concurring in part and dissenting in part.
Judge Moore’s opinion is not only a thorough and well-written recitation of the facts and a careful analysis of the law, it also is very balanced in its consideration of the two major issues in this appeal, the constitutionality of the regulations that make the possession of eathinone and eath-ine criminal offenses and the sufficiency of the evidence in this case to support appellant’s conviction for the importation of eathinone. I totally agree with Judge Moore that there was insufficient evidence to show that the appellant knew that the khat plant contained a controlled substance. I also agree with Judge Moore’s analysis regarding the Constitution’s due process requirement that a law must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1105 (6th Cir.1995) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)), cert. denied, 516 U.S. 1158, 116 S.Ct. 1041, 134 L.Ed.2d 189 (1996). My dissent is based on my firm belief that the due process requirement of fair warning *847has not been met, and that this constitutional failure is not overcome by the fact that conviction of a defendant violating the regulation at issue requires a showing of actual knowledge that the khat plant contains a controlled substance.1 '
Whether a law does or does not give fair warning to a person of ordinary intelligence requires, in my opinion, a consideration of not just the text of the law, but also the nature of the subject of the law and the persons who are subjected to it.
I. The Text of the Regulation
I agree with the majority that this case differs from most fair-warning cases in that the regulation’s listing of cathinone as a controlled substance is not ambiguous in the traditional sense as applied in those cases. As the majority correctly notes, the regulation on its face explicitly establishes cathinone as a Schedule I controlled substance. The majority nevertheless finds a “latent vagueness” in the regulation. The majority states that, “[w]hen a statute is precise on its face yet latently vague, the danger of persons being caught unaware of the criminality of their conduct is high.” This latent 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.”
My view of the infirmity of the regulation goes further. I don’t believe that there is anything vague, patent or latent, regarding the listing of cathinone as a controlled substance. In my view, however, when consideration is given to the subject of the regulation, cathinone, in the context of the regulations in which it is found, and the persons subjected to the regulation, a person of ordinary intelligence would conclude that possession of the khat plant is clearly not a violation of any law.
II. The Subject of the Regulation
Cathinone is a psychoactive substance that is produced naturally in the khat plant. The khat plant is unique in that it produces naturally two different chemical components relevant to this case. When it is cut, the khat plant contains a substance identified as cathinone, which begins to degrade after the plant is cut. What remains in the plant is a substance identified as cathine, which has a lesser stimulant effect than cathinone.2 The Controlled Substances Act (“CSA”), 21 U.S.C. § 801, et seq., does not list cathinone or cathine as a controlled substance, but subsequent regulations place these two substances, emanating from the same plant, in different controlled substances schedules.
21 C.F.R. § 1308.11(f)(3)3 lists cathinone as a Schedule I stimulant as follows:
Cathinone
Some trade or other names: 2-amino-l-phenyl-l-propanone, alpha-aminopropio-phenone, 2-aminopropiophenone, and norephedrone.
21 C.F.R. § 1308.14(e)(1) lists cathine as a Schedule IV stimulant as follows:
*848Cathine ((+ )-norpseudoephedrine).4
The regulations that place cathinone and cathine in different schedules do not mention the khat plant and do not give growers or users of the khat plant even a hint that the khat plant contains any controlled substance, much less two different types of controlled substances. Anyone looking at the regulations, however, would readily see that some plants that contain controlled substances are themselves listed in the schedules by their commonly known names.
