United States Court of Appeals
For the First Circuit
No. 03-1310
UNITED STATES OF AMERICA,
Appellee,
v.
ABDIGANI HUSSEIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Siler,* Senior Circuit Judge.
Sidney Leighton Moore for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
October 30, 2003
__________
*Of the Sixth Circuit, sitting by designation.
SELYA, Circuit Judge. A jury found defendant-appellant
Abdigani Hussein guilty of knowingly possessing and intending to
distribute khat, a plant naturally containing the chemical
stimulant cathinone (a Schedule I controlled substance), in
violation of section 841(a)(1) of the Controlled Substances Act
(CSA). The district court refused to set aside the verdict and
sentenced Hussein to one year's probation. Hussein appeals,
asserting that (i) the CSA did not afford him fair warning that
possession of khat was illegal, and (ii) the government did not
sufficiently prove his knowing possession of a controlled
substance.
Hussein's first assignment of error does not withstand
close scrutiny. His second entails a more complicated analysis, in
the course of which we break new ground. There is no proof that
Hussein knew what cathinone was or that he was dealing with it.
Nevertheless, the evidence suffices to show that he knew — in a
general sense — that he was dealing with a controlled substance.
We hold that this is enough: the government can satisfy the
scienter requirement of section 841(a)(1) notwithstanding the fact
that the accused was unaware of the drug's precise identity so long
as it is able to prove beyond a reasonable doubt that he knew that
he was dealing with a substance regulated by federal drug abuse
laws.
-2-
Having found Hussein's arguments wanting, we affirm his
conviction.
I. BACKGROUND
Following the conventional praxis, we recount the facts
in the light most favorable to the verdict, consistent with record
support. Glasser v. United States, 315 U.S. 60, 80 (1942); United
States v. Noah, 130 F.3d 490, 493 (1st Cir. 1997). The story began
on March 22, 2002, when three packages marked "Documents" arrived
at the Federal Express office in Portland, Maine. Noticing that
they were wet, Federal Express employees opened them and saw green,
leafy plants. Mistaking the contents for marijuana, the employees
summoned representatives of the federal Drug Enforcement
Administration (DEA).
After testing, DEA agents determined that the leafy
substance was not marijuana but khat (Catha edulis), a plant grown
in East Africa and the Arabian peninsula. The leaves of this plant
are traditionally chewed or brewed into tea to produce a stimulant
effect on the central nervous system. When first cut, the leaves
contain the chemical stimulant cathinone, which over time degrades
into the milder stimulant cathine. The evidence presented at trial
does not disclose whether either cathinone or cathine ever
completely disappears from khat.
DEA agents planned a controlled delivery and watched as
the appellant picked up one of the three boxes at the Federal
-3-
Express office. The appellant's arrest followed. Evidence at
trial established that the shipment of khat contained detectable
amounts of cathinone (no tests were run for cathine). More khat
was discovered in the appellant's car, and that material contained
detectable amounts of both chemicals.
During post-arrest questioning, the appellant admitted
knowing that the box he essayed to retrieve contained khat. He
also admitted knowing that khat acts as a stimulant, telling the
agents that "when you chew it . . . you stay awake, like coffee."
When the agents inquired whether he knew that possessing khat was
illegal, he replied: "No, not really."
The ensuing interrogation uncovered the existence of an
elaborate distribution scheme (the mechanics of which were known to
the appellant). The appellant was sent to retrieve the package by
a friend, one Gani Mohamed, who peddled khat to the Somali
community in Lewiston, Maine for $6 to $8 a bundle. Mohamed had
used the appellant's former address as the intended destination
when arranging to ship the package and gave the appellant the
Federal Express tracking number to facilitate the retrieval. This
was the appellant's second or third such mission (the record is
indistinct on this point), and the way in which it was structured
formed part of a pattern. Mohamed routinely used fake addresses as
intended destinations for khat shipments and recruited different
-4-
individuals to pick up the packages. Mohamed promised to pay the
appellant in khat for his services (as he had done before).
The government charged the appellant with "knowingly . .
. possess[ing] with intent to distribute a substance containing
cathinone, a Schedule I controlled substance," in violation of 21
U.S.C. § 841(a)(1). The case was tried to a jury. At the close of
all the evidence, the appellant moved for judgment of acquittal.
