By Van Smith
Published in City Paper, Oct. 13, 2013
Dev Bahadur Hamal worked behind the counter of the Tobacco Stop in Bel Air, one of those ubiquitous shops that sell legal smokables and accessories for illegal ones, like bongs, hookahs, rolling papers, pot grinders, and glass pipes.
On Sept. 22, 2011, a customer stepped up to the counter and asked whether the Tobacco Stop sold “Hysteria.” Hamal nodded and sold him a 1-gram packet of the stuff, labeled “potpourri” that is “not for human consumption,” for $21.20. The customer held his hand to his mouth while pinching together his thumb and index finger, and asked if “you smoke this stuff.” Hamal said, “Yes.” Pointing out that his pipe wasn’t working properly, the customer asked for rolling papers, and Hamal said the stuff was “very strong,” urging caution if smoking it that way.
Hamal’s helpfulness has been memorialized in numerous federal court documents in the years since, causing no end of trouble.
The customer, it turned out, was an undercover officer working for the U.S. Drug Enforcement Administration (DEA). Hysteria, subsequent testing confirmed, was a kind of illegal designer drug popularly known as “K2” or “Spice,” said to mimic the effects of pot. Hamal had unwittingly spawned a cross-country probe into an alleged illegal Spice supply line to Maryland from California.
Now, though, after the headlines about the arrests, seizures, and successful prosecutions resulting from Operation Log Jam and Project Synergy, one thing should be abundantly clear: It’s a risky proposition to sell anything exotic that’s construed as a legal high.
Nine months after Hamal’s Hysteria sale to the undercover officer and nearly 2,700 miles away, on June 12, 2012, Ratchanee McAuley was at M&C Wholesale. The business occupied three suites in a one-story, block-long commercial building in Laguna Niguel, Calif., in Orange County, south of Los Angeles. Around noon, the 40-year-old from Arizona and four others unloaded a Rapid Express truck delivering packages to M&C. Then McAuley took her small white dog for a walk.
As the day wore on, pallets of white canvas bags about the size of sandbags were moved around M&C’s suites, and more deliveries arrived, including boxes filled with black foil packaging. The business made and received lots of deliveries – its FedEx bill for a four-month period that year was over $100,000. Just after 6 p.m., McAuley put her dog in a silver Land Rover, drove to a house in nearby San Juan Capistrano, checked the mail, and walked toward the front door.
These glimpses of McAuley and M&C come courtesy of David Metzler, a Howard County cop assigned as a task-force officer to DEA’s Tactical Diversion Squad 59. He went to Laguna Niguel and observed them himself, then meticulously described what he saw in numerous sworn court documents. He also swore out the details of Hamal’s Hysteria sale-and much more, involving others at M&C and at another Baltimore smoke shop, the Dragon’s Den on Fleet Street in Fells Point.
At the Dragon’s Den in the fall and winter of 2011, Carlo D’Addario of Timonium had sold bath salts to people from Virginia, and federal authorities there indicted him for it in early 2012. D’Addario’s co-defendant, Holly Renae Sprouse of Craigsville, Va., near Shenandoah National Park, helped build evidence against him, and both would later plead guilty and receive relatively short sentences-a year in prison for D’Addario, and 20 months for Sprouse.
Shortly after D’Addario’s indictment, under the supervision of Metzler’s crew, orders for Spice were placed from the Dragon’s Den to M&C, where the Tobacco Stop had gotten its Hysteria.
By June 2012, after serving search warrants for email accounts and making the controlled buys orchestrated at the Dragon’s Den, Metzler’s team had good reason to suspect M&C supplied Spice products, branded with names such as “Hysteria,” “Brain Freeze,” “Dr. Feelgood,” and “Black Sabbath,” to the Tobacco Stop, the Dragon’s Den, and other such shops in Indiana, Kentucky, and New York.
On July 25, 2012, M&C Wholesale was raided and its bank accounts emptied. The next day, the DEA announced Operation Log Jam, explaining in its press release that the AEA “allows these drugs to be treated as controlled substances if they are proven to be chemically and/or pharmacologically similar to a Schedule I or Schedule II controlled substance,” including anything from pot and heroin to prescription painkillers and methadone.
The raid on M&C turned up several thousand pounds of suspected Spice, several kilograms of suspected analogue chemicals used in making Spice, and several thousand packets of Hysteria, Brain Freeze, and other brands of Spice.
