Hazy laws help shield synthetic-drug makers
TAMPA - Law enforcement agents seized about $18 million last July from a Tampa area family they say was running an enterprise that has made fake pot in four states, including in a local industrial park. But family members, who have not been charged with any crime, are fighting to get their money back. They argue that what they did was not illegal and that the chemicals they used were not then listed as controlled substances under state or federal law. The case of Timothy and Patricia Hummel and their son, Sean, highlights the challenges for law enforcement in cracking down on synthetic marijuana. When dozens of law enforcement officers raided six Hillsborough County homes, warehouses and businesses as part of Operation Logjam in July, officials said they were sending a strong message that those who manufactured and distributed fake pot were going to face justice.Although 91 people were arrested across the country during that operation, no one has been charged in Hillsborough as a result of those raids. In December, Hillsborough County sheriff’s deputies arrested 15 store owners and clerks for selling fake pot in another investigation dubbed Operation All Smoked Up. But those cases recently evaporated when the state attorney’s office decided not to prosecute. Tampa police have not made any synthetic marijuana arrests, although spokeswoman Laura McElroy said local merchants have voluntarily agreed to remove synthetic marijuana from their shelves. In fact, officials in Hillsborough County say they know of no cases where anyone has been prosecuted locally on synthetic marijuana-related charges in state or federal court.
Officials say the business operated by the Hummels and others raked in at least $38 million in less than three years selling products under names including “Green Cobra,” “White Rabbit” and “Bayou Blaster Swamp Sachet.”
Defense lawyers argue that the chemicals they used were not illegal at the time, but federal prosecutors assert that the substances were covered under the law because they were considered analogues, defined as “substantially similar” to another drug that was listed as illegal.
To the defense and the chemists they consulted, the substances are far from similar. The defense attorneys say authorities’ efforts to take their clients’ property raise serious constitutional questions.
“I am not aware of any instance in the history of this republic in which the government has seized funds and indicted people based on conduct which it would not be possible to know was unlawful,” lawyer James Felman said.
Authorities say synthetic marijuana and other newly introduced drugs are extremely dangerous, particularly because the unregulated products are most often marketed to young teens. Scores of teens across the country have had bad reactions or been killed by the synthetic drugs they are led to think are legal alternatives to marijuana.
Even the name synthetic marijuana can be misleading, experts said. Felman said the label applies at least 300,000 substances that react with the same neurological receptors in the body as the active ingredient in marijuana.
Tod Burke, a Virginia criminal justice professor who has written about the drug for the FBI, said synthetic pot is more similar to PCP than marijuana. “Things can go terribly wrong with this drug,” he said.
Drug Enforcement Administration officials were unable to provide national prosecution statistics for synthetic marijuana but said there have been successful synthetic marijuana prosecutions across the United States. “Our perception is there are a fair number of prosecutions out there in various stages,” said DEA Agent Bob Bell in Washington. “Some have ended successfully.”
Between 2009 and 2012, the DEA identified more than 200 new drugs introduced into this country from foreign sources, Bell said, an average of about one a week.
“That flood of brand new drugs — and they are drugs, psychoactive substances — is absolutely unprecedented in our country’s history in such a short period of time,” Bell said.
Because the chemicals used are always changing, law enforcement officials say, there are no field tests for the substances. Without the ability to quickly identify the drugs, investigators typically cannot make on-the-spot arrests, instead having to wait for lab results.
“Some of the prosecutions are slow to develop because you’re dealing with a substance that you’re not exactly sure what it is at the time of the seizure and so you have to deal with a forensic chemist,” said John Scherbenske, chief of the Synthetic Drug and Chemical section of the DEA.
In the case of the Hummels, a federal prosecutor told a judge in December — more than four months after the raids — that he was unable to present testimony about the effects those chemicals had on the human body because scientists were still doing the research.
Synthetic drug issues are challenging for prosecutors and law enforcement at all levels.
“It is a costly, time-consuming, complicated subject,” said Hillsborough State Attorney Darrell Dirks, who is in charge of drug prosecutions for the office. “The substances that were confiscated last year were not controlled at the time. They then became controlled. … We’ve had about 140 additions to the controlled substance list in the last 18 months trying to catch up with all of this.”
The federal court battle over the Hummel family’s assets touches on all of the issues.
After the money was seized, Timothy Hummel filed a motion last year seeking to have the money returned. This month, the U.S. Attorney’s Office, which declined to comment for this story, filed a lawsuit asking a court to order the forfeiture of the funds, including the contents of 25 bank accounts and $257,000 in seized cash, as well as homes in Redington Beach, Carrollwood and Oregon, and a 2013 Infiniti JX35 registered to Patricia Hummel.
Timothy J. Hummel, owner of a New Orleans record store called The Mushroom, started his synthetic marijuana business in that city, then moved it to Texas, then to Tampa and finally to Arizona, according to Felman.
Every move, Felman said, was made on the advice of counsel when laws changed in each jurisdiction and different substances were outlawed.
In April 2012, a Hillsborough County sheriff’s detective visited the family’s “Flaroma” manufacturing site in an industrial park near Town ’N Country, according to a DEA affidavit. The detective spoke to Hummel and Donald Sommers, who said they were the managers.
The detective was given permission to search and saw what appeared to be employees manufacturing and packaging synthetic cannabinoids, which are made when chemicals are mixed with acetone and sprayed on dried herbs.
Felman said Hummel’s synthetic marijuana business moved to Arizona after the search and the July 25 Operation Logjam raids.
The chemicals the Hummels’ business was using at the time of the raids — XLR-11 and UR-144 — were not then listed by federal or state law as illegal substances. The issue in federal court is whether the substances can be considered substantially similar to another chemical, JW-018, which was illegal.
The two chemicals were specifically outlawed when they were added to Florida’s list of controlled substances in December and the federal list on May 16. According to the federal notice, the substances pose an addiction risk and have been linked to cases of acute kidney injury.
Felman said there are no credible studies that show the substances his client sold are dangerous. “I’m not saying they’re not dangerous,” he added. “I’m saying I don’t think we know.” Felman said he wouldn’t ingest the chemicals. “I don’t know what it is or what it would do,” he said.
Felman said he interviewed numerous respected chemists, many of whom testified in court on behalf of Hummel, and all of them say the substances sold were not analogous to JW-018. Tryptophan, which is found in turkey, is closer to that chemical, Felman said.
He maintained that the only chemist in the country who says the chemicals are analogous is Terrance Boos, the DEA chemist who testified for the government.
“We are a government of laws, not men, and an ordinary person ought to be able to know what they’re doing is legal or not,” Felman said. “It should be clear and objective. It should not be based on one chemist’s incorrect, unscientific opinion.”
A judge, though, ruled against Felman in the Hummel case, saying the prosecution didn’t have to “overcome the critical eye of chemists and other experts. Rather it must merely show that ordinary people would be able to determine whether UR-144 and XLR-11 are proscribed analogues of JWH-18.”
Felman is appealing the ruling in the Hummel case. He notes that another judge ruled just the opposite in another case Felman has in Wisconsin.