United States v. Daahir Caseer

court was aware its the district America, UNITED STATES of grant departure a downward discretion to Plaintiff-Appellee, ... that the facts of the but determined justify departure. such a case did not Therefore, the district court’s refusal CASEER, Defendant-Appellant. Daahir departure is unre- grant the downward appeal.” viewable on Id. 495-96. No. 02-2268. Appeals, United States Court of ap Even if we to find that were Sixth Circuit.

pellate May’s request review of for a departure was we appropriate, downward Argued: 2004. June May’s pres would resist invitation in the Decided and Filed: Feb. weigh ent case to on whether defense sentencing entrapment is available in the Sixth Circuit. As the district court below,

concluded the facts in case this

simply support May’s do not claim that he cooking into entrapped powder

was fact, May,

cocaine into crack. does not

dispute that he was the one who contacted him to cook powder

Brown asked Similarly,

cocaine. Officer Allen and

Agent only waited McCann a matter of observing

minutes after Brown enter

May’s leaving residence before to secure a

search warrant. As soon as the search issued,

warrant was the officers used a telephone entry

cellular to order the team

to execute the warrant. therefore find We

no factual support basis this case to

May’s claim sentencing entrapment.

III. CONCLUSION above,

For all of the reasons set forth judgment

we AFFIRM the of the district

court. requirement

ter overcomes the threat process posed by the failure of the identify controlled substances schedules to However, khat as a source of cathinone. we and REVERSE Caseer’s conviction proceed- REMAND the case for further because, ings viewing even the evidence in Moore, Sidney L. ARGUED: Suther- light prosecution, most favorable to the land, Brennan, Atlanta, Georgia, & Asbill support the evidence is insufficient to a Oestreieher, Jr., Appellant. Stephan for E. that, doubt, beyond finding a reasonable Justice, Department United States Caseer knew that khat was a controlled D.C., Washington, for Appellee. ON substance. Moore, Sutherland, Sidney BRIEF: L. Atlanta, Brennan, Georgia, Asbill & for I. BACKGROUND Oestreieher, Jr., E. Appellant. Stephan centuries, persons For East African Justice, Department United States and Arabian Peninsular countries such as D.C., Parker,' Washington, Ross G. United Somalia, Kenya, and Yemen have chewed Detroit, Attorney, Michigan, Ap- States for or made tea from the stems the native pellee. (Catha edulis), khat shrub which is known to have stimulant properties. Khat BOGGS, Judge; Before: Chief is often consumed in social settings, and MOORE, HOLSCHUH, Judge; Circuit many men in the East African/Arabian Judge.* District region

Peninsular use khat. Appen Joint (“J.A.”) (D. 5-6). dix at 164-65 Op. Ct. OPINION Africa, legal many parts Khat is of East MOORE, Judge. Circuit East, however, Europe; the Middle trial, Following Defendanh-Ap- illegal bench the United States be pellant cathinone, Daahir Caseer was convicted on cause it contains I Schedule 15, May substance, conspiring cathine, 2002 of one count of import aiding cathinone and one count of Schedule IV controlled substance. 21 See 1308.11(f) and abetting importation § of cathinone. (listing C.F.R. cathinone aas stimulant); district court sentenced Caseer to two Schedule 21 C.F.R. 1308.14(e) years’ probation. appeals § Caseer his con- (listing cathine as a Schedule viction, (1) stimulant). asserting that: the controlled IV prosecu State and federal § substances schedules in 21 relating U.S.C. 812 tions to khat seem tó abe recent 1308.11(f) 21 C.F.R. fairly phenomenon, did not with the reported first cases khat, warn him that possession appearing in the mid-1990s. See United cathinone, (8th containing Sheikh, illegal; was v. 367 F.3d 756 Cir. 2004); Hussein, the district court committed clear error in United States v. 351 F.3d (1st Cir.2003); finding Gurreh, that Caseer had the scienter re- 9 v. Connecticut quired 166, agree (2000); conviction. with the 60 Conn.App. We 758 A.2d 877 513, district court that Maryland, Caseer’s conviction did v. Warsame 338 Md. process (1995); Ali, violate due because the scien- A.2d 1271 Minnesota v. * Holschuh, Ohio, sitting by designation. Honorable John D. Judge States District for the Southern District However, Ca- via Union. v. dam Western (Minn.Ct.App.2000); Ohio N.W.2d money wired explained 787 seer Samatar, App.3d Ohio khat and Siad, was (2003); No. Amsterdam unrelated Virginia N.E.2d (Va. and that the was for Somalia Cir. bound 1997 WL CRIM Awale and three or 1997). gift was a from Mr. 6,Mar. Ct. people. four other 2001, Daahir of his trial At the time arriving in on June After Amsterdam States for in the United had lived Caseer Adams met with Eldridge having spent years, three approximately their Awale, the contents of who removed life in Somalia years of his sixteen the first bags. empty left luggage and with The events Kenya. years and seven Eldridge and Adams morning when spring began question States, fly to back a book- were to Eldridge, approached John Caseer now bags, with the three Nashville, taxicab Awale returned Tennessee keeper at worked, containing approximately bundles about the company where Caseer khat, 14,250 roughly stems. to Amster- Eldridge traveling possibility Netherlands, dam, transport to about returned to the Eldridge and Adams States. of khat the United fifty pieces to 5, 2000, landing at on June United States that he could Eldridge to explained Caseer Detroit, drug- A Michigan. airport of visa because trip make the himself not airport alerted dog detection at the Detroit Eldridge assured issues.1 Caseer khat, and a bags on one of the filled and, at product agricultural an khat was (“DEA”) Agency agent Drug Enforcement worst, confiscate the might customs Eldridge and Adams. The approached trial, Eldridge testi- a fine.2 At and assess to with the investi- pair agreed cooperate (80% in Nashville that taxicab drivers fied Eldridge placed a recorded gation, and to be of believed to 90% of whom he informing him call to Caseer telephone descent) frequently or East African Somali had cleared cus- arrived and that he had that, from his observa- chewed khat trial, that dur- Eldridge testified toms. At tions, than caffeine. stronger no khat was call, complained about telephone he ing the 2). (D. atOp. at 161 Ct. J.A. than being greater the amount of khat and reiterated his had Caseer indicated go to Amsterdam Eldridge agreed to his pay would understanding that Caseer Adams. along girlfriend, with his Shannon told Caseer expenses. and related travel compen- to Eldridge receive would $200.00 Eldridge and that work, him Eldridge trust day him missed for sate matter with to discuss the did not need expenses travel Eldridge and Adams’s Eldridge also testified anyone else. by and several covered Caseer would be returning to after he met with Caseer be divid- drivers who would other taxicab they him told and that during Nashville Caseer admitted khat. Caseer also ing the illegal and anything had not done Eldridge’s three weeks before trial take care he would prosecuted, that to Amster- not be $1,500.00 had sent been trip, events, Panning, agent with the United Douglas an Caseer was 1. At the time of these Service, the U.S. per- testified that approval application for Customs awaiting his residency Caseer admitted was to practice status. at that time manent Service’s Customs Germany a few trial that he had traveled of khat small amounts levy $500.00 fines for events, that, but unlike prior to these weeks personal use if federal local for intended Netherlands, Germany require a did not prosecute. decided authorities visa. it, just Eldridge stay guilty possession should to misdemeanor of cathi- and that none to a pursuant plea agreement recom- say anything about Caseer’s quiet and not mending probation. six months’ Caseer involvement. right by jury waived his to trial and was Agent Panning then traveled Nash- ’ judge tried before a district for the East- During ville arrested Caseer. Michigan. ern District of questioning, knowing Caseer admitted At prosecution’s the conclusion of the Adams, Eldridge, and Awale. Caseer case-in-chief, filed a Caseer motion initially Eldridge pur- stated that had judgment pursuant to Federal acquittal tickets; however, airplane chased the 29, claiming: Rule of Criminal Procedure Caseer later said that a Hussein Abu- (1) right that his constitutional to due pro- trial, purchase. gar had made the At cess had been violated because he had not Caseer stated that he lied to have fairly criminality been warned of the of his Agent only Panning, but that he did so (2) actions; qualified as a food . shaky because he was scared. subject regulation by item not the Con- A sample of the khat seized the DEA Act; trolled Substances sent to Michigan was State Police for presented evidence at trial was insufficient Switalski, analysis. Jurgen a chemist em- prove beyond to a reasonable doubt Police, by ployed Michigan State test- import Caseer intended to cathinone. The ed the khat and concluded that it con- district court took Caseer’s motion under eathine, cathinone and did not tained but advisement, denying later' the motion and determine in what amounts. tes- Switalski finding guilty Caseer on both counts. The that, harvested, tified once has been district court sentenced Caseer to two to begins dissipate cathinone and the years’ probation. appeals Caseer now his rises; however, eathine conviction, level Switalski asserting fair warning and long insufficiency-of-the-evidence stated that he did not know how claims first in- judgment raised his motion for of ac- degrade. would take for the cathinone to quittal. Adams, Eldridge, and in- Caseer were (1) dicted on counts: conspiracy two to II. ANALYSIS cathinone;

import and importation of Warning A. Fair cathinone, aiding abetting and and im- portation Eldridge agreed of cathinone.3 appeals first Caseer his conviction testify against that, to pleaded Caseer and on the basis because the schedule of With, count, appear 3. There respect be several inconsistencies to the second the in indictment, amongst the district court subheading dictment's lists the offense as "21 opinion, judgment and the district court’s as § 841(a)(1) Importation U.S.C. of Cathi — specific provisions U.S.Code Caseer is none; § Aiding Abetting.” U.S.C. 18 2— violating. accused of (Indictment). However, 841(a)(1) § J.A. at 8 count, respect With to the first the indict- manufacture, distribution, pertains to the charge "Conspiracy ment lists the as to Dis- substances, dispensing of controlled not their tribute Cathinone” in violation of 21 U.S.C. importation. Based on the references to im 846, § but the text of the indictment refers to portation in the text of the indictment its cathinone, conspiracy import in violation 952, § governs citation to 21 U.S.C. which 952, §§ of 21 Appendix U.S.C. 963. Joint importation, correctly the district court treat ("J.A.”) (Indictment). at 7 We conclude that charge arising § ed the under 952. J.A. at correctly charge the district court treated the 2); (D.Ct.Op. (Judgment). 160 n. J.A. at 181 conspiracy import cathinone in violation 952, (D.Ct. §§ of 21 U.S.C. 963. J.A. at 160 1); Op. (Judgment). n. J.A. at 181

