The khat is out of the bag

US v. Ali, and 12 others:  Khat is a flowering plant native to the Horn of Africa and the Arabian Peninsula, and in these areas where it is legal, khat chewing has long been a social custom, dating back thousands of years.  Here, though, it’s a Schedule I drug when fresh, and slightly less potent when stale (then, Schedule IV), and so, it’s illegal to traffic in it.

Seventeen Somali and Yemeni nationals were indicted for their participation in a khat ring, receiving charges for conspiracy; many of them also received conspiracy to commit money laundering convictions as well.  Four of them pleaded guilty and testified at trial for the government, including ring leader Yonis Ishak; the remaining thirteen went to trial and were convicted of almost all the charges against them.  All thirteen joined the appeal, arguing primarily that the evidence against them was insufficient to prove that they knew the powerful stimulant in khat, called cathinone, was a controlled substance and that khat contained cathonine.  They challenged the jury instruction on scienter and willful blindness.  The money laundering defendants challenged whether the indictment provided sufficient information to identify financial transactions involved. Finally, they challenged the district court’s exclusion of their expert witness, and the denial of one defendant’s motion for a severance.

The main focus of the appeal is the sufficiency of the evidence challenge, whether the evidence was sufficient to prove that the defendants knew that khat contained a controlled substance.  The panel acknowledged the lack of direct evidence, but found that all the defendant conducted themselves in a way that indicated they circumstantially knew that khat contained a controlled substance.  The conspirators’ phone calls, the disguised packages, secret circumstances of deliveries of khat, how the money was hidden, etc., were all discussed by the government’s witnesses. Additionally, the conspiracy ring leader turned on everyone involved, such that it became “almost impossible to conclude that any defendant did not know of at least some illegal aspects of the enterprise.”  The panel found support from numerous other courts in similar khat cases, and affirmed the convictions.