Marihuana,5 the common name for a plant of the genus Cannabis, is specifically listed in the statute as a Schedule I controlled substance, 21 U.S.C. § 812(c), Schedule I(c)(10), and in the regulations, 21 C.F.R. § 1308.11(d)(22). It is described in great detail as follows:
The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
21 U.S.C. § 802(16).
In addition to listing the plant itself, both the statute, 21 U.S.C. § 812(c), Schedule I(e)(17), and the regulations, 21 C.F.R. § 1308.11(d)(30), specifically list Tetrahydrocannabinols (“THC”), which is the main psychoactive substance produced naturally by the marihuana plant. THC is described in great detail in the regulations as follows:
Tetrahydrocannabinols
Meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant, or in the resinous extractives of such plant, and/or synthetic substances, derivatives, and their isomers with similar’ chemical structure and pharmacological activity to those substances contained in the plant, such as the following:
1 cis or trans tetrahydrocannabinol, and their optical isomers
6 cis or trans tetrahydrocannabinol, and their optical isomers
3, 4 cis or trans tetrahydrocannabinol, and its optical isomers
(Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered.)
21 C.F.R. § 1308.11(d)(30).
Peyote, a small spineless cactus, is specifically listed in the statute, 21 U.S.C. § 812(c), Schedule I(c)(12), and in the regulations. It is described in detail in the regulations as follows:
Meaning all parts of the plant presently classified botanieally as Lophophora wil-liamsii Lemaire, whether growing or not, the seeds thereof, any extract from any part of such plant, and every eom-*849pound, manufacture, salts, derivative, mixture, or preparation of such plant, its seeds or extracts
(Interprets 21 U.S.C. 812(e), Schedule l(c)(12)).
21 C.F.R. § 1308.11(d)(25).
In addition to listing the plant itself, the regulations, 21 C.F.R. § 1308.11(d)(23), specifically list mescaline, the main psychoactive substance produced naturally by the peyote cactus plant, as a controlled substance.6
The poppy plant is specifically listed in the statute as a Schedule II controlled substance, 21 U.S.C. § 812(e), Schedule 11(a)(3), and in the regulations, 21 C.F.R. § 1308.12(b)(3), as opium poppy and poppy straw. These terms are described in 21 U.S.C. §§ 802(19) and (20) as follows:
The term “opium poppy” means the plant of the species Papaver somniferum L., except the seed thereof.
■ The term “poppy straw” means all parts, except the seeds, of the opium poppy, after mowing.
'In addition to listing the plant itself, the regulations list specific psychoactive substances produced naturally by the opium poppy plant, e.g., morphine, 21 C.F.R. § 1308.12(b)(1)(14), and codeine, 21 C.F.R. § 1308.12(b)(1)(7), as well as opium derivatives, e.g., heroin, 21 C.F.R. § 1308.11(0)(11),7 and opiates, 21 C.F.R. § 1308.11(b) and § 1308.12(c).8
The leaves of the coca plant are specifically listed in the statute, 21 U.S,C. § 812(c), Schedule 11(a)(4), and the regulations, 21 C.F.R. § 1308.12(b)(4).
In addition to listing the leaves of the coca plant themselves, both the statute, 21 U.S.C. § 812(c), Schedule 11(a)(4), and the regulations, 21 C.F.R. § 1308.12(b)(4), specifically list cocaine and ecgonine (products of the cocaine alkaloid, a psychoactive substance produced naturally by the coca plant) as controlled substances.
The regulations, therefore, list a number of specific plants as being themselves controlled substances, giving clear warning that possession of these plants is illegal, regardless of whether the person is aware that the plant contains a particular chemical substance that has a psychoactive effect. Remarkably — and in my opinion, fatally — absent from the regulations is the khat plant. Any person who wants to know whether it is illegal to make a cup of tea from the khat plant would find that, in contrast to other plants such as the marihuana plant, the peyote cactus plant, the poppy plant, and the coca plant, there is no reference of any kind to the khat plant any place in the law of the United States, ie., either in statutes or in regulations. I totally agree with the majority’s statement that “the term ‘cathinone’ is sufficiently *850obscure that persons of ordinary intelligence reading the controlled substances schedules probably would not discern that possession of khat constitutes possession of a controlled substance.”9 I would go further, however, because it is my opinion that persons of ordinary intelligence reading the controlled substances schedules could reasonably conclude that possession of the khat plant is clearly not illegal because, unlike other plants containing naturally-produced psychoactive substances, the khat plant is not listed.
