D E F E N D I N G A S Y N T H E T I C D R U G C A S E

Transcription

1 D E F E N D I N G A S Y N T H E T I C D R U G C A S E Michael K. Lahammer Criminal Defense, Federal and State nd St. SE, Suite 1010 Cedar Rapids, IA Phone: Fax: mlahamm@aol.com Website:

2 *Defending a Synthetic Drug Case Outline* I. Synthetic drug cases nationwide a) U.S.A. v. James Robert Carlson, et al b) U.S.A. v. Zhang, et al c) U.S.A. v. Stephen D. McFadden, et al d) U.S.A. v. Augustus Julias II, et al e) U.S.A. v. Michael Lane, et al II. III. IV. Sentence Duration a) Trial b) Pled Guilty Jury Instructions a) XLR-11 b) Controlled Substance Analogue c) Possession with Intent to Distribute a Controlled Substance Analogue d) Knowingly e) Turcotte inference Sentencing a) K2 b) Bath Salts Michael K. Lahammer Lahammer Law Firm, P.C nd St. SE, Suite 1010 Cedar Rapids, IA Phone: Fax: mlahamm@aol.com

3 Synthetic drug cases nationwide

4 D ist r ict of M i n n esot a U.S. A. v. J a m es R o b e r t C a r lso n, et a l D e fe n d a n ts E x p e r ts! James Robert Carlson! Lava Marie Haugen! Joseph James Gellerman! Jamie Paul Anderson (4)! Dr. Terry Boos Chemist, DEA! Dr. Jordan Trecki Pharmacologist, DEA! Scott Albrecht Supervisory Special Agent, DEA

5 Synthetic drug cases nationwide

6 N o r t h e r n D ist r ict of N e w Y o r k U.S. A. v. Z h a n g, et a l D e fe n d a n ts! 22 Defendant s total! The lead defendant Zhang was never located.! Two defendants, Rosa Gambuzza and Ernest Snell went to trial and were convicted. The others pled guilty. E x p e r ts! Thomas DiBerardino Chemist, DEA! Cassandra Prioleau - Drug Science Specialist, DEA! For Defense: Dr. Oliver M. Brown (Associate of Pharmacology)

7 Synthetic drug cases nationwide

8 W est e r n D ist r ict of V i r gi n i a U.S. A. v. St e p h e n D. M c F a d d e n D e fe n d a n ts! Stephen D. McFadden! Lois Lee McDaniel! John Walter Collier! Dustin Wayne Orange! McFadden went to trial and was convicted by a jury the others plead guilty. E x p e r ts! Dr. Thomas DiBerardino Chemist, DEA! Dr. Cassandra Prioleau - Drug Science Specialist, DEA! For Defense: Dr. Matthew C. Lee (Expert in Pharmacology and the effects of medication)

9 Synthetic drug cases nationwide

10 W est e r n D ist r ict of V i r gi n i a U.S. A. v. A u g u st u s J u l i as, I I, et a l D e fe n d a n ts! Augustus Julias, II! Jeremy King! Matthew Comer! Jeremy King went to trial and was convicted by a jury the others plead guilty. E x p e r ts! Dr. Terry Boos Chemist, DEA! Dr. Cassandra Prioleau - Drug Science Specialist, DEA! For Defense: Dr. Thomas Harris (expert in the chemical structure of drugs and other substances)

11 Synthetic drug cases nationwide

12 D ist r ict of A r i z o n a U.S. A. v. M ic h a el L a n e, et a l D e fe n d a n ts! Michael Rocky Lane! David Henry Titus! Benjamin Lowenstein! Vincent Collura! Andrew Freeman! Nicholas Zizzo! Clinton Strunk E x p e r ts! Dr. Thomas DiBerardino Chemist, DEA! Dr. Cassandra Prioleau - Drug Science Specialist, DEA! For Defense: Patrick Woster, Ph.D.! Nicholas Vitto Cozzi! Anthony P. DeCaprio

13 T R I A L N a m e of D e fe n d a n t Se n t e n ce R ece i ve d! James Robert Carlson! Rosa Gambuzza! Ernest Snell! Michael Lane! Stephen McFadden! Jeremy King! 210 months (17 ½ yrs)! 188 months (15 ½ yrs)! 210 months (17 ½ yrs)! 180 months (15 yrs)! 33 months! 84 months (7 years)

14 P l e d G u i lty Se n t e n ce D u r a t i o n N u m b e r of D e fe n d a n t s! 5 years or more! 3 5 years! 1 3 years! Under 1 year! Time Served! Probation! Other (Fugitive, no disposition, etc)! 9! 6! 5! 1! 5! 8! 3

