The Ghost Hand: Maryland Law Enforcers Aim to Take the Pot by Secretly Sitting at the Online Gambling Table

IMG_8071

By Van Smith

Published by City Paper, March 24, 2010

On Dec. 21, 2006, someone in Maryland opened an account with bodog.com, an online gaming site whose customers bet on sports and horse-racing and play poker and casino games on their computers. The same day, that same someone placed two online bets on football games with Bodog. Over the course of 2007, after more wagering, the online gambler requested and received two payout checks from Bodog: one for $1,500 and another for $700.

Mundane as they may seem, the Maryland gambler’s wagers and payouts have had major repercussions in the online-gambling world. That’s because, starting in 2008, the details of that person’s online betting activities were included in meticulous affidavits supporting warrants to seize the contents of bank accounts said to be tied to illegal gambling. The Maryland gambler was actually a special agent working undercover for the U.S. Internal Revenue Service (IRS) Criminal Investigation Division.

Under U.S. law, facilitating transactions tied to online gambling is illegal. Yet, due to the immense popularity among Americans of wagering over the internet, the overseas companies that provide this kind of entertainment continue to seek ways to do business with U.S. customers. In order to pay out winnings to gamblers in this country, they have to hire U.S. companies willing to operate as payment processors–middle-men who take foreign casino companies’ money and disburse it to players when they want to cash out their online gambling accounts. These payment processors are taking a risk that U.S. law enforcement will detect the transactions and seize the money while it’s sitting in the payment processors’ accounts–which is exactly what federal investigators in Maryland, and elsewhere, have been doing–but due to the lucrative nature of the business, both the payment processors and the online-casino companies have been willing to take that gamble.

In the post-Sept. 11 world, the U.S. government has developed a heightened interest in augmenting its ability to track the ways and means of global money-moving. Though the motivation is to protect the world from terrorists by interrupting their finances, this trend also means that financial crimes of all kinds–including the movement of online gambling money into the United States–face a greater risk of detection. In the world of internet wagering, whenever money is sitting in a U.S. bank account, it is exposed to possible seizure by the authorities. And, as investigators’ successes mount, it’s clear they are getting better at it.

IRS criminal investigators in Maryland “opened a formal investigation of Bodog in 2006,” court records state, after having “conducted interviews regarding Bodog.com, Calvin Ayre, and Bodog’s operations in approximately 2003.” Ayre, a Canadian who’s been living in exile for several years now, is the founder of Bodog, which is based in Antigua and has operations in Costa Rica.

Bodog, a 15-year-old company which claims to be the world’s pre-eminent online gambling site and whose operations span the globe, is not the first to be targeted by American law enforcement’s crackdown on internet gambling. That honor goes to Jay Cohen, who in 1998 was indicted in New York along with numerous other defendants for violating the federal Wire Wager Act in running the Antigua-based World Sports Exchange. Cohen fought the charges, saying federal laws prohibiting wire transfers of gambling proceeds do not apply to the internet. He lost and was sentenced to 21 months in prison. Since then, the feds have continued to focus on an industry that, in effect, presents opportunities for people to gamble anywhere and anytime, despite the laws of any particular country or state.

“If you’re in Antigua running a casino, that’s fine,” says Maryland U.S. Attorney Rod Rosenstein. “But if you’re actually operating a casino in someone’s bedroom in Montgomery County over the internet, that’s illegal.” Thus, any proceeds that can be traced to gambling activity that takes place in Maryland–whether it’s actual betting over the internet, or just the arrival of checks in the mailboxes of Maryland gamblers cashing out their online-gambling accounts–could end up seized by Maryland authorities.

Since early 2008, according to federal court records, the ongoing federal investigation of online gambling based in Maryland–which, in addition to the IRS, also involves members of a Department of Homeland Security Immigration and Customs and Enforcement (ICE) task force–has brought at least $29,206,594.62 in alleged gambling proceeds into federal coffers. The latest warrant in the investigation was signed by U.S. magistrate judge Paul Grimm in early February, and it targeted the contents of a Mercantile Bank account in Tampa, Fla. The account, held in the name of a company called Direct Channel LLC, yielded $860,335.90 on March 5. Direct Channel, like the other companies included in the Maryland internet-gambling seizures, allegedly provided payment-processing services in the U.S. for gambling web sites based in other countries. Though the Maryland investigation initially appeared to focus on payment processors for Bodog, such as Direct Channel, it has since broadened to include funds held by companies serving another gambling site, goldencasino.com, which is also based in Antigua.

Any U.S. bank account used by a payment processor working with online casinos could be targeted by investigators, potentially wiping out millions of dollars when a seizure warrant arrives at the bank. But due to the magnitude of online gambling in the United States–half of the $16 billion per year that internet gambling is estimated to generate is believed to originate in the United States–the risk may be worth it. Though federal investigators in Maryland and elsewhere, including New York, Missouri, and Florida, go for the money, there’s so much in play at any given moment that what they seize is only a small portion of money flow.

So far, after several years of effort, Maryland law enforcers have seized nearly $30 million in suspected online-gambling proceeds. That’s equal to less than one half of one percent of the $8 billion that U.S. online gamblers are estimated to spend each year. But it’s a start. And as the effort builds and grows more sophisticated and nimble with experience, the potential is as vast as the American online-gambling economy itself.

“There are very big numbers in internet gambling,” say Rosenstein, acknowledging the sizeable cut the government could get through seizing and forfeiting assets, which are funneled into law-enforcement budgets to support the efforts of the agencies that seized them. Asked if seizures, in the long run, could undermine gambling web sites’ ability to pay out to U.S. customers, he says: “That’s a possibility, and it’s certainly a risk for customers. And it’s a pretty effective deterrent, since customers have no remedy if the gambling operator fails to pay. They won’t be able to go into court and enforce that. It’s an illegal contract.”

