it has jurisdiction, Beleos v. Life & Casualty Ins. Co. of Tennessee, 161 F.Supp. 627, 628 (D.S.C.E.D.1956), they must be remanded to the state court.
In No. 2874 (Cheek v. Chesters, Inc.), the record affirmatively shows that the defendant is a Tennessee corporation. As such, it is not entitled to remove a diversity case to this court. 28 U.S.C. § 1441(b). It must therefore be remanded.
The other twenty-two cases depend upon the effect to be given the 1958 amendment, Public Law 85-554, supra, of the diversity jurisdiction statute, 28 U.S.C. § 1332, in gauging the jurisdictional sufficiency of a removal petition. The particular provision involved is that added as § 1332(c):
"(c) For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business."
All of the cases considering allegations under this paragraph seem to agree that this section must be given effect in the "short and plain statement of facts" required in complaints by Rule 8(a) (1), Federal Rules of Civil Procedure, 28 U.S.C., and in verified removal petitions by 28 U.S.C. § 1446(a). Minimum allegations are sought to be indicated by Form 2(a), Appendix of Forms, Federal Rules of Civil Procedure, as amended April 17, 1961, effective July 19, 1961, 28 U.S.C.App. (Supp. III, p. 855, and explanatory notes thereunder).[1]
Similarly, there seems to be no disagreement that under 28 U.S.C. § *198 1653,[2] and Rule 15(a), Federal Rules of Civil Procedure,[3] complaints in cases of original jurisdiction may be amended freely to perfect defective jurisdictional allegations where facts supporting jurisdiction do exist. Even in such cases, however, it is the duty of any federal court, trial or appellate, not to proceed with a case after defects in jurisdictional allegations come to its attention, by motion of the parties or otherwise, until the defects have been cured, Emmons v. Smitt, 149 F.2d 869 (6th Cir. 1945), cert. den. 326 U.S. 746, 66 S.Ct. 59, 90 L.Ed. 446; Miller v. Weller, 286 F.2d 172 (3rd Cir. 1961); and the presumption is always against jurisdiction, Bell v. Gray, 191 F.Supp. 328 (D.E.D. Ky.1960), affirmed 287 F.2d 410 (6th Cir. 1960).
But the problem is more difficult where the defective allegations are in a removal petition, where considerations of state sovereignty, comity, and traditional judicial respect for the jurisdiction of other courts invoke the rule of caution on questions of conflicting jurisdiction, Metcalf Bros. & Co. v. Barker, 187 U.S. 165, 176, 23 S.Ct. 67, 47 L.Ed. 122 (1902). Added to this is the fact that a remand of such a case does not deprive either party of his day in court on the merits, whereas a dismissal in a case of original jurisdiction, if not reversed, could foreclose substantive rights.
These considerations have led to the development of a judicial rule that removal statutes are to be strictly construed against removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941), and of a statutory rule that an order of remand may not be appealed, 28 U.S.C. § 1447(d).
Even prior to the statutes now under consideration, the resulting difficulties had inevitably brought the development of a body of technical law as the courts tried to explain why one petition was sufficient to divest state court jurisdiction and another insufficient. See the summary in 76 C.J.S. Removal of Causes §§ 214 et seq. The technicalities, in turn, have produced reaction from those adversely affected, but against the solid considerations of policy and justice involved, the cry of "technicality" from a removing defendant in a diversity case has a hollow ring. He, himself, has invoked the technicality of diverse citizenship to remove a plaintiff from the forum of his choice into a forum where the risks of jurisdictional defects continue to rest on the plaintiff, see American Fire & Cas. Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951).
