230 F. Supp.2d 109 (2002) | Cited 0 times | D. Maine | October 31, 2002


The Indictment charged that Abdigani Hussein "unlawfully, knowingly andintentionally possessed with intent to distribute a substance containingCathinone, a Schedule I controlled substance. . . ." Before the case wentto the jury, I reserved judgment on Hussein's Rule 29 motion foracquittal. The jury found him guilty. I now DENY the motion.1

The government concedes that there was no evidence that Hussein knewthat he had cathinone or that he knew what cathinone was. Even the DrugEnforcement Administration ("DEA") agents and chemist who testified werepreviously unfamiliar with cathinone. What the evidence showed was thatHussein picked up a parcel at the Portland, Maine, FedEx office. Theparcel contained what Hussein knew was khat, a plant material that growsin East Africa and the Arabian peninsula. Khat is imported by certainethnic groups to chew or brew into tea. Hussein intended to deliver it tohis friend Gani Mohamed. Hussein also had some khat in his car and hadbeen chewing it the morning of his arrest.

A DEA chemist testified that, upon chemical testing,2 a sample ofthe khat in the FedEx package contained a detectable amount ofcathinone. Without objection, I instructed the jury that, in order forthem to find that Hussein knowingly and intentionally possessed asubstance containing cathinone, the government must prove that either:(1) Hussein knew that his khat contained cathinone (which the governmentadmittedly could not prove); or (2) Hussein knew that the substance hepossessed contained a controlled substance. I then defined controlledsubstance as "a drug or other substance regulated under federal drugabuse law."

There are two issues on the motion for acquittal: (1) was theresufficient evidence for the jury to find beyond a reasonable doubt thatHussein knew that he possessed a controlled substance; and (2) hasthe government made it sufficiently clear that possession of khat iscriminal, to satisfy constitutional due process standards? I concludethat the answer to both questions is yes.


The drug laws contain what lawyers and judges call a "scienter"requirement. The statute specifically requires that the government provethat a defendant "knowingly or intentionally" possessed a controlledsubstance with intent to distribute.3

Courts have interpreted this statutory language to mean that thegovernment must prove a defendant's "awareness that he is in possessionof a controlled substance."4 But it is also clear that ordinarily adefendant does not have to know that what he is doing is criminal; it issufficient that he knows what he is doing. Sometimes we capture thisconcept in the phrase "ignorance of the law is no defense." For example,a felon who possesses a firearm has to know that he has a firearm, but hedoes not have to know that possessing the firearm is illegal in order tobe convicted of the possession offense.5

That formulation works fine for most drug cases. The statute makesmarijuana, for example, a controlled substance. Therefore, a defendantcannot successfully argue that he should be acquitted because he did notknow that possessing marijuana was illegal. But ordinarily the governmentmust prove that a defendant knew that what he possessed was marijuana.6

There are cases, however, where the government has not been able toprove that a defendant knew the identity of the illicit substance that hepossessed. For example, he may have thought that he bought one controlledsubstance (perhaps heroin), but it turns out to have been a differentcontrolled substance (perhaps cocaine). The First Circuit has stated thatin such circumstances the government has to prove that the defendant knewthat he possessed a controlled substance, but not the particularsubstance it turned out to be.7 It is from those cases that I drew thealternative formulation of the jury instruction here. I instructed thejury that in order for them to find that Hussein knowingly andintentionally possessed a substance containing a detectable quantity ofcathinone, "the government must prove beyond a reasonable doubt thatAbdigani Hussein knew . . . that the substance he possessed contained acontrolled substance." Neither the government nor the defendant objectedto the instruction.

So did the evidence permit the jury to find beyond a reasonable doubtthat Hussein knew that his package of khat contained a controlledsubstance? What the jury had was abundant evidence to support a findingthat Hussein knew that something illegal was going on. Hussein knew thathe and many others were picking up packages of khat at the FedEx officefor Gani Mohamed. (This was Hussein's second trip for Gani Mohamed.) Heknew that Gani Mohamed used the names and addresses of individuals allover Lewiston and Portland for shipments. He knew that Gani Mohamed hadgiven him only a tracking number for the package he was to pick up.Hussein knew that Gani Mohamed asked him to pick up the parcel eventhough Gani Mohamed was going to be in Portland himself, and indeed hadarranged for Hussein to bring it to him at a restaurant in the Portlandvicinity about an hour after the pickup. He knew that Gani Mohamed paidhim not in money but in khat. Hussein knew that Gani Mohamed sold thekhat for $6-8 a bundle to Somalis in Lewiston. When Hussein picked up theparcel, neither Gani Mohamed's name nor Hussein's name was listed asaddressee on it, and the label falsely listed the contents as documents.At the very least, therefore, the jury could find by circumstantialevidence but beyond a reasonable doubt that Hussein knew that he wasdoing something to avoid detection by law enforcement authorities.