Seizing and forfeiting criminally derived assets, including those from online gambling, has been made a priority by Rosenstein’s office. Last year, he hired the nation’s top asset-forfeiture prosecutor–Stefan Cassella, who literally wrote the book on the subject, a 950-page tome entitled Asset Forfeiture Law in the United States–to lead the effort. Among Cassella’s achievements is the largest forfeiture in U.S. history: $1.2 billion from the Bank of Credit and Commerce International in the 1990s. Given the size of the online-gambling industry’s assets, Cassella may have an opportunity to break his own record while working in Maryland.

Law-enforcement efforts to interrupt internet-gambling money flowing in and out of the United States were ramped up after the 2006 passage of the Unlawful Internet Gambling Enforcement Act (UIGEA), which was signed by President George W. Bush in October that year. Before that law was passed, the federal Wire Act, which dates back to 1961, already prohibited the transfer of gambling proceeds via wire communications. That law had been used to go after internet gambling prior to the UIGEA’s passage. But unlike the Wire Act, the UIGEA specifically outlaws internet-gambling transactions and requires financial operators, such as banks and payment processors, to determine which transactions are tied to online gambling and report them to regulators.

The banking industry, concerned that UIGEA requirements would be difficult to enforce and would force bankers to become anti-gambling police, persuaded the Obama administration to postpone the law, scheduled for implementation in December 2009, for six months. U.S. Rep. Barney Frank (D-Mass.), meanwhile, is currently trying to usher through legislation that would repeal the UIGEA and instead set up a regulate-and-tax scheme for the industry, arguing that online gambling is a liberty–and a potentially large source of public revenues–that the government should not prohibit.

But Rosenstein contends that going after the illegal profits gained from the U.S. market for internet gambling is a matter of fairness. “What Americans find particularly galling,” he says, “is when something is criminalized, honest people don’t engage in the activity, but criminals do, so they get excess profits because their only competition is from other criminals.”

Those seeking to legitimize aspects of online gambling, though, have other thoughts on the matter. Last year, in trying to persuade a federal judge to release funds seized from a payment processor allegedly tied to online gambling, lawyers for the Poker Players Alliance (PPA), a Washington, D.C.-based interest group, argued that online poker is a game of skill, not of chance, and thus is not illegal gambling. They also contended that the UIGEA establishes criminal culpability for “persons who operate illegal gambling sites, rather than those who process payment transactions,” and that restricted transactions under the UIGEA do not include funds going to a gambler because a gambler is “not engaged in the business of betting or wagering.”

The lawyers for the PPA (whose motto is “Poker is not a crime: Join the fight.”) did not prevail. But their efforts–and the well-heeled existence of the PPA, which has its own lobbying arm, PokerPAC, and whose board is chaired by former U.S. Senator Alfonse D’Amato (R-New York)–indicates that powerful forces in American society don’t like the online-gambling crackdown. Recent public-opinion polling, though, indicates the prohibition of online gambling is popular; two-thirds of those responding to a Fairleigh Dickinson University poll released on March 11 say they do not favor legalizing it.

Though online gambling is legal in many parts of the globe, enjoyed by many Americans, and accepted in many cultures–to the point that online-gambling companies’ stocks often are publicly traded in other nations–its continued prohibition in the United States may be explained by the longtime association of the gambling industry with unseemly characters making obscene profits.

Recent cases against internet gambling operations, for instance, give a sense of the profit potential the business presents and sometimes allege organized-crime ties. In New York in October 2009, the operators of Panama-based betonline.com were charged with illegal online gambling; authorities claimed the group made $587 million in 28 months and was linked to the Gambino and Genovese crime families. In a 2006 Missouri case against the longtime gambling figures who ran Costa Rica-based betonsports.com, the indictment states that the company’s promotional materials boasted “100,000 active players, who placed 33 million wagers, worth over $1.6 billion” in 2003, before the company went public on the London stock exchange. In February, Missouri authorities indicted the operators of Costa Rica-based Elite Sports, which ran the web sites best24b.com and best24b.net, and among the defendants were members of the Kansas City’s storied Cammisano crime family.

In addition, federal authorities in New York have charged two men–Anurag Dikshit in 2008 (Dikshit NY info) and Douglas Rennick in 2009 (Rennick indictment)–with illegally running online-gambling ventures. Dikshit, who was born in India and is one of the youngest billionaires in the world thanks to the success of his online-gambling business, is co-founder of the Gibraltar company that operated partypoker.com; charges against him include the forfeiture of $300 million in gambling revenues. Rennick, a Canadian, ran a series of payment-processing companies that allegedly served the internet-gambling industry, and the government is seeking to forfeit more than a half billion dollars of the proceeds from his financial dealings.

Another alleged payment processor was charged in Florida in February, when a bank alerted federal authorities that customers were trying to cash large checks they said were the payouts from online-gambling winnings. Michael Olaf Schuett, a German man living in Naples, Fla., had set up hundreds of companies and had dozens of bank accounts that were allegedly used to operate the scheme since 2007. The complaint against him (Schuett FL complaint) says that he transferred online-gambling payments to about 23,000 people, mostly in the United States, and that the total amount of money involved was $70 million.