Metzler had good cause to suspect they’d find such a haul. On July 17, about a week before the raid, he’d spoken with a courier who’d made deliveries at M&C and described seeing “8-10 individuals seated around a table handling piles of a green herb-like substance”-“no other sort of activity seemed to be ongoing.”
These observations, Metzler wrote in court records, “are entirely consistent [with] M&C Wholesale being exclusively devoted to the manufacture and distribution of analogue substances.”
No federal criminal charges have yet been filed publicly against anyone involved with M&C’s operation. Nor have charges been filed against Hamal or the Tobacco Stop’s owner, Kyu Tae Yi.
Others have not been so fortunate.
In September, federal prosecutors in Maryland moved to keep $105,574 seized from Bruce Lloyd Bradburn and his business, the Dundalk smoke shop Up in Flamez, in part because “large quantities of synthetic marijuana” were found in the store and in Bradburn’s nearby home. As a result of the probe, Bradburn is currently scheduled for a December trial on narcotics and gun charges in Baltimore County Circuit Court.
Earlier, in August, federal prosecutors filed suit to keep $259,988.61 seized in a synthetic-drug investigation of three Puff & Stuff smoke shops in the Cumberland area of Western Maryland. Puff & Stuff’s owners, Traci Lynn and Charles Casey, have filed claims in the matter, asserting “a legitimate and lawful interest” in the cash, which they say they “earned, saved, and acquired through lawful employment and enterprises.” But the probe prompted drug-conspiracy indictments against the Caseys in Allegany Circuit Court, and both are scheduled for separate trials later this year.
Also this year, three men – Nathaniel Petit, Andrew Burger, and Joshua Sylvia – were charged and pleaded guilty in a conspiracy to distribute methylone shipped here from China. Methylone is used to make bath salts, and though banned temporarily under the DEA in 2011, it was only in April of this year that methylone was listed as a drug banned by the CSA. Shortly thereafter, Petit, Burger, and Sylvia were charged in Maryland federal court, though they were caught in June 2012 and initially charged in state court. They are scheduled to be sentenced later this year.
These new Maryland cases show how effectively synthetic-drug laws can be enforced to punish accused Maryland criminals and to try to take their ill-gotten gains. Sprouse’s lawyer, Fred Heblich, a veteran federal public defender in Virginia and a lecturer at the University of Virginia School of Law, says criminal cases involving analogues are hard for defendants to beat.
“The way that the statute is written is very broad,” Heblich says, “so that the legal definition of an analogue is not specifically the same as the scientific definition.” This means cases are “easy to prosecute because the courts don’t require scientific accuracy.” So, in a typical case in which a prosecutor is trying to prove a chemical is an analogue of a banned substance, the prosecutor simply calls to the stand a “DEA chemist who testifies they’re similar,” Heblich explains, “and then brings in a user, who says it’s similar – ‘I’ve used that stuff and it’s a lot like meth.'”
Heblich says Spice cases are “a little different animal than the bath salts-like pot and meth are different.” Law enforcers might find “Spice is less worthwhile to pursue because it doesn’t have the cachet of bath salts – there are no stories of people eating people on Spice,” Heblich says, referring to a story last year in Miami that went viral with the false information that a man who attacked another man by chewing his face was on bath salts. And bath salts, more than Spice, pose a greater law-enforcement problem, he adds, because “there are hundreds of them, and you could create thousands of analogues of this stuff.”
In bringing analogue cases to criminal court, though, the defendant is at a distinct disadvantage, Heblich says, because “the judges let the government put in whatever evidence they want, and the jury is going to convict.”
When asked about probes that have resulted not in criminal charges but in asset-forfeiture cases, Heblich says law enforcers “will go after you if you have money – that’s all they care about now.”
Analogue cases that go after alleged manufacturers’ assets have shown some potential to reveal the AEA’s frailties – such as the forfeiture case against M&C, filed in November 2012, which seeks to keep the $2.2 million seized from the company’s bank accounts, along with 34 money orders and 102 checks made out to the company. Like other Operation Log Jam forfeiture cases elsewhere, this one has not been easily concluded.
