Court upholds federal drug conspiracy conviction for khat sales

The mildly stimulant leaves of an east African plant called khat was the subject of a 2009 federal drug trafficking prosecution in Indianapolis, when a U.S. immigrant from Somalia was found distributing it to customers of his coffee shop. Khat, which produces a stimulant effect when chewed or brewed into tea, is completely legal in Somalia, where people use it at about the same frequency as Americans use coffee or tobacco.

Khat plants aren't even illegal in the United States, but their use as a stimulant is. Khat, scientifically known as Catha edulis, contains cathinone and cathine, which are listed as controlled substances in the federal Controlled Substances Act, and possession of any amount of those substances is a federal drug offense.

The coffee shop owner and a cab driver who helped him import it from Europe were convicted with conspiracy to traffic in khat, and the coffee shop owner was also convicted of "knowingly using or maintaining a place for the purpose of distributing and using cathinone." They appealed their convictions in part on the grounds that they had no idea that selling khat could be illegal and, furthermore, the Controlled Substances Act doesn't list khat or give fair warning that the active substances in the plant have been banned.

Moreover, the defendants argued that the chemical testing was inadequate. Only some of the dried khat leaves DEA agents reported seizing from the coffee house contained cathinone or cathine. In those that did, the DEA's test only indicated that the substances were present -- it couldn't determine in what amounts.

The appellate court was unsympathetic. Finding that any vagueness about khat in the Controlled Substances Act was easily cleared up by a reading of the (569-page) federal sentencing guidelines, the court upheld the drug trafficking and distribution convictions, so legally there was sufficient notice that khat use was illegal. And, since any amount of the drug is illegal for use or sale, it didn't matter how much cathinone or cathine was present in the coffee shop's stock.

Disappointingly, the court seems to have overlooked the fact that these men were immigrants with no legal training from a country where khat is ubiquitous and unquestionably legal. Most people in the U.S. have never heard of the plant, so it's not as if they could have asked around. How could they have known to check both the Controlled Substances Act and the federal sentencing guidelines before undertaking to sell it?

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