See Fed. R. Crim. P. 29. The court reserved decision and the jury
found the appellant guilty as charged.
In due season, the court revisited and denied the
appellant's Rule 29 motion. United States v. Hussein, 230 F. Supp.
2d 109, 110 (D. Me. 2002). This timely appeal ensued. In it, the
appellant advances arguments identical to those raised in his Rule
29 motion: (i) that the statute of conviction provided
insufficient notice that his conduct was illegal (and, thus, his
conviction offends due process), and (ii) that the evidence was
insufficient to prove that he knowingly possessed a controlled
substance. We address each of these arguments, pausing first to
erect the pertinent statutory framework.
II. THE STATUTORY FRAMEWORK
The CSA makes it illegal for any person knowingly to
possess a controlled substance with intent to distribute. 21
U.S.C. § 841(a)(1). For the purpose of this statutory scheme, a
"controlled substance" is one listed in Schedules I through IV of
-5-
the CSA. See id. § 802(6) (defining "controlled substance"); see
also id. § 812 (codifying the schedules). Neither cathinone nor
cathine appear in any of the schedules. But DEA regulations —
promulgated after passage of the CSA and published in the Code of
Federal Regulations — have expressly classified cathinone as a
Schedule I controlled substance, 21 C.F.R. § 1308.11(f)(2) (1993),
and cathine as a Schedule IV controlled substance, id. § 1308.14(e)
(1988). These accretions have the force of law. See 21 U.S.C. §
811(a) (authorizing the Attorney General to add substances to the
CSA schedules); 28 C.F.R. § 0.100(b) (delegating that authority to
the DEA). Thus, cathinone and cathine are controlled substances
within the purview of the CSA.
Determining whether khat — as distinguished from its
chemical building blocks — is a controlled substance requires us to
navigate a different statutory course. Khat is not listed by name
as a controlled substance in any of the schedules. The DEA
regulations provide, however, that "any material, compound,
mixture, or preparation which contains" cathinone is itself a
Schedule I controlled substance and is subject to the same
prohibitions as the chemical itself. 21 C.F.R. § 1308.11(f)(2);
see also id. § 1308.14(e) (declaring that "any material, compound,
mixture, or preparation" containing cathine is a Schedule IV
controlled substance and treated similarly). When khat is first
cut, it contains cathinone and is therefore a Schedule I controlled
-6-
substance. If and when the cathinone mutates into cathine, khat
migrates to Schedule IV.
The appellant does not dispute that khat is a controlled
substance when it contains cathinone or cathine. He reminds us,
however, that the word "khat" appears in neither the schedules nor
the amendments thereto. The only published references to khat that
are even arguably pertinent here are in the Federal Register. On
January 14, 1993, the DEA promulgated a final rule placing
cathinone in Schedule I. 58 Fed. Reg. 4,316. Appended to the rule
— in a section entitled "Supplementary Information" — is a
description of the link between khat and cathinone:
Cathinone is the major psychoactive component
of the plant Catha edulis (khat). The young
leaves of khat are chewed for a stimulant
effect. Enactment of this rule results in the
placement of any material which contains
cathinone into Schedule I. When khat contains
cathinone, khat is a Schedule I substance. . .
. When khat does not contain cathinone, but
does contain cathine, khat is a Schedule IV
substance.
Id. at 4,317. A similar supplementary notice was published with
the rule adding cathine to Schedule IV. See 53 Fed. Reg. 17,459,
17,459. The rules themselves were later published in the Code of
Federal Regulations (CFR), but the supplementary information was
never formally incorporated into the rules, and, thus, the
references to khat do not appear in the CFR.
Against this backdrop, we turn to the appellant's due
process and sufficiency claims.
-7-
III. THE DUE PROCESS CLAIM
Initially, the appellant complains that applying section
841(a)(1) to him violates the Due Process Clause because the CSA
did not provide fair warning that his actions were illegal.
Assessing this complaint requires an understanding of its
constitutional underpinnings.
The criminal law should not be a series of traps for the
unwary. To that end, the Due Process Clause demands that criminal
statutes describe each particular offense with sufficient
definiteness to "give a person of ordinary intelligence fair notice
that his contemplated conduct is forbidden." United States v.
