399 F.3d 828 (6th Cir. 2005), 02-2268, United States v. Caseer

Docket Nº:02-2268.
Citation:399 F.3d 828
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Daahir CASEER, Defendant-Appellant.
Case Date:February 28, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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399 F.3d 828 (6th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Daahir CASEER, Defendant-Appellant.

No. 02-2268.

United States Court of Appeals, Sixth Circuit.

Feb. 28, 2005.

Argued: June 8, 2004

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ARGUED:

Sidney L. Moore, Sutherland, Asbill & Brennan, Atlanta, Georgia, for Appellant.

Stephan E. Oestreicher, Jr., United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF:

Sidney L. Moore, Sutherland, Asbill & Brennan, Atlanta, Georgia, for Appellant.

Stephan E. Oestreicher, Jr., United States Department of Justice, Washington, D.C., Ross G. Parker, United States Attorney, Detroit, Michigan, for Appellee.

Before: BOGGS, Chief Judge; MOORE, Circuit Judge; HOLSCHUH, District Judge. [*]

OPINION

MOORE, Circuit Judge.

Following a bench trial, Defendant-Appellant Daahir Caseer was convicted on May 15, 2002 of one count of conspiring to import cathinone and one count of aiding and abetting the importation of cathinone. The district court sentenced Caseer to two years' probation. Caseer appeals his conviction, asserting that: (1) the controlled substances schedules in 21 U.S.C. § 812 and 21 C.F.R. § 1308.11(f) did not fairly warn him that possession of khat, a plant containing cathinone, was illegal; and (2) the district court committed clear error in finding that Caseer had the scienter required for conviction. We agree with the district court that Caseer's conviction did not violate due process because the scienter requirement overcomes the threat to due process posed by the failure of the controlled substances schedules to identify khat as a source of cathinone. However, we REVERSE Caseer's conviction and REMAND the case for further proceedings because, even viewing the evidence in the light most favorable to the prosecution, the evidence is insufficient to support a finding that, beyond a reasonable doubt, Caseer knew that khat was a controlled substance.

I. BACKGROUND

For centuries, persons in East African and Arabian Peninsular countries such as Somalia, Kenya, and Yemen have chewed or made tea from the stems of the native khat shrub ( Catha edulis ), which is known to have stimulant properties. Khat is often consumed in social settings, and many men in the East African/Arabian Peninsular region use khat. Joint Appendix ("J.A.") at 164-65 (D. Ct. Op. at 5-6). Khat is legal in many parts of East Africa, the Middle East, and Europe; however, khat is illegal in the United States because it contains cathinone, a Schedule I controlled substance, and cathine, a Schedule IV controlled substance. See 21 C.F.R. § 1308.11(f) (listing cathinone as a Schedule I stimulant); 21 C.F.R. § 1308.14(e) (listing cathine as a Schedule IV stimulant). State and federal prosecutions relating to khat seem to be a recent phenomenon, with the first reported cases appearing in the mid-1990s. See United States v. Sheikh, 367 F.3d 756 (8th Cir.2004); United States v. Hussein, 351 F.3d 9 (1st Cir.2003); Connecticut v. Gurreh, 60 Conn.App. 166, 758 A.2d 877 (2000); Warsame v. Maryland, 338 Md. 513, 659 A.2d 1271 (1995); Minnesota v. Ali, 613 N.W.2d 796 (Minn.Ct.App.2000) ;

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Ohio v. Samatar, 152 Ohio App.3d 311, 787 N.E.2d 691 (2003); Virginia v. Siad, No. CRIM 9463, 1997 WL 33421320 (Va. Cir. Ct. Mar. 6, 1997).

At the time of his trial in 2001, Daahir Caseer had lived in the United States for approximately three years, having spent the first sixteen years of his life in Somalia and seven years in Kenya. The events in question began in the spring of 2000, when Caseer approached John Eldridge, a bookkeeper at the Nashville, Tennessee taxicab company where Caseer worked, about the possibility of Eldridge traveling to Amsterdam, the Netherlands, to transport about fifty pieces of khat to the United States. Caseer explained to Eldridge that he could not make the trip himself because of visa issues. 1 Caseer assured Eldridge that khat was an agricultural product and, at worst, customs might confiscate the khat and assess a fine. 2 At trial, Eldridge testified that taxicab drivers in Nashville (80% to 90% of whom he believed to be of Somali or East African descent) frequently chewed khat and that, from his observations, khat was no stronger than caffeine. J.A. at 161 (D. Ct. Op. at 2).

