OVERKILL BY THE GOVERNMENT?

If it’s a defense that khat is an innocuous substance that is culturally acceptable in Somalia and Yemen, then I can see the argument put forth by marijuana defendants that pot is harmless and culturally – as opposed to legally – acceptable in America and thus its users and dealers should not be prosecuted.

PROSECUTION FOR KHAT SMUGGLING IN VIRGINIA LEADS TO QUESTIONS
Substance is part of culture in Somalia and Yemen; some wonder if prosecution is overkill by gov’t

By Matthew Barakat

Associated Press
April 18, 2012

ALEXANDRIA, Va. — Thirteen natives of Somalia and Yemen are on trial in federal court, accused of smuggling a drug common to their homelands but illegal in the U.S.

Authorities allege that for six years, the group smuggled millions of dollars' worth of khat, a leaf that is popular in the region around Somalia and Yemen and can produce a mild high when chewed.

While a few defendants, including the two alleged ringleaders, have pleaded guilty, most of the accused are fighting the charges and going to trial. Jury selection began Tuesday; the trial is expected to at least three weeks.

The legal case may turn on technicalities, but it also presents a broader question of whether the government engaged in overkill by prosecuting otherwise law-abiding members of the Somali- and Yemeni-American communities for using a substance that is culturally accepted in their homelands and by some measures is no more potent than a caffeinated energy drink.

Prosecuting khat can be difficult for the government. Technically, khat itself is not illegal, but it's the active ingredients in the leaf, cathine and cathinone that are controlled substances. Cathinone particularly is treated as a serious drug under federal law.

But cathinone is unstable and known to deteriorate rapidly after khat is harvested, often within 48 hours. Appellate courts have said that transporting khat itself is not a violation unless the government can prove that the khat actually contains either of the controlled substances.

In court papers, prosecutors have emphasized that the conspiracy took pains to rapidly import fresh khat once it was harvested because the conspirators knew that fresh khat was prized by users for providing a superior effect. But defense lawyers have challenged the government's evidence as insufficient.

"The government must produce evidence of cathinone and not attempt to confuse and confound the jury by treating `khat' and `cathinone' as synonyms," wrote defense lawyer Bruce Cooper, representing defendant Harun Salhan.

More broadly, defense lawyers and family members of the accused have complained privately that the government's pursuit of the case is excessive and targets low-level users for whom use of khat is culturally acceptable. And some question whether khat use is a serious problem. In court papers, one defense lawyer presented medical evidence that khat use is no more dangerous than an energy drink.

Defense lawyers say the investigation began out of concerns that proceeds from the khat trade were funding terrorist groups in Yemen or Somalia, but no evidence of that has turned up in court. Most of the defendants are naturalized U.S. citizens who come from those two countries. One of the defendants who pleaded guilty met with agents from Scotland Yard and was helpful in providing information in Britain's investigation of the khat trade's connection to international terrorism, according to court papers. But that defendant was never connected in any way to terrorist groups.

Prosecutors, wary that the defense would make khat use appear to be innocuous, successfully sought a ban from the outset of trial on any arguments or evidence from the defense that khat use is culturally acceptable in Somali or Yemeni culture, or that khat use is not as bad as other drugs.

"Encouraging jurors to decide according to their prejudices or consciences would be negating the rule of law in favor of the rule of lawlessness," prosecutor Mary Daly wrote.

With 13 defendants, the trial is proving to be a logistical challenge. U.S. District Judge T.S. Ellis III, whose courtroom is jammed with defendants and their lawyers, said he could not recall a case in more than 25 years that had anywhere close to 13 defendants being tried simultaneously. Simultaneous translations into Somali and Arabic are required, and relatively simple tasks like choosing a jury are taking longer than normal.

Even if the government obtains convictions, it is unclear whether any of the defendants would receive any significant prison time. The two ringleaders who pleaded guilty each received prison terms of less than three years.

In 2006, the Justice Department brought charges on an even larger scale against what they said was a khat ring that operated in New York, Washington state and elsewhere. The case, dubbed "Operation Somalia Express," with roughly half of the more than 44 defendants obtained acquittals or dismissals. Many of those convicted received only a few months in jail.