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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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