In United States v. Hussein, 351 F.3d 9 (1st Cir.2003), the appellant, who had been found guilty of knowingly possessing and intending to distribute khat, argued that the regulation regarding cathinone did not give fair notice that the possession of the khat plant was a criminal offense. The First Circuit, however, rejected the argument. In doing so, the court reached two conclusions.
First, it held that, although the khat plant itself is not listed as a controlled substance and therefore “is not a controlled substance per se,” Id. at 17, it nevertheless is a controlled substance because of the precatory language in 21 C.F.R. § 1308.11(f) which includes, above the list of controlled substances, the language “any material, compound, mixture, or preparation which contains any quantity of the following substances.” The court noted that “[w]hen khat is first cut, it contains cathinone and is therefore a Schedule I controlled substance. If and when the cathinone mutates into cathine, khat migrates to Schedule IV.” Id. at 13.10 The court, however, concluded that the precatory language “any material ... containing ... cathinone” makes it “perfectly clear that the charged conduct' — -possession of a material containing cathinone — is forbidden.” Id. at 15.
Second, the court concluded that “[d]ue process does not require the statute specifically to prohibit either ‘khat’ or ‘khat containing cathinone’ as a precondition to conviction.” Id. The due process argument, based on the fact that the regulations do list certain plants — the marihuana plant, the peyote cactus plant, the poppy plant and the leaves of the coca plant — but not the khat plant, was not considered by the court to be persuasive. The court found that the pattern of listing plants in addition to their psychoactive ingredients is “at best, irregular.” The court based this finding on the fact that Schedule I lists psilocybin and psilocyn as controlled substances “but not their plant hosts (magic mushrooms).” Id. at 16.
I respectfully disagree with both conclusions.
First, when read in context with its adjacent words, “compound, mixture, or preparation,” and in context with the framework of the regulations, it is not, in my opinion, “perfectly clear” that the word “material” includes plant life.
*851The word “material” should not be plucked from the language of 21 C.F.R. § 1308.11(f) and considered in a vacuum. It is a fundamental canon of statutory construction, equally applicable to regulations, that words of a statute or regulation “must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dep’t of the Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989). The preca-tory language contained in 21 C.F.R. § 1308.11(f) — “any material, compound, mixture, or preparation which contains any quantity of the following substances” — is identical to the precatory language found in 21 C.F.R. § 1308.11(d) which lists the marihuana plant in addition to THC, and the peyote cactus plant in addition to mescaline. The same precatory language is also found in 21 C.F.R. § 1308.12(b), which lists-the opium poppy plant in addition to morphine and codeine, and the leaves of the coca plant in addition to cocaine. Furthermore, the term “marihuana” means “all parts of the plant ... and every compound ... mixture, or preparation of such plant .21 U.S.C. § 802(16). Similarly, the term “peyote” means “all parts of the plant ... and every compound ..: mixture, or preparation of such plant .... ” 21 C.F.R. § 1308.11(d)(25).
..When consideration is given to the word “material” in context with the regulations, it is subject to another fundamental canon of statutory construction, i.e., that meaning should not be given to a word in a statute, or regulation, that “renders other provisions of the same statute inconsistent, meaningless or superfluous.” United States v. Ninety-Three (93) Firearms, 330 F.3d 414, 420 (6th Cir.2003). If “material” is read to include all plant life, the listing of the marihuana plant and the peyote cactus plant, and the use of the same words “compound,” “mixture,” or “preparation” in the description of those plants, clearly would be superfluous.
