Argued April 12, 2013
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-cr-00015-WTL-KPF—William T. Lawrence, Judge.
Before Bauer, Posner, and Flaum, Circuit Judges.
Bauer, Circuit Judge.
This case introduces a new drug culture to the Seventh Circuit: the underground world of "khat."
Jama Mire and Hassan Rafle became involved in a conspiracy to distribute khat in the Indianapolis area. Mire's business, the Somali House of Coffee, served as a place where people could get the "stuff" and enjoy it in comfort. Government agents received a tip from a con- cerned Somali man about this khat-distribution conspiracy and launched an investigation into it. Mire and Rafle were each indicted on one count of conspiracy to possess with intent to distribute cathinone, in violation of 21 U.S.C. §§ 841(a) and 846. Mire was indicted on two additional counts: (1) knowingly using or maintaining a place for the purpose of distributing and using cathinone, in violation of 21 U.S.C. § 856(a)(1); and (2) possession with intent to distribute a mixture or substance containing cathinone, in violation of 21 U.S.C. § 841(a). And after a bench trial, Mire and Rafle were found guilty on all counts.
The Defendants appeal their convictions; the sentences they received are not at issue. Mire and Rafle contend, first, that their due process rights were violated because they were not given fair warning that the possession of khat may be illegal; and second, that the district court erred under Daubert in admitting government expert witness testimony regarding khat plants that were seized at the coffee house and tested for cathinone, a controlled substance. Mire also contends that his conviction for conspiracy to distribute khat and his conviction for maintaining a place for the distribution or use of khat violate the Double Jeopardy Clause; and anyway, that the evidence at trial was not sufficient to support any of his convictions.
Finding each of the arguments without merit, we affirm.
A. What is Khat?
This is the first case involving khat to appear before this Court, so we take the opportunity to explain it. Khat, pronounced "kOIt"-the common name for the plant Catha Edulis-grows in parts of East Africa and the Arabian Peninsula. It is known as the drug-of-choice among Somali men who chew the leaves or mix them in with tea for the stimulant effects. It is not smoked or eaten in any fashion. The use of khat in Somalia is legal and an accepted pastime, and the plant is readily sold in the marketplace and stores. Estimates put its use among Somali men as being equivalent to caffeine or tobacco use among the American population. See Edward G. Armstrong, Research Note: Crime, Chemicals, and Culture: On the Complexity of Khat, 38 J. Drug Issues 631, 633 (2008) [hereinafter Armstrong, Research Note] (noting that 75% of Somali men use khat). U.S. pop culture has even referenced the use of khat in Somalia, including the 2001 Oscar-winning film Black Hawk Down. See Black Hawk Down, Internet Movie Database, http://www.imdb.com/title/tt0265086/?ref=ttqt qt tt (last visited July 8, 2013).
Khat "the plant" is not illegal in the United States. It is not listed in the U.S. Code or the Code of Federal Regulations (CFR) controlled substances schedules. See, e.g., United States v. Hassan, 542 F.3d 968, 972 (2d Cir. 2008); United States v. Caseer, 399 F.3d 828, 833 (6th Cir. 2005); United States v. Hussein, 351 F.3d 9, 15 (1st Cir. 2003). The plant, however, contains two controlled substances, cathinone and cathine, that produce an energetic and excited state that allows a user to combat fatigue and function at a higher level. See U.S. Food and Drug Administration, Basis for the Recommendation for Control of Cathinone into Schedule I of the Controlled Substances Act 10, 12 (Nov. 5, 1992) [hereinafter FDA Report]. As a result, cab drivers in the United States have been known to use khat during their shifts. See Caseer, 399 F.3d at 831. "Fresh" khat is sold in "bundles, " costing approximately $40 to $70 in the United States. "Dried" khat, also known as "garraba" or "G20, " is sold in packs or "baggies" for about $40 each.
Cathinone, a Schedule I drug, has properties similar to those of amphetamine and is the stronger of the two controlled substances found in khat leaves. It was added to the U.S. Controlled Substance Act (CSA) in 1993. See 21 C.F.R. § 1308.11(f)(3); FDA Report, at 18. Cathine, on the other hand, is a Schedule IV controlled substance and the weaker of the two. See 21 C.F.R. § 1308.14(f)(1). Not all khat leaves contain the same or similar amounts of either substance, however; some contain none. The regulation of khat then is dependent upon the particular chemical composition of each leaf, which may vary depending on the size of the plant and when the plant was harvested. See Schedules of Controlled Substances: Placement of Cathinone and 2, 5-Dimethoxy-4-ethylamphetamine Into Schedule I, 58 Fed. Reg. 4316, 4317 (Jan. 14, 1993) ("When khat contains cathinone, khat is a Schedule I substance. During either the maturation or the decomposition of the plant material, cathinone is converted to cathine, a Schedule IV substance. . . . When khat does not contain cathinone, but does contain cathine, khat is a Schedule IV substance.").