833 any quantity contains preparation 21 C.F.R. substances having a 1308.11(f) following substances as a controlled cathinone § lists explicit refer effect on the central nervous making stimulant without substance salts, isomers, fairly “khat,” including warned its system, he was ence States into importing of isomers: salts was States tion which F.3d Cir.2004) unconstitutionally vague illegal and thus process. v. (citing United Namey, 364 F.3d we review Whether (6th Cir.), his conviction de novo. United a criminal cert. is a 843, 844 denied, legal ques Hill, violates statute (6th 528 167 « (3) Cathinone.1235 phedrone Some amino-l-phenyl-l-propanone, alpha-aminopropiophenone, aminopropiophenone,and nore- ^[*] trade or other names: ^{[*] [*]} 2- 2- L.Ed.2d 148 S.Ct. 1308.11(f); § see Schedules C.F.R. (1999)). Placement Substances: Controlled 2,5-Dimethoxy-4-ethy- Cathinone aas of Cathinone 1. Establishment I, Fed. Into lamphetamine Schedule Substance Controlled (Jan. 14,1993). 4,316 Reg. Substances 812 of the Controlled Section 1308.11(f) § makes Although C.F.R. Act, forth sched- sets five U.S.C. controlled sub- cathinone is a clear that which are substances ules of controlled nor the Code stance, neither the U.S.Code annually by promulgated rules revised Regulations controlled sub- of Federal DEA and publish- Administrator from plant refers schedules stances 21 seq. § et See in 21 C.F.R. 1308.01 ed edulis, derived, Catha which cathinone “(a) in part § (providing 811 U.S.C. contrast, commonly known as “khat.” pro- apply shall Attorney General con- as other chemicals classified several controlled subchapter to the of this visions in the sched- are listed trolled substances in the estab- listed schedules substances sources. along with their botanical ules title and to by 812 of this lished section 1308.11(d)(23) See, (listing § e.g., C.F.R. added other substance any drug other or hallucinogenic as a controlled “peyote” subchapter,” under this to such schedules listing explaining that this and substance adding for setting procedures forth and presently parts plant “all refers to removing substances to and substances wil- botanically Lophophora as schedules); classified substances from controlled not, Lemaire, or growing whether (“Schedules I, II, liamsii 812(c) n. 1 § & 21 U.S.C. any thereof, any extract the seeds shall, until III, IV, unless and and V every compound, plant, and part of such of this to section 811 pursuant amended mixture, derivative, manufacture, salts, or drugs or oth- title, following consist of the or its seeds plant, of such preparation are .... schedules Revised er substances 1308.11(d)(28) extracts”); § Regula- C.F.R. of Federal in the Code published 21, “tetrahydrocannabi- Food and that the term tions, (stating of Title Part 1308 natu- “tetrahydrocannabinols in the was not listed nols” means Drugs.”). Cathinone genus sched- in a rally Act original Substances contained Controlled (cannabis syn- as agency plant), as well rule ules but was added Cannabis con- in 1993: substances equivalents substance thetic Schedule plant or in the cannabis tained (f) ex- specifically Unless Stimulants. plant, of such extractives resinous and/or in another sched- or listed cepted unless derivatives, their substances, mixture, material, synthetic ule, compound, any ' stance.”). Sentencing isomers with similar chemical structure The U.S. Guidelines pharmacological activity to those sub- provide marijuana also equivalency plant”); contained in the C.F.R. stances offenses, respect to khat-related but 1308.12(b)(4) § II (listing Schedule do not reference the chemical “cathinone.” (9040) salt, any com- “[c]oca leaves Sentencing Man- States Guidelines pound, preparation derivative or of coca (2003) (Commentary) (listing ual 2D1.1 (9041) ecgo- (including leaves cocaine gram one of khat equivalent to 0.01 (9180) salts, isomers, nine and their deriva- grams marijuana); Amendments to the derivatives), tives and of isomers and salts Sentencing Guidelines for the United shit, derivative, or any compound, Courts, 25,074, 25,079- 60 Fed.Reg. preparation chemically thereof which is 10,1995). (May equivalent any or identical with of these substances, except substances Application Fair-Warning Doc- shall not include decoeainized' coca leaves trine to Khat-Related Offenses leaves, extrac- wh[i]eh extraction coca At fair-warning the heart of the doctrine ecgonine.”). tions do not contain cocaine or is one the central tenets of American However, Supplementary Informa- legal jurisprudence, “[ljiving under a published tion Federal Register rule of law entails suppositions, various along adding with the text of the rule ‘(all one of persons) which is that are cathinone as a Schedule I substance does entitled to be informed as to what explain the connection between khat and ” Papachris State commands or forbids.’ (“Cathi- 4,317 Fed.Reg. cathinone. Jacksonville, 156, City tou v. 405 U.S. major psychoactive component none is the 92 S.Ct. 31 L.Ed.2d 110 (khat). of the plant Catha edulis (quoting Lanzetta v. Jersey, New young of khat are for a leaves chewed 451, 453, (1939)); 59 S.Ct. 83 L.Ed. 888 stimulant effect. Enactment of this rule Co., Connally see also v. Gen. Constr. placement results in material 385, 391, 70 L.Ed. 322 which contains cathinone into I. Schedule (1926) (“[A] statute which either forbids or cathinone, When khat contains khat is a requires doing of an act in terms so During Schedule substance. either the vague intelligence that men of common decomposition maturation or the necessarily must guess meaning at its material, cathinone is converted to application differ as to its violates the first cathine, substance. In a a.Schedule IV law.”); process essential of due Colum rule, previously published final the Admin- Res., Tatum, bia Natural Inc. v. 58 F.3d subject istrator stated that khat will be to 1101, (6th Cir.1995), denied, 1105 cathine, cert. the same Schedule controls as TV (see 1988).4 1158, 1041, 17459, 17, May 53 FR S.Ct. 134 L.Ed.2d 189 When (1996) (“[Bjecause cathinone, khat does not contain but does we assume that man is cathine) contain khat is a Schedule IV free to sub- steer between lawful and unlawful Substances; Register with the Temporary As Federal Controlled document Placement listing includes the text of the final rule ((+) norpseudophedrine), cathi- of Cathine Fen- — substance, camfamin, portion'of none Fenproporex as and Mefenorex Into IV, 17,459, Register 17,460 publication listing the Federal Fed.Reg. cath- Schedule 17, 1988) (May (noting ine as relationship controlled substance notes the rela- between tionship only Supplementary between lchat and cathine khat and cathine in Informa- section), Supplementary 1308.14(e)(1) Information section and not tion with 21 C.F.R. (listing in the text of the rule included in the Code of cathine as a Schedule IV controlled Regulations. khat). Compare including Federal Schedules of substance but no reference to Cir.1994)). Supreme Court ex- As per- give that laws conduct, insist we Lanier, States v. courts plained in United ordinary intelligence reasonable son of so prohibited, process criminal defendants’ due safeguard what is to know opportunity Vague laws accordingly. warning fair in several fashions: may right act to a that he providing the innocent may trap First, en- vagueness doctrine bars ”) City Grayned v. (quoting warning.’ fair for- of a statute which either forcement 108-09, 92 S.Ct. Rockford, 408 U.S. doing of an act requires bids or (1972)). 2294, 33 L.Ed.2d of common vague terms so men necessarily guess at its must intelligence subject particular to laws are Vague application. to its meaning are and differ as sanctions criminal scrutiny when Second, junior rights are a sort of version or constitutional threatened Flip doctrine, canon of strict vagueness Estates v. risk. See Vill. of Hoffman Inc., Estates, statutes, side, 455 U.S. rule of criminal construction Hoffman 1186, 71 L.Ed.2d 362 498-99, warning by 102 S.Ct. fair so lenity, ensures (1982) (“The that the vagueness degree of in a criminal statute resolving ambiguity rela well as the tolerates —as clearly Constitution conduct only apply en fair notice fair importance of Third, tive clarity at the although covered. nature part on the depends by judi- supplied be requisite level forcement — Thus, regula economic of the enactment. an uncertain stat- gloss cial on otherwise subject vagueness a less strict tion is ute, apply- process bars courts often subject matter its test because criminal construction of a ing a novel businesses, narrow, because more the stat- that neither to conduct statute be plan economic demands which face has any prior judicial decision ute nor to consult carefully, expected can havior scope. its fairly disclosed be within action in advance of legislation relevant the touchstone guises, these each greater expressed also .... The Court has statute, standing either is whether rather with civil tolerance enactments construed, it reason- alone or as made conse penalties because the than criminal time ably clear at the relevant qualitatively are imprecision quences criminal. conduct was defendant’s impor the most [Pjerhaps .... less severe 266-67, clarity affecting tant factor (1997) (internal quotation L.Ed.2d a law is whether demands Constitution omitted). citations marks and of con the exercise it threatens to inhibit of fair warn the doctrine Although If, for ex rights. stitutionally protected citizens importance of emphasizes the ing right of with the the law interferes ample, not is and is understanding what conduct association, a more strin of speech or free invoke frequently courts also prohibited, apply.”); Belle test should vagueness gent no of the law is ignorance the maxim Har Township v. Maer Harbor Charter of California, 355 Lambert v. See defense. Cir.1999) (6th 553, rison, 559 170 F.3d 240, 228, 2 L.Ed.2d 228 225, 78 S.Ct. U.S. require impossible we do not (“[Ajlthough (1957) rule (noting “[t]he conduct, the governing clarity standards excuse’ is will not of the law ‘ignorance standard a relative strict apply court must ....”) Shevlin (quoting in our law deep criminal sanctions scrutiny here where of Minnesota, 57, 218 U.S. Co. v. Lawson, Carpenter 461 (citing apply.”) Kolender (1910)); see 663, 930 68, 54 L.Ed. 30 S.Ct. 1855, 361, 75 352, L.Ed.2d 103 S.Ct. U.S. 373, States, 229 U.S. v. United also (1983); Armory, Inc. v. Nash Springfield 903 (1913) (6th 780, 1232 377, 57 L.Ed. 250, 33 S.Ct. Columbus, F.3d 252 29 City of 836