One of the defense theories, however, was that any concern about lawenforcement authorities could just as easily have been about Departmentof Agriculture authorities8 as drug authorities. In other words,because vegetation generally cannot be brought into the country withoutinspection and permits (to restrict pests, invasive plants, etc.), thejury could find that Hussein knew that something illegal was going on,but could not find beyond a reasonable doubt that Hussein knew that itinvolved controlled substances.9 Although this issue is close, Iconclude that there was sufficient evidence for the jury to find thatHussein knew that he was trafficking in a controlled substance.10 Allthis clandestine activity involved khat, something that the evidenceshowed Hussein knew that he and other Somalis used for a stimulanteffect.11 There was no record evidence of concern by agriculturalauthorities, or evidence that Hussein knew of any such concern. All thatthe evidence showed on this subject was the cross-examination of theFedEx manager fromPortland who agreed that imported vegetation in theFedEx system was subject to special rules and regulations and generallywent to Memphis for processing. Although the jury could have chosen toacquit Hussein on the defense theory, they were also entitled to findbeyond a reasonable doubt that Hussein knew that he had a controlledsubstance and was evading drug-regulating authorities, not agriculturalauthorities.12


As I have said, ignorance of the law generally is no defense.13 Butthere is a competing statement of principle. When governmentalauthorities decide to make particular conduct criminal they must, inorder to avoid constitutional vagueness concerns, "define the criminaloffense with sufficient definiteness that ordinary people can understandwhat conduct is prohibited and in a manner that does not encouragearbitrary and discriminatory enforcement."14 Ambiguous criminal statutescreate two concerns: (1) adequacy of "actual notice" to people and (2)"arbitrary enforcement."15 For reasons that are unexplained, thiscountry's duly promulgated laws and regulations nowhere list khat as acontrolled substance. Instead, the regulations list cathinone in ScheduleI and cathine in Schedule IV. Cathinone and cathine are chemicalcomponents of khat. Does the failure to list khat itself as a controlledsubstance, while listing cathinone and cathine, satisfy constitutionalvagueness concerns?

On the subject of whether a law provides adequate notice that certainbehavior is criminal, the Supreme Court has said that the question iswhether "reasonable persons would know that their conduct is atrisk."16 A "scienter" requirement inthe statute, like therequirement in this statute that a defendant knows that he has acontrolled substance, reduces notice concerns.17 Moreover, in thisCircuit a defense of ignorance of the law, the notice argument, islimited to "wholly passive" conduct, and the First Circuit has ruledthat possession of a firearm is not "passive."18 If possession ofa firearm is not "passive," then neither is possession of khat. Thatends the adequacy of notice argument under existing precedent.19

The Supreme Court, however, has said that "the more important aspect ofthe vagueness doctrine `is not actual notice, but the other principalelement of the doctrine-the requirement that a legislature establishminimal guidelines to govern law enforcement.'"20 Otherwise, "acriminal statute may permit `a standardless sweep [that] allowspolicemen, prosecutors, and juries to pursue their personalpredilections.'"21 In this case, the record provides just enough tocause concern, but not enough to rule in the defendant's favor.

The evidence presented at trial indicates that cathinone is present infresh khat, but is highly unstable and degrades rapidly into the lesspotent cathine within 72 hours after the khat leaf is picked. Khat isgrown and harvested in East Africa and the Arabian peninsula. Hussein'skhat, therefore, was first harvested and then transported from thatlocation to England. Then it was repackaged and on March 21,2002, sentfrom London, England to the FedEx office in Portland, Maine. It arrivedon March 22, 2002, and was picked up that afternoon by Hussein forultimate distribution by Gani Mohamed. By then, surely, Hussein's khatmust have been approaching or past the cathinone/cathine transitionline.22

The chemist testified that Hussein's khat contained a detectable amountof cathinone, but could not describe the quantity.23 He failed toconduct tests that would determine if cathine was also present. There wasno evidence whether cathinone or cathine ever completely disappears fromkhat.24