Harriss, 347 U.S. 612, 617 (1954). A statute must give fair
warning, "in language that the common world will understand, of
what the law intends to do if a certain line is passed." McBoyle
v. United States, 283 U.S. 25, 27 (1931). "The underlying
principle is that no man shall be held criminally responsible for
conduct which he could not reasonably understand to be proscribed."
Harriss, 347 U.S. at 617.
The appellant seeks shelter within these doctrinal
confines. He concedes — as, indeed, he must — that a person of
ordinary intelligence reading the CSA would know that the law
criminalizes possession of cathinone, cathine, and materials
containing either or both of those chemicals. But the statute does
not list khat explicitly, and the appellant suggests that a person
-8-
of ordinary intelligence would not be aware that khat contains
cathinone and/or cathine (indeed, trial testimony indicated that
even experienced DEA agents lacked such knowledge). He posits,
therefore, that the CSA fails to provide fair warning that
possessing khat is illegal.
We review constitutional challenges to federal statutes
de novo. United States v. Bongiorno, 106 F.3d 1027, 1030 (1st Cir.
1997); United States v. Gifford, 17 F.3d 462, 471-72 (1st Cir.
1994). "Vagueness challenges to statutes not threatening First
Amendment interests are examined in light of the facts of the case
at hand; the statute is judged on an as-applied basis." Maynard v.
Cartwright, 486 U.S. 356, 361 (1988).
We note, at the outset, that the appellant faces an
uphill climb. Under section 841(a)(1)'s scienter requirement, the
government must prove beyond a reasonable doubt that the accused
"knowingly" possessed a controlled substance — and that fact, in
and of itself, lessens fair warning concerns. See Vill. of Hoffman
Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499
(1982) (explaining that "a scienter requirement may mitigate a
law's vagueness, especially with respect to the adequacy of notice
to the complainant that his conduct is proscribed"). In turn, the
diminished likelihood of unfair enforcement raises the bar for the
appellant's due process claim. United States v. Collins, 272 F.3d
984, 989 (7th Cir. 2001).
-9-
The slope is even steeper because the appellant's claim
is out of the ordinary. Successful fair warning challenges
typically involve conduct that falls into statutory crevices —
conduct that a defendant can colorably claim eludes a statutory
proscription. Such challenges generally fit one of three
configurations. United States v. Lanier, 520 U.S. 259, 266 (1997).
The most common is a void-for-vagueness attack. A criminal statute
is susceptible to such an attack if it either prohibits or requires
the performance of an act in terms so uncertain that persons of
average intelligence would have no choice but to guess at its
meaning and modes of application. United States v. Nason, 269 F.3d
10, 22 (1st Cir. 2001). Vagueness of this sort raises the
possibility that ordinary people will not understand what conduct
is forbidden and the possibility of arbitrary or discriminatory
enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983).
The second configuration in which fair warning challenges
routinely emerge is more a rule of construction than a ground for
invalidation. Often referred to as the rule of lenity, it "ensures
fair warning by so resolving ambiguity in a criminal statute as to
apply it only to conduct clearly covered." Lanier, 520 U.S. at
266. "It is only when no reasonably clear meaning can be gleaned
from the text of a statute, leaving courts to guess at what
Congress intended, that the rule of lenity comes into play."
United States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002).
-10-
The last of the typical configurations is an echo of the
Ex Post Facto Clause. It bars "unforeseeable and retroactive
judicial expansion of narrow and precise statutory language."
Bouie v. City of Columbia, 378 U.S. 347, 352 (1964). Under this
rubric, a novel interpretation may be upheld — but not as applied
to conduct taking place before its first iteration. Id. at 362.
These three configurations of the fair warning doctrine
have a common denominator. In each of them, the sine qua non is
statutory ambiguity. See, e.g., Bifulco v. United States, 447 U.S.
381, 387 (1980) (calling statutory ambiguity the "touchstone" of
the rule of lenity); Bouie, 378 U.S. at 353 (discussing the
relationship between statutory ambiguity and ex post facto
concerns); United States v. Meade, 175 F.3d 215, 222 (1st Cir.