In what may have been the first federal gambling case involving the internet in Maryland, IRS investigators and Montgomery County police teamed up to bust a ring that, in 2003 and 2004, handled action from Maryland customers on behalf of a Dominican company called World Wide Wagering, which runs the web site wager.dm. The conspiracy case, which ended with the convictions of seven men from Montgomery County, Baltimore, and Florida, followed the money flow to and from bettors and the defendants. The case included the cashing of more than $150,000 worth of checks at University Liquors in Hyattsville.

Just as IRS agents in Maryland were cracking the World Wide Wagering case, they started looking into Bodog. But it wasn’t until December 2006, shortly after the UIGEA was signed into law by then-President George W. Bush, that the Bodog investigation got serious–it began with an investigator logging onto the web site, posing as a customer, and starting to gamble.

Once the investigator started receiving payout checks in 2007, the money trail could be tracked. In the meantime, the investigation gained a cooperating witness from inside the internet-gambling industry, who corroborated facts about Bodog’s operations, including the contention that “Bodog takes in from $250,000 to millions per day on sports bookmaking alone,” court records show. An informant also helped out by corroborating facts based on experience using Bodog’s site to gamble in Florida. The informant was able to explain the betting process to investigators; additional information was gleaned from investigators working online-gambling probes in other jurisdictions.

By 2008, sufficient cause had been established by Maryland IRS investigators to seize funds from the bank accounts of three payment-processing companies suspected of handling funds for Bodog: JBL Services and Transactions Solutions in Georgia (JBL forfeiture), and a California company called ZAFTIG Instantly Processed Payments Corp., operating as ZipPayments.com.

On Jan. 18, 2008, U.S. District Court magistrate judge Beth Gesner signed a search-and-seizure warrant application for bank accounts in the name of JBL Services and Transactions Solutions; $14,200,195.73 was seized. On June 28, 2008, U.S. District Court magistrate judge Susan Gauvey signed another warrant application for ZipPayments.com bank accounts, which yielded another $9,869,283.05. By July 2008, the U.S. Attorney’s Office in Maryland had filed forfeiture actions against both pots of money. The legal actions were based on lengthy affidavits written by IRS criminal investigator Randall Carrow.

In September 2008, the case against ZipPayments.com’s money suddenly heated up. A claim for nearly $10 million was filed by ZipPayments.com and Edward Courdy, a California man who sought to have the money returned, saying it was lawfully his. Within days of filing his claim, Courdy was charged with money laundering, as was Michael Garone, a Georgia man connected to JBL Services and Transaction Solutions (“Bodog Internet Gambling Investigation Leads to Money-Laundering Charges,” Mobtown Beat, Oct. 30, 2008). In February 2009, as a result of a forfeiture settlement negotiated by Courdy’s attorney, Stanley Greenberg, and assistant U.S. attorney Richard Kay, the government returned $200,000 of the ZipPayments.com money to Courdy, and kept the rest.

Today, the status of the criminal cases against Courdy and Garone is unclear. Some time in the fall of 2009, a little over a year after they were filed, the online records of the cases against them disappeared from the federal court-records database system, known as Public Access to Court Electronic Records (PACER). Since Maryland’s federal courts handle only electronically filed documents, PACER is the only repository of its records. The disappearance from PACER of Maryland criminal case numbers 08-454 (against Courdy) and 08-455 (against Garone), creates the illusion that they were never filed at all–though City Paper still has copies of the documents charging them, which bear Rosenstein’s signature. Despite City Paper‘s requests for explanation, the U.S. Attorney’s Office in Maryland has remained mum about what happened.

Courdy’s lawyer, Greenberg, has consistently declined City Paper‘s request for comment about his client’s troubles in Maryland. Efforts to contact Garone, and to identify his lawyer in the Maryland case, have been unsuccessful.

After the money seizures and criminal charges involving Courdy and Garone were filed, the online gambling investigation in Maryland appears to have shifted from the IRS to Immigration and Customs Enforcement–and the level of secrecy surrounding the investigation increased. Though numerous search-and-seizure warrants have been filed for the contents of bank accounts and an e-mail account associated with payment processors since last summer, nearly all of them were granted under seal, so probable cause for the seizures has not been revealed to the public.

Despite the secret nature of many of the seizure filings, certain information about them is available. Three ICE task force members in Maryland–Maryland State Police trooper Robert J. Mignona, ICE special agent M. Lisa Ward, and Anne Arundel County Police detective Richard S. Gunn–and one ICE special agent in Louisiana, Augusta B. Ferenec, filed the warrant applications. The companies whose bank accounts have been seized–HMD, Forshay Enterprises , and Electracash in California; Atrium Financial Group (AFG) in Delaware; and Direct Channel in Florida–are in the payment-processing business. The amounts seized so far from these companies’ bank accounts add up to $5,137,115.84. And, in the case of Electracash–a business that has past associations with Courdy–warrants have been issued not only to seize the contents of bank accounts, but of an e-mail account the company has with Intermedia, a New York City communications company. (The Electracash e-mail warrant, unlike the bank-account seizures, so far has yielded nothing, court records show.)

One of the unsealed search-warrant affidavits–the one filed early this year against Direct Channel’s bank account in Florida–was written by Ward, but draws directly from the IRS affidavit in the Courdy and Garone seizures, and thus sheds no new light on the investigation’s details. The other unsealed warrant, against Atrium Financial Group and written by Ferenec, shows that ICE’s financial-investigations group in New Orleans, La., along with the Louisiana State Police, are in on the Maryland probe (“GoldenCasino.com’s Payment Processor Targeted in Latest OnLine Gambling Seizures in Maryland,” The News Hole, Oct. 28, 2009).