There are three different sentencing scenarios for possession of khat:the Schedule I listing for cathinone and sentences up to 20 years;25the Schedule IV listing for cathine and sentences up to 3 years;26and no criminality at all for khat that contains neither chemical.Because the chemist found a detectable, but unmeasurable, amount ofcathinone in at least one of the khat stems or leaves,27 Hussein willbe sentenced under the strict provisions of Schedule I. But if adetectable though minute amount of cathinone remains indefinitely inkhat, that fact in itself would seem to introduce an extraordinaryopportunity for arbitrariness in prosecution charging decisions: the sameconduct can be treated as innocent, subject to a 3-year sentence, orsubject to a 20-year sentence. Or, if the government always selects themost serious charge (and, if a detectable amount of cathinone is presentin khat indefinitely), the regulatory indication that khat is sometimessubject to a 3-year maximum or sometimes innocent is seriouslymisleading.28 The record simply does not permit me to reach aconclusion.29

I remain troubled by the government's failure to be clearer in itsofficial regulations that possession of khat with intent to distribute iscriminal,30 especially since this is a vegetation that certain ethniccommunities have traditionally used over the years. I recognize that thistrial will provide future notice to many in Maine's Somalian communityboth through media coverage and through their attendance at the trial,but that is not the sort of notice that supports imprisoning thisdefendant. Nevertheless, the precedents of the United States Court ofAppeals for the First Circuit and the United States Supreme Court requireme to deny the motion for acquittal.

I therefore ORDER the preparation of a presentence report preliminary tosentencing.

1. The government's trial brief did not address the issues on thismotion; the defendant filed a trial brief apparently from a differenttrial. I invited post-trial briefing, but neither side providedany.

2. The DEA agent had frozen the khat immediately upon seizure to avoidany degradation.

3. 21 U.S.C. § 841(a) (2000).

4. United States v. Pope, 561 F.2d 663, 670 (6th Cir. 1977).

5. United States v. Ramos, 961 F.2d 1003, 1005 (1st Cir. 1992); UnitedStates v. Smith, 940 F.2d 710, 713 (1st Cir. 1991).

6. See, e.g., United States v. Cain, 130 F.3d 381, 384 (9th Cir. 1997)("Cain did not have to know that possession of a controlled substance wasillegal. He only had to know that the substances he possessed werecontrolled substances."); cf. Staples v. United States, 511 U.S. 600, 619(1994) (government must prove that defendant knew that his firearm hadthe physical characteristics that brought it within the scope of thestatutory prohibition).

7. United States v. Woods, 210 F.3d 70, 77 (1st Cir. 2000) ("[T]hegovernment need only prove that the defendant had knowledge that he wasdealing with a controlled substance, not that he had knowledge of thespecific controlled substance."); United States v. Cheung, 836 F.2d 729,731 (1st Cir. 1988) (evidence need not establish defendant knew specificidentity of the controlled substance); United States v. Kairouz,751 F.2d 467, 469 (1st Cir. 1985) ("What is of essence to establish. . . is that the substance be controlled . . . not which one of theproscribed substances it happens to be."); see also United States v.Barbosa, 271 F.3d 438, 458 (3d Cir. 2001); United States v. Sheppard,219 F.3d 766, 769 (8th Cir. 2000); United States v. Leavitt, 878 F.2d 1329,1337 (11th Cir. 1989); United States v. Lopez-Martinez, 725 F.2d 471, 474(9th Cir. 1984); United States v. Gonzalez, 700 F.2d 196, 200 (5th Cir.1983); United States v. Morales, 577 F.2d 769, 776 (2d Cir. 1978).

8. Or, alternatively, customs authorities concerned with collectingduties. The analysis is the same in either event.

9. As a result of this theory, I rejected a proposal from thegovernment to instruct the jury that it was sufficient to prove thatHussein simply knew that his package was "contraband."

10. "The evidence may be entirely circumstantial, and need not excludeevery reasonable hypothesis of innocence. . . ." United States v.Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991) (citations omitted); seealso United States v. Palmer, 203 F.3d 55, 63 (1st Cir.), cert. denied,530 U.S. 1281 (2000); United States v. Morillo, 158 F.3d 18, 22 (1stCir. 1998); United States v. Guerrero, 114 F.3d 332, 343-44 (1st Cir.1997).

11. The DEA agent testified that after he had identified himself as aDEA agent to Hussein, arrested him and taken him to the DEA office, heasked Hussein if he knew that what he was doing was illegal and Husseinreplied "not really, no." The jury could also draw a negative inferencefrom this qualified answer.