To support its conclusion, the court in Hussein considered - a hypothetical case of a defendant possessing a sugar cube containing detectable amounts of LSD, a -listed controlled substance. It would be clear, the court found, ■ that the statute gave fair warning that it would be illegal to possess “a material containing LSD.” Hussein, .351 F.3d at 16. While it is obvious that the sugar cube would clearly be “material” containing a controlled substance, it does not follow that any-plant naturally containing a listed controlled substance is a “material” within the scope of the regulations. While various kinds of controlled substances, such as LSD, may be concealed in different types of materials or may be mixed with other substances for consumption purposes or to avoid detection by law enforcement agencies, cafhi-none and cathine are natural ingredients of the khat plant in the -same, mqnner, .for example, that THC is a natural ingredient of the marihuana plant. Plants are listed separately in the regulations as controlled substances and, for that reason, the hypothetical sugar cube containing LSD, in my opinion, has little, if any, relevance to the plant life involved in this case.
Considering the word “material” in the context of its adjacent words, “compound, mixture, or preparation” and in the context of certain plant life being specifically listed following the same precatory language, it is not, in my opinion, “perfectly clear” that “material” includes all plants that produce some psychoactive ingredient. While I believe that, based on a consideration of the language of 21 C.F.R. § 1308.11(f) in its context, it can be argued that plant life is nót a “material,” and' that, therefore, the precatory language of the regulation does not adequately give fair notice that the khat plant itself is a controlled substance, I do not base my dissent on this contention. I set it forth only to show that the first *852conclusion of the Hussein court is questionable, and to show why consideration of the manner in which the regulations are structured leads me to the vastly more important conclusion that the regulations dealing with cathinone and cathine are unconstitutional, the second issue considered in greater detail by the court in Hussein.
Apart from any linguistic question regarding the precatory language used in 21 C.F.R.. § 1308.11(f) and in the other regulations, the fatal constitutional flaw is the omission of any mention of the khat plant when other plants are specifically listed in the regulations as being controlled substances.
The court in Hussein found “unpersuasive” the appellant’s argument that, because the regulations list some plants but not the khat plant, the regulations do not comply with the due process requirement of fair warning. The court found that the “pattern” was “at best, irregular.” Hussein, 351 F.3d at 16. It based this finding on the fact that Schedule I prohibits possession of psilocybin and psilocyn “but not their plant hosts (magic mushrooms).” Id.
It is simply too much of a stretch to assume, on the basis of this limited pattern, that a person of ordinary intelligence would jump to the conclusion that, despite the clear prohibition on “material containing cathinone,” khat containing cathinone is excluded from coverage. This conclusion tracks the thinking of a clear majority of the state courts that have been confronted with similar problems.
Id.
The difficulty I have with a conclusion that due process exists in the present case because of a failure to include psilocybic mushrooms in the schedules is twofold. First, for the very same reasons set forth earlier in this opinion, I believe that the failure to include the mushroom plants that contain psilocybin or psilocyn as controlled substances also constitutes a failure to comply with the due process requirement of fair notice. The familiar adage that “two wrongs do not make a right” comes to mind. Second, when dealing with the constitutional right to be fairly notified that to engage in certain conduct is a crime, I don’t think it is “a stretch” to believe that persons of ordinary intelligence, seeing other plants specifically listed as being illegal but not the khat plant, could reasonably conclude that they can lawfully possess the khat plant.11
Finally, the Hussein court relied upon three state court mushroom cases for its decision.12 I find the fourth case cited, Fiske v. State of Florida, 366 So.2d 423 (Fla.1978), to be far more persuasive than the three state court cases relied upon by the First Circuit. The Florida statute in question in Fiske listed in its schedule of substances “any material which contains a quantity of the hallucinogenic substance ‘psilocybin.’ ” Id. The court said:
The statute makes no mention of psilo-cybic mushrooms or, for that matter, of any other psilocybic organic form that grows wild. If the statute were to specify that psilocybin was contained in certain identifiable mushrooms and were to name those mushrooms, thereby apprising a prospective defendant that possession of those mushrooms is unlawful, it *853would not be unconstitutional as applied. The statute as presently framed, however, gives no information as to what plants may contain psilocybin in its natural state. More particularly, the statute does not advise a person of ordinary and common intelligence that this substance is contained in a particular variety of mushroom. The statute,’therefore, may not be applied constitutionally to appellant. It does not give fair warning that possession of the mushrooms possessed by appellant is a crime. See Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); State v. Winters, 346 So.2d 991 (Fla.1977).