1999) (rejecting a fair warning/vagueness attack on a statute that
contained "no ambiguity").
To the extent that statutory ambiguity is the linchpin of
a fair warning challenge, this case does not fit the mold. The
government prosecuted the appellant under an unambiguous
regulation. See 21 C.F.R. § 1308.11(f)(2) (proscribing possession
with intent to distribute "any material . . . containing . . .
cathinone"). The language makes it perfectly clear that the
charged conduct — possession of a material containing cathinone —
is forbidden. Thus, there is no ambiguity such as might trigger a
void for vagueness analysis, no warring interpretations calling for
-11-
an application of the rule of lenity, and no novel judicial gloss
on statutory language sufficient to raise ex post facto concerns.
This analysis does not entirely foreclose the matter, for
the appellant mounts a different kind of "fair warning" claim. He
asseverates that, despite the CSA's unambiguous language, it fails
to give adequate notice of the illegality of possessing khat as
opposed to possessing "a material containing cathinone."
Appellant's Br. at 10. This asseveration can only mean that the
appellant could not have known, as a matter of law, that khat was
a controlled substance (and, thus, proscribed).1 In this vein, he
argues that, even had he read the statute, its text would not have
given him (or any other person of ordinary intelligence) actual
notice that khat came within the statutory proscription.
Although the premise of this argument is valid — the CSA
mentions only cathinone, not khat — the appellant's conclusion is
unfounded. Due process does not require the statute specifically
to prohibit either "khat" or "khat containing cathinone" as a
precondition to conviction. And the fact that the architects of
the law "might, without difficulty, have chosen 'clearer and more
precise language' equally capable of achieving the end which [they]
1
The alternative would be to read the asseveration as a claim
that the appellant did not know, as a matter of fact, that khat was
a controlled substance. At best, such a claim is a repackaged
scienter defense, the merits of which we deal with in Part IV
infra. At worst, it is a thinly veiled, and ultimately hopeless,
ignorance of the law defense.
-12-
sought does not mean that the statute which [they] in fact drafted
is unconstitutionally vague." United States v. Powell, 423 U.S.
87, 94 (1974) (quoting United States v. Petrillo, 332 U.S. 1, 7
(1947)).
A hypothetical may be the easiest way to illustrate the
point. A defendant is discovered holding a sugar cube. The sugar
cube is found to contain detectable amounts of LSD and the relevant
statute proscribes knowing possession of a material containing LSD.
The defendant, who professes not to have known of the adulteration,
may very well mount a successful scienter defense; unless the
government can show that he knew that the sugar cube contained a
controlled substance, a jury will be unable to find that he had the
requisite mens rea. Withal, the defendant cannot make a credible
fair warning argument; reading the statute makes it perfectly clear
that his conduct meets the actus reus requirement (possessing a
material containing LSD). Of course, the warning could have been
clearer — the statute could have proscribed possession of "sugar
cubes containing LSD" — but due process simply does not require so
high a degree of specification. See United States v. Arcadipane,
41 F.3d 1, 5 (1st Cir. 1994) (emphasizing that the fair warning
doctrine neither "demand[s] an explicit or personalized warning"
nor "excuse[s] professed ignorance of the law").
In an effort to dodge this bullet, the appellant points
out that possession of khat is not a malum in se offense. Building
-13-
on this foundation, he declares that "the normal treatment of drug-
containing plants in the CSA is to list both the active ingredients
and the plant itself in the schedules if the plant is meant to be
controlled." Appellant's Br. at 25-26 (citing examples, such as
the listing of cocaine and coca leaves, opiates and poppy straw,
mescaline and peyote cactus, THC and marijuana). In the
appellant's view, this pattern leads a person of ordinary
intelligence to believe that if the United States intended to
criminalize the distribution of khat in addition to cathinone, it
would have listed both.
We find this construct unpersuasive. The alleged pattern
is, at best, irregular. For instance, Schedule I prohibits
possession of psilocybin and psilocyn but not their plant hosts
(magic mushrooms). 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. See, e.g., State v. Atley, 564
N.W.2d 817, 831 (Iowa 1997) (holding that a state controlled
substances statute proscribing knowing possession of psilocybin
provides constitutional fair warning that possession of psilocybe
mushrooms is illegal); State v. Justice, 704 P.2d 1012, 1018 (Kan.