This summer, after Maryland Assistant U.S. Attorney Evan Shea filed an amended complaint in the case with U.S. District Judge Ellen Hollander, M&C’s attorneys, Randall Skeen and William Feldman, moved to dismiss it. They argued that the government failed to establish a fundamental common-law principle: mens rea, which is Latin for “guilty mind.” No evidence, they claimed, had been produced to show that M&C and its operators “actually knew that the substances at issue were unlawful.”
The reason the government hadn’t shown this, the lawyers continued, is that the AEA is so “unconstitutionally vague” that “a person of ordinary intelligence would have no way to reasonably learn that these substances are unlawful and thus have an opportunity to conform their conduct to the requirements of law.”
Shea swatted down these arguments in a brief filed in August, citing abundant precedent that the AEA-even when applied to recently banned substances and their analogues-consistently has been ruled not unconstitutionally vague.
Then M&C attorneys’ reply cut to the core of the matter: money. Any proceeds derived from M&C’s sale of Spice before March 1, 2011, the date the compounds involved were temporarily banned by the DEA, should not be forfeitable, they argued, nor should any proceeds that haven’t been shown to be connected to sales of banned substances. This, they claim, comes to $1,829,784.50 plus interest “based upon the government’s improper seizure.”
While M&C’s motion to dismiss the Maryland forfeiture is awaiting a ruling by Hollander – and while a related suit M&C filed in Utah, where some of its money was seized, has been put on hold pending Hollander’s decision – in Florida, a whale of an Operation Log Jam forfeiture fight is underway.
In Operation Log Jam’s Tampa-area takedown, over $18 million, a handful of homes, and a brand-new Infiniti belonging to Timothy Hummel and his family were seized. Hummel, his family, and his colleagues in an alleged Spice-manufacturing operation have not been charged criminally, and they want their property back – but the government has moved to keep it. In working to have the case thrown out of court, Hummel’s lawyers, James Felman and Katherine Yanes, have tossed around some weighty rhetoric and strong claims.
Calling the Hummel forfeiture and Operation Log Jam “the latest installment of the modern American assault on the bedrock principle of mens rea” and “the first instance in the history of the Republic in which the government has sought to seize assets – and potentially imprison its citizens – based on conduct that it literally would not have been possible for the citizenry to know was unlawful,” the lawyers argued that, in Hummel’s case, the government is doing this based on “a single man-a chemist employed by the DEA named Terrance Boos.”
Boos, according to court records, testified in February at another federal proceeding in Wisconsin, offering his scientific opinion that two compounds-XLR11 and UR-144-are banned analogues under the AEA’s standards, and that he was not aware of anyone at DEA who disagreed with that conclusion.
But Hummel later obtained government documents showing that wasn’t the case-that, in fact, as Hummel’s lawyers put it, “an entire Section of the DEA disagreed not only with Dr. Boos’ conclusion that UR-144 is an unlawful analogue, but also with his authority to reach such a conclusion on behalf of the agency.”
Thus, Hummel has unearthed dissent within DEA over whether certain substances do, in fact, meet the AEA’s “substantially similar” standard.
The Wisconsin case Boos testified in was heard by veteran U.S. District Judge Rudolph Randa, a Vietnam War veteran who was appointed by President George H.W. Bush and served until 2009 as the chief judge of the state’s eastern district. It involved $100,000 worth of “herbal incense” that was seized in September 2012 from The Smoke Shop in Delavan, Wis., by law enforcers who wanted to test it for illegal analogues. When they wouldn’t give it back, the owner sued for its return.
After late-winter hearings and briefings, Randa noted that “the overwhelming weight of opinion in the scientific community” is that the substances found in the incense, UR-144 and XLR-11, “are not substantially similar to the chemical structure” of an already-banned substance, JWH-018, and therefore could not be ruled analogues.
On May 16, though, in the midst of the litigation, DEA put UR-144 and XLR-11 on the list of temporarily banned analogues.
Less than a week later, on May 21, Randa concluded in an order that, given DEA’s new ban, he had no choice but to dismiss the Smoke Shop’s suit. In doing so, though, he leveled some blunt criticism of the way this complicated law is being enforced.
“Under this scenario,” Randa wrote, “it seems unfair for a federal agency to seize the property of a small business owner and then keep it until it is declared illegal.”
There you have it: a federal judge saying what defense attorneys have been arguing, so far without success – that law enforcers’ approach to leveraging the AEA’s significant powers in expanding the menu of banned analogues, in one instance at least, “seems unfair.”
