Krazy Khat

United States v. Hassan, No. 05-6949-cr (2d Cir. September 19, 2008) (Calabresi, Pooler, Sotomayor, CJJ)

Defendant Hassan was convicted of three conspiracy counts – (1) importation of a controlled substance (2) distribution of a controlled substance, and (3) money laundering – along with forty-one substantive money laundering counts, in connection with his importation of khat into the United States. On appeal, the circuit reversed the substantive money laundering counts due to insufficient evidence, and remanded the remaining counts for a new trial because of a seriously flawed jury instruction.

Background

Khat is the common name for the leaf of a plant that grows in East Africa and the Arabian Peninsula. When ingested, it produces a mild stimulant effect. Khat is subject to a unique and truly bizarre regulatory scheme. While khat itself is not a controlled substance, the stimulants sometimes present in the leaves are. When first harvested, khat often contains cathinone, which has been designated a schedule I substance. Within two to three days, cathinone decomposes, and becomes cathine, a schedule IV substance. Thus, khat containing cathinone is also a schedule I substance, khat containing cathine is a schedule IV substance, and khat containing neither is not a controlled substance at all.

Hassan was arrested in 2003 when he arrived at a building in Manhattan to pick up a package containing khat that had just been delivered there. He had on his person cash, receipts for money orders, and apparent drug records. Later, agents obtained copies of money orders that he purchased between 1998 and 2000 payable to his khat supplier in London.

He was convicted after a jury trial, and the court sentenced him to eighty-seven months’ imprisonment.

The Appeal

1. Due Process

In an issue of first impression, the circuit held, agreeing with two others, that the regulatory scheme for khat set out in the federal drug statutes (collectively, the “CSA”)is not unconstitutionally vague. Hassan claimed that a person of ordinary intelligence would not be able to determine that the importation of khat is unlawful or that khat might contain a controlled substance, since neither the CSA nor its attendant regulations mentions the word “khat” at all, even while mentioning other botanical sources. This is particularly troubling, according to Hassan, since khat is legal and socially accepted in large parts of the world and its effect is quite mild, similar to that of caffeine.

The court was sympathetic to Hassan’s argument, finding the CSA “troubling” with respect to khat. The court suggested that it would be “helpful” for Congress to include the word “khat” in the statute itself – since “cathinone” is such an obscure term.

Nevertheless, the court concluded due process does not require this because the CSA’s scienter requirement “saves” the statute “from constitutional trouble.” The requirement that the government prove that a person “knowingly or intentionally” import or distribute khat with cathinone or cathine is enough.

2. The Jury Charge

The government charged Hassan specifically with importing and distributing cathinone, not cathine, so that it could invoke the higher, schedule I penalties.

The district court charged the jury that it must find that Hassan “knew it was a controlled substance he was conspiring to bring into the United States,” but that it need not “find that the defendant knew or believed that it was a drug called cathinone, as long as the government proves that he knew and intended that some controlled substance would be imported in to the United States.” The court did not tell the jury that khat itself is not a controlled substance, and did not tell the jury that cathine is a different, less serious substance that could not serve as the basis for a conviction of the charged crimes.

The circuit agreed with Hassan that this charge was error, because it could have led the jury to convict based on the importation of some substance other than cathinone, such as khat itself – which is not even a controlled substance – or khat containing cathine, which Hassan was not charged with.

The error was particularly acute here, since the government’s witnesses frequently, and incorrectly, testified that khat itself is a controlled substance, while other witnesses testified about cathine’s presence in khat generally and in khat seized in connection with this particular case.

Accordingly, the court concluded that Hassan’s jury might well have convicted him on the erroneous belief that khat is a controlled substance or that he imported it with the intent to distribute cathine.

3. Sufficiency Issues

The court held that the evidence was “barely” sufficient on the khat counts themselves. There was no direct evidence that the khat seized on the day Hassan was arrested actually contained a controlled substance. But there was just enough circumstantial evidence to sustain the conspiracy counts: Hassan’s prior brushes with the law involving khat; his personal knowledge that it contained a stimulant, since he was from Somalia; and his efforts to distribute the khat quickly, before the stimulant effect dissipated.

But the court found that the evidence supporting the substantive money laundering counts – the money order receipts from 1998 to 2000 – was woefully insufficient. The government was required to show that those money orders represented funds that were actually the proceeds of cathinone sales.

It did not. The money order receipts were from between three and five years before Hassan’s arrest, and there was no evidence that he actually trafficked in cathinone during that earlier period. Even the presence of khat alone would not show this, since the cathinone dissipates so rapidly.