The Louisiana end of the Maryland investigation began on July 14, 2008, when Louisiana State Police officers opened a gambling account with goldencasino.com. They did not immediately succeed, because the bank they were using to deposit $100 into the gambling account apparently blocked the transaction. On the second try, though, they succeeded. They then requested a payout.

The first payout check bounced, but the second one, from AFG, cleared, and the investigators, using information they gleaned from their transactions, used their investigative powers to start on up the money trail. They discovered funds moving between Canadian companies’ bank accounts in Canada and Cyprus and on to AFG bank accounts in the United States, which then issued checks to U.S. residents, including in Maryland. The transactions they tracked involved millions of dollars zipping across the globe.

“Because of enhanced monitoring of financial transactions since Sept. 11, we have a much better handle on the movement of funds,” Rosenstein says about the ability of investigators to dig into the online-gambling industry. In fact, the affidavits of investigators Carrow and Ferenec indicate that initiating a successful seizure of funds from payment processors doesn’t require particularly sophisticated investigative techniques. The trick, it seems, is trying to pinpoint where the money will be at any given moment, hoping to gain court orders to freeze it, and seize it before it shifts yet again.

Rosenstein points out another challenge investigators face in trying to seize online gambling funds: While it’s relatively easy to go after funds in U.S. accounts, going after offshore accounts–where the big money is, since that’s where the online gaming companies operate–is tricky.

“It’s similar to the challenges we face with child pornography, which is often stored overseas and transported to the United States over the internet,” Rosenstein says. “The degree of international cooperation with regard to child pornography is far greater than with offshore gambling, though. But we can readily intercept the money flowing through financial institutions that we have jurisdiction over.”

Rosenstein says online gambling can be prosecuted anywhere that customers are located, and that the public should expect to see more enforcement efforts taking place in more jurisdictions. He says that criminal activity is increasingly becoming more internet-based, and that investigative agencies are becoming more focused on financial crimes. They’re also becoming more sophisticated when it comes to following the money.

“Anything that illegally generates large amounts of money is a concern on many levels,” Rosenstein says. “People engaged in such conduct may be committing other crimes. They may not be paying taxes, and they may be investing in other illegal activities.”

Hysteria: In Maryland and Across the Country, the Federal Designer-Drug Crackdown Takes Prisoners, Cash, and a Legal Backlash

By Van Smith

Published in City Paper, Oct. 13, 2013

Photo: commons.wikimedia.org

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.”

MDPV

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.

The Accidental Warrior

Baltimorean Matthew VanDyke Didn’t Plan to Be a Motorcycling, Freedom-Fighting, Filmmaking Activist (and Prisoner) in the Arab World, It Just Kinda Happened

By Van Smith

Published in City Paper, July 10, 2013

All Matthew VanDyke set out to do, he says, was to be like Alby Mangels, the Australian famous in the 1970s and 1980s for making films of his own world-traveling adventures. But after what happened as VanDyke pursued this rather singular dream-including fighting against Moammar Gaddafi’s regime in the 2011 Libyan civil war and spending nearly six months in solitary confinement as a prisoner of war there-he’s instead been compared to author Ernest Hemingway and revolutionary Ernesto “Che” Guevara.

This transformation from would-be entertainer to real-life freedom fighter has prompted VanDyke to think big: Asked about these comparisons to such cultural titans, he says, “Hopefully I can live up to those expectations.”

At 34, VanDyke likely has plenty of years left to try-assuming he continues to survive the risks he takes. Most recently, while in Syria last year filming his award-winning short documentary, Not Anymore: A Story of Revolution, meant to spur popular support for the revolution there, president Bashar al-Assad’s regime broadcast VanDyke’s image on television while labeling him a “terrorist.”

“It became quite dangerous for me after that,” says VanDyke. “The guys that caught me would probably torture me, because they’d be really angry-and understandably so. . . They’d make a fortune selling me to the regime.”

When Hemingway was VanDyke’s age, his books were being burned in Berlin as the Nazis were coming to power; Guevara had helped overthrow the Cuban government and replace it with socialism. VanDyke’s start – three years of filming his motorcycling adventures around the Arab world, his remarkable experiences during the eight-month Libyan war, and the production of Not Anymore – could lead him any number of ways. Whether he achieves the prominence of Hemingway, with fortunes made from reality-based literature, or of Guevara, with the blood-splattered creation of a political icon, or goes in some other direction, depends both on how VanDyke proceeds and how the world receives the roles he plays. In the meantime, he’s out to convince the world to liberate downtrodden people in conflict zones.

In explaining himself while on the lecture circuit, VanDyke often quotes a controversial figure in U.S. history: William Alexander Morgan, an American anti-communist who was stripped of his U.S. citizenship for fighting with Guevara and Fidel Castro, who had not yet revealed his socialist leanings, to overthrow Cuba’s Battista regime, and who was later executed when Castro’s government suspected him of plotting with counter-revolutionaries.

“I am here,” Morgan wrote from Cuba in a 1958 statement, “because I believe that the most important thing for free men to do is to protect the freedom of others. I am here because I believe that free men should take up arms and stand together and fight and destroy the groups and forces that want to take the rights of people away.”

VanDyke is determined to follow Morgan’s example, though Morgan’s fate is something he’d obviously like to avoid. Whether VanDyke uses guns or cameras, he says, depends on the circumstances. Right now, in helping the Syrian revolution, he says, “I believe that the camera is more powerful than the gun, because the camera is going to get them more guns. The role I would play as a fighter, it’s just not time right now.” VanDyke says he’s “not eager to run off to war,” especially since he grew more religious while imprisoned and now has “a bit of an issue with fighting in wars, as a Christian.” Nonetheless, he adds, “Ill do it in a second if that’s the best way to make a contribution.”