(“[T]he full of instances where a lishes cathinone as a law is Schedule Rather, on substance. depends estimating man’s fate his the asserted constitu is, tional jury subsequently provision defect of this is that rightly, that it, through the of degree. prohibited of If definition con estimates some matter his by duct the use of an only may incur obscure scientific judgment wrong, is he term, i.e., “cathinone,” ordinary here; persons of imprisonment, a a fine or short he death.”). intelligence, reading even after the statuto incur penalty of As we text, ry would be unaware that khat observed, is previously require- have “The words, controlled substance. In other applied ment of fair notice is not mechani- vagueness controlled substances schedule’s cally regard or without for the common language’s impreci derives not from the judgment people sense do not review sion but rather from the schedule essen copies every passed.” law Columbia tially being in a language foreign written Res., at 1105. Natural 58 F.3d persons ordinary intelligence. When Thus, “[vjagueness may while in precise yet latently statute is on its face (1) validate a criminal if it statute either vague, danger of persons being caught provide ‘to fails the kind notice that will criminality unaware of the of their conduct ordinary people enable understand what Columbia, high. City Bouie v. Cf. prohibits’ conduct it authorizes or 347, 352, 1697, 378 U.S. encourages ‘arbitrary discriminatory (1964) (“The L.Ed.2d 894 thrust of the ” enforcement,’ Bowker, United States v. distinction ... produce potentially (6th Cir.2004) 365, (quoting 372 F.3d greater deprivation right to fair Morales, City 41, Chicago v. case, notice in claim this sort of where the (1999)), S.Ct. L.Ed.2d 67 precise is that a statute on its face has (cid:127) Supreme Court has also stated that unforeseeably been retroactively ex important aspect vagueness “the more panded by judicial construction, than in notice, doctrine ‘is not actual but the other the typical vagueness’ ‘void for situation. principal element the doctrine —the re aWhen statute on face vague its quirement legislature that a establish mini overbroad, it at gives potential least de guidelines govern mal law enforce notice, fendant by very some virtue of this ment,’” Kolender, U.S. 103 characteristic, question may that a arise as (quoting S.Ct. 1855 v. Goguen, Smith coverage, to its it may and that be held to 566, 574, 94 S.Ct. 39 L.Ed.2d contemplated cover his conduct. When a (1974)). Res., See Columbia Natural on its face precise, is narrow and statute (“As matter, 58 F.3d at 1105 practical however, it potential lulls the defendant Supreme Court considers the latter into a security, giving false sense of him no important. concern the more This reflects reason even to suspect clearly that conduct understanding common sense outside the scope the statute as written read, average citizen does not at his lei will be retroactively brought within it sure, federal, state, every and local statute judicial an act of construction. If the subject.”). he is Fourteenth Amendment is violated when a The case at bar differs from most fair- person required speculate is ‘to as to the warning cases' in that the provi- criminal meaning penal statutes,’ Lametta, of as in at ambiguous (the statute’s) sion issue here is not in the or ‘guess to at meaning and traditional party sense. Neither has chal- application,’ differ as to its in Connally, as lenged fact that 21 when, C.F.R. the violation greater much 1308.11(f)(3) explicitly on its face uncertainty estab- because the toas the statute’s

837 determining a or for ‘range’ of until boundaries not revealed meaning is itself necessary af- of time is to consti- decision, length not even what person a court’s occupation in such a ‘usual’ one within engage prior tute a opportunity to an forded committing the act of the act. Men familiar meaning before speculation observing of range conditions and desirous question.”). difficulty in deter- the law will have little “gen- noted previously haveWe it.”). by mining prohibited what is to presumed are that citizens rule eral ... of the law requirements However, a provision, know when evaluate we when absolute, abrogated here, not regulates one at issue like the obscure is ‘so technical or large law at and not a the conduct the public engaged to individuals threatens ensnare do not industry subgroup, we particular conduct,’ to because innocent apparently to the specialized knowledge “per- impute would knowledge of such a law presume we ordinary intelligence” whom son name- process principle, a core due violate As the judge vagueness. the statute’s Su- warning fair citizens are entitled ly that Connally: explained preme Court criminal.” may be their conduct point of differentiation precise F.3d Napier, v. 233 statement; easy of some instances is not Cir.2000). (6th 397-98 ... the decisions of generally ... but court, upholding statutes suffi- or technical of scientific The use certain, the conclu- ciently upon rested in a art common terminology or terms of phras- words or they employed sion automatically ren field does regulated special or other having technical es vague. unconstitutionally der statute to enable meaning, enough well known Estates, 455 at U.S. See Vill. Hoffman correctly ap- reach to those within their (citing 1186 dictionar n. 102 S.Ct. 501 them, law or a common ply well-settled a mari butt of defining “roach” ies notwithstanding an element meaning, that, “The explaining juana cigarette in the definition as to which esti- degree ... criticized Appeals Court differ, that, ... for rea- might mates clip’ is. what a ‘roach explain fail[ure] from the text either sons found to result criticism is unfounded because This subjects or the the statutes involved sufficiently clear mean has term technical dealt, a standard they with which industry. drug paraphernalia in the ing sort was afforded. some burden, could easi Flipside undue Without (internal 391-92, term.”); 126 at S.Ct. 269 U.S. meaning of the ly determine omitted); Sherman, marks and citations quotation Provision Co. Hygrade Inc., 29 Armory, F.3d 497, 502, Springfield L.Ed. 402 see S.Ct. weapons city assault ordi- (“[T]he meaning (holding (1925) has a term ‘kosher’ vague on its face unconstitutionally nance engaged one to enable enough defined well pro- ordinance it, in the “[njothing because apply at least correctly trade to enable sufficient information v. vides thing.”); Omaechevarria general as a average intelligence deter- 343, 348, person of Idaho, they pur- wish (“It weapon the mine whether urged that is also L.Ed. history of the sort one, a design chase has statute, is so being a criminal Idaho this ordi- bring it within the which as to violate its terms indefinite indicates The record coverage. nance’s Amendment by the Fourteenth guaranty very knows gun owner average law, fails to that since it process its operates or gun how little about his of the the ascertainment provide for 838 vagueness prob-

design defining These none” “khat” as “a shrub features. (Catha edulis) remedy. family lems are not difficult cul- the staff-tree subject does allow for more exact- matter tivated in the Middle and Africa for East greater It a case in ness. which is,not its leaves and buds that are the source of a practical specificity would interfere habituating stimulant when chewed or contrary, Colum- administration. To tea”); English Dictionary used as Oxford many effectively pursu- for options bus has Online, http://www.oed.com (containing running without afoul ing goals its stated defining no definition for “cathinone” and omitted). (citations process.”) of due edulis, family shrub, Catha “kat” as “[a] Here, the term “cathinone” is sufficient- Celastraceas, Arabia, a native of where it is ordinary ly persons obscure that intelli- leaves, extensively cultivated for its gence reading the controlled substances properties have similar to those of tea and probably schedules would not discern coffee; drug the narcotic obtained from containing cathinone possession of plant.”).5 leaves this possession cathine constitutes and/or ' We are hesitant to embrace the seeking controlled substance. Persons linking notion statements cathinone 1308.11(f) § of 21 clarification C.F.R. published and khat Register the Federal by many would be unaided mainstream or the 1971 United Nations Convention on dictionaries, they contain no definitions Psychotropic Substances would alone es no “cathinone” and reference to make warning tablish fair sufficient to sustain a the chemical their definitions of “khat.” criminal conviction this case.6 Publica See American Heritage Dictionary tion in the Register regulations Federal (4th ed.2000) 294, English Language which have the force of law does furnish (including no definition for “cathinone” and constructive notice of the content of those defining evergreen “khat” “1. An shrub to them. See regulations subject to those edulis) tropical native to East Afri- CCatha States, Yakus v. United 414, 435, ca, having green opposite dark leaves that 660, (citing S.Ct. 88 L.Ed. 834 stimulating are chewed fresh for their ef- 307, § U.S.C. now codified as 44 beverage prepared fects. 2. A tealike U.S.C. 1507). However, plant.”); “Supplementary Infor leaves this Merriam-Web- (11th 195, Dictionary mation” Collegiate accompanying agency ster’s an rule is ed.2003) no (providing separate definition for “cathi- from the text of the rule itself schedules, 5. We also note that the failure to include a controlled substances but rather is reference to the khat shrub in the controlled commonly accepted method of referenc- not, government substances schedule is contends, as the ing Catha edulis. omitting akin to street names or slang Levy, terms. In United States v. we reject 6. We also the contention that the U.S. rejected challenge to the use of the term Sentencing Guidelines' of mari- establishment cocaine,” “cocaine base” lieu of "crack juana equivalency for khat-related offenses that, stating type “The fact that a of contra warning furnished Caseer sufficient fair band have various nicknames on the Smith, illegality of khat. See United States v. punishing street does not render a statute (6th Cir.1996) (rejecting 73 F.3d possession simply of that contraband invalid vagueness challenge Sentencing Guidelines because it fails to list all of the then-current that, provision, stating Sentencing "The (6th nicknames.” 904 F.2d 1033 n. 1 illegality Guidelines do not establish the . denied, Cir.1990), cert Rather, they conduct. are directives to (1991). Here, S.Ct. 112 L.Ed.2d 1060 citizens.”) (internal judges quotation and not contrast, referring to the botanical source of omitted). marks and citation passing cathinone as “khat” is not a fad that require repeated amendment of the

839 See Vill. trolled substance. Federal in the of Code not codified and is of Hoffman Estates, 499, at 102 S.Ct. 1186 455 Hence, of the U.S publication Regulations. (“[T]he a recognized that scien- Fed- Court has in the Information” “Supplementary may mitigate a law’s suffi- requirement furnish notice ter Register does eral respect to the of its vagueness, statute vague especially criminal to cure a cient that Jef- to the adequacy complainant Calvin of defect. See John notice constitutional Boyce and the Motor Jr., Vagueness, proscribed.”); conduct is fries, Legality, his Statutes, States, 337, Lines, 71 Va. 342 U.S. Penal Inc. v. United Construction of (1952) (Mar.1985) 329, that (asserting 342, L.Ed. 367 189, 96 231 72 S.Ct. L.Rev. the ar- (“The only is not those who punishes of notice real statute source “[t]he reports law of This re- Regulation. pronouncements knowingly violate cane society the sensibil- in- culpable of of presence of quirement but customs termed Holmes the offense people necessary of element of ities tent as a —what duty.’... [I]t social destroy any ‘common force sense of does much to with the preoccupation Regula- application that of argument well be that has diverted ‘lawyer’s notice’ held of unfair that it must be concept tion would be so Screws, 102-03, real unfair- invalid.”); at from instances 325 U.S. our attention 377, ness.”) Nash, (“[W]here at im- punishment (quoting S.Ct. 780). knowingly done only for an act posed S.Ct. which the doing purpose with the concerns, mindful arewe Despite these cannot be prohibits, accused statute of a “[t]he fact that classification warning lack of from said to suffer is a vagueness as void federal statute he does is the act which knowledge that Supreme Court significant matter. requirement of .... [A] violation of law construc every reasonable has held from ... saves the Act specific intent to, save a. in order to resorted tion must be unconstitutionality on the charge of unconstitutionality.” Colum statute the re- Although grounds vagueness.”). (internal Res., F.3d at bia Natural in this case intent specific quirement omitted); and citations marks quotation infirmity re- any constitutional mitigates States, 325 U.S. Screws v. see the con- vagueness of sulting from the 89 L.Ed. 65 S.Ct. schedules, caution we trolled substances (“This consistently favored that has Court statutes, drafting of criminal against supports legislation interpretation of rely populace, general at targeted constitutionality.”). its terms or scientific on obscure technical importa out arising Crimes “sanc- we ordinary persons, lest foreign to proof require substances tion of controlled ‘pub- who Caligula practice tion[] or inten “knowingly the defendant very in a law, it was written but lished ... a sub tionally import[ed] corner, so hand, up in a posted small 960(a)(1). Thus, ....” 21 U.S.C. stance of it.’ copy could make no one ordinary intel person that a the concern Caesars, p. Suetonius, of the Twelve Lives himself unwittingly ligence expose could Screws, 278.” to the penalties herself criminal substances the controlled vagueness is overcome respect to khat schedules with Sufficiency Evidence B. 11(B) Part because, as discussed here his con also asserts showing of Caseer below, requires conviction the district stand because cannot a con- viction khat contains knowledge that actual 840 Reveles, 678, in denying judg