This court has had only eight cases called to its attention involving the precise question of the effect of 28 U.S.C. § 1332(c) upon removal petitions. All eight involved missing or defective allegations of the principal place of business of a corporate party. Of these, two held that the petition could not be amended after the twenty-day period, with the implication that this would apply whether the allegation should be deemed absent or merely defective. Gobet v. Ponce Intercontinental Hotels Corp., 184 F.Supp. 171 (D.P.R.1960); Washington-East Washington Joint Authority v. Roberts & Schaefer Co., 180 F.Supp. 15 (D.W.D. Pa.1960). Four held the particular allegations considered could not be amended. F. & L. Drug Corp. v. American Central Ins. Co., 200 F.Supp. 718 (D.Conn.1961); Adams v. Ralph L. Smith Lumber Co., 181 F.Supp. 729 (D.N.D.Calif.1960); Roseberry v. Fredell, 174 F.Supp. 937 (D.E.D.Ky.1959); Browne v. Hartford Fire Ins. Co., 168 F.Supp. 796 (D.N.D. Ill.1959); Two of the cases allowed *199 amendments. Firemen's Ins. Co. of Newark, N. J. v. Robbins Coal Co., 288 F.2d 349 (5th Cir. 1961) cert. den. 368 U.S. 875, 82 S.Ct. 122, 7 L.Ed.2d 77 (1961); Park v. Hopkins, 179 F.Supp. 671 (D.S.D. Ind.1960).
The apparent rule of the Gobet and Washington-East Washington cases, supra, that amendments could not in any case be allowed after the twenty-day period might commend itself to this court if it were an open one in this circuit. However, the interpretation placed upon Kinney v. Columbia Savings & Loan Association, 191 U.S. 78, 24 S.Ct. 30, 48 L.Ed. 103 (1903), by the Court of Appeals for the Sixth Circuit in La Belle Box Co. v. Stricklin, 218 F. 529 (1914), forecloses that question here. Therefore, the inquiry is not whether a petition may be amended to perfect jurisdictional allegations but what circumstances will justify an amendment.
If La Belle Box were taken as establishing the limits of amendment, its rule still could not reach any of the cases now before the court and all would have to be remanded. In that case, the technicality was that the individual plaintiff's citizenship was alleged only as of the time of the petition and not as of the time the suit was filed, whereas both were required to be covered. In spite of the highly technical nature of the defect in the La Belle Box case, and even with the support of the Kinney decision, the court thought it necessary to point out in detail the many considerations supporting its ruling allowing an amendment in the particular case before it. Among these were other allegations in the pleadings tending to negate the likelihood that the plaintiff's citizenship had changed between the two pertinent dates and also the extreme hardship a remand would have imposed on the plaintiff after years of litigation had yielded recovery of an otherwise valid judgment in the federal courts, 218 F. at 532-534.
Most of the eight cases in direct point cited above, the La Belle Box case, and a good many of the other cases called to the court's attention indicate that the Kinney case is the starting point of any inquiry about the extent to which a removal petition may be amended.
In Kinney, the original petition alleged, insofar as pertinent here, only that the suit was "between citizens of different states" and that the defendant was a "resident and citizen" of Colorado. The court looked to the state court record and found the plaintiff had alleged that "the defendant was and now is a corporation organized and existing under the laws of the state of Colorado," and that the notarized trust deed in controversy identified the plaintiffs as being "of the county of Salt Lake and the territory of Utah." All this, the court held, was enough to provide a predicate for amending the petition to show the state of defendant's incorporation and the state of the plaintiff's citizenship. The amendment offered by the defendant, allowed by the circuit court, and affirmed by the Supreme Court in Kinney supplied all the allegations that were generally required before 1958.
The Kinney case was decided under the provisions of Chapter 866 of the Acts of the Fiftieth Congress, First Session, approved August 13, 1888, 25 Stat. 433-37. This statute gave the then circuit courts jurisdiction of a "controversy between citizens of different States," § 1, and provided for removal of such suits from state courts by defendants "being non-residents of that [the forum] State," § 2. The definitions of citizenship and residence seem to have been left to judicial determination, and the rules applied were derived from the body of case law  an individual was a citizen of the state of his domicile, Robertson v. Cease, 97 U.S. 646, 24 L.Ed. 1057 (1878), and a corporation a citizen of the state by which it was created, Chicago & N. W. R. Co. v. Whitton, 13 Wall. (80 U.S.) 270, 20 L.Ed. 571 (1872). A corporation might have citizenship in more than one state if it were incorporated in more than one, but if it were incorporated in the state of the forum it was conclusively deemed a citizen of that state for purposes of diversity and removal *200 jurisdiction, Memphis & C. R. Co. v. Alabama, 107 U.S. 581, 2 S.Ct. 432, 27 L.Ed. 518 (1883). Removal petitions in civil cases ordinarily were not required to be verified although verification was considered the better practice, 54 C.J., Removal of Causes, § 237, p. 319, n. 36[a]. Any petition considered by a federal court would, except in special cases not pertinent here, have been previously submitted to the state court in which the case was pending.