Fiske, 366 So.2d at 424.
Furthermore, as the majority opinion correctly finds, “the term ‘cathinone’ is sufficiently obscure that persons of ordinary intelligence reading the controlled substances schedules probably would not discern that possession of khat constitutes possession of a controlled substance.” As stated earlier, I am in complete agreement with this statement. The failure to include in the regulations the khat plant as a controlled substance itself (a seemingly logical inclusion) may stem from the fact that the Convention on Psychotropic Substances listed only cathinone and cathine as controlled substances, infra. But whatever the reason for the omission, the result is a failure to give fair warning to a person of ordinary intelligence that possession of the khat plant is unlawful, and hence a denial of the due process guaranteed by the Constitution.
III. Persons Who Are Subject to the Regulations
There is absolutely no evidence that the khat plant with its cathinone and cathine •ingredients presented a significant problem to the population of the United States when the regulations in question were promulgated by the Drug Enforcement Administration (“DEA”) of the Department of Justice. In 1986, the United Nations Commission on Narcotic Drugs included cathinone and cathine in' the schedules of the Convention on Psychotropic Substances (“Convention”), to which the United States is a signatory. In 1987, the DEA Administrator found that cathinone and cathine “must be controlled under the CSA in order to meet the requirements imposed by the Convention on Psychotropic Substances.” Schedules of Controlled Substances; Placement of-Cathinone and 2.5-Dimethoxy-j-ethylamphetamine - (DOET) in Schedule I and Cathine, Fen-camfamin, Tenproporex and Mefenorex in Schedule IV, 52 Fed.Reg. 41736-01 (proposed Oct. 30, 1987). Article 22 of the Convention provides, in part, that “[s]ub-ject to its constitutional limitations, each Party shall treat as a punishable offense, when committed intentionally, any action contrary to a law or regulation adopted in pursuance of its obligations under this Convention....” The DEA’s inclusion of cathinone and cathine as controlled substances because they are treated as controlled substances in the Convention’s schedules13 was clearly subject to this country’s constitutional limitations, specifically the due process requirement of the Fifth and Fourteenth Amendments which mandates that’fair warning be given to a person of ordinary intelligence regarding the conduct that is made criminal by the regulations.
According to the DEA, khat has been used since antiquity as a recreational and religious drug by natives of Eastern Afri*854ca, the Arabian Peninsula, and the Middle East. Khat is legal in many countries, and has long been an acceptable substitute for alcohol among Muslims. During the period of Ramadan, the use of khat is popular to alleviate fatigue and reduce hunger. Although khat can be abused, it is often used in a social context similar to the manner in which coffee is consumed in other parts of the world. While the amount of khat seized in the United States has been steadily increasing, the increase appears to be related to the increasing number of immigrants from Somalia, Ethiopia, Yemen, Eritrea, and other countries where khat use is common. It does not seem likely that khat use will expand beyond the ethnic Somalian, Ethiopian, Yemeni, and Eritrea communities. According to the DEA, there is no indication that khat is marketed outside these ethnic communities, although it appears to be readily available.14
While every person, regardless of nationality and ethnic background, is obviously subject to the controlled substances regulations, I believe it is nevertheless a relevant factor, when considering the due process requirement of fair notice, that the khat plant has had widespread acceptance as a recreational and religious drug by millions of people in a number of nations, primarily in Africa, the Arabian Peninsula and the Middle East, where its use has been an important part of the cultures of those areas for centuries. Immigrants understandably bring that culture with them when they enter the United States. While the regulations at issue present the same fair warning problem for everyone, they unquestionably severely impact those ethnic groups who traditionally use khat in the same manner as others in the United States use legal stimulants such as coffee and tobacco. The regulations, however, do not mention khat or serve in the slightest way to warn anyone that it is illegal to chew khat, make tea from khat, or possess khat for any purpose whatsoever, including recreational and religious purposes. They truly, in my opinion, constitute a trap for the innocent.15
IV. The Constitutional Violation Is Not Overcome By the Need to Prove Scienter
It remains whether “the concern that a person of ordinary intelligence could unwittingly expose himself or herself to criminal penalties due to the vagueness of the controlled substances schedules with respect to khat is overcome here because ... conviction requires a showing of actual knowledge that khat contains a controlled substance.” I respectfully disagree with the majority’s conclusion that the lack of fair warning is overcome by the requirement to prove scienter, i.e., in this case, that the defendant knew that the khat plant contained a controlled substance.