court erred his motion for United States v. 190 F.3d 686 (5th Cir.1999) (internal and him acquittal convicting ment on quotation marks omitted). the basis that he had sufficient notice and and citations knowledge satisfy to the scienter requirem analysis In its require- the scienter Where, here, ent.7 the district court count, conspiracy ment for the first trial, has conducted a bench this court cathinone, import the district court stated findings reviews the court’s of fact district summary fashion that: and its conclusions of for clear error law Defendant Caseer testified that he re- v. Al-Zubai de novo. See United States quested Eldridge bring back khat (6th 804, Cir.), dy, 283 F.3d 808 cert. de from Amsterdam. Defendant Caseer nied, 2638, 536 U.S. 153 knowingly voluntarily joined and in the (2002); L.Ed.2d 818 United States v. At ... conspiracy well, (6th Cir.1978). 652 A F.2d proven beyond Government has clearly court has erred district when this reasonable doubt Defendant Caseer court “is left with the definite and firm knowingly, intentionally unlawfully conviction that a mistake has been commit conspired agreed Eldridge Jabara, ted.” United States F.2d import cathinone into the United States (6th Cir.1981) (internal quotation and, Amsterdam, in violation of 21 omitted). marks citations U.S.C. 846. challenges When a defendant (D. 19). Op. Likewise, J.A. at 178 at Ct. his or her conviction after a trial bench on finding the intent element of the crime of insufficiency evidence, the basis of aiding abetting importation we must determine “whether after review satisfied, cathinone the district court sim- ing light in the evidence most favor ply. that, stated “Defendant Caseer know- prosecution, any able to the rational trier , ingly arranged for the khat to brought of fact could have found the essential ele into the United States. Defendant Caseer beyond ments of the crime a reasonable had sufficient notice based on the above Bashaw, doubt.” United States v. discussion that khat contains cathinone (6th Cir.1992) (internal F.2d quo cathine which are both scheduled and/or omitted); tation marks and citation see (D. substances.” J.A. at 179 Ct. atOp. also Al-Zubaidy, 283 F.3d at 808. All 20). testimony conflicts in are resolved favor,

government’s every ruling reasonable on fair-warning Caseer’s chal- govern inference is drawn in favor of the lenge to the controlled substances sched- Bashaw, ules, ment. at 171. 982 F.2d As the the district court also considered the observed, Fifth accurately Circuit has “If extent Caseer’s notice and knowledge. evidence, however, gives equal or near The district court May first reviewed the ly equal support theory January circumstantial 1988 and publications in the innocence, guilt a theory we must Federal Register relating to the listing of conviction, reverse the as under these cir cathinone and cathine as controlled sub- stances, cumstances a jury reasonable must neces and a notice of amendment to the sarily entertain a reasonable doubt.” Sentencing providing Guidelines case-in-chief, 7. Because we pre- government’s conclude that the evidence the district court sented at trial is insufficient to sustain Ca- denying erred in Caseer’s Rule 29 motion for conviction, seer's er, we need not address wheth- judgment acquittal. presented based on the evidence adequate had notice marijuana that the defendants of khat as the treatment (D. regarding posses- warning and fair Op. at 172-74 Ct. J.A. equivalent. of khat. All these references sion 13-15). court next considered The district Register, Federal “khat” in the Hofstatter, States v. United our decision Convention, Nations the State denied, (6th Cir.1993), cert. 316, 320 8 F.3d and the Sixth Circuit cases cited above L.Ed.2d “cathinone,” noting that “khat” contains (1994), passing noted “khat,” if it sufficient notice serve cathinone, as state as well khat contained cathinone, a contains is Scheduled Minnesota, Maryland, from cases court if drug drug and a Scheduled IV a con treating khat as and Connecticut Defendant Caseer was contains cathine. law. J.A. at under state trolled substance effect of khat. aware of the stimulant 15-17). (D. The district Op. at 174-76 Ct. testified that khat is a stimulant He as follows: then concluded court and coffee. Even gives energy like tea terms “cathinone” Because the that he did not know though he testified in the Fed- published “khat” have been illegal, he that khat or cathinone was occasion, more than one Register on eral seized or aware that khat could be was merit. without argument is Defendant’s Defendant Ca- confiscated at Customs. Regulations not- May Federal knowl- sufficient notice and had seer had IV, subject to “khat” is Schedule ed that khat, it contains cathinone if edge Feder- “cathine.” The 1993 the same as cathine, drug. De- scheduled and/or addition indicating the Register al notice notice also had sufficient fendant Caseer drug made a scheduled cathinone as a stimulant knowledge that “khat” —that cathinone reference pro- of khat is importation and that the Regis- The 1993 Federal found in khat. illegal. Defendant Caseer’s hibited as that as far back ter indicated Acquittal must Judgment for Motion recog- community has the international . be denied. of “cathinone” and nized the effect 17-18). (D. Op. at at 176-77 Ct. J.A. by the 1971 United “khat” as evidenced Psychotropic on Nations Convention in our concluded above As we publications claim, Subsequent fair-warning Substances. analysis of Caseer’s have since referred Register the Federal here are saved provisions at issue criminal Sentencing including unconstitutionality because to “khat” potential “Khat” has been an an element in 1995. Guidelines 960 establishes U.S.C. knowingly FDA by the the accused unapproved importation the offenses that FDA is- a controlled sub intentionally imported and the early 1980’s since Thus, properly Regis- to convict Caseer in the Federal publications stance. sued offenses, court the district charged and 1996. “khat” regarding ter beyond a reason have found addressing need to Additionally, the State cases actually knew doubt that Caseer prosecution able issue of State the notice substance.8 contained a controlled found khat “cathinone” have for “khat” and process due there are no ules and for which Controlled suggest that in all 8. This is not to concerns, knowl- fair-warning constructive government prosecutions the Substances Act listing of the substance edge from the inferred beyond doubt that prove a reasonable must schedules controlled substances knowledge actual defendant had item, However, targeted such when suffice. For sub- at issue is controlled. substance khat, listed in the is not itself that are controlled such as cocaine stances schedules, process requires substances sched- per controlled substances se under the Hussein, at 17 (upholding See 351 F.3d facts identified the district court as that, in jury order to find that instruction scienter, supporting finding its consider- knowingly possessed cathi- the defendant ing whether the district court clearly erred non'e, government prove beyond must “the making any findings individual fact is a knew substance he trolled tained reasonable doubt drug that'the substance substance. cathinone, or other substance possessed that [the defendant] A controlled substance ^[2] contained a con he knew that possessed regulated con [1] whether the evidence taken that Caseer had the sufficient conviction. could conclude beyond reasonable requisite a reasonable doubt aas whole is trial intent for judge law.”) (second drug under federal abuse First, the district points court to the emphasis and third alterations and added 1971 United Psy- Nations Convention on Hussein); in v. Restrepo- United States chotropic Substances and several Federal (5th Granda, 524, Cir.), 575 F.2d 527 cert. Register publications that explain that denied, 935, 331, 58 cathinone, khat contains cathine and (1978) (“Although L.Ed.2d knowledge marijuana establish equivalency for sen- imported particular that the substance is a crimes, tencing of khat-related and that proven, narcotic need not be 21 U.S.C. subject indicate that be to FDA 952(a) ‘specific is a intent’ statute and re regulation. Although might Caseer be quires knowledge that such substance is a charged with knowledge constructive controlled;substance.”) (citations omitted); documents, the contents of these the mere Jones, see also United States v. 81 Fed. existence of these documents does (6th 45, Cir.2003), Appx. denied, cert. speak whether Caseer had actual knowl- 954, S.Ct. 158 L.Ed.2d edge of their contents. The district court (2004) (“Pursuant to 21 U.S.C. finding, made no and the record furnishes 841(a)(1), § any person it is unlawful for evidence, no that Caseer read or was oth- knowingly manufacture, intentionally or erwise familiar with publica- of these distribute, dispense, possess with Thus, tions. the existence of the United manufacture, distribute, intent to or dis Nations and Register publications Federal a controlled substance. To convict pense, provides support no for a finding of scien- 841(a)(1), a defendant under the Govern ter this case. prove beyond ment must a reasonable (1) doubt that: the defendant possessed Second, the district court cites this the controlled substance described in the court’s decision in and several Hofstatter indictment; the defendant knew the prosecutions state for khat-related of- substance; substance was a controlled fenses as evidence that Caseer knew khat (3) the defendant intended to distribute was a controlled substance. substance.”) (internal Hofstat- the controlled quota ter, we affirmed the convictions of two de- tion omitted); marks and citations charged fendants with possessing and Decker, (6th States v. 19 F.3d conspiring possess Cir.1994). precursor listed Keeping gov mind that the chemicals with the intent to manufacture prove ernment must beyond a reasonable analogues. doubt that Caseer controlled knew khat contained a substance not- We substance, controlled now turn we to the ed in passing during a search of one n the'government prove beyond regulated reason- controlled substance under federal able doubt drug the defendant had actual abuse laws. See United States v. Hus- n sein, knowledge (1st targeted Cir.2003). item contained a 351 F.3d 17-19 might some automobiles, DEA substance the defendants’ effects physical from the be inferred cases agents: substance, in this case by the caused pa- containing personal bags found two mild to of khat effect too in the stimulant- notebooks, envelopes pers, that Caseer inference permit reasonable The docu- codefendant]. [the name of that khat contained controlled sub (an knew East African “khat” described ments cathinone) opinion indi court’s methy- stance. district containing khat had only manu- knew for the that Caseer .... Formulae cates laminorex seems found and indeed were mild effect methylcathinone stimulant facture of Register car, chewing a Federal khat is the. Somali as was suggest methylaminorex indicating that coffee or tea equivalent drinking notice controlled sub- seeming ubiquity scheduled was to United States. DEA. by the attests stance houses in United States coffee consuming products fact that to the proof In the absence at 320. 8 F.3d common stimulating effects aware custom. read or was otherwise that Caseer States, average Ameri and the the concluding Hofstatter, in our decision likely does not most coffee drinker can in single reference that this Hofstatter consider, drinking his or her while pause to Caseer the actual notice furnished he or she whether morning “cup of Joe” case present in conviction the required for for subject to criminal sanct0ion Moreover, may state be error. would be clear , substance. See court, of a controlled possession Con by the district cases referenced 225, 229- California, 355 U.S. Gurreh, 758 Lambert v. Conn.App. 60 necticut v. 240, 2 L.Ed.2d 228 (2000); Maryland, v. Warsame A.2d 877 comply (1995); failure to for (reversing conviction A.2d 338 Md. (Minn. ordinance, explain Ali, felon-registration with Minnesota N.W.2d state, vyrote that, fed in The Com not Holmes ing “As pertain all Ct.App.2000), which, statutes, conduct Law, punished eral, ‘A law substances mon controlled blameworthy Caseer suggest would be there is evidence no , community would laws of these subject to the of the average had ever been member Hence, community inferred it be cannot too severe for three states. bear.’ .be oppor cases that four of an of these in the absence severity from the existence Its lies consequences that khat contains knew avoid tunity Caseer either to gov by federal regulated any prosecution defend substances law or to did not person ernment. it. Where brought under where register and duty to of thé know found that Ca- Third, court district probability of the proof was no there effect the stimulant “aware of seer was convicted may not be he knowledge, such testimony9 trial on Caseer’s khat” based itWere consistently process. energy gives a stimulant and “khat great as otherwise, (D. evil woüld be Op. Ct. coffee.” J.A. at like tea or fine too print is written is when law 18). knowledge that actual Although at by Ca- presented any evidence and not to the ment court erred district 9. We note Fed.R.Crim.P. defense. See ruling in his own testimony seer Caseer's on relied extent.it re- 29(b) a court has (providing that when acquittal. Be- judgment of on his motion judgment of a motion ruling on for. ruling served on the district court reserved cause the the motion acquittal, "must decide the court case- government's of the the close motion at the time the at evidence basis in-chief, on the have consid- court district should reserved”). ruling was by govern- put only the evidence ered on language foreign to read or in a to the knew that khat was a controlled substance. Thus, Thus, community.”)- Caseer’s awareness Caseer’s conviction cannot stand. pro- of khat of the mild stimulant effect support for the conclusion that