Tall and slender, VanDyke cuts a dashing figure. Photos of him with his motorcycle in the deserts of the Arab world or wielding an AK-47 and wearing military garb or an Afghan pakol cap make him look like a latter-day Lawrence of Arabia. It’s quite a transformation from his upbringing as an only child in Baltimore, where the Mensa member gained an education from Calvert School and Gilman School, which he dropped out of in 11th grade, opting for a GED and community college courses before entering University of Maryland Baltimore County (UMBC).

VanDyke says he loved Calvert, the expensive private lower- and middle school in North Baltimore’s Tuscany-Canterbury neighborhood. “I owe everything to Calvert,” he says. “That place taught me everything I know.”

Coming from Randall Street in South Baltimore, which was still a working-class neighborhood when he was growing up there, he had a decidedly different background than the upper-class kids for which Calvert is mostly known. He says his mother, Sharon VanDyke, an elementary school principal, and his father, Edgar VanDyke, a waterman and seafood broker, were divorced when he was 3, and he was the fifth generation of his family to live in their house, where he was raised by his mother and grandparents.

“I had bright people around me in my really formative years,” VanDyke says. “It makes all the difference in the world.”

Gilman was another matter, though. “I hated Gilman,” VanDyke says, explaining that as a skateboarder who listened to hip-hop, “I just didn’t fit in. I had a bit of a problem with authority-which now I’ve turned into a career. Like, that whole dress code thing, I used to mock it by basically wearing a tuxedo, a bow tie, just to be a smartass about it. I was getting in fights and arguments and things like that. And I didn’t know how to keep my mouth shut. I had ADD [attention deficit disorder], so I would say things without thinking and strategically planning.” He also says he’s been diagnosed with obsessive-compulsive disorder, an anxiety-producing condition that was aggravated by his imprisonment.

VanDyke excelled at UMBC, graduating in 2002 with a 4.0 grade-point average and winning the political science department’s “outstanding scholar/leader award,” he says. His interest in the Arab world blossomed at UMBC, where late Middle East expert Louis Cantori was on the political science faculty. “I started to take his courses,” VanDyke says, “and that’s how I got into the Middle East,” saying he “identified it as a likely area where there was going to be change and potential and action.”

After UMBC, VanDyke entered Georgetown University’s prestigous Edmund A. Walsh School of Foreign Service in Washington, D.C., where he says he was a bit of an oddity. “There were people who were in the military, in the CIA, working for the State Department,” he explains, “and there I was, riding my skateboard to class.” VanDyke, too, wanted to work for the CIA, explaining that he “was mesmerized by the Hollywood aspect of it, my fictitious image of what the CIA does. Now I know it’s more like a mixture of James Bond and the U.S. Post Office, as one of my friends who works in U.S. intelligence has told me.”

While in the process of applying for a summer internship at the CIA, VanDyke’s problems with authority came to the fore. “I went to my first CIA interview, and that day, after the interview, I went to my first Iraq War protest,” he recalls. “I didn’t really see a conflict at the time. I nailed the interview and I got pretty far through the process.” But his polygraph test kept getting delayed as his anti-war activism grew, and ultimately, he decided against reapplying. “With a concentration in Middle East security studies, they were going to put me on the Iraq War,” he explains, “and I didn’t want to work on a war I didn’t believe in.”

After graduating from Georgetown in 2004, “I felt like my life was really wrecked,” VanDyke recalls. “I had put so much time and effort and money into the education, and I had wanted to work for the CIA, to start out as an analyst and then transition into the operations side. But my worldview changed with the Iraq War.”

VanDyke says he thought the Iraq War “was a disaster for U.S. foreign policy”-and he “knew it would be, because I could put myself in the shoes of Iraqis, that when they see soldiers from another country walking around in their country and setting up checkpoints, they’re not going to be happy about it, no matter what we did in removing the regime. I wanted Saddam [Hussein] removed, but I wanted it to be actually just like what ended up being done in Libya-air power and support [of] the local population. I wanted people to do it themselves.”

At Georgetown, VanDyke says he’d been “advocating for the Libya model, it just wasn’t called the Libya model then. Let them overthrow their own government. In Iraq, we basically overthrew regime and then handed it to them. They didn’t spill the blood getting rid of it-so then they started spilling their blood trying to get rid of us. Anybody should’ve been able to understand that.”

After misgivings about the Iraq War essentially tanked his chosen career path, VanDyke cast about for something to do with his life. “I went and I tried to start a business with my cousin, totally unrelated, and that didn’t work,” he recalls. “And I went down to the beach and painted boats at a boatyard, doing roofing, trying to figure out what to do next.”

That’s when he remembered Alby Mangels.

“I had seen Alby Mangels’ shows on the Travel Channel [in 1996] and never forgot it,” VanDyke recalls, “and I realized that’s what I want to do. I always wanted to do documentary filmmaking, but I thought it would be, like, my retirement career after the CIA. But in 2004, 2005, I realized, ‘Why don’t I make adventure films?'”

VanDyke at that time had recently started driving a motorcycle, “so I thought, Well, why don’t I drive a motorcycle across the Arab world?It’s the region I studied, it’s where the action is. I’ll do an Alby Mangels film, but I’ll upgrade it for the 21st century, take it to a whole other level, learn about the region I’d been studying-because I’d never actually been to the Middle East, even though I was a Middle East expert.”

It was the revelation that would spark the chain of events that transformed VanDyke from a run-of-the-mill, over-educated beach bum to a remarkable and controversial freedom fighter.