It is, of course, true that certain statutes have been saved from a finding of unconstitutionality, due to a failure to give fair *855warning, by the fact that the statute in question required a specific intent to do the prohibited act. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), is often cited in defense of statutes challenged on the “void for vagueness” argument. The statute in question in Screios made it a crime for a person, under color of state law, to willfully deprive inhabitants “of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.”16 Because of the nature of the legislation, the Court found that favoring the interpretation of legislation which supports its constitutionality “is impelling here so that if at all possible [the statute] may be allowed to serve its great purpose — the protection of the individual, in his civil liberties.” Id. at 98, 65 S.Ct. 1031.
We hesitate to say that when Congress sought to enforce the Fourteenth Amendment in this fashion it did a vain thing. We hesitate to conclude that for 80 years this effort of Congress, renewed several times, to protect the important rights of the individual guaranteed by the Fourteenth Amendment has been an idle gesture. Yet if the Act falls by reason of vagueness so far as due process of law is concerned, there would seem to be a similar lack of specificity when the privileges and immunities clause ... and the equal protection clause ■ ... of the Fourteenth Amendment are involved. Only if no construction can save the Act from this claim of unconstitutionality are we willing to reach that result.
Id. at 100, 65 S.Ct. 1031 (internal citations omitted).
The Court did not reach that very undesirable result. It instead avoided it by finding that the requirement of willfulness relieved the statute of the objection regarding vagueness.
An analysis of the cases in which “willfully” has been held to connote more than an act which is voluntary or intentional would not prove helpful as each turns on its own peculiar facts. Those cases, however, make clear that if we construe “willfully” in § 20 as connoting a purpose to deprive' a person of a specific constitutional right, we would introduce no innovation. The Court, indeed, has recognized that the requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid. The constitutional vice in such a statute is the essential injustice to the accused of placing him on trial for an offense, the nature of which the statute does not define and hence of which it gives no warning.... But where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law. The requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain. But it does relieve the statute of the objection that it punishes without, warning an offense of which the accused was unaware.
Id. at 101-02, 65 S.Ct. 1031 (internal citation omitted).
■ On -the same! basis, the Court, in the other cases cited in the majority opinion, upheld the constitutionality of a regulation requiring drivers of motor vehicles transporting inflammable liquids to avoid “so far as practicable, and, where feasible” driving into or through congested thor*856oughfares, Boyce Motor Lines v. United States, 342 U.S. 337, 339, 72 S.Ct. 329, 96 L.Ed. 367 (1952), and an ordinance requiring a business to obtain a license if it sells any items “designed or marketed for use with illegal cannabis or drugs.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).
