Readers may have heard of the plant commonly known as khat or qat (or Catha edulis, for the botanically inclined). The plant is indigenous to Africa and is popular in parts of that continent, as well as parts of the Middle East, and is commonly and legally used in some of those places. When the plant is ingested, it acts as a stimulant. As with more familiar stimulants, users tend to experience mild feelings of alertness and euphoria in smaller doses; larger doses can induce delusional thinking, mania, paranoia, and heart problems (among other potential harmful effects). Users typically ingest the plant by chewing its leaves. Exotic though it may be, the plant occasionally finds its way into North Carolina. I have heard anecdotal reports of its presence in Durham, and this recent story from WRAL News noted that it was found in Johnston County as a part of an unrelated investigation. This post examines state law on possession and distribution of khat. Read on for the details.
Khat Contains Controlled Substances, and it’s Tricky. Khat itself is not regulated per se in the state, but compounds found within the plant are controlled substances under Chapter 90 of the North Carolina General Statutes. While growing and within the first 48 hours or so after being harvested, the plant contains cathinone, a Schedule I substance under G.S. 90-89(5)(b). After that time, the cathinone breaks down into cathine, a distinct chemical compound classified as a Schedule IV drug under G.S. 90-92(3)(e). We have at least one published case concerning this issue, State v. Mohamud, 199 N.C. App. 610 (2009). In Mohamud, the defendant was charged with possession with intent to sell or deliver a Schedule I drug (cathinone) based on his apparent distribution of khat. Jurors in the case were presented evidence about khat and about how the cathinone in the plant breaks down into cathine after a short period of time. “Thus, the jury was aware that one may possess khat without possessing cathinone, and the two terms should not be used interchangeably.” Id. at 613. The trial court, however, instructed the jury only that khat was a schedule I substance, without addressing the chemical nuance. This was plain error and resulted in a new trial for the defendant.
Schedule I or Schedule IV? As regular readers likely know, there is a big difference between possession of a Schedule I (typically a class I felony in any amount) and possession of a Schedule IV (generally a class 1 misdemeanor, unless 100 or more doses are involved). See G.S. 90-95(d). Whether the finder of fact believes that the khat possessed by the defendant contained cathinone or cathine will be the difference between a felony and a misdemeanor in cases involving possession amounts of the plant. Absent testing at a time relevant to the defendant’s possession showing the presence of cathinone (which seems like a tall order given the short time frame before the drug transforms) or other evidence that the khat was growing or freshly harvested, defendants will likely be facing criminal liability only for possession of the Schedule IV substance. A reliable chemical analysis is usually required either way. See State v. Ward, 364 N.C. 133, 143 (2010) (acknowledging that the “technical and specific chemical designations” provided for by the legislature typically require an accurate scientific analysis to prove criminal conduct under Chapter 90).
What about PWIMSD and Trafficking? Turning to more serious distribution offenses, possession with intent to manufacture, sell, or deliver (“PWIMSD”) the substances in khat will be felonies regardless, but PWIMSD cathinone is a class H felony, while PWIMSD cathine is a class I felony (the same goes for manufacturing). Similarly, sale of cathinone is a class G felony, while sale of cathine is a class H. See G.S. 90-95(b)(1) and (2).
There is no provision in our trafficking laws that apply to either cathinone or cathine. While G.S. 90-95(h)(3d) proscribes trafficking in substituted cathinone (a synthetic derivative of cathinone), there is no comparable law speaking to either cathinone or cathine. Our Chapter 90 definitions acknowledge this distinction—while (again) cathinone is proscribed as a Schedule I per G.S 90-89(5)(b), substituted cathinone is listed separately in G.S. 90-89(5)(j). The trafficking laws therefore do not apply to cathinone or cathine, and the most serious offenses one could be charged with for distribution are sale/delivery and PWIMSD.