Attorneys attacking the AEA often turn to a memorable critique penned in 2008, well before the recent spate of analogue bans: the act’s definition of an analogue is an “unholy union of legalese and chemistry jargon [that] is probably enough to bewilder even the most studious individuals,” Gregory Kau concluded in “Flashback to the Federal Analog Act of 1986: Mixing Rules and Standards in the Cauldron,” an article in the University of Pennsylvania Law Review.
Still, arguing that the AEA is so vague that people can’t reasonably be expected to know whether or not they are breaking it has not been received well by courts. Over and over again, the argument has been rejected.
A high-profile Operation Log Jam defendant in Arizona, Michael “Rocky” Lane, for instance, got nowhere in pre-trial motions on this question and ended up convicted by a jury this summer. Afterwards, in September, his attorney asked for a new trial-again, in part, based on claims the AEA is unconstitutionally vague. As the prosecutor’s response makes clear, the argument is not likely to win-but the attorney, Bruce Feder, scored rhetorical points in trying.
In addition to quoting Kau’s “unholy union” commentary, Feder reached back in time to invoke the words of Supreme Court Justice Oliver Wendell Holmes Jr. in a 1931 opinion. “Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals,” Holmes wrote, “it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.”
Sometimes, the line may not be sufficiently clear even to the law enforcers themselves. In one 2011 case in Maryland, for instance, a designer-drug prosecution was abandoned until a judge officially dismissed the charges – and the defendant proceeded to successfully sue for the return of property seized in the probe. This rare instance, perhaps, is more telling of the vagaries of the designer-drug crackdown than any protests of those targeted.
The man’s name is Mohd Abujamous, and his saga began on May 3, 2011, when a suspicious box containing five packages of an off-white powder arrived from China at a Howard County UPS store. Investigators, thanks to information from the people who arranged to have the package picked up, quickly got a search warrant to raid a warehouse in New Market, near Frederick. They found it operated “as a manufacturer, packager, and distributor of various designer drug products including bath salts and Spice,” according to court documents, and determined Abujamous ran it.
The warehouse was filled with incriminating evidence, including barrels and boxes of chemicals used in Spice and barrels of powder, an envelope in one of them labeled MDPV, which is used to make bath salts, along with lots of substance-filled packets labeled “not for human consumption.”
On May 27, 2011, Abujamous was charged with manufacturing and possessing with intent to distribute chemicals used in Spice, JWH-018, and JWH-073, which the DEA had temporarily banned under the AEA on March 1, 2011. The case languished for months, and Abujamous’ attorney, Richard Karceski, asked for it to be dismissed, pointing out that the “Government has done nothing, to include refusing to respond to defense counsel’s calls and e-mails.”
In November 2011, Abujamous instead was indicted for a different crime-introducing misbranded drugs into commerce-and shortly thereafter the Spice charges were dismissed by the prosecutor, Philip Jackson. The misbranding indictment was based on the “not for human consumption” Spice labeling and the fact that the bath salts packages did not say they contained MDPV.
Nearly a year passed after the indictment without any activity by the government. So in October 2012, Karceski moved to dismiss the indictment, pointing out that Abujamous’ right to a speedy trial was being violated. Jackson never responded, so, in late November, U.S. District Judge Catherine Blake ordered the indictment dismissed.
Abujamous was off the hook, after about 18 months of prosecutorial silence and inactivity. But his property taken during the raid-about $36,000 of industrial equipment, including a truck, cement mixers, and some packaging machines-was being kept by the government, and he wanted it back. Not getting any response to his requests, he ended up suing-and winning.
Judge Blake ordered the government to return Abujamous’ seized equipment in June. In doing so, she also denied attempts by Assistant U.S. Attorney Stefan Cassella, an expert on asset-forfeiture law, to have the case dismissed or put on hold – which, in the latter instance, was filed under seal, so Cassella’s arguments remained shrouded from public view.
Neither Karceski nor the U.S. Attorneys’ Office will provide insights as to what went on with this case. However, an August 2011 letter from Karceski to Jackson, included in case documents, sheds some light on the circumstances.
“My client has always said that he was never in violation of any federal law regarding the compounds with which he is charged,” Karceski wrote. “I request that you provide me with a detailed chemical analysis conducted by the forensic division of the DEA. A fair evaluation will show that the banned chemicals were not contained in the product seized, nor were they seized in bulk from my client.”
Apparently, there was some confusion over the law.