The opinion of the court was delivered by: Denise Cote, District Judge
One of the defendants in this criminal case sought to admit into evidence at trial as a public record a 1992 report and recommendation from the Department of Health and Human Services ("HHS") that cathinone should be added to Schedule I of the Controlled Substances Act ("Report"). The Government's objection to the receipt of the Report in evidence at trial was sustained. This Opinion explains the reasons for that ruling.
Forty-four defendants have been indicted in this case for conspiring to import and distribute cathinone, an ingredient of the khat plant, in violation of Title 21, United States Code, Sections 952(a), 960(b)(3), 841(a)(1) and 841(b)(1)(C). Four leaders or otherwise significant members of the alleged conspiracies were tried on these and related charges beginning on June 4, 2007. Defendant Abdi Emil Moge ("Moge") was one of the four and he moved during the trial to have the Report admitted as a public record pursuant to Rule 803(8), Fed. R. Evid. ("Rule 803(8)").
One of the principal defenses tendered at the June 4 trial was that the defendants did not know that the khat which they imported into and distributed in the United States contained cathinone or any other controlled substance.*fn1 Khat is not a controlled substance, and therefore its sale, without more, is not a violation of the Controlled Substances Act.
The defendants offered evidence from a botanist that cathinone is an unstable molecule which rapidly degrades into cathine.*fn2 The expert testified that from his review of the literature,*fn3 it appeared that cathinone deteriorates into cathine between forty-eight and seventy-two hours from the time of harvest, but that this time period could vary depending on how the khat is handled after harvest. Defendant Moge also offered the Report in order principally to put before the jury the HHS discussion of the rate at which cathinone converts into cathine.
The Report explains that cathinone was added to Schedule I of the international Convention on Psychotropic Substances ("Convention") in 1986. The United States is a signatory to the Convention and therefore the Drug Enforcement Administration ("DEA") initiated procedures to comply with the Convention. Those procedures required HHS to evaluate cathinone and make a recommendation regarding scheduling. On November 5, 1992, HHS recommended that cathinone be listed as a Schedule I controlled substance under the Controlled Substances Act based on the Report prepared by the FDA's Pilot Drug Review Staff. Based on the Report's recommendation, cathinone became a Schedule I controlled substance in 1993. 58 Fed. Reg. 4316 (Jan. 14, 1993) (to be codified at 21 C.F.R. § 1308.11).
The Report is entitled "Basis for the Recommendation for Control of Cathinone into Schedule I of the Controlled Substances Act" and consists of eighteen pages with four and a half more pages of reference citations. Much of the Report is dedicated to a review of scientific and medical research and information. The research found cathinone to be the principle active component of khat, and the substance that is "responsible for most of the psychoactive properties of khat." The research into its pharmacology and chemical structure revealed that it is similar to amphetamine and methamphetamine. Most of the pharmacological information was derived from animal studies, where its effects were found to be similar to the effects of amphetamine. There was only limited information of the effects of khat in human beings. The Report also described in general terms the legal regimes for regulating khat in different countries and patterns of use and abuse of the plant in different countries and cultures.
The Report concludes with a page-long recommendation containing its principal findings, which relate to the "necessary criteria for placing a substance into Schedule I" of the Controlled Substance Act. It found that cathinone's abuse potential is similar to those of amphetamine and methamphetamine and that cathinone has not been accepted for medical use in the United States. It concluded that cathinone has a high potential for abuse and that easy clandestine synthesis is feasible.
The passages which defendant Moge identified as of particular interest included the following three statements about the conversion of cathinone to cathine*fn4 (-)-Cathinone is mainly present in young leaves, in which it may account for up to 70% of the phenylalkylamine fraction. Cathinone is a biosynthetic precursor that accumulates in young leaves, while in adult leaves it undergoes enzymatic reduction to the less active cathine and norephedrine, which are then present at a ratio of approximately 4:1. It has been estimated that 100 grams of fresh khat contain 36 mg cathinone, 120 mg cathine and 8 mg norephedrine. . . .
[F]resh khat may contain a hundred times more cathinone than dried material, which in turn shows an increased content of cathines. . . .
Khat leaves have been reported to lose their effect within about three days after harvesting.
(Emphasis supplied). In contrast to much of the scientific information presented in the Report, including the information comparing cathinone to amphetamine, the Report identifies no sources for these statements and couches each statement in language expressing scientific uncertainty.
Defendant Moge also highlights the following passages about the effect of khat consumption on humans.
Users get a feeling of well-being, mental alertness and excitement. After-effects are usually insomnia, numbness, and lack of concentration. Concern among various parts of the populace is that excessive use may create ...