U.S. v. Hussein, No. CR. 02-25-P-H.

• Decision Date: 31 October 2002
• Docket Number: No. CR. 02-25-P-H.
• Citation: 230 F.Supp.2d 109
• Parties: UNITED STATES of America v. Abdigani HUSSEIN, Defendant
• Court: U.S. District Court — District of Maine

230 F.Supp.2d 109

UNITED STATES of America v. Abdigani HUSSEIN, Defendant

No. CR. 02-25-P-H.

United States District Court, D. Maine.

October 31, 2002.

Jonathan R. Chapman, Assistant United States Attorney, Office of the United States Attorney, Portland, ME, for Plaintiff.

Joseph H. Groff, III, Jensen, Baird, Gardner & Henry, Portland, ME, Sidney L. Moore, Atlanta, GA, for Defendant.

DECISION AND ORDER ON MOTION FOR ACQUITTAL

HORNBY, Chief Judge.

The Indictment charged that Abdigani Hussein "unlawfully, knowingly and intentionally possessed with intent to distribute a substance containing Cathinone, a Schedule I controlled substance ...." Before the case went to the jury, I reserved judgment on Hussein's Rule 29 motion for acquittal. The jury found him guilty. I now DENY the motion.¹

The government concedes that there was no evidence that Hussein knew that he had cathinone or that he knew what cathinone was. Even the Drug Enforcement Administration ("DEA") agents and chemist who testified were previously unfamiliar with cathinone. What the evidence showed was that Hussein picked up a parcel at the Portland, Maine, FedEx office. The parcel contained what Hussein knew was khat, a plant material that grows in East Africa and the Arabian peninsula. Khat is imported by certain ethnic groups to chew or brew into tea. Hussein intended to deliver it to his friend Gani Mohamed. Hussein also had some khat in his car and had been chewing it the morning of his arrest. A DEA chemist testified that, upon chemical testing,² a sample of the khat in the FedEx package contained a detectable amount of cathinone. Without objection, I instructed the jury that, in order for them to find that Hussein knowingly and intentionally possessed a substance containing cathinone, the government must prove that either: (1) Hussein knew that his khat contained cathinone (which the government admittedly could not prove); or (2) Hussein knew that the substance he possessed contained a controlled substance. I then defined controlled substance as "a drug or other substance regulated under federal drug abuse law."

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

SUFFICIENCY OF THE EVIDENCE

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

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

That formulation works fine for most drug cases. The statute makes marijuana, for example, a controlled substance. Therefore, a defendant cannot successfully argue that he should be acquitted because he did not know that possessing marijuana was illegal. But ordinarily the government must prove that a defendant knew that what he possessed was marijuana.⁶

There are cases, however, where the government has not been able to prove that a defendant knew the identity of the illicit substance that he possessed. For example, he may have thought that he bought one controlled substance (perhaps heroin), but it turns out to have been a different controlled substance (perhaps cocaine). The First Circuit has stated that in such circumstances the government has to prove that the defendant knew that he possessed a controlled substance, but not the particular substance it turned out to be.⁷ It is from those cases that I drew the alternative formulation of the jury instruction here. I instructed the jury that in order for them to find that Hussein knowingly and intentionally possessed a substance containing a detectable quantity of cathinone, "the government must prove beyond a reasonable doubt that Abdigani Hussein knew ... that the substance he possessed contained a controlled substance." Neither the government nor the defendant objected to the instruction.

So did the evidence permit the jury to find beyond a reasonable doubt that Hussein knew that his package of khat contained a controlled substance? What the jury had was abundant evidence to support a finding that Hussein knew that something illegal was going on. Hussein knew that he and many others were picking up packages of khat at the FedEx office for Gani Mohamed. (This was Hussein's second trip for Gani Mohamed.) He knew that Gani Mohamed used the names and addresses of individuals all over Lewiston and Portland for shipments. He knew that Gani Mohamed had given him only a tracking number for the package he was to pick up. Hussein knew that Gani Mohamed asked him to pick up the parcel even though Gani Mohamed was going to be in Portland himself, and indeed had arranged for Hussein to bring it to him at a restaurant in the Portland vicinity about an hour after the pickup. He knew that Gani Mohamed paid him not in money but in khat. Hussein knew that Gani Mohamed sold the khat for $6-8 a bundle to Somalis in Lewiston. When Hussein picked up the parcel, neither Gani Mohamed's name nor Hussein's name was listed as addressee on it, and the label falsely listed the contents as documents. At the very least, therefore, the jury could find by circumstantial evidence but beyond a reasonable doubt that Hussein knew that he was doing something to avoid detection by law enforcement authorities.

One of the defense theories, however, was that any concern about law enforcement authorities could just as easily have been about Department of Agriculture authorities⁸ as drug authorities. In other words, because vegetation generally cannot be brought into the country without inspection and permits (to restrict pests, invasive plants, etc.), the jury could find that Hussein knew that something illegal was going on, but could not find beyond a reasonable doubt that Hussein knew that it involved controlled substances.⁹ Although this issue is close, I conclude that there was sufficient evidence for the jury to find that Hussein knew that he was trafficking in a controlled substance.¹⁰ All this clandestine activity involved khat, something that the evidence showed Hussein knew that he and other Somalis used for a stimulant effect.¹¹ There was no record evidence of concern by agricultural authorities, or evidence that Hussein knew of any such concern. All that the evidence showed on this subject was the cross-examination of the FedEx manager from Portland who agreed that imported vegetation in the FedEx system was subject to special rules and regulations and generally went to Memphis for processing. Although the jury could have chosen to acquit Hussein on the defense theory, they were also entitled to find beyond a reasonable doubt that Hussein knew that he had a controlled substance and was evading drug-regulating authorities, not agricultural authorities.¹²

CONSTITUTIONAL ADEQUACY OF NOTICE

As I have said, ignorance of the law generally is no defense.¹³ But there is a competing statement of principle. When governmental authorities decide to make particular conduct criminal they must, in order to avoid constitutional vagueness concerns, "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."¹⁴ Ambiguous criminal statutes create two concerns: (1) adequacy of "actual notice" to people and (2) "arbitrary enforcement."¹⁵ For reasons that are unexplained, this country's duly promulgated laws and regulations nowhere list khat as a controlled substance. Instead, the regulations list cathinone in Schedule I and cathine in Schedule IV. Cathinone and cathine are chemical components of khat. Does the failure to list khat itself as a controlled substance, while listing cathinone and cathine, satisfy constitutional vagueness concerns?

On the subject of whether a law provides adequate notice that certain behavior is criminal, the Supreme Court has said that the question is whether "reasonable persons would know that their conduct is at risk."¹⁶ A "scienter" requirement in the statute, like the requirement in this statute that a defendant knows that he has a controlled substance, reduces notice concerns.¹⁷ Moreover, in this Circuit a defense of ignorance of the law, the notice argument, is limited to "wholly passive" conduct, and the First Circuit has ruled that possession of a firearm is not "passive."¹⁸ If possession of a firearm is not "passive," then neither is possession of khat. That ends the adequacy of notice argument under existing precedent.¹⁹

The Supreme Court, however, has said that "the more important aspect of the vagueness doctrine `is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.'"<sup>20</sup> Otherwise, "a criminal statute may permit `a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'"²¹ In this case, the record provides just enough to cause concern, but not enough to rule in the defendant's favor.

The evidence presented at trial indicates that...