The first stop on VanDyke’s three-year trek was Madrid, Spain, followed by Morocco, Mauritania, Tunisia, Libya, Egypt, Jordan, Syria, Turkey, Iraq, Iran, and Afghanistan, filming along the way. He sometimes worked as an embedded journalist in Iraq and Afghanistan but says he produced very little published copy-an article for The Baltimore Examiner about Iraqi perceptions of the U.S., and pieces for a Kurdish paper in Iraq about an Islamic faith healer, Kurdish agriculture policy, and his motorcycling experiences in Kurdistan. He’d return periodically to the States, spending time in Baltimore, Delaware, New York, and Pennsylvania, but once he got to Iraq, his filmmaking vision started to come into focus.

“I never thought I could go to Iraq on a motorcycle,” VanDyke recalls. “When I found out I could, I did. Then, once I was there, I wanted more, wanted to push things higher and higher. That’s why I kept trying to drive to Baghdad and kept getting detained and arrested. I met this guy Dan Britt, a photographer, kind of a rebel, who’d been kicked out of the embed program, and I knew he was the only guy crazy enough to go with me Afghanistan. So I decided Dan and I would do a film called War Zone Bikers where we’d hit two war zones in one film.”

The film has never been made, and today, VanDyke says he’s not ready to do it any time soon, even though he says a producer and director would like to do the project as a reality-TV show. After having served in Libya and now supporting the Syrian revolution, he explains, “I didn’t want to do something that was the slightest bit jackass-y at a serious time, when I’m doing serious work.” Later, he says, he still might do War Zone Bikers “if the show could be done in a way that’s still respectful of my serious work.”

While still in Madrid, before spending three years collecting hundreds of hours of footage in nearly a dozen Middle Eastern countries, VanDyke met someone who’s been an important supporter of his life’s work since: Lauren Fischer. They met in early 2006, while VanDyke was waiting for his 1981 Yamaha XS650 motorcycle-a dud of a bike, which died without leaving Spain-to come through customs. He noticed Fischer, an American from the suburbs of Philadelphia, in the lounge of the hostel where he was staying because she was wearing a Georgetown sweatshirt. Turns out, even though they’d never before met, they’d been at the school at the same time, she as an undergraduate. Fischer was in Madrid teaching English while waiting to get into graduate school in the States.

“We started talking,” Fischer recalls, “and he hadn’t really seen much of Madrid, and I said, ‘Well, I’ll show you the city.’ We spent the next day together-and then spent most of the next six months together. He stayed with me, but it was only supposed to be a couple of weeks while he was waiting to get his motorcycle, but he didn’t leave.”

Today, more than six years later, they’re still together. While Fischer went on to get her master’s in teaching at Columbia University in New York (she now teaches second grade at a Baltimore City Public Schools elementary school), VanDyke bounced back to Baltimore, Pennsylvania, or the Delaware beaches in between his motorcycling forays across the Middle East.

“He would be gone for maybe three months, and then back here for a month,” Fischer recalls, “then gone for six months, back for three months. We did talk but not every day. It was hard, especially with the time difference. And then his equipment would go bad or something would break, and I had to get a replacement part and ship it to some strange location where he was.”

Over time, Fischer grew accustomed to expecting the unexpected when VanDyke touched base from the other side of the world. “I was going to a show on Broadway,” she recalls, for example, “and he called to ask if I could talk to my dad about his legal rights because he’d been detained or had his motorcycle taken away, leaving him stranded. There was definitely a lot of anxiety, but I eventually got used to it. I built up a tolerance, a level of comfort with the uncomfortable.”

VanDyke’s mother, Sharon, says “I thought it was great” when her son set off for his ambitious trek. “We are a motorcycle family, even though we don’t look like one-when I was in college I had a motorcycle, his dad had a motorcycle, my grandfather had a motorcycle. I supported him any way I could to prepare for that journey. I’d raised him to get out there and do something, and he had all this book knowledge about the Middle East but he wanted to go experience it.”

The big trip began inauspiciously, with the old Yamaha dying in Spain and being replaced with a brand-new Kawasaki KLR 650, and it only got worse in Morocco, where he had to fend off drug dealers who “asked me how many kilos I want of marijuana, and I didn’t even smoke marijuana.” After just a few days, he broke his collarbone in a motorcycle crash, prompting another return home to recuperate.

When he returned to Morocco, VanDyke says he was “terrified” and “afraid to leave my hotel room”-his state of mind was so bad that “my girlfriend said, ‘Why are you such a coward?’ At that point, I was looking for any reason to come home.”

Rather than bail, though, VanDyke “went down to Mauritania and did kind of a desert safari with two Spaniards, two Israelis, a Japanese guy, a rabbit, and a dog. My motorcycle broke down in the desert, and I had it brought out in a truck with a goat.” When he returned with his motorcycle repaired, he met Nouri Fonas, who VanDyke describes as a Libyan “hippy” who’d “been traveling all over the world for like 10 years with his cousin.”

Four years later, during the Libyan war, “Nouri was the driver of the Jeep, and I was the gunner,” VanDyke explains. VanDyke’s bonds and loyalty to Fonas and the other Libyans he met in Mauritania and, later, during his first visit to Libya in 2008, are the reasons he went there in 2011 to help defeat the regime of longtime Libyan dictator Moammar Gaddafi.

“It was personal,” VanDyke explains. “I ended up having to cancel conference calls I’d set up with an HBO producer and another Academy Award-winning producer about War Zone Bikers because my friends in Libya started telling me about what was happening there, and I bailed on everything. And I’d written a book that I’d had an agent for, about my travels, but they had been telling me for a few days what was happing on Gmail Chat and Facebook, and then I suddenly made the decision that I’m going. And I booked the flight.”