Eldridge agreed to go to Amsterdam along with his girlfriend, Shannon Adams. Eldridge would receive $200.00 to compensate him for a day of missed work, and Eldridge and Adams's travel expenses would be covered by Caseer and several other taxicab drivers who would be dividing the khat. Caseer also admitted during trial that three weeks before Eldridge's trip, $1,500.00 had been sent to Amsterdam via Western Union. However, Caseer explained that the money wired to Amsterdam was unrelated to the khat and was bound for Somalia and that the khat was a gift from a Mr. Awale and three or four other people.

After arriving in Amsterdam on June 3, 2000, Eldridge and Adams met with Awale, who removed the contents of their luggage and left with the empty bags. The morning that Eldridge and Adams were to fly back to the United States, Awale returned with the three bags, now containing approximately 285 bundles of khat, or roughly 14,250 stems.

Eldridge and Adams returned to the United States on June 5, 2000, landing at the airport in Detroit, Michigan. A drug-detection dog at the Detroit airport alerted on one of the bags filled with khat, and a Drug Enforcement Agency ("DEA") agent approached Eldridge and Adams. The pair agreed to cooperate with the investigation, and Eldridge placed a recorded telephone call to Caseer informing him that he had arrived and had cleared customs. At trial, Eldridge testified that during the telephone call, he complained about the amount of khat being greater than Caseer had indicated and reiterated his understanding that Caseer would pay his travel and related expenses. Caseer told Eldridge to trust him and that Eldridge did not need to discuss the matter with anyone else. Eldridge also testified that he met with Caseer after returning to Nashville and that Caseer told him they had not done anything illegal and would not be prosecuted, that he would take care

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of it, and that Eldridge should just stay quiet and not say anything about Caseer's involvement.

Agent Panning then traveled to Nashville and arrested Caseer. During questioning, Caseer admitted knowing Eldridge, Adams, and Awale. Caseer initially stated that Eldridge had purchased the airplane tickets; however, Caseer later said that a Hussein Abugar had made the purchase. At trial, Caseer stated that he may have lied to Agent Panning, but that he only did so because he was shaky and scared.

A sample of the khat seized by the DEA was sent to the Michigan State Police for analysis. Jurgen Switalski, a chemist employed by the Michigan State Police, tested the khat and concluded that it contained cathinone and cathine, but did not determine in what amounts. Switalski testified that, once khat has been harvested, the cathinone begins to dissipate and the cathine level rises; however, Switalski stated that he did not know how long it would take for the cathinone to degrade.

Eldridge, Adams, and Caseer were indicted on two counts: (1) conspiracy to import cathinone; and (2) importation of cathinone, and aiding and abetting the importation of cathinone. 3 Eldridge agreed to testify against Caseer and pleaded guilty to misdemeanor possession of cathinone pursuant to a plea agreement recommending six months' probation. Caseer waived his right to trial by jury and was tried before a district judge for the Eastern District of Michigan.

At the conclusion of the prosecution's case-in-chief, Caseer filed a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, claiming: (1) that his constitutional right to due process had been violated because he had not been fairly warned of the criminality of his actions; (2) that khat qualified as a food item not subject to regulation by the Controlled Substances Act; and (3) that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that Caseer intended to import cathinone. The district court took Caseer's motion under advisement, later denying the motion and finding Caseer guilty on both counts. The district court sentenced Caseer to two years' probation. Caseer now appeals his conviction, asserting the fair warning and insufficiency-of-the-evidence claims first raised in his motion for judgment of acquittal.

II. ANALYSIS

A. Fair Warning

Caseer first appeals his conviction on the basis that, because the schedule of

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controlled substances in 21 C.F.R. § 1308.11(f) lists cathinone as a controlled substance without making explicit reference to "khat," he was not fairly warned that importing khat into the United States was illegal and thus his conviction violates due process. Whether a criminal statute is unconstitutionally vague is a legal question which we review de novo. United States v. Namey, 364 F.3d 843, 844 (6th Cir.2004) (citing United States v. Hill, 167 F.3d 1055, 1063 (6th Cir.), cert. denied, 528 U.S. 872, 120 S.Ct. 175, 145 L.Ed.2d 148 (1999)).

1. Establishment of Cathinone as a Controlled Substance

Section 812 of the Controlled Substances Act, 21 U.S.C. § 812, sets forth five schedules of controlled substances which are revised annually by rules promulgated by the Administrator of the DEA and published in 21 C.F.R.§ 1308.01 et seq. See 21 U.S.C. § 811 (providing in part that "(a) The Attorney General shall apply the provisions of this subchapter to the controlled substances listed in the schedules established by section 812 of...

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