-14-
Ct. App. 1985) (same); People v. Dunlap, 442 N.E.2d 1379, 1385
(Ill. App. Ct. 1982) (same, re psilocyn). But see Fiske v. State,
366 So.2d 423, 424 (Fla. 1978). "The person of ordinary
intelligence is also a person of common sense, with knowledge of
common understanding[s] and practice which he brings fully to bear
in examining the language of the statute." Sabetti v. Dipaolo, 16
F.3d 16, 17 (1st Cir. 1994) (citation and internal quotation marks
omitted).
To say more on this issue would be supererogatory. For
the reasons stated above, we reject the appellant's fair warning
claim.2
IV. THE SUFFICIENCY CLAIM
We now reach the appellant's contention that the evidence
was too scanty to warrant a guilty verdict. The statute of
conviction, 21 U.S.C. § 841(a)(1), requires that the government
prove beyond a reasonable doubt that the defendant knowingly
possessed a controlled substance with intent to distribute it. The
appellant does not question the sufficiency of the evidence that he
2
Given this holding, we need not consider whether the
"Supplementary Information" published in the Federal Register gave
the appellant fair warning of the proscription against khat. See,
e.g., United States v. Washam, 312 F.3d 926, 931 (8th Cir. 2002)
(looking to language in Supplementary Information to find
constitutionally sufficient notice); United States v. Fisher, 289
F.3d 1329, 1336-37 (11th Cir. 2002) (same); see generally United
States v. Maxwell, 254 F.3d 21, 25 (1st Cir. 2001)(holding that a
Federal Register publication gave sufficient notice to the public
that unauthorized entry into a particular naval installation was
prohibited).
-15-
possessed a controlled substance and intended to distribute it. He
takes dead aim, however, at the evidence of knowledge.
Our review proceeds under familiar ground rules. An
appellate court mulling a properly preserved sufficiency of the
evidence challenge must "canvass the evidence (direct and
circumstantial) in the light most agreeable to the prosecution and
decide whether that evidence, including all plausible inferences
extractable therefrom, enables a rational factfinder to conclude
beyond a reasonable doubt that the defendant committed the charged
crime." Noah, 130 F.3d at 494. The proof need not exclude every
reasonable hypothesis consistent with innocence. United States v.
Jiminez-Perez, 869 F.2d 9, 11 (1st Cir. 1989). It is enough that
a rational jury, looking objectively at all the evidence, could
have found the defendant guilty beyond a reasonable doubt. Id.
Credibility determinations are the province of the jury and must
therefore be resolved in favor of its verdict. United States v.
Franky-Ortiz, 230 F.3d 405, 407 (1st Cir. 2000).
Although the ground rules are familiar, applying them
here takes us into terra incognita. Our starting point is the
district court's charge. Without objection, the court instructed
that, in order for the jury to find that the appellant knowingly
possessed a substance containing a detectable amount of cathinone,
the government must prove beyond a reasonable
doubt that Abdigani Hussein [1] knew that the
substance he possessed contained cathinone, or
[2] knew that the substance he possessed
-16-
contained a controlled substance. A
controlled substance is a drug or other
substance regulated under federal drug abuse
law. (Emphasis supplied).
The existence of these parallel paths to proof of
knowledge take this case out of the mine-run. In most drug cases,
proving scienter is a straightforward exercise. Ignorance of the
law is no defense, and so the government need not show that the
defendant knew anything about the law; it need only show that the
defendant knew the facts that brought his conduct within the law's
prohibitions. See, e.g., United States v. Collazo-Aponte, 281 F.3d
320, 326 (1st Cir. 2002). Thus, in a prosecution for cocaine
possession, it is ordinarily enough for the prosecution to prove
that the defendant knew he possessed cocaine (without proving,
additionally, that he knew cocaine to be a controlled substance).
See, e.g., United States v. Cain, 130 F.3d 381, 384 (9th Cir.
1997); see also United States v. Barbosa, 271 F.3d 438, 457-58 (3d
Cir. 2001) (noting that any other rule "would be tantamount to
compelling the Government to disprove an ignorance of the law
defense").