vides little III. CONCLUSION actually Caseer knew he was above, For the reasons set forth we substance. importing was a controlled that, although conclude the criminal provi- that, Finally, court found the district sions at issue are not unconstitutional for “testified that he although Caseer did not warning, failure to furnish fair we must illegal, know that khat or cathinone was he judgment REVERSE the of conviction be- was that khat could be aware seized or insufficiency cause of the of the evidence (D. confiscated at at 177 Customs.” J.A. and REMAND the case to the district 18). Op. Ct. Not all items be court for further proceedings consistent Service, by seized the U.S. Customs how- with this decision. ever, are classified as controlled sub- § pursuant stances to U.S.C. 812 and 21 BOGGS, Judge, concurring part Chief Thus, C.F.R. 1308.11. while the district dissenting part. reasonably court could infer from Caseer’s I concur in Judge Moore’s well-reasoned testimony importation that Caseer knew opinion with respect to the interpretation laws, khat violated U.S. customs it is less constitutionality language reasonable to infer that Caseer knew he laws, drug federal they apply to the drug im- violating laws (Part A). substance khat II. Since the porting a substance.10 controlled application of drug the laws to Mr. Caseer sum, by the cited evidence the dis- is constitutional so long statutory as the trict court in its determination of whether requirement met, of scienter ques- the Caseer had requisite the scienter for con- dissent, tion of scienter is crucial. how- lends, best, only viction at support tenuous ever, from the court’s conclusion that there for the conclusion that Caseer knew that was insufficient evidence of scienter. he was in participating importation the a controlled The district court drawing correctly substance. Even all identified inferences in light applied, the most in denying favorable to the motion for government, the trier acquittal rational of fact at the government’s end ease, would have reasonable doubt that Caseer the standard of Virginia, Jackson v. government also contends that it is doubt that knowledge Caseer had actual 10. reasonable to infer Caseer’s imported from behavior in the khat he was a controlled sub- arranging Hussein, importation for the of khat and stance. See 351 F.3d at 20-21 subsequent during his govern- (finding "very conduct question close” the of whether investigation ment’s that Caseer knew khat pre- sufficient evidence of scienter had been conviction, was a controlled substance. The district sented to notwithstanding sustain any findings (1) court did regarding not make knowledge- defendant: "was a individual; Caseer's state of mind based on such behav- able he was recent immi- ior, arguably grant, such conduct is consistent but a successful businessman who had immigrant with that of a recent concerned been in the United States for a number of violating (2) stimulant; with Any years;” U.S. customs laws. infer- knew that khat a was (3) ence from this evidence that Caseer knew prior trips pick up he had made to khat for substance, distributor; importing (4) would be a controlled a local knew that the simply agricultural product and not regu- sending an receiving packages, methods for laws, addresses, lated customs including mislabeling, would be weak at fake use of couriers, permit best and insufficient to multiple rational tri- and recruitment of were beyond detection”). er of fact to "elaborately conclude a reasonable contrived to avoid actions were all be- questionable that his of his simple confiscation he feared should the motion cause L.Ed.2d laws, not be- finder no cargo agricultural “rational under unless granted not be traffick- guilty that he had idea was the defendant he find” cause fact could substances, of whatever on the evidence ing doubt in controlled reasonable beyond a Indeed, argues that his brief variety. presented. in other bring “many things people of the denial case, the time at In this li- countries, apples bottles such presented had motion, government with- at customs can be confiscated quor, that: evidence (Appel- being substances.” out country for in this had been 1. Caseer 65). Br., p. lant’s in been immersed and had years, three culture and ethnic employment an him- However, insulating attempts his wide- khat was consumption far went connection with self from spread. be consistent beyond what would re- had himself though Caseer 2. or at least the apples, Even in illicit bringing recruited Europe, he cently gone fact, to was enti- as finder of judge, district go unwitting persons apparently paid And judgment. to make such tled quantity large and courier Europe motion, judge, as denying the Rule him. back to entitled, contrary of khat law, was determiner he had trip, she was Immediately before panel, to to this determine Am- $1,500 acquaintance an doing. wired rational so sup- person who sterdam, was the who ingenious, explanation Caseer’s While Although khat to couriers. plied the it, any obliged believe judge was not explanation an provided later Caseer re- Barnes was judge than the more explana- money, that sending of this who ar- person believe that quired to court and the uncorroborated tion was a sub- import for a “swallower” ranged accept it. to obligation no was under actually ingested in condoms stance in si- couriers coached 4. Caseer than gold in rather dealing thought he was to law enforcement respect lence *1. WL 1336 in See 1991 heroin. his prevent officers, steps to and took Rule 29 addition, of the time at the with the being connected name that “street motion, was evidence there couriers khat, after the and both before of upward was imported khat of the value” Caseer Even when apprehended. were strong additional $100,000. This would successfully had thought the couriers was there for the scienter support khat, delivered the customs and cleared in- considerably more sinister something them silence. to counsel he continued importation. fruit illegal than volved cases, e.g., of other variety in a As seen testimony at face could take judge (1st Hussein, v. 351 F.3d initial time of submission at the value Lewis, F.2d v. Cir.2003), United States Rule 29 motion. of the United States (11th Cir.1982), contradicted, was (6th figure value Barnes, 90-5165, 1991 WL 1336 No. demolished, own in Caseer’s not 1991) though evidence (unpublished), Jan Cir. final ver- judging when testimony, but can guilt of consciousness evasion and district may, as did the case, we guilt dict In this of scienter. finding a support own tes- Caseer’s take into account judge, Ca- in abundance. present such evidence of some unbelievability timony, and the contrary is argument seer’s best it, parts explanations why such as his mitting the finder of fact to assess the Germany, recently just he went but credibility of his explanations. Although khat, pick up didn’t have time to in the Hussein case the court also noted himself, go couldn’t but had Amsterdam repeat nature Hussein’s involve- courier, explanation to use a as well as his ment, factor, weighed against when money wired to the khat supplier, the other (including similarities knowledge just before the importation, nothing had of the nature of as a stimulant do contemporaneous with the almost sup- detection) elaborate measures to evade plying of the khat. lead me to the same conclusion.

Under these circumstances some ration- balance, On the case against Caseer is at al finder of fact could determine that Ca- strong, least as and the Hussein case seer’s clandestine to avoid efforts detection would therefore counsel toward an affir- enforcement, law coupled thwart with mance of the district court judgment. I culture, knowledge his of the khat consti- hold, would so I and therefore respectfully adequate tutes circumstantial evidence dissent. that he knew he was importing a substance. do not believe HOLSCHUH, Judge, District Judge in being Hood erred such a rational concurring part dissenting part. fact finder. Judge opinion Moore’s only a case, In a relatively comparable albeit thorough and well-written recitation of the

involving person only courier, who was facts analysis law, and a careful found, Hussein, the First Circuit is very also balanced in its consideration of fact the finder of could find sufficient evi- major the two appeal, issues this dence scienter on based constitutionality regulations First, key four facts. appellant was possession make the of eathinone and eath- knowledgeable individual; he was not ine criminal sufficiency offenses and the immigrant, recent but a successful evidence this case to support appel businessman who been in had the Unit- lant’s conviction importation for the ed States for a years. number of Sec- eathinone. I totally agree with Judge ond, he knew that possessed what he Moore that there insufficient was evidence was khat and that khat was used as a to show that the appellant knew that the Third, stimulant. this was not his first contained controlled sub trip for Mohamed. Last-but far from stance. I agree also with Judge Moore’s least-he knew that the arrangements for analysis regarding the Constitution’s due shipping and retrieving packages the process requirement that a law “give must elaborately

were contrived to avoid de- person ordinary the of intelligence a rea tection. sonable opportunity know pro what is Hussein, 351 hibited, F.3d at 20. Although the so that he act accordingly.” First Circuit found Res., the case to be a Tatum, close Columbia Natural Inc. v. one, case, Ias find I 1101, (6th this Cir.1995) would come to F.3d (quoting case, the same conclusion. In our Grayned there City Rockford, 104, 408 U.S. of several are factors stronger 108-09, that are even 33 L.Ed.2d 222 Hussein, than (1972)), primarily denied, that Caseer cert. courier,

