United States v. Abdulle, No. 06-3647-cr (2d Cir. April 22, 2009) (Newman, Sotomayor, Katzmann, CJJ)

Defendant Mohamed was convicted of distributing cathinone, the active ingredient in khat leaves, and challenged the sufficiency of the evidence against him. The circuit affirmed.

The difficulty, as always in khat cases, is the complex regulatory scheme for this substance. See Krazy Khat, posted September 27, 2008. Khat itself is not a controlled substance. Cathinone, the stimulant present in the leaves when it is first harvested is a Schedule I controlled substance; cathine, the substance that cathinone turns into after a few days, is a Schedule IV controlled substance and is not always illegal.

Mohamed was specifically charged with trafficking in the Schedule I substance. Thus, the government was required to prove that he knew that he possessed and intended to deal in a controlled substance, and that he in fact possessed cathinone. His sufficiency claim was premised on a claim that there was no evidence that he knew cathinone was a controlled substance.

The circuit disagreed. First, three years before this arrest, Mohamed was arrested and charged with receiving a 150-pound shipment of cathinone in Minneapolis. This was “direct evidence of his knowledge that cathinone is a regulated substance under United States law.” Moreover, the trial evidence as to the charged activity revealed that he attempted to conceal his efforts, further supporting the inference that he knew the khat he was involved with contained an illegal substance.

In addition, the government specifically proved that Mohamed sought to distribute cathinone, and not cathine, by showing (1) his efforts to move the khat leaves quickly, and (2) that the khat leaves were wrapped banana leaves to keep them moist. These were both reasonably found by the jury as efforts to preserve the cathinone.