Once a khat plant or shrub is harvested, the cathinone in the plant metabolically breaks down into the less potent substance cathine. This breakdown occurs roughly thirty to forty-eight hours after harvesting but, again, varies depending on the particular plant and whether steps are taken to preserve the plant's initial chemical composition. See Armstrong, Research Note, at 639. In other words, fresh khat leaves have a greater ratio of cathinone to cathine than old, dried up leaves, thereby producing greater psychoactive effects on the user. This is why khat growers expedite the process of harvesting the plants and shipping them to the intended destinations: khat users purchase the leaves for their desired effects, and a slow or delayed shipping process naturally diminishes the effect of each leaf upon consumption. See United States v. Abdulle, 564 F.3d 119, 125 (2d Cir. 2009) ("[A] newly harvested leaf may contain cathinone, while the same leaf a few days later may contain only cathine, the weaker, Schedule IV stimulant."). And at some point, khat leaves might not have any trace of the controlled substances and ingesting them would have the same effect as chewing leaves off an oak tree. See Argaw v. Ashcroft, 395 F.3d 521, 526 (4th Cir. 2005) ("At this juncture, there is no reasonable basis for the conclusion that khat always contains cathine."). For this reason, khat generally arrives in the United States within five or six days after it has been harvested.
The only way to determine whether a particular khat leaf has cathinone or cathine is to chemically analyze it. This is important because, unlike marijuana or peyote, law enforcement personnel cannot determine whether possession of a given khat plant is illegal by simply looking at the plant. Cf. 21 C.F.R. §§ 1308.11(d)(23), (d)(26) (listing "marijuana" and "peyote" as controlled substances).
B. The Facts
Hussein Ahmed was a cab driver and known khat dealer in the Indianapolis, Indiana area. Ahmed had "fresh" khat connections in Europe who would send packages of it to him at: his residence, rented mailbox stores, and the Somali House of Coffee (the coffee house) before Mire became its owner. Once Ahmed received a package, which usually contained 30 to 200 bundles of khat, he repackaged the bundles into smaller quantities. This made for easier distribution of the product to local street buyers stretching from Indianapolis to Columbus, Ohio. One continuing problem for Ahmed was that some of his packages of fresh khat were intercepted by U.S. Customs officials. But for the packages he did receive, he would send back money using international money transfer businesses, including Dahabshil, Inc., Amal Express, and Western Union. And in doing so, he often used fake aliases to evade law enforcement detection.
Ahmed also distributed "dried" khat, which he purchased domestically, in boxes from Ethiopian sources. These boxes contained plastic trash bags full of garraba and weighed approximately 8 kilograms. One box cost Ahmed anywhere from $800 to $1, 600.
Ahmed had another problem, however; he needed help selling and distributing the khat he purchased. To overcome it, he reached out to others for assistance. One person Ahmed looked to was his roommate, Rafle, who fled from Somalia in the 1990s and eventually landed in Indianapolis. This made sense because Rafle was often present when Ahmed opened the khat shipments at their apartment and repackaged the "goods" for distribution.
Rafle had two main roles in the conspiracy. First, he often sent money back to Ahmed's sources overseas on Ahmed's behalf. The amount would vary, but on one particular occasion, Rafle sent $700 to a "Guleed Ismail" in Holland. Guleed Ismail was one of Ahmed's sources for fresh khat from September 2007 until February 2011. Additionally, Rafle was a truck driver by trade. Accordingly, he could transport khat from Columbus to Indianapolis, and vice versa, while on the road. Government wiretaps captured a few conversations between Ahmed and Rafle when Rafle was commuting to and from Columbus. One such wiretap involved a khat transaction that was to occur and included Ahmed apprising Rafle to tell the seller that he was sent by the "Sultan." Another call included Ahmed advising Rafle to "change to local roads, " and Ahmed testified that he told Rafle to drive the speed limit to avoid law enforcement scrutiny. Ahmed paid Rafle approximately $400 per trip in exchange for acting as his drug courier.
Ahmed also wanted to distribute khat locally in a secure setting in Indianapolis; that is how the Somali House of Coffee and Mire became involved. Mire, born in Mogadishu, Somalia, immigrated to the United States with his family in 2004 and eventually made his way to Indianapolis, Indiana. In early 2009, he became the sole proprietor of the coffee house. The coffee house was also known by its previous name, Hargeisa Coffee; Hargeisa is a city in Somalia. It was at the coffee house where Mire's troubles began.
Ahmed testified that in April 2009, shortly after Mire purchased the coffee house, he reached out to Mire to discuss selling khat there. The former owner of the coffee house, Handule Mohammed, was a player in Ahmed's khat conspiracy and previously allowed Ahmed to send khat there. Testimony indicated that the Somali community in ...