was not a mere but orga- (1996). was the S.Ct. My L.Ed.2d nizer, recipient, paymaster op- the dissent my is based on firm belief that the testified, eration and that per- Caseer here process requirement warning of fair the sub- given is er, when consideration constitu- met, that this not been has cathinone, in the regulation, the ject the fact of overcome is not tional failure it is which regulations the of the violating context a defendant of conviction subjected to the found, showing persons the a requires at issue regulation ordinary con- intelli- plant person the khat a regulation, knowledge actual ' possession conclude substance.1 gence a controlled tains not a violation clearly plant khat is the fair give does not does or a law Whether any law. ordinary intelli- person a warning to a consider- my opinion, requires, gence law, Regulation but Subject the text of II. The just the of not

ation of the law subject nature of also the substance psychoactive ais Cathinone it. subjected to are who persons naturally in the produced is that it unique in is plant The khat plant. Regulation I. The Text of chemical naturally two different produces this case majority that with the agree case. When to this relevant components fair-warning cases most from differs a substance cut, plant contains is as of cathinone listing regulation’s cathinone, begins which as identified ambiguous is not substance a controlled re- cut. plant What after degrade is in those as applied sense the traditional identified in the substance mains notes, correctly majority theAs cases. cathine, a lesser stimulant has as estab- explicitly face on its regulation Controlled cathinone.2 than effect I controlled a Schedule as lishes cathinone (“CSA”), § 21 U.S.C. Act Substances nevertheless majority substance. as or cathine cathinone not list seq., et does regula- vagueness” “latent finds a substance, subsequent but that, “[w]hen majority states tion. The substances, two these place regulations latently yet on its face precise statute in differ- plant, the same emanating from caught being persons danger of vague, schedules. substances ent controlled conduct criminality their unaware 1308.11(f)(3)3 “derives lists cathinone vagueness § This latent 21 C.F.R. high.” as but follows: imprecision I stimulant language’s as a Schedule not from essentially being schedule rather Cathinone persons language foreign in a written 2-amino-l- other names: trade Some ordinary intelligence.” alpha-aminopropio- phenyl-l-propanone, regula- infirmity of the My view 2-aminopropiophenone, phenone, I don’t believe goes further. tion norephedrone. latent, vague, patent anything there is 1308.14(e)(1) cathine lists 21 C.F.R. listing of cathinone regarding as follows: stimulant view, IV Schedule my howev- controlled substance. decomposes rapidly plant, cathinone khat opinion con- the separate Boggs his Judge in 1. sam- plant JA 94-95'. the cathine. Judge conclusion into curs in Moore's both contained present case question are the regulations constitutional. tested in ple in will refer dissenting opinion I therefore JA 86. my cathine. cathinone expressed being view the majority view the opinion. Judge Moore's IIA in Part to the purposes, citations reference 3. For are used. CFR the version of recent most upon is that Testimony present case in 2. the harvesting of days three after drying or within ((+ )-norpseudoephedrine).4 Tetrahydrocannabinols (“THC”), Cathine which is psychoactive the main produced substance regulations place cathinone and naturally by the plant. marihuana is THC cathine in different do schedules not men- described in great in regulations detail the plant tion the khat give grow- and do not as follows: ers or users of the plant even a hint plant that the khat any Tetrahydrocannabinols contains controlled substance, much types less two different Meaning tetrahydrocannabinols natu- Anyone looking substances. rally plant contained genus in however, regulations, the readily see (cannabis Cannabis plant), as well as plants that some that contain controlled synthetic equivalents of the sub- substances are listed in themselves stances contained in the cannabis schedules their commonly known plant, or in the resinous extractives of names. plant, such synthetic sub- and/or

Marihuana,5 stances, derivatives, the common name for a and their isomers Cannabis, genus plant specifically with similar’ chemical structure and listed in the statute as a Schedule con- pharmacological activity to those sub- substance, 812(c), trolled § 21 U.S.C. stances in plant, contained such as I(c)(10), Schedule regulations, following: 1308.11(d)(22). § 21 C.F.R. It is described 1 cis or tetrahydrocannabinol, trans great detail as follows: and their optical isomers The term “marihuana” means all parts 6 cis or tetrahydrocannabinol, trans plant L., Cannabis sativa whether optical and their isomers not; or growing thereof; the seeds 3, 4 cis or tetrahydrocannabinol, trans resin any extracted from part of such optical and its isomers plant; every compound, manufac- (Since nomenclature of these sub- ture, salt, derivative, mixture, prepa- or stances is not internationally stan- plant, ration of such its seeds or resin. dardized, compounds these Such term does not include the mature structures, regardless of numerical plant, stalks of such fiber produced from designation of positions atomic cov- stalks, such oil or cake made from the ered.) seeds of plant, any such other com- 1308.11(d)(30). § 21 C.F.R. pound, manufacture, salt, derivative, mixture, preparation or of such mature Peyote, spineless cactus, a small spe- (except stalks the resin extracted there- cifically statute, listed 21 U.S.C. from), fiber, oil, cake, or the sterilized 812(c), § I(c)(12), Schedule reg- plant seed of such is incapable of ulations. It is described detail in the germination. regulations as follows: 802(16). § 21 U.S.C. Meaning parts all plant presently In addition listing itself, botanieally classified Lophophora wil- statute, both the 812(c), § Lemaire, U.S.C. liamsii growing whether I(e)(17), Schedule regulations, not, and the thereof, seeds extract from 1308.11(d)(30), C.F.R. specifically list any part of such plant, every eom- ( ) represents 4. positive The + optical Although iso- spelling the more common “marijuana,” mer. spelling the found in the CSA regulations and the opinion. is used in this 1308.11(0)(11),7 opiates, C.F.R. and derivative, § salts, manufacture, pound, 1308.12(c).8 1308.11(b) § § and its plant, of such mixture, preparation or extracts or seeds specifi- are plant of the coca The leaves U.S,C. statute, 21 in the cally listed 812(e), Schedule 21 U.S.C. (Interprets 11(a)(4), regula- and the 812(c), § Schedule l(c)(12)). 1308.12(b)(4). tions, § 21 C.F.R. 1308.11(d)(25). § 21 C.F.R. the leaves to listing In addition itself, the plant the listing In addition statute, 21 themselves, the both plant coca 1308.11(d)(23), § 21 C.F.R. regulations, 11(a)(4), the 812(c), § Schedule U.S.C. mescaline, psy- main the list specifically 1308.12(b)(4),spe- § 21 C.F.R. regulations, naturally produced substance choactive ecgonine (products cocaine and cifically list as controlled plant, peyote cactus the alkaloid, sub- psychoactive of the cocaine substance.6 coca by the naturally produced stance substances. as plant) controlled listed specifically plant is poppy The therefore, II as a Schedule list number the statute regulations, The 812(e), § Schedule substance, 21 U.S.C. con- themselves being as plants specific 21 C.F.R. regulations, 11(a)(3), warning substances, clear giving trolled poppy 1308.12(b)(3), poppy opium illegal, as plants § of these possession in 21 are described person These terms is aware straw. of whether the regardless 802(19) follows: chemi- particular §§ plant U.S.C. contains ef- psychoactive has a cal substance means the “opium poppy” term fa- my opinion, Remarkably fect. —and somniferum Papaver species plant of regulations from the tally —absent thereof. L., except seed who wants Any person plant. khat n parts, all means straw” “poppy term cup of to make a it is illegal whether know seeds, poppy, opium except the that, in find plant from the tea mowing. after mari- such plants other contrast to plant, cactus peyote itself, plant, the huana plant listing the 'In addition is no there plant, coca and the plant, poppy sub psychoactive specific list regulations any plant any kind reference of opium naturally by produced stances States, ie., of the United law place 21 C.F.R. morphine, e.g., plant, poppy I to- regulations. or in codeine, either statutes 21 C.F.R. 1308.12(b)(1)(14),and § majority’s statement tally agree 1308.12(b)(1)(7), deriva as opium as well § sufficiently ‘cathinone’ term that “the heroin, C.F.R. tives, e.g., Officers, In- For Law (3, trimethoxyphenethyla- Resources 6. Mescaline Enforcement 5— Poppy Cultivation Opium peyote Reports, mine) telligence from the extracted can be Asia, Processing, synthetically. DEA & Southeast produced or and Heroin Briefs , Descrip- Drug Abuse Background, Drugs & httpflwww.usdoj.gov/dealpubslintell Mescaline, http://www.us- (accessed January tions, Peyote & 20026l20026.html (accessed Jan- doj.govldealconcemlpeyote.html 2005). 28, 2005). uary drugs other substances 8."Opiates” are gum from opium taken or cooked 7. Raw addiction-forming or addiction- "having an than more opium poppy contains pods of the be- morphine liability similar sustaining alkaloids, morphine including 35 different having drug capable of conversion into ing extracted can be codeine which or addiction-sustain- addiction-forming such her- into converted Morphine can be opium. 802(18). liability.” 21 U.S.C. Administration, ing Drug oin. Enforcement persons ordinary obscure that intelli- I Schedule controlled If substance. gence reading the controlled substances cathine, when the cathinone mutates into probably schedules would not discern that migrates khat to Schedule IV.” Id. at 13.10 possession khat possession constitutes court, however, concluded of a controlled I substance.”9 would go precatory language “any material ... con- further, however, my opinion because it is ... taining cathinone” it “perfectly makes persons of ordinary intelligence read- clear that the charged -possession conduct'— ing the controlled substances schedules of a material containing cathinone—is for- reasonably could conclude possession bidden.” Id. 15. plant clearly khat illegal not Second, the court concluded that “[d]ue because, plants unlike other containing process does require not specif- the statute naturally-produced psychoactive sub- ically prohibit either ‘khat’ or ‘khat con- stances, plant the khat is not listed. taining cathinone’ a precondition to con- Hussein, In United States v. 351 F.3d 9 viction.” Id. The process argument, (1st Cir.2003), appellant, who had been on based the fact regulations do guilty found knowingly possessing and list certain plants plant, marihuana —the khat, intending distribute argued that the peyote cactus plant, the poppy plant regulation regarding cathinone did not and the plant leaves the coca not —but give fair possession notice plant, the khat was not considered plant was a criminal offense. The court to persuasive. The court found Circuit, however, First rejected argu- pattern listing plants in addi- so, ment. In doing the court reached two psychoactive tion their ingredients is “at conclusions. best, irregular.” The court based this First, that, it held although the khat finding on the fact that Schedule lists plant itself is not listed aas controlled psilocybin psilocyn as controlled sub- substance and therefore “is not a con- stances “but not plant their (magic hosts se,”

trolled per substance Id. at it mushrooms).” Id. at 16. nevertheless is a controlled substance be- I respectfully disagree with both conclu- cause of precatory language sions. 1308.11(f) C.F.R. includes, which above the list substances, of controlled First, the lan- when read context with its ad- “any material, guage compound, mixture, jacent words, “compound, mixture, preparation any quantity contains preparation,” and in context with the of the following substances.” The court framework of not, the regulations, it is noted that cut, “[w]hen khat my is first opinion, “perfectly clear” that the word contains cathinone and is therefore a “material” includes life. witness,