Defending Charges Involving Khat. While I suspect that prosecutions involving khat in the state are relatively rare, court system actors in urban areas or in communities with larger populations of people from the African and Middle Eastern countries where the substance is popular may encounter the issue from time to time. A couple of suggestions for defenders with a case involving khat:
One, obtain your own expert witness to assist in establishing the ephemeral nature of the substances and to evaluate any chemical analysis by the State. An expert may also be needed to determine what amount constitutes a dose of the substances. Felony possession of Schedule IV cathine requires the State to prove that the defendant possessed more than a hundred dosage units (or else the offense is a class 1 misdemeanor). G.S. 90-95(d)(2). And dosage will commonly be an issue in PWIMSD cases for either substance—did the defendant merely have a personal amount of the drug, or was it an amount consistent with intent to distribute? Given the questions and potential complexities here, expert help is strongly recommended.
Two, remember that ignorance of the law is not a defense. See generally State v. Rogers, 68 N.C. App. 358 (1984). A person who has recently immigrated to North Carolina from a country where khat is legal and knows that the plant contains cathinone and cathine cannot argue ignorance of our law as an excuse (any more than she could for other controlled substances or criminal conduct that may be legal elsewhere). Ignorance of the law could be a relevant factor in plea negotiation or as mitigation evidence, but it is not a defense in the state.
By contrast, ignorance of the fact of possession or mistake over the nature of the substance possessed goes to whether the defendant knowingly possessed a controlled substance and can be a defense. State v. Boone, 301 N.C. 284 (1984); see also N.C.P.I-Crim. 260.10 at n. 2. So, while it is no defense for a defendant to claim she thought cathinone or cathine was legal, it is a defense for a defendant to claim (for instance) that she did not know khat was in the trunk of the car she borrowed, or that she honestly believed the plant leaves were basil or some other legal plant. It would even be a defense for a defendant to claim she did not know khat possessed controlled substances—it is the knowledge of possession of the controlled substance that matters. That said, knowing possession is typically inferred, and the defendant is not entitled to a jury instruction on this issue unless there is some trial evidence regarding her lack of knowledge. State v. Perez, 55 N.C. App. 92 (1981).
Speaking of jury instructions, the Mohamud case referenced above holds that the jury should be instructed on the specific controlled substance (or substances) at issue and that a jury instruction on possession of “khat” as the controlled substance is erroneous. Note too that possession of cathine is presumably not a lesser-included offense of possession of cathinone, as the two are distinct chemical compounds and the identity of the controlled substance is an essential element that must be specifically pled. See, e.g., State v. Board, 296 N.C. 652, 657 (1979). Where only the Schedule I offense is alleged in the indictment, it’s likely an all-or-nothing situation for the State—if the evidence shows that the defendant possessed cathine instead of cathinone, the defendant is not guilty, rather than guilty of the Schedule IV offense. In order for the jury to consider both offenses, each would need to be pled in the charging document.
Finally, remember the Osborne rule—you must object to improper drug identification evidence as improper expert testimony under N.C. Evid. R. 702 or the identification issue will be waived for appellate review. It is not enough to wait for the close of State’s evidence and move to dismiss based on the argument that no reliable identification evidence was presented, per State v. Osborne, 372 N.C. 619 (2019). If there is any evidence in the record from which the finder of fact could determine the substance was a controlled substance—whether or not that evidence was properly admitted or reliable—then the evidence is sufficient to withstand a motion to dismiss for insufficient evidence. Id. (More about the Osborne rule can be found here and here.) In the context of khat (like with other drug cases), improper identification evidence might consist of a lay witness opinion identifying the substance by sight or smell or the results of field tests without a reliable chemical analysis. Lodge specific objections under N.C. Evid. R. 702 each time unreliable drug identification evidence is elicited during trial.
Readers, have you seen cases involving khat in your jurisdiction? If so, I would love to hear about it. If you’re inclined to share, or if you have any questions or feedback, I can be reached as always at dixon@sog.unc.edu.