The present case, however, does not fall in the group of cases in which the statute or regulation is subject to a void-for-vagueness attack.17 There is nothing vague in the listing of cathinone as a controlled substance. The due process problem with this regulation is not a vagueness problem, but the manner in which the DEA has chosen to list controlled substances in the schedules. While it has chosen to list some specific plants by their commonly known names as well as their psychoactive substances, it has chosen to list only the psychoactive substances found in the khat plant — substances that are not found in any mainstream dictionaries — -and failed to include or mention in any way the khat plant. A person of ordinary intelligence desiring to know whether it is illegal to chew khat during Ramadan or to join friends for a cup of khat tea would not find khat mentioned any place in the laws of the United States. Worse yet, that person, examining the DEA’s regulations could reasonably conclude that possession of khat — by reason of its omission from schedules that contain other plants — is not a crime.18
In my view, it is not enough to excuse this omission by the familiar recitation that while the drafters might have chosen clearer and more precise language, this does not mean that the poorly drafted regulation is unconstitutionally vague. Hussein, 351 F.3d at 15 (quoting United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947)). The regulation in the present case is aimed at groups of immigrants from Somalia, Ethiopia, Yemen, Eritrea and other countries where use of the khat plant is an accepted and important part of the lifestyles of the people in those regions. This regulation is not just poorly drafted. It is placed in the context of regulations that would make persons of ordinary intelligence reasonably believe that they can lawfully possess the khat plant. I find that the language of the Supreme Court in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1963), is very pertinent to this regulation:
When a statute on its face is vague or overbroad, it at least gives a potential defendant some notice, by virtue of this very characteristic, that a question may arise as to its coverage, and that it may ■ be held to cover his contemplated conduct. When a statute on its face is narrow and precise, however, it lulls the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial construction. If the Fourteenth Amendment is violated when a person is required “to speculate as to the meaning of penal statutes,” as in Lanzetta, or to “guess at [the statute’s] meaning and differ as to its application,” *857as in Connally, the violation is that much greater when, because the uncertainty as to the statute’s meaning is itself not revealed until the court’s decision, a person is not even afforded an opportunity to engage in such speculation before committing the act in question.
Id. at 352, 84 S.Ct. 1697.
Similarly, in the present case, because the regulation on its face is narrow and precise, it lulls a potential defendant into a false sense of security. The fact that the khat plant contains listed illegal psychoactive substances is not revealed to a person of ordinary intelligence until that person is arrested, indicted and endures a criminal prosecution based on the expert testimony of a DEA chemist.
While I appreciate the fact that “a scien-ter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed,” Village of Hoffman Estates, 455 U.S. at 499, 102 S.Ct. 1186 (emphasis added), I don’t believe that a scienter requirement serves to save any and all criminal statutes and regulations from being in violation of the Due Process Clause of the Fifth and Fourteenth Amendments. Otherwise, the “constitutional vice” referred to in Screws, “the essential injustice to the accused of placing him on trial for an offense, the nature of which the statute does not define and hence of which it gives him no warning,” 325 U.S. at 101, 65 S.Ct. 1031, becomes virtually non-existént. I believe that due process issues require that each case be considered on its own unique facts, including not just the text of a regulation, but also the subject matter of that regulation and the persons who' are targeted by its enactment. In this case, I seriously doubt that Mr. Caseer, who was indicted and burdened with the cost, both emotionally and financially, of a criminal trial and the fear of possibly being imprisoned, would appreciate the argument that his due process rights under the Constitution of the United States can be satisfied by requiring the government to prove at trial that he knew that the khat plant contained a controlled substance.
V. Conclusion
For the reasons stated, I believe that 21 C.F.R. § 1308.11(f)(3), listing cathinone as a Schedule I stimulant, and 21 C.F.R. § 1308.14(e)(1) listing cathine as a Schedule IV stimulant, do not provide fair notice to persons of ordinary intelligence that possession of the khat plant is a criminal offense. In my opinion, these regulations do not meet the due process requirements of the Fifth and Fourteenth Amendments, and I therefore respectfully dissent from the majority’s conclusion to the contrary. I join. Judge Moore, however, in finding that there was insufficient evidence to show that the defendant knew that the khat plant contained a controlled substance, and that the judgment of conviction consequently must be vacated.
. Judge Boggs in his separate opinion concurs in Judge Moore's conclusion that the regulations in question are constitutional. In my dissenting opinion I therefore will refer to the majority view as being the view expressed in Part IIA of Judge Moore's opinion.