15 DEFENDANT SENTENCE DEFENDANT SENTENCE James Robert Carlson 210 months David Titus 42 months Lave Marie Haugen 60 months Benjamin Lowenstein 18 months Joseph James Gellerman 3 years probation Michael Lane 180 months Jamie Paul Anderson time served Vincent Collura 5 years probation Nicholas Zizzo 54 months Gero 41 months Andrew Freeman 36 months Cizenski 46 months Clinton Strunk 5 years probation VanCamp 12 months Wahdan 78 months Stephen McFadden 33 months Marshall 30 months Lois Lee McDaniel 28 months McManus 12 months John Walter Collier 2 years probation Massara 37 months Dustin Orange 1 year probation Carter 33 months Radway time served Jeremy King 84 months oot-gambuzza time served Augustus Julias II 108 months Demott 3 years probation Matthew Comer 72 months Allen 3 years probation Sorbello time served Tiffany 2 months Fray 3 years probation Defio time served Gambuzza 188 months Harper no disposition Snell 210 months Feria fugitive Zhang fugitive Mieszkowski no disposition

16 Jury Instructions *XLR-11* The crime of distributing XLR-11, as charged in Count 1 of the Indictment, has two elements, which are: One, on or about May 28, 2013, the defendant intentionally transferred XLR-11 to another person; and T wo, at the time of the transfer, the defendant knew that the substance transferred was a controlled substance. It is not necessary that the government prove the defendant knew the substance was XLR-11 as long as she knew the substance was some controlled substance. I t is su ffici e n t t h a t t h e d efe n d a n t k n e w t h a t t h e su bst a n ce w as so m e k i n d o f p r o h i b i t e d d r u g. I t d o es n o t m a tte r w h e t h e r t h e d efe n d a n t k n e w t h e i d e n t i ty o f t h e co n t r o lle d su bst a n ce. If the government proves all of these elements beyond a reasonable doubt, then you must find the defendant guilty of the crime charged under Count 1. Otherwise, you must find the defendant not guilty of the crime charged under Count 1.

17 Jury Instructions *analogue* The crime of distribution of a controlled substance analogue, as charged in Count 2 of the Indictment, has two elements, which are: One, on or about June 19, 2013, the defendant intentionally transferred a controlled substance analogue to another person; and T wo, at the time of the transfer the defendant knew that it was a controlled substance analogue. The government alleges that the defendant distributed Alpha-PVP and the Alpha-PVP is a controlled substance analogue. To prove that Alpha-PVP is a controlled substance analogue, the government must prove: (1) the chemical structure of Alpha-PVP is substantially similar to the chemical structure of a controlled substance in schedule I or II; and (2) Alpha-PVP either has or is purported to have a stimulant, depressant or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II. The term substantially similar should be given its ordinary meaning. Note, however, that substantially similar does not mean exactly the same.

18 Jury Instructions *analogue* (cont) Therefore, some level of difference is acceptable between the structure and effects of a controlled substance analogue and a controlled substance. To prove that the defendant knew that she possessed a controlled substance analogue, the government must prove: (1) the defendant knew Alpha- PVP was intended for human consumption; and (2) the defendant knew (a) the chemical structure of Alpha-PVP is substantially similar to the chemical structure of a controlled substance in schedule I or II; and (b) Alpha-PVP either has or is purported to have a stimulant, depressant or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II. The term human consumption refers to a person s introduction of a substance into the person s body through any method, including by smoking, snorting, injecting, inhaling, eating or drinking. If the government proves all of these elements beyond a reasonable doubt, then must find the defendant guilty of the crime charged under Count 2. Otherwise, you must find the defendant not guilty of the crime charged under Count 2.

19 Jury Instructions *Poss. w/intent* The crime of possession with intent to distribute a controlled substance analogue, as charged in Count 4 of the Indictment has three elements, which are: One, on or about June 26, 2013, the defendant was in possession of a controlled substance analogue; T wo, the defendant knew that she was in possession of a controlled substance analogue; and Three, the defendant intended to distribute some or all of the Alpha-PVP to another person. The government alleges that the defendant possessed Alpha-PVP and that Alpha-PVP is a controlled substance analogue. To prove that Alpha-PVP is a controlled substance analogue, the government must prove: (1) the chemical structure of Alpha-PVP is substantially similar to the chemical structure of a controlled substance in schedule I or II; and (2) Alpha-PVP either has or is purported to have a stimulant, depressant or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II. The term substantially similar should be given its ordinary meaning.

20 Jury Instructions *Poss. w/intent* (cont) Note, however, that substantially similar does not mean exactly the same. Therefore, some level of difference is acceptable between the structure and effects of a controlled substance analogue and a controlled substance. To prove that the defendant knew that she possessed a controlled substance analogue, the government must prove: (1) the defendant knew Alpha- PVP was intended for human consumption; and (2) the defendant knew (a) the chemical structure of Alpha-PVP is substantially similar to the chemical structure of a controlled substance in schedule I or II; and (b) Alpha-PVP either has or is purported to have a stimulant, depressant or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II. The term human consumption refers to a person s introduction of a substance into the person s body through any method, including by smoking, snorting, injecting, inhaling, eating or drinking. If the government proves all of these elements beyond a reasonable doubt, then must find the defendant guilty of the crime charged under Count 4. Otherwise, you must find the defendant not guilty of the crime charged under Count 4.

