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7th Circuit addresses 'khat' convictions for first time

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The 7th Circuit Court of Appeals has ruled on many types of drug cases, but was presented with a new drug to consider for the first time: “khat,” a popular drug among the Somali community.

Jama Mire and Hassan Rafle became involved in a conspiracy to distribute khat in the Indianapolis area. Khat is the common name for the plant having leaves that are chewed or soaked in tea. Khat is not illegal, but the plant contains two controlled substances,
cathinone and cathine, that are used to combat fatigue.

Mire’s business, the Somali House of Coffee, served as a place where people could get the drugs and enjoy in comfort. Government agents received a tip from a concerned Somali man about this khat-distribution conspiracy and launched an investigation into it. Mire and Rafle were each convicted on one count of conspiracy to possess with intent to distribute cathinone. Mire was also convicted of knowingly using or maintaining a place for the purpose of distributing and using cathinone; and possession with intent to distribute a mixture or substance containing cathinone.

The defendants challenged the government testimony by Drug Enforcement Administration chemists regarding the testing of khat plants for cathinone, claiming the testing procedures underlying the experts’ testimony were unreliable and incomplete.

The district court conducted a Daubert hearing on the motion and denied the motion to exclude.

In United States of America v. Jama Mire and Hassan Rafle, 12-2792, 12-2793, the men contended that their due process rights were violated because the Controlled Substance Act and its corresponding regulations do not provide fair warning that the possession of khat may be illegal. This argument is one of first impression in the 7th Circuit, Judge William Bauer noted, but all of the other Circuits that have considered it have rejected it.

The statutes at issue here require “actual knowledge” that khat contains a controlled substance and contain a scienter requirement.

“Like our sister circuits who have considered the regulations involving khat, we are mindful that ‘it would be helpful to people, who actually resort to statutes and regulations to determine whether their conduct is lawful, for Congress, through the statutory or regulatory scheme, to include the word “khat” in the CSA,’” Bauer wrote. “This is especially true considering that not all khat leaves contain cathinone or cathine and that other plants containing controlled substances are specifically listed in the schedules. But this does not invalidate the statutes at issue on Due Process grounds; the Defendants’ fair warning challenge fails.”

The men also claimed the District Court erred under Daubert in admitting the government’s expert testimony regarding the chemical composition of the khat leaves tested.

“To find in the Defendants’ favor, we would have to write an additional element into the offenses: that khat leaves must have a ‘certain amount’ of cathinone versus ‘any quantity.’ That is not our job, and we decline to do so,” the court ruled. “The Defendants’ argument that a qualitative assessment is insufficient because it does not say ‘how much’ cathinone or cathine is in a given leaf or plant easily fails; the district court correctly rejected it.”

The 7th Circuit also rejected Mire’s double jeopardy challenge to his convictions and his claim that the government didn’t provide sufficient evidence to support his convictions.
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

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  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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