Late at night on March 6, 2011, about three weeks after Libyan unrest had started with protests in Benghazi, VanDyke arrived there from Cairo, Egypt. When he first saw Fonas, he recalls, “Nouri’s like in military clothes and totally serious. He had cut his hair down, you know, he used to have kind of a ‘fro, a little bit. And it was like a totally transformed Nouri, from Nouri the hippy to Nouri the warrior. That’s when I knew that I could serve in the revolution, for sure.”

VanDyke immediately joined them in preparations for fighting. “From that very first day,” he recalls, “we went and started fixing up [Fonas’] friend Ali’s truck that had been damaged in the Rajma weapons depot explosion. I have video of this too-this truck is so beat up. I took the camera with me because I had been filming my life for years in the region.” They got a DShK .50-caliber heavy machine gun, popularly called a “dushka,” to mount on the truck and some mortar tubes, for which VanDyke sought advice from a family friend on how to use.

Then, on March 13-a week after his arrival-VanDyke was captured. He was in Brega “to figure out where to set all this stuff up, familiarizing ourselves with the town, looking for good defensive positions,” and “some guy’s serving us coffee on the tray, and I took his picture, showed him the picture-and that’s the last thing I remember. They knocked me out with a severe strike, and I wake up in prison with the sound of a man being tortured.”

VanDyke says he was interrogated only once, shortly after he regained consciousness, and he doesn’t know where he was. “They played video off my camera,” he recalls, “of me saying to Nouri, ‘You remind me every day why we fight’ after we said something about Gaddafi. I was thinking, oh, shit,” because he was sure his friends would soon be arrested and imprisoned too.

The interrogators “accused me of being CIA or Mossad,” the Israeli spy agency, and “I said, ‘Oh, that’s ridiculous.’ I told them I’d been in Libya before, and they said, ‘Oh, why were you in Libya?’ And I said, ‘I was driving a motorcycle from Mauritania to Afghanistan to make a movie, to film it.’ And they were like, ‘You are in the CIA.’ That fit their Hollywood image of what the CIA does.”

First, VanDyke was in Maktab al-Nasser prison in Tripoli, “in a 7-by-4-foot cell for 80 days,” he recalls “and then I was moved to Abu Salim prison for the next 85 days. I heard men being tortured in the prison or violently interrogated.” Both prisons are notorious-especially Abu Salim, a reputation that would later serve him well, after his escape.

In the meantime, though, VanDyke was missing. No one knew where he was, and efforts to locate him by Human Rights Watch were fruitless. “When he was captured,” his mother says, “I never once thought that he had been killed.” VanDyke, though, was sure he would be.

“I knew I was finished,” he recalls. “I was a terrorist by the definition of the regime, and guys caught doing exactly what I was doing, if they were caught in Iraq or Afghanistan, they’d be in Guantanamo. I felt like I had left my mother alone since my grandparents had died, and I knew she’d never stop fighting to get me released, but I don’t want to become, like, the cause of her life. I want her to enjoy her retirement. I thought I’d never see my girlfriend again, and I thought maybe someday I’d get out in like 20, 30 years and meet the children that should’ve been my children. It was quite a depressing time. I figured that the regime had sent assassins to Nouri’s house and killed him for this, for me, and for what’s on the video. It was my fault. I worried about the guys I was captured with, if they were being tortured, if they were imprisoned, if they would ever get out.”

The guilt and remorse ate at VanDyke as he had “nothing to do but stare at a wall for like six months. All this stuff with people thinking I was a journalist-the regime released journalists, they were given like a little trial, charged with not having a visa, and sent home. The regime made me disappear. They made me vanish. They put me in isolated parts of the prison. The guards didn’t even know I was an American. They didn’t know who I was. The world thought I was dead.”

And then, on Aug. 24, 2011, the Abu Salim guards abandoned the prison, and someone broke the lock on VanDyke’s cell. He walked out into Tripoli with other escaping prisoners, was given some money by the imam at a local mosque, and eventually, after a couple of days staying with well-wishers, ended up with a room at the five-star Corinthia Hotel Tripoli.

VanDyke, after reuniting with Fonas, promptly rejoined the war effort and fought for two months until Gaddafi was killed and the rebels’ victory was assured. During this time, he recalls, he made ample use of informal weapons training he’d received while embedded with the U.S. military in Iraq and Afghanistan, and he seriously engaged in the front-line fighting.

Media interest simmered while VanDyke had been missing, then came to a boil after his escape and return to the front. Richard Engel, NBC’s chief foreign correspondent, returned with VanDyke to Abu Silam and found the cell where he’d been kept in solitary confinement, and posed for photos reenacting his time there. There was also coverage from CNN, the Washington Post, and the Global Post, a Boston-based international news website.

“The press was good at covering this story when I was missing,” VanDyke recalls, “so I reluctantly did interviews.” He says he was “excited” about Engel’s interest, and their visit to the prison turned up “a piece of the lock of my cell,” which, after finding the other piece on another return visit, he now keeps as a souvenir.

VanDyke says he also became friends with the Global Post’s James Foley, who he escorted to the front lines, along with other journalists, so they could report on the war.

“It was really dangerous for journalists to jump into vehicles of rebels, because rebels don’t think generally two steps ahead,” VanDyke points out, “but Nouri and I were very careful, especially when we had people with us, to like ask what’s ahead, what’s around the next corner, always cautious and alert. So we were one of the more safe transportation for journalists in between the fighting to get them up there.”