12. There are cases where courts have found that knowledge ofsuspicious or illegal activity was not enough. See, e.g., United Statesv. Reveles, 190 F.3d 678, 688 & n. 16 (5th Cir. 1999) (jury could notfind beyond a reasonable doubt that the defendant knew the schemeinvolved drugs as opposed to other contraband "such as illegally-importedceramics"); United States v. Salmon, 944 F.2d 1106, 1114-15 (3d Cir.1991) (same); United States v. Wexler, 838 F.2d 88, 90-92 (3d Cir. 1988)(same). But unlike each of these cases, Hussein knew that he had khat. Inthose cases there was no proof that the defendant knew what the "product"was, only that it was somehow illegal.

13. Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68 (1910)("ignorance of the law will not excuse"). The principle is the same"whether the law be a statute or a duly promulgated and publishedregulation." United States v. Int'l Minerals & Chem. Corp.,402 U.S. 558, 563 (1971). Here, the prohibition of cathinone results fromthe Administrator of the Drug Enforcement Administration, by authoritydelegated to it by regulation of the Department of Justice, having listedthe chemical in the Federal Register. 21 C.F.R. § 1308.11(f)(2), asauthorized by 21 U.S.C. § 811(a) and 28 C.F.R. § 0.100.

That in turn provides the same legal notice as inclusion in a statute.Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947); see also44 U.S.C. § 1507.

14. Kolender v. Lawson, 461 U.S. 352, 357 (1983).

15. Id. The rule of lenity serves similar purposes:

[T]he rule of lenity commands that genuine ambiguities affecting acriminal statute's scope be resolved in the defendant's favor. Theimportant purposes served by the rule of lenity include the following:"to promote fair notice to those subject to the criminal laws, tominimize the risk of selective or arbitrary enforcement, and to maintainthe proper balance between Congress, prosecutors, and courts." UnitedStates v. Bowen, 127 F.3d 9, 13 (1st Cir. 1997) (quoting United Statesv. Kozminski, 487 U.S. 931, 952 (1988)) (citations omitted).

16. Maynard v. Cartwright, 486 U.S. 356, 361 (1988).

17. Vill. of Hoffman Estates v. Flipside, 455 U.S. 489, 499 (1982);Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342 (1952);United States v. Collins, 272 F.3d 984, 988-89 (7th Cir. 2001) (a caseinvolving 21 U.S.C. § 841(a)).

18. United States v. Denis, 297 F.3d 25, 29 (1st Cir. 2002). Therequirement of "passivity" comes from Lambert v. California, 355 U.S. 225(1957). Lambert held that someone charged with being present in LosAngeles without having registered as a convicted felon as required bylocal ordinance could not be held to notice that her conduct (presence inLos Angeles) might be criminal. The Supreme Court described her as"wholly passive and unaware of any wrongdoing," and found the lawunconstitutional. Id. at 228.

19. I therefore do not reach Denis's second component of notice:whether Hussein should have been alerted to the consequences of hisconduct. Arguably purchasing a firearm puts one on more notice ofregulation, see United States v. Freed, 401 U.S. 601, 609 (1971); seealso United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558, 565(1971) (sulfuric acid and hydrofluosilicic acid), than picking up aparcel of khat, a naturally occurring plant that is not itself banned. Onthe other h and, the Supreme Court found no constitutional notice problemin an earlier drug statute that required no proof of knowledge that adefendant knew that he was selling an "inhibited drug." United States v.Balint, 258 U.S. 250, 254 (1922). There is also the question whetherHussein, as a Somalian immigrant, had less opportunity to be aware of theprohibition, or whether that matters for constitutional notice purposes.See Papachristou v. City of Jacksonville, 405 U.S. 156, 162-63 (1972)(observing that while the law must give fair notice of prohibitedconduct, "[i]n the field of regulatory statutes governing businessactivities, where the acts limited are in a narrow category, greaterleeway is allowed," yet "[t]he poor among us, the minorities, the averagehouseholder are not in business and not alerted to the regulatory schemesof . . . laws"). The record before me and before the jury does notdescribe Hussein's knowledge or lack thereof except to reflect that hehas been in this country for 7 or 8 years, that he speaks and reads someEnglish, and that he has owned 2 cab companies and 5 or 6 cabs in Bostonand Portland.

