The opinion of the court was delivered by: Denise Cote, District Judge
Defendant Bashi Muse and forty-three co-defendants have moved to dismiss all counts of the superseding indictment filed on July 24, 2006 ("Indictment"), or, in the alternative, to strike certain language from the Indictment.*fn1 The six-count Indictment charges violations of federal drug and money laundering statutes in connection with a conspiracy to import and distribute widely within the United States cathinone in a form commonly known as khat. The khat plant is a shrub that is cultivated in Kenya, Ethiopia, and other countries in the Horn of Africa; its leaves are chewed for stimulant effect. Cathinone is a Schedule I controlled substance. The defendants contend among other things that the statute does not give them fair notice of the crimes with which they are charged and that the Indictment improperly criminalizes the distribution of a detectable amount of cathinone. For the following reasons, the motion to dismiss is denied.*fn2
Counts I and II of the Indictment allege that the defendants and others "unlawfully, intentionally, and knowingly combined, conspired, confederated, and agreed together and with each other to violate the narcotics laws of the United States." The object of the Count I conspiracy is distribution and possession with intent to distribute "a controlled substance, to wit, mixtures and substances containing a detectable amount of cathinone, in a form commonly known as 'khat'. . . ." Count II uses an identical description of the controlled substance while charging that the object of that conspiracy was to import that controlled substance. The Indictment states that the active ingredients in the khat plant include "cathinone, a stimulant which is classified as a Schedule I controlled substance under United States law, and cathine, which is classified as a Schedule IV controlled substance under United States law."*fn3 It explains that "[k]hat is most potent when used within days of cultivation," and that khat is transported from Kenya and Ethiopia to Europe by airplane, and subsequently to the United States with human couriers or by express mail. The various defendants are accused of being leaders and organizers, regional distributors, transporters, or money launderers in an international organization "that imported and distributed at least 25 tons of khat, with a street value of more than $10 million."
Count III alleges that five of the defendants ("Money Laundering Defendants") and others conspired to violate Section 1956(a) of Title 18, United States Code. In connection with the two objects of this conspiracy, it alleges that the Money Laundering Defendants knowing that the property involved in certain financial transactions, to wit, the transfer of hundreds of thousands of dollars in cash, represented the proceeds of some unlawful activity, unlawfully, willfully, and knowingly would and did conduct and attempt to conduct such financial transactions which in fact involved the proceeds of specified unlawful activity, to wit, the proceeds of illegal narcotics transactions . . ..
In the first object, it adds that the conduct included "knowing that the transactions were designed in whole and in part to conceal the nature, the location, the source, the ownership and the control of the proceeds of specified unlawful activity, in violation of . . . Section 1956(a)(1)(B)(i)." In charging the second object, it adds that the conduct was "with the intent to promote the carrying on of specified unlawful activity, to wit, the importation and distribution of khat, in violation of . . .
Section 1956(a)(1)(A)(i)." The Money Laundering Defendants are alleged to have used hawalas, which the Indictment defines as "informal networks of money remitters commonly used in Africa and the Middle East to transfer money," to launder khat proceeds.
Counts IV through VI ("CCE counts") charge defendants Bashi Muse, Ali Awad, and Abdi Emil Moge ("CCE Defendants") with engaging in continuing criminal enterprises. Each defendant's series of violations includes conspiracies to distribute or import "a controlled substance, to wit, mixtures and substances containing a detectable amount of cathinone, in a form commonly known as 'khat,'" as well as at least one substantive cathinone distribution or importation charge. Finally, the Indictment includes forfeiture allegations.
The original indictment was filed on July 10, 2006. The Indictment, which is the first superseding charging instrument, was filed on July 26. Following a conference of September 29, trial was set for June 4, 2007.
The defendants have jointly moved to dismiss the Indictment, and it is to that motion that this Opinion is addressed. The motion was filed on November 17, and was fully submitted on December 19.
The defendants argue, first, that the regulation that lists cathinone as a controlled substance under the scheme created by the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq., fails to provide a constitutionally required warning that trafficking in khat may involve trafficking in a controlled substance. Next, they argue that the Indictment insufficiently alleges criminal offenses because it alleges the existence of only "a detectable amount" of cathinone and because khat leaves are not a "mixture or substance." The defendants also move to strike certain language from the Indictment as prejudicial surplusage and to dismiss the Indictment because the grand jury presentation was defective. These arguments are addressed in the order they are described here.
The defendants move to dismiss the Indictment because the implementing regulations to the CSA fail to provide a constitutionally required warning that khat is related to cathinone, a controlled substance. They argue that an ordinary person reading the CSA and its implementing regulations would not be aware of this relationship, and therefore would not know that trafficking in khat could violate the federal drug laws.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that criminal statutes give fair warning of the conduct they prohibit. "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Betancourt v. Bloomberg, 448 F.3d 547, 552 (2d Cir. 2006) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). The "touchstone" of the inquiry is "whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct was criminal." United States v. Roberts, 363 F.3d 118, 123 (2d Cir. 2004) (citing United States v. Lanier, 520 U.S. 259, 266-67 (1997)). Where a vagueness challenge rests on the complaint that the statute does not give fair notice to a defendant (as opposed to inadequate guidance to law enforcement), the statute's inclusion of a scienter requirement presents a significant hurdle to the challenger. Id. (citing Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)). When a compound is listed as a Schedule I controlled substance, that listing "automatically put[s] the public on clear notice that those chemicals . . . would be treated for the purposes of federal law as a Schedule I controlled substance." Id. at 124 n.3.
Title 21 of the United States Code contains the federal drug statutes.*fn4 For example, Section 841 of that title makes it a crime to "distribute . . . a controlled substance." 21 U.S.C. § 841(a)(1). The penalties for this crime are structured around the quantity and type of drug distributed. Id. § 841(b).
Congress created five schedules of controlled substances. Id. § 812(a). Schedule I is for substances with a "high potential for abuse," no currently accepted medical use in the United States, and a lack of accepted safety for use of the substance under medical supervision. Id. § 812(b)(1). Congress conferred upon the Attorney General, who must act in consultation with the Secretary of Health and Human Services, the power to update the schedules on a semi-annual basis for two years after October 27, 1970, and on an annual basis thereafter. Id. §§ 811(a), 812(a); see Gonzales v. Raich, 545 U.S. 1, 14-15 (2005). On January 14, 1993, the Drug Enforcement Administration ("DEA"), as the Attorney General's delegate, added cathinone to Schedule I. 58 Fed. Reg. 4316 (Jan. 14, 1993); see 28 C.F.R. § 0.100(b) (delegating authority to DEA).
Schedule I currently consists of over one hundred substances that are categorized as either opiates, opium derivatives, hallucinogenic substances, depressants, or stimulants. 21 C.F.R. § 1308.11. Cathinone is classified as a stimulant. This section of Schedule I reads in pertinent part:
(f) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous ...