by Michael Kelley
Last week federal agents seized about 5 million packets of synthetic drugs, raw material to produce 13.6 million more and $36 million in cash while arresting more than 90 people in the first nationwide crackdown of synthetic drugs.
At least one lawyer believes that most of the products and cash will be returned and the people arrested will be exonerated.
Spencer Siegel, a Florida criminal defense attorney with 18 years experience, works with the herbal incense or “Spice” by testing products in a lab and then advising manufacturers, distributors and retailers on whether the products follow established laws.
“[Herbal incense] can be used in many legal ways,” Siegel said. “The fact that it can be misused is understood and accepted, but other products can be misused as well.”
Siegel instructs his clients that there should never be any confusion that these products are not for human consumption – as they are harmful and potentially deadly if smoked – and said that names like Scooby Snacks are “ridiculous and stupid and pretty much inviting” attention from law enforcement.
Nevertheless Siegel believes Operation Log Jam will fail to lead to many successful prosecutions because “90 to 99 percent of people involved had done everything they were supposed to do” to try and stay on the correct side of the law.
“This is the world’s largest and [best] organized shakedown I’ve ever seen in my life,” he said. “They’re shaking it down because they don’t like the way the product sounds. But the product is not illegal.”
In March 2011 the DEA issued a temporary federal ban that outlawed one of the main ingredients in Spice – called JWH-018 – because its effects are comparable with marijuana when smoked. Makers of herbal incense then changed the ingredient to a similar chemical (i.e. AM-2201) until that was banned on July 10 of this year.
So the manufacturers created the newest forms of Spice with a commercially available and legal chemical called UR-144 that is structurally different and has different effects than the previous two.
Then Operation Log Jam happened.
Siegel said that most of the people were arrested in the raids were not selling anything that contained illegal chemicals or variations of illegal chemicals. His firm, Siegel Siegel & Wright, has put together a team of scientists and a team of lawyers to argue motions for dismissal throughout the country.
“How does a person who was a businessman on Tuesday become a drug dealer on Thursday?” Siegel said. “That’s what’s happened.”
After the raids the DEA stated that those arrested will be prosecuted as if they were distributing controlled substances – Schedule I (e.g. marijuana, heroin, MDMA) or schedule II (cocaine, opium, PCP) – because the Controlled Substance Analogue Enforcement Act (AEA) of 1986 allows synthetic drugs to be treated as the drugs they mimic if they are proven to be “chemically and/or pharmacologically similar to a Schedule I or Schedule II controlled substance.”
The AEA specifically exists to combat emerging designer drugs, and the DEA can use its emergency scheduling authority to temporarily place substances into Schedule I of the Controlled Substance Act.
But Siegel contends that herbal incense made with UR-144 does not fit the description of an analogue under the AEA, and that the DEA is simply ignoring that fact. Furthermore the DEA had the ability to ban UR-144 before Operation Log Jam – as they did with the two other chemicals – but didn’t.
“The reality is that if it is legal, then why wouldn’t people be able to sell it?” Siegel said. “And if it should be illegal, then let’s make legislation that makes it illegal so when know that it’s behavior that we should be avoiding.”
Siegel said that judges will have to dismiss the herbal incense cases because “there is no way a jury can make a decision that these people had the intent or the knowledge” that they were selling an illegal product.
About 167,000 packets of bath salts were also seized in the raid, but Siegel said that’s a different industry that he doesn’t represent because he doesn’t agree with it.
“The downfall of the herbal incense business was bath salts,” Siegel said.