20. Kolender, 461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S. 566,574 (1974)).

21. Id. at 358 (quoting Goguen, 415 U.S. at 575 n. 7).

22. There was no evidence that anyone thought that the khat GaniMohamed was selling packed the heavier wallop of cathinone (likeamphetamines) rather than the somewhat more benign stimulant effect ofcathine.

23. The precedents make clear that a detectable amount is all that isrequired for conviction. United States v. Campbell, 61 F.3d 976, 979 (1stCir. 1995); United States v. Restrepo-Contreras, 942 F.2d 96, 99 n. 1(1st Cir. 1991); United States v. McHugh, 769 F.2d 860, 868 (1st Cir.1985). That is so even though the prosecution is under21 U.S.C. § 841(b)(1)(C) which, unlike subsections (A) and (B), doesnot use the word "detectable." United States v. Killian, 7 F.3d 927, 935(10th Cir. 1993); see also United States v. Brough, 243 F.3d 1078, 1080(7th Cir.), cert. denied, 122 S.Ct. 203 (2001).

24. The khat in Hussein's car, which necessarily came from an earliershipment, contained detectable amounts of both cathinone andcathine.

25. 21 U.S.C. § 841(b)(1)(C).

26. 21 U.S.C. § 841(b)(2).

27. The DEA chemist testified that he took samples from the khatpackage, then mixed them all together for testing. As a result, there isno way to know whether the cathinone he detected came from only one stemor leaf, or was present throughout the package.

28. The Supreme Court has found no unconstitutionality in having twostatutes that make the same conduct criminal but assign differentpenalties, thereby allowing prosecutors the discretion to decide underwhich one to prosecute. United States v. Batchelder, 442 U.S. 114, 122-26(1979). The situation here seems materially different where theregulatory scheme tells citizens and others that there are threedifferent actions with three different outcomes, one of them apparentlynot even criminal, yet all may actually involve the same conduct.

29. Sometime during the trial defense counsel provided to me withoutobjection a copy of the underlying evaluation that the Department ofHealth & Human Services provided to the DEA before the DEA decided tolist cathinone on Schedule I. He apparently obtained it through a Freedomof Information Act request. It says that "fresh khat may contain ahundred times more cathinone than dried material, which in turn shows anincreased content of cathines." Food & Drug Administration, Basis forthe Recommendation for Control of Cathinone into Schedule I of theControlled Substances Act 9 (undated), enclosed in Letter from James O.Mason, Assistant Secretary for Health, Department of Health & HumanServices, to Robert C. Bonner, Administrator, Drug EnforcementAdministration (Nov. 5, 1992). That statement intimates that detectableamounts of cathinone may remain indefinitely, but it is certainly notdefinitive. Moreover, it was not presented to me as part of the record,and no arguments of judicial notice have been made.

30. As the defendant has argued, this regulatory scheme is differentfrom that with which we are most familiar. Usually, both the naturalsubstance and the problematic chemical are listed as prohibited (forexample, marijuana and THC; peyote and mescaline). Moreover, noteverything that contains a prohibited chemical is prosecuted whenpossessed; for example, possession of poppy seeds, which may contain suchprohibited substances as morphine and codeine, is not subject to the druglaws. I recognize that when the final rule listing cathine as acontrolled substance was published in 1988, the DEA stated in"Supplementary Information" that it would treat khat the same ascathine. 53 Fed. Reg. 17,459 (May 17, 1988). But for some reason it stillchose not to list khat. Similarly, when in 1993 it listed cathinone, itrevised its earlier comments to indicate in "Supplementary Information"that it would treat khat with cathinone as if it were cathinone, and khatwithout cathinone but containing cathine as if it were cathine. Again,however, it failed to list khat itself. 58 Fed. Reg. 4316 (Jan. 14,1993). While the statute at issue here is not facially ambiguous, and theregulations clearly list cathinone as a controlled substance, I amtroubled that an ordinary person would have to consult the "legislativehistory" of the Federal Register to find mention of khat. See Sabetti v.Dipaolo, 16 F.3d 16, 17 (1st Cir. 1994) ("`It is not enough,' we haveexplained, for the true meaning of the statute `to be apparentelsewhere,' in extra-textual materials such as legislative history oranalogous statutes. The idea is that ordinary individuals trying toconform their conduct to the law should be able to do so by reading theface of a statute-not by having to appeal to outside legal materials.")(quoting United States v. Colon-Ortiz, 866 F.2d 6, 9 (1st Cir.1989)).

Back to top