In Kinney, therefore, the allegations of the petition before the court very nearly met the requirements of the statute then in effect, in that it alleged that the individual party plaintiff and the corporate party defendant in a Utah court were "citizens of different states" and the defendant was a "resident and citizen" of Colorado. The failure to allege directly the citizenship of the plaintiff or the state of incorporation of the defendant made the allegations defective under judicial rules rather than under any specific statutory provision. Diversity was alleged in the words of the statute and the citizenship of the defendant was alleged in conclusionary form. Furthermore, the facts tending to establish the plaintiff's domicile in the state of the forum appeared in the record in verified form, and the record also showed in precise and direct language the facts supporting the petition's conclusion as to the defendant's citizenship. Assuming, as the court apparently did, that an allegation of the state of incorporation was sufficient at that time to establish the citizenship of the defendant for removal purposes, the petition and accompanying papers clearly provided an adequate basis for application of the rule deduced in Kinney from prior cases in this language, 191 U.S. at 83, 24 S.Ct. at 32:
"These cases recognize the power of the Circuit Court to permit amendment of pleadings to show diverse citizenship, and of removal proceedings where there is a technical defect and there are averments sufficient to show jurisdiction."
This rule recognizes the essential difference between complaints and removal petitions already mentioned herein. The case leaves open to speculation what the court might have decided if its attention had been called to the absence of any averment, even in the amendment offered by the defendant, negating the possibility that the corporation had been incorporated in more than one state. Memphis & C. R. Co. v. Alabama, supra.
Since the Kinney opinion was handed down, many changes have been made in applicable statutes. Verification of the petition became a statutory requirement in the Judicial Code of 1911, 28 U.S.C. former § 72. In 1915, Congress specifically provided for amendment of defective jurisdictional allegations both in original pleadings and in removal petitions, 28 U.S.C. former § 399. This provision was contracted in 1948 to its present brief form as 28 U.S.C. § 1653, supra, n. 2, as part of the general revision of the Judicial Code in which drastic changes in removal procedures were enacted, 28 U.S.C. § 1446. Under the new procedure the state court is given no opportunity to judge the sufficiency of the petition to oust it of jurisdiction. A mere notice to the state court clerk of the filing of the petition and bond in the federal court removes the case until remanded by the federal court, § 1446(e). The new law abolished time limits based upon state court procedure, and substituted brief, uniform periods, § 1446(b). The required content of the petition was specified by the statute  "a short and plain statement of the facts which entitle him or them to removal," § 1446(a). And, substantively, the right of removal was restricted to defendants who were not citizens of the forum state, § 1441(b), instead of non-resident defendants as in former § 71.
From all this it is clear that the petition under the 1948 Judicial Code has become a more vital factor in the process of divesting state court jurisdiction and *201 invoking that of the federal court than it was at the time of Kinney. The federal court, in exercising its initial duty to determine whether it has jurisdiction, usually has only the petition as a source for verified facts. Allegations in a state court record usually have neither direct verification nor any implication of acceptance by the state court. The record cannot, then, serve as well for a source of facts as it did in the Kinney case, when verification was not required.
It was against this background that Congress, after considerable study by its own committees and other agencies, adopted 28 U.S.C. § 1332(c). The language was adopted after consideration of a wide variety of proposals ranging from one that would have barred corporations entirely from invoking diversity jurisdiction, see Senate Report No. 1830, House Report No. 1706, 86th Cong., 2nd Sess., as reported in 1958 U.S.Code Cong. & Adm.News, Vol. 2, p. 3099, at pp. 3108-3111, to one that would merely have prevented a corporation from invoking diversity jurisdiction in a state from which it received more than fifty percent of its gross income during the twelve months preceding filing of the suit, id. at p. 3124. One 1951 proposal of the Committee on Jurisdiction and Venue of the Judicial Conference of the United States would have provided that a corporation, for diversity and removal purposes would be deemed "a citizen of the State of its original creation" and of "a state where it has its principal place of business" [Emphasis supplied]. Id. at p. 3133. The Judicial Conference's proposal of September, 1951, would have made these definitions read "a citizen both of the States of its creation and the State in which it has its principal place of business" [Emphasis supplied]. Id. at p. 3107. The wording as enacted into law is "any State by which it has been incorporated and of the State where it has its principal place of business" [Emphasis supplied]. The provision must be interpreted in the light of the "whole history of both growth and limitation of federal-court jurisdiction," Carroll v. United States, 354 U.S. 394, 399, 77 S.Ct. 1332, 1335, 1 L.Ed.2d 1442 (1957).
