Fresh khat leaves contain cathinone--a Schedule I drug under the Controlled Substances Act; however, the leaves typically begin to deteriorate after 48 hours, causing the chemical composition of the plant to break down. Once this occurs, the leaves contain cathine, a Schedule IV drug. Fresh khat leaves are glossy and crimson-brown in color, resembling withered basil. Deteriorating khat leaves are leathery and turn yellow-green in color.

Sorry to have to disagree but it's not a gray area at all. It's scheduled under federal law. There are only three plants that are illegal in USA. They are:

Although 21 C.F.R. § 1308.11(f) makes clear that cathinone is a controlled substance, neither the U.S. Code nor the Code of Federal Regulations controlled substances schedules refers to the plant from which cathinone is derived, Catha edulis, commonly known as “khat.” In contrast, several other chemicals classified as controlled substances are listed in the schedules along with their botanical sources. See, e.g., 21 C.F.R. § 1308.11(d)(23) (listing “peyote” as a controlled No. 02-2268 United States v. Caseer Page 5 4As with the Federal Register document that includes the text of the final rule listing cathinone as a controlled substance, the portion of the Federal Register publication listing cathine as a controlled substance notes the relationship between khat and cathine only in the Supplementary Information section and not in the text of the rule included in the Code of Federal Regulations. Compare Schedules of Controlled Substances; Temporary Placement of Cathine ((+) -
norpseudophedrine), Fencamfamin, Fenproporex and Mefenorex Into Schedule IV, 53 Fed. Reg. 17,459, 17,460
(May 17, 1988) (noting relationship between khat and cathine in Supplementary Information section), with 21 C.F.R.
§ 1308.14(e)(1) (listing cathine as a Schedule IV controlled substance but including no reference to khat).
hallucinogenic substance and explaining that this listing refers to “all parts of the plant presently
classified botanically as Lophophora williamsii Lemaire, whether growing or not, the seeds thereof,
any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture, or preparation of such plant, its seeds or extracts”); 21 C.F.R. § 1308.11(d)(28) (stating that the term “tetrahydrocannabinols” means “tetrahydrocannabinols naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant or in the resinous extractives of such plant, and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant”); 21 C.F.R. §1308.12(b)(4) (listing in Schedule II “[c]oca leaves
(9040) and any salt, compound, derivative or preparation of coca leaves (including cocaine (9041) and ecgonine (9180) and their salts, isomers, derivatives and salts of isomers and derivatives), and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocainized coca leaves
or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.”). However, the Supplementary Information published in the Federal Register along with the
text of the rule adding cathinone as a Schedule I substance does explain the connection between khat
and cathinone.

We agree with the district court that Caseer’s conviction did not violate due process because the scienter requirement overcomes the threat to due process posed by the failure of the controlled substances schedules to identify khat as a source of cathinone. However, we REVERSE Caseer’s conviction and REMAND the case for further proceedings because, even viewing the evidence in the light most favorable to the prosecution, the evidence is insufficient to support a finding that, beyond a reasonable doubt, Caseer
knew that khat was a controlled substance.