21 Jury Instructions *knowingly* The government is not required to prove that the defendant knew that her acts or omissions were unlawful. An act is done knowingly if the defendant is aware of the act and does not act through ignorance, mistake or accident. You may consider evidence of the defendant s words, acts or omissions, along with all other evidence, in deciding whether the defendant acted knowingly. You may find that the defendant acted knowingly if you find beyond a reasonable doubt that sh e b e l i e v e d t h e r e w as a h ig h p r o b a b i l i ty t h a t t h e i n ce n se a n d B l u e su bst a n ces w e r e co n t r o lle d su bst a n ces o r co n t r o lle d su bst a n ce a n a l ogu es i n t e n d e d fo r h u m a n co n su m p t i o n a n d t h a t she took deliberate actions to avoid learning those facts. Knowledge may be inferred if the defendant deliberately closed her eyes to what would have been otherwise obvious to her. A willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts. You may not find the defendant acted knowingly if you find she was merely negligent, careless or mistaken as to the nature and intended use of the substance.

22 Turcotte inference First, the two part controlled substance analogue test is as follows: Part 1: That the alleged controlled substance analogue has a chemical structure that is substantially similar to the chemical structure of a controlled substance in Schedule I or Schedule II of the Controlled Substances Act, and Part 2: That the alleged controlled substance analogue either actually had, or the defendant represented or intended it to have, an effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in Schedule I or II of the Controlled Substances Act. Note that the Schedule I or II Controlled Substance referenced in Pa rt 2 of the test need not be the same Controlled Substance referenced in Pa rt 1 of the test. The term substantially similar should be given its ordinary meaning. Note however that substantially similar does not mean exactly the same. Therefore, some level of difference is acceptable between the structure and effects of a controlled substance analogue and a scheduled controlled substance.

23 Turcotte inference (cont) Both parts of this test must be proven by the government beyond a reasonable doubt for you to determine that a substance is a controlled substance analogue. Additionally, in order to prove that a substance is a controlled substance analogue, the government must also prove beyond a reasonable doubt that the defendant knew the following two things: First: That the defendant knew that the substance at issue was intended for human consumption; and Second: That the defendant knew that the substance at issue was a controlled substance analogue. To show that the defendant knew that the substance was a controlled substance analogue, the government must prove beyond a reasonable doubt that the defendant knew facts that would satisfy both parts of the test described above. The term human consumption refers to a person s introduction of a substance into the person s body through any method, including by smoking, snorting, injecting, inhaling, eating, or drinking.

24 Turcotte inference (cont) Further, if you find the government has proved beyond a reasonable doubt that the defendant knew facts that satisfy pa rt 2 of the test above, that is evidence from which you may, but a re not required to, find or infer that the defendant knew facts that satisfy pa rt 1 of the test above. In regard to second italicized portion of the instruction, this is not based on any Eighth Circuit authority, because there is none. Rather it was based on the Seventh Circuit's ruling in United States v.turcotte, 405 F.3d 515, 527 (7th Cir. 2005), which stated that while a defendant must know that the substance at issue has a chemical structure substantially similar to that of a controlled substance, that knowledge can be presumed : We recognize that requiring the government to prove scienter as to these criteria may impose a significant prosecutorial burden in some cases. The question of similar chemical structure is particularly nettlesome since, even if such chemical similarities exist, and even if the defendant is aware of these similarities, the intricacies of chemical science may render it extremely difficult to prove that a defendant had such knowledge.

25 Turcotte inference(cont) As a provisional remedy for this problem, we prescribe that, in such cases, if the scienter requirement is met with regard to the second part of the analogue definition (knowledge or representation of similar physiological effects), the jury is permitted -- but not required -- to infer that the defendant also had knowledge of the relevant chemical similarities.

26 Turcotte inference (end) In Turcotte, the Seventh Circuit considered an appeal of the jury instructions provided for a controlled substance analogue charge, ultimately determining that, under 802(32)(A), a defendant must know that the substance at issue has a chemical structure substantially similar that of a controlled substance and he or she must either know that it has similar physiological effects or intend or represent that it has such effects. Turcotte, 405 F.3d at 527. Noting that this requirement may impose a significant prosecutorial burden in some cases, the Seventh Circuit allowed that if the scienter requirement is met with regard to the second part of the analogue definition...the jury is permitted but not required to infer that the defendant also had knowledge of the relevant chemical similarities. Id.

27 Sentencing K2 G ove r n m e n t D e fe nse! 1:167 grams! 1:1 gram

28 Sentencing Bath Salts G ove r n m e n t D e fe nse! 1 : 380 grams! 1 :.0625 grams

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