It appears, then, that the 1958 amendment did more than merely add the "principal place of business" definition to the prior law as to the citizenship of corporations. It could with some reason be construed to have reopened questions about the incorporation of one of the removing defendants now before this court, once settled under the old law in Goodlett v. Louisville & N. R. Co., 122 U.S. 391, 7 S.Ct. 1254, 30 L.Ed. 1230 (1887), particularly if that citizenship has been affected by subsequent mergers or consolidations having effects similar to those considered in Patch v. Wabash R. Co., 207 U.S. 277, 28 S.Ct. 80, 52 L.Ed. 204 (1907). The legislative selection of the particular language, "any State by which it has been incorporated," taken in conjunction with the general legislative purpose to restrict removal and diversity jurisdiction and to simplify the applicable rules, could result in elimination of the basic source of confusions in this area discussed in Seavey v. Boston & M. R. Co., 197 F.2d 485 (1st Cir. 1952).
In determining what allegations this new body of law requires a petition to contain to give this court jurisdiction to allow an amendment after the twenty-day filing period, it will not be helpful to try to distinguish allegations of "facts" from allegations of "conclusions." The difference is merely one of degree like the difference between "fact" and "opinion" testimony. See Morgan, 2 Basic Problems of Evidence 216 et seq. (A.L.I. 1961 ed.). The test should be whether the verified jurisdictional allegations of the petition are sufficiently specific and detailed to disclose to the court without material ambiguity that the case falls within the limitations set by each of the pertinent statutory provisions.
The court should be able to determine from the face of the petition the state of each individual party's citizenship, any state by which each corporate party has been incorporated, and the *202 state in which each corporate party has its principal place of business. This should be in sufficient detail to allow the court to determine that no defendant by any of the applicable definitions is a citizen of either the forum state or of any state in which any plaintiff is a citizen by any of the definitions. This, of course, requires careful draftsmanship if the petition is to rise to the dignity of its high function  ex parte divestiture of the jurisdiction of a court of general jurisdiction.
None of the petitions now before the court meets the requirements. All of them fall short of showing that some corporate party's principal place of business is not such as to defeat jurisdiction. Some also fail to dispose of the possibilities arising under the definition based on "any State" of incorporation. The question in each case is whether the allegations as to each definition are missing or merely defective. Missing allegations may not be supplied, but defective allegations may be amended.
Some of the defendants have relied upon their use of such phrases as "foreign corporation," "entirely between citizens of different states," and "diversity of citizenship" as predicates for amendments, citing Firemen's Ins. Co. of Newark, N. J. v. Robbins Coal Co., supra, 288 F.2d 349, as authority. That case will not stretch to cover "foreign corporation," because the phrase has a distinctive meaning as the opposite of "domestic corporation." One purpose of 28 U.S.C. § 1332 was to eliminate the cases formerly brought into this court under allegations based on this concept.
The Firemen's case is authority for the defendants' contentions as to the other two phrases, however. The case may be distinguished from many of the present cases in only one material respect: that the question was first raised on appeal. Some defendants in their briefs here seem to contend that this is a factor increasing the authority of that case, but as long as La Belle Box Co. v. Stricklin, supra, 6 Cir., 218 F. 529, remains good law in this circuit the opposite conclusion is required. It is a factor of no mean importance that a cause has already been litigated fully in a trial court before the question of remand to a state court is raised, because a remand would wipe all that has been done from the record and the parties must start anew. Some counsel have also urged that it is important to note that the Supreme Court of the United States denied certiorari in the Firemen's case, 368 U.S. 875, 82 S.Ct. 122, 7 L.Ed.2d 77, but the only question presented to the Supreme Court by the petition for writ of certiorari went to the merits of the case, see 30 Law Week 3082. In the absence of any indication in the reported opinion that the Court of Appeals for the Fifth Circuit took into consideration all the authorities considered herein, or the different considerations involved before trial, this court must regretfully decline to follow its holding here.