9. expert Government’s Argaw forensic Ashcroft, 395 F.3d (4th Cir.2005), chemist chemistry, with a PhD in had been specifically Fourth Circuit "[k]hat, short, employed by Michigan held that State Police scien- substance because the laboratory years. tific for 22 schedules themselves He had never contain no plant.” reference to the Because heard the word years "cathinone” until five it was not petitioner’s established that testimony before his in May, 2001. Other cathine, contained either cathinone or chemists, than forensic he knew of no one Immigration Board Appeals' order of re- expertise outside his area of who "would have moval, which finding was based on a the faintest idea what cathinone would be.” substance, khat was a controlled was re- JA 104. versed. conclusion, in the court support its To not be should “material” word - case of hypothetical a considered of C.F.R. Hussein language the plucked cube con- 1308.11(f) sugar in a vacuum. possessing considered a defendant and § statutory LSD, of canon a -list- of a fundamental amounts taining It is detectable regula- to construction, applicable equally It be substance. controlled ed n regulation or tions, statute words that found, that the statute clear, the court and with context in their read “must be to illegal be that it would warning fair gave statutory in the overall place their view to LSD.” Hus- containing “a material possess the Dep’t Michigan v. Davis scheme.” it is obvious sein, While .351 F.3d Treasury, 489 U.S. clearly “ma- sugar cube would that the (1989). preca- L.Ed.2d substance, it containing a controlled terial” in 21 C.F.R. contained language tory naturally any-plant that not does follow material, compound, 1308.11(f) “any § — is controlled substance containing a listed which contains mixture, preparation or regula- the scope a “material” within substances” —is following of the quantity kinds of various While tions. found language to the precatory identical LSD, substances, may be con- such 1308.11(d) lists which § 21 C.F.R. in or of materials types in different cealed THC, and in addition plant marihuana with other substances mixed may be mes- in addition plant peyote cactus detec- purposes or consumption avoid is language precatory The same caline. agencies, by law enforcement tion cafhi- 1308.12(b), § in 21 found C.F.R. also ingredients of are natural and cathine none in addition plant opium poppy lists-the -same, mqnner, in the plant .for codeine, the leaves and morphine ingredient THC is that example, natural Fur- cocaine. in addition plant the coca listed are plant. Plants marihuana of the means “marihuana” thermore, the term as controlled regulations in the separately com- every ... the plant parts “all reason, and, hypo- for that mixture, of such substances preparation or ... pound LSD, my 802(16). containing cube sugar § Similar- thetical .21 U.S.C. plant to the little, parts “all if relevance any, means opinion, has “peyote” term ly, the ..: every compound case. ... involved this plant life plant ” .... plant mixture, of such preparation or in the “material” the word Considering 1308.11(d)(25). § 21 C.F.R. words, “compound, adjacent itsof context to the word given consideration ..When context mixture, preparation” or regulations, with the in context “material” listed being specifically life plant of certain canon subject to another fundamental it is precatory language, same following the construction, i.e., meaning statutory “perfectly clear” not, my opinion, statute, in a ato word given not be should produce all plants includes “material” provi- other “renders regulation, or I be- While ingredient. psychoactive some inconsistent, statute of the same sions that, on a consideration based lieve superfluous.” meaningless 1308.11(f) in its C.F.R. of 21 language Firearms, Ninety-Three life is plant context, argued it can be (6th Cir.2003). If “material” F.3d therefore, that, “material,” and' nót life, listing all to include is read does regulation language precatory the peyote plant marihuana of notice give fair adequately same the use plant, and cactus substance, I a controlled plant itself “mixture,” “prepa- “compound,” words contention. on this my dissent do not base plants, those description of ration” first only to show it forth set superfluous. would be clearly ques- conclusion of the Hussein court is because of a failure to psilocybic include tionable, why and to show consideration of mushrooms the schedules is twofold. in regulations the manner which the are First, very for the same reasons set forth vastly structured me to the leads more in earlier this I opinion, that believe important that the regulations conclusion failure to include the mushroom plants dealing with cathinone and cathine are un- that psilocybin contain or psilocyn as con- constitutional, the second issue considered trolled substances also constitutes a failure in greater by detail court in Hussein. to comply with the require- due process Apart any linguistic question re- ment of fair notice. The familiar adage garding precatory language in 21 used that wrongs “two do not right” make a 1308.11(f) C.F.R.. and in regu- the other Second, comes to mind. dealing when lations, the fatal constitutional is flaw the with the constitutional right fairly to be any omission of plant mention of the khat notified that to engage in certain conduct plants when other specifically are listed crime, is a I don’t think it is “a stretch” to regulations being as controlled sub- believe persons ordinary of intelli- stances. gence, seeing plants other specifically list- The court “unpersua- Hussein found ed as being illegal but not the khat plant, appellant’s that, sive” the argument be- reasonably could they conclude that can regulations cause the plants list some but lawfully possess the khat plant.11 not plant, regulations the khat do not comply with process requirement the due Finally, Hussein upon court relied of warning. fair The court found three state court mushroom cases for its best, “pattern” irregular.” was “at Hus- decision.12 I cited, find the fourth case sein, 351 F.3d 16. It based this finding Florida, Fiske v. State 366 So.2d 423 on the fact that Schedule I prohibits pos- (Fla.1978), to be far more persuasive than session of psilocybin psilocyn “but not the three state court upon by cases relied mushrooms).” their (magic hosts Id. the First Circuit. The Florida statute in It simply too much of a stretch to question in Fiske listed in its schedule of assume, on basis of this pat- limited “any substances material which contains a tern, ordinary person intelli- quantity of the hallucinogenic substance gence jump that, to the would conclusion ” ‘psilocybin.’ Id. The court said: despite prohibition the clear on “materi- cathinone,”

al containing statute makes containing no mention of psilo- cathinone is coverage. excluded from cybic or, matter, mushrooms for that This conclusion tracks the thinking of a psilocybic other form organic clear majority of the state courts that grows wild. If the speci- statute were to have been prob- confronted with similar fy psilocybin was contained cer- lems. tain identifiable mushrooms and were to Id. mushrooms, name those thereby appris- difficulty ing have a prospective conclusion posses- defendant process that due exists in present case sion unlawful, of those mushrooms 11. The court is aware that Hussein was fol- Atley, Those cases are State v. 564 N.W.2d (Iowa 1997), Justice, lowed conclusory in a Eighth manner State v. 10 Kan. Sheikh, App.2d (1985), Circuit 704 P.2d People States v. 367 F.3d Dunlap, (8th Ill.App.3d Cir.2004). 66 Ill.Dec. (1982). 442 N.E.2d 1379 prob significant presented applied. (cid:127)ingredients as unconstitutional of the United population to the framed, lem howev- presently The statute pro were question regulations when what er, no information gives Ad Drug Enforcement by the mulgated in its natu- psilocybin may contain

plants (“DEA”) Department ministration the statute particularly, More ral state. Nations the United Justice. ordinary a person not advise does Drugs included on Narcotic Commission that this substance intelligence common in' the schedules cathine cathinone variety particular in a contained Psychotropic Sub on Convention statute,’therefore, may the mushroom. (“Convention”), the Unit to which stances constitutionally appel- applied not be 1987, the signatory. ais that ed States warning fair give not It lant. does cathinone that found DEA Administrator possessed mushrooms of possession controlled “must under cathine v. and See Bouie a crime. is appellant by requirements to meet in order CSA S.Ct. Columbia, Psychotrop on Winters, by the Convention imposed (1964); State 12 L.Ed.2d Controlled Schedules ic Substances.” (Fla.1977). 346 So.2d and Substances; Placement of-Cathinone Fiske, at 424. So.2d - 2.5-Dimethoxy-j-ethylamphetamine majority opinion Furthermore, as the Cathine, Fen- I and (DOET) in Schedule ‘cathinone’ finds, term “the correctly in and Tenproporex camfamin, Mefenorex of ordi- persons that sufficiently obscure IV, Fed.Reg. (pro 41736-01 Schedule controlled reading the intelligence nary 1987). 22 of the Article posed Oct. probably schedules substances in that part, “[s]ub- provides, Convention constitutes of khat possession discern limitations, each constitutional ject to its As substance.” of a controlled possession offense, punishable as a treat Party shall agreement earlier, complete I am in stated any action intentionally, committed when to include The failure this statement. in adopted regulation to a law contrary khat the regulations this under obligations of its pursuance (a seemingly itself substance controlled inclusion DEA’s Convention....” fact inclusion) may stem logical sub as controlled cathine cathinone Psychotropic Sub- on the Convention as con they are treated stances because and cathine only cathinone listed stances in the Convention’s trolled substances substances, But what- infra. to this subject clearly was schedules13 omission, the result for the the reason ever limitations, specifi constitutional country’s person warning to give fair failure to ais requirement process cally the due possession intelligence ordinary Amendments and Fourteenth Fifth unlawful, hence khat plant to a given warning be that’fair mandates by guaranteed process denial regarding intelligence ordinary person the Constitution. by the criminal is made conduct regulations. Subject Are Persons Who III. Regulations

to the DEA, has khat been According recreational as a antiquity since used absolutely no evidence There is Eastern Afri- drug natives religious cathine cathinone its plant with of the CSA. IV Schedule placed in Schedule was Although cathine Convention, placed it the DEA III ca, Peninsula, the Arabian and the they Middle when enter the United States. While countries, East. Khat in many is legal regulations and the present issue the same long acceptable has been an substitute for warning problem fair everyone, for they among alcohol During peri- Muslims. unquestionably severely impact those eth- Ramadan, od of the use of popular khat is nic groups traditionally who use khat in to alleviate fatigue and reduce hunger. the same manner as others in the United Although abused, khat can be it is often States legal use such as stimulants coffee used a social context similar to the however, regulations, tobacco. The do manner in which coffee is consumed not mention khat or slightest serve in the parts other of the world. way While the anyone to warn illegal amount of khat seized in the khat, khat, chew make tea from possess has been steadily increasing, the increase whatsoever, purpose including appears to be increasing related to the religious recreational and purposes. They Somalia, number of immigrants from Ethi- truly, my opinion, a trap constitute for opia, Yemen, Eritrea, and other countries the innocent.15 where khat use is common. It does not likely seem that khat use will expand be- IV. The Constitutional Violation Is