But khat, unlike cocaine, is not a controlled substance
per se, and the government concedes that it is not enough to show
that the appellant knowingly possessed khat. The general rule is
that mens rea must be proven as to all elements of the offense. X-
Citement Video, Inc. v. United States, 513 U.S. 64, 71 (1994).
Following that rule, the government must show that the defendant
-17-
knew both that he possessed khat and that his khat contained
cathinone. This jibes precisely with the first option contained in
the district court's jury instruction.
On the facts, that option is a dead end. There is no
evidence that the appellant had ever heard of cathinone, let alone
that he was aware that khat contained it.
In this case, however, there is more than one way to skin
a khat. The district court instructed the jury that another way
that the government could prove scienter for purposes of section
841(a)(1) was to show that the appellant knew that "the substance
he possessed contained a controlled substance." In that vein, the
court defined "controlled substance" as any "drug or other
substance regulated under federal drug abuse law."
This instruction was neither patently wrong nor
internally inconsistent: the cases are legion that a defendant can
lawfully be found guilty of having violated section 841(a)(1) even
if he did not know the exact nature of the drug that he possessed
as long as he knew that he possessed an illegal drug. See, e.g.,
Barbosa, 271 F.3d at 458; United States v. Sheppard, 219 F.3d 766,
769 (8th Cir. 2000); United States v. Leavitt, 878 F.2d 1329, 1337
(11th Cir. 1988); United States v. Cheung, 836 F.2d 729, 731 (1st
Cir. 1988) (per curiam); United States v. Kairouz, 751 F.2d 467,
-18-
469 (1st Cir. 1985).3 Because the case was given to the jury under
an instruction that was neither patently incorrect nor internally
inconsistent, and as to which no timely objection had been
interposed, the instruction is binding (at least in the absence of
plain error) See United States v. Gomes, 969 F.2d 1290, 1294 (1st
Cir. 1992); Milone v. Moceri Family, Inc., 847 F.2d 35, 38-39 (1st
Cir. 1988). Consequently, it was enough for the government to show
that the appellant knew he had a controlled substance in his
possession.
Although the parties agree that the verdict can stand if
the evidence supports the second, more general, scienter standard
— knowing possession of a controlled substance — they offer
competing interpretations of what it means to "knowingly possess a
3
The Court's ruling in Apprendi v. New Jersey, 530 U.S. 466
(2000), does not undermine this body of law. Before Apprendi, it
was generally held that drug type and quantity were not elements of
the offense, but, rather, sentencing factors relevant to
determining the penalty. See United States v. Eirby, 262 F.3d 31,
36 (1st Cir. 2001); Sheppard, 219 F.3d at 767-68 (collecting
cases). Since drug identity was not an element of the offense
under section 841(a)(1), the mens rea requirement did not attach to
the drug's identity. See, e.g., Barbosa, 271 F.3d at 48. Apprendi
held that any fact that increases the penalty for a crime beyond
the default statutory maximum must be submitted to the jury and
proved beyond a reasonable doubt. 530 U.S. at 490. Although the
circuits are divided as to whether this rule in effect makes drug
quantity and type elements of the offense for certain limited
purposes, compare, e.g., Barbosa, 271 F.3d at 456-57 (suggesting an
affirmative answer), with, e.g., United States v. Goodine, 326 F.3d
26, 32 (1st Cir. 2003) (suggesting a negative answer), the post-
Apprendi cases are consentient that drug quantity and type are not
elements of the offense for mens rea purposes. See United States
v. Villarce, 323 F.3d 435, 439 (6th Cir. 2003) (collecting cases
from six circuits); Collazo-Aponte, 281 F.3d at 326.
-19-
controlled substance" when a defendant lacks particularized
knowledge of the identity of the drug possessed. The appellant
acknowledges two accepted ways of fulfilling this alternative
scienter requirement: mistaken drug identity (e.g., Kairouz, 751
F.2d at 467-68, in which we upheld a conviction for possessing
heroin even though the defendant was under the misimpression that
he was carrying cocaine), and willful blindness (e.g., United
States v. Masse, 816 F.2d 805, 812 (1st Cir. 1987), in which we
upheld a conviction for possessing cocaine when the evidence
suggested deliberate ignorance on the defendant's part and, thus,
justified an inference of knowledge). Those cases, the appellant
argues, fall at the outermost periphery of the statute, and
anything beyond them cannot satisfy the statute's scienter
requirement. The government suggests a broader reading of the
scienter requirement. In its view, a conviction can result if a
defendant knows — in a general sense — that he has possession of a
controlled substance, even though he has no idea of the precise
identity of the particular drug.