The allegation that the parties are "citizens of different states" may be entirely true without negating the possibility that they are also citizens of the same state whenever one of the parties is a corporation.
The allegation that there is "diversity of citizenship" goes little further toward meeting the requirements of the statute than a mere citation of the number of the code section. The same sort of inferences would have to be indulged.
An even less satisfactory basis for amendment may be found in an allegation that a corporate defendant is a "non-resident" of the forum state, although it usually is also the state of the plaintiff's citizenship. Allegations of residence are insufficient even as to individual parties, although amendable. The allegation was obviously designed to meet the non-resident defendant requirement of the old statute, 28 U.S.C. former § 71, and in these cases it usually appears along with other allegations likewise obviously designed only to meet the requirements of the outdated statute.
An allegation that a corporation was "not incorporated under the laws of the State of Tennessee wherein this action *203 was brought" is addressed specifically to the definition based on incorporation and gives no hint of any consideration of the definition based on the principal place of business.
In oral argument in one case, counsel urged that the appearance of process papers in the record showing that service was had on the defendant through state officials or through a statutory agent for service of process provides a basis for inferring that the corporation was neither incorporated in nor maintaining its principal place of business in Tennessee. But the inference is not compelled in the absence of some affirmative indication that this procedure was the only one available to the plaintiff. The inference may be helpful, however, in bolstering some allegations, as will appear hereafter.
Counsel's brief in one case urges that a petition drawn before the date the Supreme Court amended Form 2(a), supra, should be read liberally to permit an amendment. But this argument implies that the statute was ineffective until the Supreme Court adopted a suggested form to implement it. Actually, of course, the approved form applies directly only to complaints and does not fully comply with the requirements for petitions for removal, e. g., it contains no reference to citizenship at both the time of filing of the original suit and the time of filing the petition. The Federal Rules of Civil Procedure, in which the form appears as an appendix referable to Rule 84, govern procedure in removed cases only after removal, Rule 81(c).
The discussion thus far disposes of the cases numbered 2730 (Evans-Hailey v. Crane Co.); 2781 and 2782 (Manning v. Lion Oil); 2828 (Sullivan v. L. & N.); 2835, 2836 and 2837 (Rehorn v. Terminal Transport); 2847 (Falster v. Travelers); 2909 (Rowlett v. Kilburn); 3032 (Seyfert v. Newark Insurance); 3050 and 3052 (Taylor v. Insurance Companies); and 3156 (Buchanan v. Continental Southern). In each at least one allegation is entirely missing. These cases will, therefore, be remanded.
In eight cases the question is whether an allegation that a defendant corporation is "not a citizen of the State of Tennessee, in which the action was brought" provides a basis for amendment where the citizenship of the plaintiffs is adequately limited to Tennessee by other allegations.[4] The negative nature of the allegation tends to exclude all possibilities not previously negated. In seven of the cases, all filed by the Louisville & Nashville Railroad, the only point not already fully and completely covered positively and negatively at least once in the previous allegations was the principal place of business of the defendant corporation. This final allegation in those cases may be taken as a defective attempt to cover the remaining point, and therefore *204 it provides a basis for amendment. In the eighth of these cases, which was removed by the United States Fidelity & Guaranty Co., No. 2985, the question is closer.[5] In that petition the allegations prior to the phrase under consideration established only the individual plaintiffs' citizenship and one state in which the defendant was incorporated, but did not negate the possibility that the defendant was also incorporated by the State of Tennessee. The negative allegation must therefore serve as a base for a dual amendment to perfect allegations under both statutory definitions of corporate citizenship. The base might not be broad enough for the purpose except that the record discloses that service of process was had through the Commissioner of Insurance and Banking of the State of Tennessee and that the plaintiffs alleged that the defendant's "principal office" was in Maryland. With this assistance from the record, the negative allegation will be deemed sufficient basis for amendment.
Defendants will therefore be allowed time in which to file verified amendments to perfect the defective allegations in cases numbered 2886 (Murdic v. L. & N.); 2906 (Strube v. L. & N.); 2978 (Burgess v. L. & N.); 2985 (Warren v. U. S. F. & G.); 3058, 3059 and 3060 (Jennings v. L. & N.); and 3167 (Mundy v. L. & N.).
