Novel Drug Conviction Upheld by 7th Circuit

     CHICAGO (CN) - Two men who distributed a drug-containing plant, popular in Somalia but largely unknown in the United States, out of an Indianapolis coffee shop cannot overturn drug conspiracy convictions, the 7th Circuit ruled.
     "This case introduces a new drug culture to the Seventh Circuit: the underground world of 'khat,'" Judge William Bauer began the court's 33-page opinion.
     Khat is the common name for the Catha edulis, a plant that primarily grows on the Arabian Peninsula and in parts of East Africa. When chewed or mixed in tea, khat leaves deliver stimulant effects.
     The plant is legal in Somalia where "estimates put its use among Somali men as being equivalent to caffeine or tobacco use among the American population," the 7th Circuit noted.
     Although khat plants themselves are not illegal in the United States, they contain cathinone and cathine, which are schedule I and schedule IV substances, respectively.
     "Not all khat leaves contain the same or similar amounts of either substance, however; some contain none," Bauer wrote. "The regulation of khat then is dependent upon the particular chemical composition of each leaf, which may vary depending on the size of the plant and when the plant was harvested."
     An Indianapolis coffee house owned by Somalia-born immigrant Jama Mire attracted the attention of drug enforcement officers in April 2009, after a confidential human source tipped off the FBI in his attempt to "clean up" the Somali community in Indianapolis. After conducting wiretaps, surveillance and several controlled drug buys, DEA agents arrested Mire and executed a search warrant on his coffee house.
     The search uncovered large bags full of dried khat, which Mire said must have been placed there by his "enemies." Some of the plants tested positive for cathinone or cathine.
     The investigation also tied another Somali man, Hassan Rafle, to cab driver Hussein Ahmed who imported khat from Europe. Rafle would drive khat shipments between Indianapolis and Columbus and wire money overseas for Ahmed.
     Mire and Rafle were both convicted of conspiracy to distribute cathinone. Mire was also convicted of "knowingly using or maintaining a place for the purpose of distributing and using cathinone."
     The men brought due-process claims on appeal, claiming the statute does not give warning that possession of khat may be illegal.
     "This argument is based on the fact that 'khat' is not listed in the CSA or the regulations, yet it still may be illegal to possess at certain times, depending on the chemical composition of a particular plant or leaf," Bauer said.
     The 7th Circuit rejected the government's defense that information in the Federal Register rectifies the statute's "underinclusive" nature by explaining the connection between cathinone, cathine, and khat, as well as marijuana-equivalency listings for khat-related offenses in the U.S. Sentencing Guidelines.
     Since the statutes requires scienter, meaning wrongful intent, however, their vagueness survives scrutiny, according to the ruling.
     The appellate panel also rejected defendants' claims that the DEA's Senior Forensic Chemist tested the khat plants based on an unreliable methodology. The test conducted indicated only the presence of cathinone or cathine, not the quantity.
     "In making this argument, [defendants] liken the situation here to the fact that the majority of dollar bills in the United States have traces of cocaine on them ... and people are not put in jail for the possession of dollar bills. But as we pointed out at oral argument, people do not ingest dollar bills to get the effects of cocaine (at least not reasonably); people do chew khat leaves for the stimulant effects," Bauer wrote.
     "To find in the Defendants' favor, we would have to write an additional element into the offenses: that khat leaves must have a 'certain amount' of cathinone versus 'any quantity.' That is not our job, and we decline to do so."
     The court also rejected Mire's double-jeopardy and sufficiency of evidence claims as meritless.