We have not been able to find any federal case law
specifically addressing the meaning of "knowingly" in this context,
and the parties have cited none. Taking the matter as one of first
impression, we conclude that the government's broader reading of
the scienter requirement better comports with the structure of the
CSA and Congress's discernible aims. We explain briefly.
-20-
In our judgment, construing the scienter requirement as
narrowly as the appellant suggests would be in tension with the
legislative intent behind the CSA. We glean this intent, in part,
from the structure of section 841. Subsection (a) identifies a
crime that stands on its own: knowing possession of a controlled
substance with intent to distribute. Subsection (b) then lays out
a series of progressive penalties, the severity of which depend,
among other things, upon drug type. From this binary structure,
courts reasonably have inferred that Congress intended the scienter
requirement in section 841(a) to apply to the blanket category
"controlled substances" and not to the identity of the specific
drug involved in the offense. See Barbosa, 271 F.3d at 458-59;
United States v. Promise, 255 F.3d 150, 156 (4th Cir. 2001); United
States v. Davis, 656 F.2d 153, 158-59 (5th Cir. Unit B 1981).
Identity comes to the fore only when applying the penalty
provisions of section 841(b).
The policy justification that drives this structure also
militates against the appellant's cramped construction. In
drafting the CSA, Congress's principal interest was "to deal in a
comprehensive fashion with the growing menace of drug abuse in the
United States." H.R. Rep. No. 91-1444, at 1 (1970), reprinted in
1970 U.S.C.C.A.N. 4566, 4567. The law's penalty provisions were
aimed at achieving deterrence, and Congress made pellucid its
belief "that making the penalty structure in the law more flexible
-21-
can actually serve to have a [greater] deterrent effect." Id.
Congress wanted to eliminate some of the obstacles to prosecution
that existing law presented. See id. And, finally, it wanted
judges to have maximum flexibility in sentencing, Davis, 656 F.2d
at 159, and violators to "run the risk of sentencing enhancements
concerning other circumstances surrounding the crime," United
States v. Obi, 947 F.2d 1031, 1032 (2d Cir. 1991). We think it
inconsistent with these goals to restrict the ways in which the
government can prove scienter as narrowly as the appellant
suggests.
To sum up, the scienter requirement of section 841(a)(1)
necessitates proof beyond a reasonable doubt that the defendant
knowingly possessed a controlled substance. In most cases, this
will be accomplished by proving that the defendant knew the
specific identity of the controlled substance that he possessed.
In appropriate circumstances, however, knowledge may be shown in
other ways, including proof that the defendant knew he possessed a
controlled substance (even though he was either mistaken about or
did not know its exact identity). The language that the district
court used in its jury instructions faithfully tracked this last
concept: that the government could carry its burden of proving
scienter by showing, beyond a reasonable doubt, that the appellant
knew that he possessed a substance regulated under federal drug
abuse laws. If the defense had any doubt about the jury's
-22-
comprehension of the term "controlled substance," it could have
asked for a more pointed instruction as to that term's meaning in
the context at hand. No such gloss having been requested, neither
its advisability nor its necessity is now before us.
This brings us to the adequacy of the government's proof
of knowledge. In denying the Rule 29 motion, the district court
determined that the evidence sufficed to permit a finding that the
appellant "knew that he was trafficking in a controlled substance."
Hussein, 230 F. Supp. 2d at 112. The court laid out an eight-part
compendium of suspicious circumstances contributing to this
determination:
Hussein knew that [1] he and many others were
picking up packages of khat . . . for Gani
Mohamed . . . [2] Mohamed used the names and
addresses of individuals all over Lewiston and
Portland for shipment . . . [3] Mohamed had
given him only a tracking number for the
packages he was to pick up . . . [4] Mohamed
asked him to pick up the parcel even though .
