recognizing this principle, but contrasting the situation where the statute regulated the public at large, and concluding that “the term ‘cathinone’ is sufficiently obscure that persons of ordinary intelligence ... probably would not discern that possession of [a stimulant] containing cathinone ... constitutes possession of a controlled substance”
How later courts described this case
- recognizing this principle, but contrasting the situation where the statute regulated the public at large, and concluding that “the term ‘cathinone’ is sufficiently obscure that persons of ordinary intelligence ... probably would not discern that possession of [a stimulant] containing cathinone ... constitutes possession of a controlled substance”
- explaining that cathinone is an “obscure scientific term” and “the controlled substances schedule’s vagueness derives not from the language’s imprecision but rather from the schedule essentially being written in a language foreign to persons of ordinary intelligence”
- noting Marijuana is the common name for “all parts of the genus Cannabis sativa L.” (cannabis plant); identifying THC as tetrahydrocannabinols “the main psychoactive substance produced naturally by the marijuana plant”; and observing that the compounds of these structures contain optical isomers
- noting that the “‘Supplementary Information’ accompanying an agency rule is separate from the text of the rule itself and is not codified in the Code of Federal Regulations”
Written by the judges who cited it.
The opinion
BOGGS, Chief Judge,
concurring in part and dissenting in part.
I concur in Judge Moore’s well-reasoned opinion with respect to the interpretation and constitutionality of the language of the federal drug laws, as they apply to the substance khat (Part II. A). Since the application of the drug laws to Mr. Caseer is constitutional so long as the statutory requirement of scienter is met, the question of scienter is crucial. I dissent, however, from the court’s conclusion that there was insufficient evidence of scienter.
The district court correctly identified and applied, in denying the motion for acquittal at the end of the government’s ease, the standard of Jackson v. Virginia, *845 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979) that the motion should not be granted unless no “rational finder of fact could find” the defendant guilty beyond a reasonable doubt on the evidence presented.
In this case, at the time of the denial of the motion, the government had presented evidence that:
1. Caseer had been in this country for three years, and had been immersed in an employment and ethnic culture in which consumption of khat was widespread.
2. Even though Caseer himself had recently gone to Europe, he recruited and paid apparently unwitting persons to go to Europe and courier a large quantity of khat back to him.
3. Immediately before the trip, he had wired $1,500 to an acquaintance in Amsterdam, who was the person who supplied the khat to the couriers. Although Caseer later provided an explanation for the sending of this money, that explanation was uncorroborated and the court was under no obligation to accept it.
4. Caseer coached the couriers in silence with respect to law enforcement officers, and took steps to prevent his name from being connected with the khat, both before and after the couriers were apprehended. Even when Caseer thought the couriers had successfully cleared customs and delivered the khat, he continued to counsel them to silence.
As seen in a variety of other cases, e.g., United States v. Hussein, 351 F.3d 9 (1st Cir.2003), United States v. Lewis, 676 F.2d 508 (11th Cir.1982), and United States v. Barnes, No. 90-5165, 1991 WL 1336 (6th Cir. Jan 10, 1991) (unpublished), evidence of evasion and consciousness of guilt can support a finding of scienter. In this case, such evidence is present in abundance. Ca-seer’s best argument to the contrary is that his questionable actions were all because he feared simple confiscation of his cargo under the agricultural laws, not because he had any idea that he was trafficking in controlled substances, of whatever variety. Indeed, his brief argues that “many things people bring in from other countries, such as apples or bottles of liquor, can be confiscated at customs without being controlled substances.” (Appellant’s Br., p. 65).
However, his attempts at insulating himself from connection with the khat went far beyond what would be consistent with bringing in illicit apples, or at least the district judge, as finder of fact, was entitled to make such a judgment. And in denying the Rule 29 motion, the judge, as determiner of law, was entitled, contrary to this panel, to determine that she was rational in so doing.
While Caseer’s explanation is ingenious, the judge was not obliged to believe it, any more than the judge in Barnes was required to believe that the person who arranged for a “swallower” to import a substance in ingested condoms actually thought he was dealing in gold rather than in heroin. See 1991 WL 1336 at *1.
In addition, at the time of the Rule 29 motion, there was evidence that the “street value” of the khat imported was upward of $100,000. This would be strong additional support for the scienter that there was something considerably more sinister involved than illegal fruit importation. The judge could take that testimony at face value at the time of the initial submission of the Rule 29 motion.
The value figure was contradicted, though not demolished, in Caseer’s own testimony, but when judging the final verdict of guilt we may, as did the district judge, take into account Caseer’s own testimony, and the unbelievability of some *846 parts of it, such as his explanations of why he recently went to Germany, but just didn’t have time to pick up khat, and couldn’t go to Amsterdam himself, but had to use a courier, as well as his explanation that the money wired to the khat supplier, just before the importation, had nothing to do with the almost contemporaneous supplying of the khat.
Under these circumstances some rational finder of fact could determine that Ca-seer’s clandestine efforts to avoid detection and thwart law enforcement, coupled with his knowledge of the khat culture, constitutes adequate circumstantial evidence that he knew that he was importing a controlled substance. I do not believe Judge Hood erred in being such a rational fact finder.
In a relatively comparable case, albeit involving a person who was only a courier, the First Circuit found, in Hussein , that the finder of fact could find sufficient evidence of scienter based on
four key facts. First, the appellant was a knowledgeable individual; he was not a recent immigrant, but a successful businessman who had been in the United States for a number of years. Second, he knew that what he possessed was khat and that khat was used as a stimulant. Third, this was not his first trip for Mohamed. Last-but far from least-he knew that the arrangements for shipping and retrieving the packages were elaborately contrived to avoid detection.
Hussein, 351 F.3d at 20 . Although the First Circuit found the case to be a close one, as I find this case, I would come to the same conclusion. In our case, there are several factors that are even stronger than in Hussein , primarily that Caseer was not a mere courier, but was the organizer, recipient, and paymaster for the operation and that Caseer here testified, permitting the finder of fact to assess the credibility of his explanations. Although in the Hussein case the court also noted the repeat nature of Hussein’s involvement, that factor, when weighed against the other similarities (including knowledge of the nature of khat as a stimulant and elaborate measures to evade detection) lead me to the same conclusion.
On balance, the case against Caseer is at least as strong, and the Hussein case would therefore counsel toward an affir-mance of the district court judgment. I would so hold, and I therefore respectfully dissent.