But his decision to resume fighting disappointed Human Rights Watch, whose emergencies director, Peter Bouckaert, was quoted in the press as saying: “We all worked hard to try and locate him and get him home safe for all those months, and it is a bit tragic to now see him try and join the fight as a rebel.”

Bouckaert “was very angry when I didn’t come home,” VanDyke recalls, and “he later wrote that it felt like I had spat at his face and the faces of the other people who had advocated for me while I was missing. But none of these guys got me out of prison. Rebels got me out of prison. I got myself out of prison. My mother raised me so that when you take on a commitment, you finish it, and it hadn’t been finished yet. There actually happens to be video of the time I told Nouri, ‘I’m not leaving until Libya is free, no matter how long it takes.’ And I wasn’t going to go back on that. So I stayed, and it ticked off some people whose business it really wasn’t.

“After prison,” VanDyke continues, “Nouri’s like, ‘Hey, we’re going back to the front line.’ His father’s like, ‘OK, good luck.’ It’s not weird to them that somebody would come and help their friend to overthrow the regime. To them, that’s not a strange thing. I don’t know why it’s so strange to Americans.”

When the Libyan war ended, VanDyke returned to Baltimore, and the controversy over his service continued. The Committee to Protect Journalists, which had worked on his case while he was missing, wrote that VanDyke misled people about his intentions in going to Libya and that “pretending to be a journalist in a war zone is not a casual deception,” but “a reckless and irresponsible act that greatly increases the risk for reporters covering conflict.”

The criticism became quite pitched in the case of conservative commentator Debbie Schlussel, who wrote a column shortly after VanDyke’s return from Libya entitled “Dumbass: 32-year-old ‘American’ Fights for Libyan Rebel Muslims,” calling him a “jerk” and a “loser.”

The source of the confusion is unclear, as VanDyke says that when he was missing, “journalists, they’re like, ‘What was he doing?’ Well, they hear that I was touring the Arab world, shooting video, working on this book about my travels, and they’re like, ‘Oh, he’s writing, he’s a journalist.’ And they started using the label. It’s not a label that my family uses, it’s a label that journalists used. Not like there’s anything wrong with being a journalist, but I don’t want people confusing what I do with journalism. And then I take heat for it even though I’m the one who’s most vocal about not being a journalist.”

So when VanDyke set out to do his Syria film, he made it very clear he was going as an activist filmmaker, not a journalist. And Not Anymore comes across as masterfully designed propaganda with compelling footage of the very dangerous conditions in war-torn Aleppo. VanDyke says the 15-minute documentary is “like a symphony of crescendos, diminuendos, peaks, and valleys” that both “entertain the viewers and then slap them in the face with emotion.” It’s gone over well on the film-festival circuit, winning the audience-favorite award for documentary shorts at the Palm Springs International Shortfest, the country’s largest short-film festival, and in January, CNN aired clips from Not Anymore during a five-minute interview of VanDyke by Victor Blackwell.

But Not Anymore was expensive to make-$15,000 of his own money to produce it, plus more money spent to get it shown at festivals and mail DVDs around to influential people-and so far VanDyke is at a loss over how it will produce any revenue. At times, he claims, he’s foregone revenue-generating opportunities in order to avoid conflicts that could prompt criticism.

For instance, VanDyke says, given that he “had really good access” with the revolutionary Free Syria Army while shooting Not Anymore, he could have made “thousands of dollars selling photos and video to the press.” He didn’t, though, because “the commitment I made publicly” at the outset was “to stick to [being an] activist filmmaker and not do anything else,” such as engage in journalism-a label that, despite his strenuous protests, has continued to stick to him. If his work in Syria had even a hint of journalism mixed in with it, he says he’d be constrained by the rules of the media game in conflict zones, which dictate he neither pick sides nor bear arms-both of which he felt compelled to do in Syria.

Though VanDyke’s website (matthewvandyke.com) describes him as working as a “journalist, war correspondent, political columnist, [and] talk radio show host” over the years, he emphasizes that “I’ve never been paid for one article or one photograph or one piece of video in my life.” He adds that “I accept the label of former journalist because people tell me I am, but it’s flimsy. It’s not like I ever made a living-I actually just spent money doing it.”

How he’ll dig himself out of his financial straits remains an elusive quest, though he’s working on getting grant funding for setting up a nonprofit women’s center in Syria.

“It will be a place to train women activists, train women journalists, and give them a safe place to stay and work,” VanDyke explains. “A lot of their families won’t let them work in the revolution because if they sleep in a building with men, they get a reputation. So some women who want to work in the revolution can’t. Women’s role in the revolution has been diminished because of these cultural things, so I want to give them a building that they can have, that they can work in. I can bring in people from the outside for workshops and they can work there without these reputation problems.”

Fischer is especially excited about VanDyke’s prospects with the Syrian women’s center. “It would really help the people of Syria,” she says. But Fischer is not so excited about what she calls VanDyke’s so-far unrealized “earning potential.” “Ideally,” she says, “he’ll bring some money back as soon as possible.” Perhaps VanDyke’s long-envisioned movie and book will start to bring in a return on his life’s investments. He predicts both will be out next year.

Sharon VanDyke, meanwhile, has room to be proud of her son without getting overly anxious about his money problems. His work now, she says, “is very different from when he was going to make motorcycle documentaries that he was going to sell for entertainment. Now it’s about the rights of people and the oppression of people and the murdering of thousands of people by these governments.” If he needs to get somewhere in a conflict zone to help out, she adds, “I’ll take him to the airport. I raised him to do what he has a passion for, and that’s what’s happened.”