. Testimony in the present case is that upon drying or within three days after harvesting of the khat plant, cathinone rapidly decomposes into cathine. JA 94-95'. The khat plant sample tested in the present case contained both cathinone and cathine. JA 86.
. For reference purposes, citations to the most recent version of the CFR are used.
. The ( + ) represents a positive optical isomer.
. Although the more common spelling is “marijuana,” the spelling found in the CSA and the regulations is used in this opinion.
. Mescaline (3, 4, 5 — trimethoxyphenethyla-mine) can be extracted from the peyote plant or produced synthetically. DEA Briefs & Background, Drugs , & Drug Abuse Descriptions, Peyote & Mescaline, http://www.us-doj.govldealconcemlpeyote.html (accessed January 28, 2005).
. Raw or cooked opium gum taken from the pods of the opium poppy contains more than 35 different alkaloids, including morphine and codeine which can be extracted from the opium. Morphine can be converted into heroin. U.S. Drug Enforcement Administration, Resources For Law Enforcement Officers, Intelligence Reports, Opium Poppy Cultivation and Heroin Processing, Southeast Asia, httpflwww.usdoj.gov/dealpubslintell 20026l20026.html (accessed January 28, 2005).
."Opiates” are any drugs or other substances "having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having such addiction-forming or addiction-sustaining liability.” 21 U.S.C. § 802(18).
. The Government’s expert witness, a forensic chemist with a PhD in chemistry, had been employed by the Michigan State Police scientific laboratory for 22 years. He had never heard the word "cathinone” until five years before his testimony in May, 2001. Other than forensic chemists, he knew of no one outside his area of expertise who "would have the faintest idea what cathinone would be.” JA 77, 104.
. In Argaw v. Ashcroft, 395 F.3d 521, 526 (4th Cir.2005), the Fourth Circuit specifically held that "[k]hat, in short, is not a controlled substance because the schedules themselves contain no reference to the plant.” Because it was not established that petitioner’s khat contained either cathinone or cathine, a Board of Immigration Appeals' order of removal, which was based on a finding that khat was a controlled substance, was reversed.
. The court is aware that Hussein was followed in a conclusory manner by the Eighth Circuit in United States v. Sheikh, 367 F.3d 756 (8th Cir.2004).
. Those cases are State v. Atley, 564 N.W.2d 817 (Iowa 1997), State v. Justice, 10 Kan.App.2d 569, 704 P.2d 1012 (1985), and People v. Dunlap, 110 Ill.App.3d 738, 66 Ill.Dec. 466, 442 N.E.2d 1379 (1982).
. Although cathine was placed in Schedule III of the Convention, the DEA placed it in Schedule IV of the CSA.
. U.S. Drug Enforcement Administration, Drug Intelligence Brief, Khat, June 2002. http:l/www.usdoj.gov/dea/pubs/intel/02032/ 02032.html (accessed January 28, 2005).
. Justice Douglas in United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 97 L.Ed. 200 (1952), finding that a section of the federal Food, Drug and Cosmetic Act made an act criminal "without fair and effective notice,” said, "[w]ords which are vague and fluid ... may be as much of a trap for the innocent as the ancient laws of Caligula.” (citation omitted). The same can be said for the regulations. While not vague and fluid, they would lead a reasonably intelligent person to believe that the khat plant is not a controlled substance. They, therefore, constitute a trap for the innocent — an even more effective snare than that referred to by Justice Douglas.
. The statute, 18 U.S.C. § 52, was the predecessor to the current 18 U.S.C. § 242.
. The First Circuit in Hussein agreed that "[t]o the extent that statutory ambiguity is the linchpin of a fair warning challenge, this case does not fit the mold.” Hussein, 351 F.3d at 15.
. Curing the constitutional defect of the regulations would be simple. All that would be required to avoid any fair notice issue and, incidentally, improve the practical administration of the regulations, is to simply list the khat plant, along with the marihuana plant, the peyote plant, the poppy plant and the leaves of the coca plant, as a controlled substance.