. . Mohamed was going to be in Portland
himself . . . [5] Mohamed paid him in khat . .
. [6] Mohamed sold the khat for $6-8 a bundle
. . . [7] neither . . . Mohamed's name nor
Hussein's name was listed as addressee on [the
parcel] . . . [8] the label falsely listed the
contents as documents.
Id. Based on this and other evidence, the court concluded that the
jury was entitled to "find beyond a reasonable doubt that [the
appellant] knew that he had a controlled substance and was evading
drug-regulating authorities." Id. at 113.
-23-
This analysis makes sense. Like knowledge in other
contexts, a showing of scienter under section 841(a)(1) can (and
often will) be made through circumstantial evidence. A factfinder
must take into account the totality of the attendant circumstances,
including but not limited to the defendant's sophistication, his
knowledge of the substance possessed, his awareness of its intended
use, his familiarity with its effects on the central nervous
system, the efforts employed to avoid detection, and the method and
amount of the remuneration that he will receive for his role.
These and other factors may be sufficient to show, in a given case,
that a defendant knowingly possessed a controlled substance even if
the evidence also shows that the defendant could not identify the
possessed substance by the name appearing on the schedules
incorporated into the CSA. Cf. United States v. Jewell 532 F.2d
697, 700 (9th Cir. 1976) (explaining, in a willful blindness case,
that "[t]o act 'knowingly' . . . is not necessarily to act only
with positive knowledge, but also to act with an awareness of the
high probability of the existence of the fact in question").
Although the question is very close, we conclude that the
jury could have found beyond a reasonable doubt that the appellant
knowingly possessed a controlled substance. We will not rehearse
the lower court's meticulous marshaling of the relevant evidence.
See Hussein, 280 F. Supp. 2d at 112. We note only that the jurors
were entitled to pay particular heed to four key facts. First, the
-24-
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. Indeed,
the secrecy, the mislabeling, the use of cut-outs and phony
addresses, and the recruitment of multiple couriers painted a
picture that was strongly suggestive of illegal drug trafficking.
While these facts, along with the remaining evidence, do not
mandate a finding of scienter, they are in our judgment sufficient
to permit it.
Without explicitly stating the test and factors for
proving scienter, we upheld a jury finding of knowing drug
possession on somewhat similar facts in Cheung. There, an
undercover agent arranged by telephone with a third party to
purchase a quantity of heroin for $4,100. 836 F.2d at 730. Cheung
brought a wrapped package to the agreed rendezvous. Although the
heroin was not visible, the evidence suggested that he could feel
a granular substance through the wrapping. Id. When the agent
asked, "I have the money; do you have the shit?" Cheung answered in
the affirmative. He then passed a bag containing the wrapped
package underneath the table to the agent and collected $4,100 in
-25-
$100 bills. Id. at 731. We held this evidence sufficient to show
that Cheung knowingly possessed a controlled substance even if he
did not know the precise contents of the package. Id. at 730-31.
Other precedents also suggest the same result. See, e.g., United
States v. Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992);
Leavitt, 878 F.2d at 1337.
The appellant (who did not testify) makes a last-ditch
claim: he strives to persuade us that he might have thought that
the inaccurate label and other unusual aspects of the shipment and
delivery were designed to evade either Department of Agriculture
regulations banning the importation of vegetable matter without
inspection or customs controls such as import duties. We find this
claim unconvincing for two reasons.
In the first place, there is no evidence suggesting that
the appellant (or Mohamed, for that matter) had any knowledge of
possible agricultural, customs, or tariff violations. In the
second place, the possibility that this claim raises is, at most,
a jury argument — and a criminal jury is neither required to rule
out every possible hypothesis inconsistent with guilt nor to accept
a defendant's interpretation of ambiguous facts. See Jiminez-
Perez, 869 F.2d at 11.
V. CONCLUSION
We need go no further. While the statutory provisions at
issue here could have been more clear, regulating khat by name in
-26-
addition to regulating its active chemical ingredient, they
sufficed to give the appellant fair warning that his conduct was
illegal. Moreover, the evidence, viewed in the light most
favorable to the verdict, shows that the appellant did not heed
this warning. Hence, the district court acted appropriately in
denying the appellant's Rule 29 motion.
Affirmed.
-27-