yond Somalian, the ethnic Ethiopian, Yem- By Not Overcome the Need to eni, and Eritrea communities. According Prove Scienter DEA, to the there is no indication that It remains whether “the concern khat is that a marketed outside these ethnic com- person ordinary of munities, intelligence could un- although it appears readily to be wittingly expose himself or herself to available.14 crim- inal penalties due to the vagueness of the every While person, regardless of na- controlled substances schedules with re- tionality and background, ethnic is obvi- spect to khat is overcome here ... because ously subject to the controlled substances requires conviction a showing of actual regulations, I believe it is nevertheless a knowledge that khat contains a controlled factor, relevant considering when the due substance.” respectfully disagree with process requirement notice, of fair the majority’s conclusion that the lack of khat plant has widespread had acceptance fair warning is by overcome require- the as a religious recreational and drug by prove scienter, i.e., ment to case, in this people millions of nations, a number of the defendant knew that the khat Africa, primarily in the Arabian Peninsula plant contained a controlled substance. East, and the Middle where its use has been an important part of the is, course, cultures of It of true that certain statutes those areas for Immigrants centuries. un- have been saved from a finding of uncon- derstandably bring that culture with them stitutionality, due to a give failure to fair Administration, Drug 14. U.S. said, Enforcement vague "[w]ords which are and fluid ... Khat, Drug Intelligence Brief, may June 2002. trap as much of a the for innocent as http:l/www.usdoj.gov/dea/pubs/intel/02032/ (citation Caligula.” ancient laws of omit- (accessed 28, 2005). January 02032.html ted). The same can regula- be said for the fluid, vague tions. While not they would Douglas Justice Cardiff, in United reasonably States v. lead a intelligent person to believe 174, 176, L.Ed. is not a controlled sub- (1952), finding therefore, a They, section of the federal stance. trap a constitute for Food, Drug and Cosmetic Act made an act the innocent —an even effective more snare notice,” criminal "without fair and effective than Douglas. that referred to Justice objection re- statute in relieved statute fact

warning, by the vagueness. garding do intent specific a required question in which “will- the cases analysis of v. United An Screws act. prohibited more to connote held fully” been 1031, L.Ed. has S.Ct. States, voluntary or inten- which an act than defense (1945), cited in often as each helpful not prove tional vague- for the “void challenged on statutes Those facts. peculiar its own on turns question statute The argument. ness” if we however, clear cases, make person, a for a crime made it Screios connoting §in 20 as “willfully” construe law, willfully de- color of state under spe- of a person deprive' purpose rights, privileges, “of inhabitants prive would intro- right, we cific constitutional by the protected secured immunities indeed, Court, no innovation. duce the United laws Constitution requirement of recognized that has the nature Because States.”16 act prohibited intent do specific favoring found Court legislation, accused to the consequences those avoid sup- which legislation interpretation vague or render may otherwise impelling “is constitutionality its ports constitu- invalid. statute indefinite statute] [the possible if at all so that here is the essen- a statute in such tional vice pur- great its to serve may be allowed placing accused injustice tial individual, in protection pose—the offense, nature an him on trial 98, 1031. at 65 S.Ct. Id. civil liberties.” his define not does statute which the Congress say that when to We hesitate warning.... no gives it which hence of Fourteenth the enforce to sought is imposed punishment the But where a vain it did fashion in this Amendment the with knowingly done act for only an for that to conclude hesitate thing. We the which statute doing that of purpose re- Congress, of this effort years be said cannot the accused prohibits, im- times, the protect several newed warning or knowl- lack of suffer from guaran- the individual of rights portant does is he the act edge that has Amendment Fourteenth by the teed that requirement The of law. violation Act if the Yet gesture. idle an been purposeful or be willful act must so far vagueness by reason falls certain, purposes, all not may render concerned, there is of law process crime which of the statutory definition speci- lack of a similar to be would seem it But uncertain. respects in some is and immuni- privileges ficity when objection the statute relieve does equal protection ... and clause ties without, of- warning an punishes it n Amend- Fourteenth ... of the clause unaware. accused was fense of which if no construc- Only are involved. ment (internal cita- 101-02, 65 S.Ct. Id. claim of this Act from can save tion omitted). tion willing we are unconstitutionality n Court, in the basis, the same! -the On result. reach opinion, majority in the cited cases other (internal citations 100, 65 S.Ct. Id. at regulation constitutionality of upheld omitted). trans motor vehicles drivers requiring “so to avoid liquids inflammable porting very unde- not reach did The Court and, feasible” where practicable, by far avoided It instead result. sirable thor congested through into or driving willfulness requirement finding that § 242. 18 U.S.C. current to the 52, cessor prede- statute, was 18 U.S.C. The oughfares, Boyce Motor Lines v. United clearer and precise more language, this States, 337, 339, 342 U.S. 72 S.Ct. 96 does not mean poorly drafted (1952), L.Ed. 367 and an requir ordinance regulation is unconstitutionally vague. ing a business obtain a if it license sells Hussein, 351 F.3d at 15 (quoting United any “designed items or marketed for use Petrillo, 1, 7, 332 U.S. 67 S.Ct. with illegal cannabis or drugs.” Village (1947)). 91 L.Ed. regula Flipside, Estates v. Es Hoffman tion present in the Hoffman case is aimed at groups tates, Inc., 489, 489, 102 S.Ct. of immigrants Somalia, Ethiopia, (1982). 1186,71 L.Ed.2d 362 Yemen, Eritrea and other countries where use case, of the khat present however, plant is an accepted does not fall important part in the group lifestyles of cases in peo which the statute ple regulation subject regions. those is to a This void-for-vague- regulation is just poorly ness not attack.17 There nothing vague placed drafted. It is the listing of context of regulations as a cathinone that would make persons substance. process The due problem ordinary intelligence reasonably regulation this is not a vagueness they believe that problem, lawfully can possess the but the manner in which plant. find DEA has the language chosen to list controlled Supreme substances in the Court in City Bouie v. Colum bia, schedules. While it has chosen to list some specific plants by their commonly (1963), L.Ed.2d 894 very pertinent known names as psychoactive well as their regulation: this substances, it has chosen to list only the When a statute on its face vague psychoactive substances found the khat overbroad, it at gives least potential are found in —substances notice, defendant some virtue of this any mainstream dictionaries—-and failed to characteristic, very that a question may include or mention in way the khat arise as to its coverage, and that it n plant. A of person ordinary intelligence be held to cover his contemplated con- desiring to know whether it is illegal to duct. When a statute on its face is chew during khat Ramadan join or to narrow and precise, however, it lulls the friends for cup a of khat tea would not find potential defendant into a false sense of khat any mentioned place the of laws security, giving him no reason even to the United yet, States. Worse that per- suspect that clearly conduct outside the son, examining the DEA’s regulations of scope the statute as written will be could reasonably that possession conclude retroactively brought within byit an act of by reason of its omission from khat — judicial of construction. If Four- the schedules plants that contain other not—is teenth Amendment is when a violated a crime.18 person is required speculate “to as to

In my view, it is not enough to the meaning excuse of penal statutes,” as in this omission the Lanzetta, familiar recitation that “guess at [the statute’s] while the drafters might have chosen meaning and differ as to its application,” 17. The First Circuit agreed in Hussein that required any and, to avoid fair notice issue the statutory "[t]o extent that ambiguity is the incidentally, improve practical the adminis- linchpin of a fair warning challenge, this case regulations, tration of the simply is to list the Hussein, does not the fit mold.” 351 F.3d at plant, along khat plant, with the marihuana 15. plant, the peyote poppy plant the and the leaves the coca plant, as a controlled sub- Curing the reg- constitutional defect of the stance. simple. ulations be would All that imprisoned, would being possibly fear is that violation Connally, pro- that his due argument appreciate the uncer- when, because greater

much under Constitution rights cess is meaning statute’s to the tainty as by requiring satisfied can be deci- the court’s until not revealed itself he at that prove trial government an afforded not even sion, is person a contained con- plant khat that the knew specula- in such engage opportunity substance. trolled ques- act in committing the before tion tion. V. Conclusion S.Ct. 1697. at Id. stated, I believe the reasons For case, because Similarly, present 1308.11(f)(3),listing cathinone § C.F.R. and is narrow face on its regulation stimulant, 21 C.F.R. and I a Schedule into defendant potential precise, lulls 1308.14(e)(1) as a Sched- cathine listing fact that security. sense false fair stimulant, provide notice do not IVule psychoac- illegal listed contains plant intelligence that ordinary persons person to a not revealed is substances tive a criminal plant the khat possession of person until that intelligence ordinary regulations these my opinion, offense. criminal arrested, and endures indicted requirements process the due not meet do testimony expert on based prosecution Amendments, Fourteenth Fifth and DEA chemist. aof from dissent respectfully I therefore contrary. to the conclusion majority’s “a scien- the fact appreciate IWhile however, finding Moore, Judge I join. a law’s may mitigate requirement ter evidence was insufficient there to the respect especially vagueness, knew the defendant show complainant that of notice to adequacy sub- contained Village proscribed,” conduct his Hoff- of conviction judgment stance, 499, 102 Estates, S.Ct. man vacated. must be consequently added), believe don’t (emphasis to save serves requirement a scienter regulations statutes all criminal Due Process in violation being Fourteenth Fifth

Clause Otherwise, the “constitu- Amendments. Plaintiff-Appellant, SHARIF, Richard Screws, “the vice” referred tional placing injustice to accused essential DEVELOPMENT INTERNATIONAL offense, nature an on trial him bin LTD., CO., Mohammed GROUP define not does the statute Saud, Faisal Al Al Aziz Abdul bin Naif warning,” him no gives of which hence Bassam, De- Al Faraj, and Salah Al becomes U.S. at fendants-Appellees. I believe virtually non-existént. No. 03-3814. that each case require process issues facts, includ- unique on its own Appeals, considered Court but regulation, text of just the ing Circuit. Seventh regulation of that matter subject also 12, 2004. April Argued by its targeted are who' persons 22, 2005. Decided Feb. case, seriously doubt In this enactment. 18, 2005. March Denied Rehearing indicted Caseer, was Mr. who emotionally cost, both burdened and the trial criminal financially, of a

Case Details

Case Name: United States v. Daahir Caseer

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 28, 2005

Citation: 399 F.3d 828

Docket Number: 02-2268

Court Abbreviation: 6th Cir.