It remains to consider the peculiar problem in No. 2901 (Flippen v. Texas Eastern). In that case the citizenship of the plaintiffs was properly alleged. As to one defendant, the petition alleged the state of incorporation, the location of its principal office and the location of its principal place of business. As to the second defendant, it alleged only the state of incorporation and the location of the principal office. The location of a corporation's "principal office" is only one of many factors the courts consider in determining its principal place of business, Washington-East Washington Joint Authority v. Roberts & Schaefer Co., supra, 180 F.Supp. 15; Continental Coal Corp. v. Roszelle Bros., 242 F. 243 (6th Cir., 1917), but it may fairly be interpreted as a defective allegation intended to disclose the principal place of business. The court would have had no difficulty in allowing an amendment if it weren't for the separate allegation of "principal office" and "principal place of business" as to the first defendant. This discrepancy could be interpreted with some logic as indicating that the petitioner was aware of the distinction and therefore meant something else by the allegation of principal office Here, however, no independent purpose would be served and it must be deemed to have been intended as a part of the allegation of principal place of business. The positive allegation of the states of incorporation of both defendants will provide sufficient basis for an amendment negating incorporation elsewhere, and the allegation of the principal office will provide a basis for alleging the principal place of business of the defendant H. C. Price Co. The defendants in this case, therefore, will also be allowed time in which to file a verified amendment to perfect the defective allegations.
Orders will be entered in all of the cases in accordance with this opinion.
NOTES
[1]  "Form 2.Allegation of Jurisdiction.

"(a) Jurisdiction founded on diversity of citizenship and amount.
"Plaintiff is a [citizen of the State of Connecticut (form for natural person)] [corporation incorporated under the laws of the State of Connecticut having its principal place of business in the State of Connecticut] and defendant is a corporation incorporated under the laws of the State of New York  having its principal place of business in a State other than the State of Connecticut. The matter in controversy exceeds, exclusive of interest and costs, the sum of ten thousand dollars.
* * * * *
Explanatory Notes
"1. Diversity of citizenship. U.S.C., Title 28. § 1332 (Diversity of citizenship; amount in controversy; costs), as amended by PL 85-554, 72 Stat. 415, July 25, 1958, states in subsection (c) that `For the purposes of this section and section 1441 of this title [removable actions], a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.' Thus if the defendant corporation in Form 2(a) had its principal place of business in Connecticut, diversity of citizenship would not exist. An allegation regarding the principal place of business of each corporate party must be made in addition to an allegation regarding its place of incorporation. * * *"
[2]  "§ 1653. Amendment of pleadings to show jurisdiction

"Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."
[3]  "a. Amendments. A party may amend his pleadings once as a matter of course at any time before a responsive pleading is served * * *. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."
[4]  The allegations from No. 2906 will illustrate:

"1. That your petitioner, Louisville and Nashville Railroad Company, the defendant in the above cause of action, at the time this action was commenced was, and still is, a corporation incorporated under and existing by virtue of the laws of the State of Kentucky, and was not, and is not, incorporated under the laws of the State of Tennessee, wherein this action was brought. That your petitioner, Jesse Lee Routt, is a nonresident of the State of Tennessee, and a citizen and resident of the State of Kentucky.
"That the plaintiff in the above cause of action is a citizen and resident of the State of Tennessee.
* * * * *
"4. That the controversy herein between the plaintiff and your petitioners is a controversy between a citizen of the State of Tennessee, on the one hand, and citizens of the State of Kentucky, on the other hand. At the time of the service of said summons the petitioner, Louisville and Nashville Railroad Company, was and now is, a corporation duly organized and existing under and by virtue of the laws of the State of Kentucky.
* * * * *
"6. That this is a civil action brought in a State Court of which the United States District Courts have original jurisdiction because of diversity of citizenship, and the defendants are not citizens of the State of Tennessee, in which the action was brought * * *."
[5]  The pertinent allegations are: "* * * The complainants, Mrs. D. L. Warren, Sr. and D. L. Warren, Jr. at the time this action was commenced were and still are citizens of the State of Tennessee; and the defendant United States Fidelity and Guaranty Company at the time this action was commenced was and still is a corporation incorporated under the laws of the State of Maryland, and was not and is not a citizen of the State of Tennessee wherein this action was brought."