d e f e n d i n g a sy n t h e tic d r u g case...thomas diberardino– ... for defense: dr. thomas...

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. LahammerCriminal Defense, Federal and State

425 2nd St. SE, Suite 1010Cedar Rapids, IA 52401

Phone: 319-364-1140Fax: 319-364-4442

Email: [email protected]: www.lahammerlaw.com

*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. Sentence Duration

a) Trial b) Pled Guilty

III. Jury Instructions

a) XLR-11 b) Controlled Substance Analogue c) Possession with Intent to Distribute a Controlled Substance Analogue d) “Knowingly” e) Turcotte inference

IV. Sentencing

a) K2 b) Bath Salts

Michael K. Lahammer Lahammer Law Firm, P.C. 425 2nd St. SE, Suite 1010 Cedar Rapids, IA 52401 Phone: 319-364-1140 Fax: 319-364-4442 Email: [email protected]

Synthetic drug cases nationwide

D e fe n d a n tsD e fe n d a n ts E x p e r tsE 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

D ist r ic t o f M i n n eso t aU .S. A . v . J a m es R o b e r t C a r lso n , e t a l


! 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.

! Thomas DiBerardino –Chemist, DEA

! Cassandra Prioleau -Drug Science Specialist, DEA

! For Defense: Dr. Oliver M. Brown (Associate of Pharmacology)

N o r t h e r n D ist r ic t o f N e w Y o r kU .S. A . v . Z h a n g, e t a l


! 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.

! 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)

W est e r n D ist r ic t o f V i r g i n i aU .S. A . v . S t e p h e n D . M c F a d d e n


! Augustus Julias, II! Jeremy King! Matthew Comer

! Jeremy King went to trial and was convicted by a jury – the others plead guilty.

! Dr. Terry Boos –Chemist, DEA


! For Defense: Dr. Thomas Harris (expert in the chemical structure of drugs and other substances)

W est e r n D ist r ic t o f V i r g i n i aU .S. A . v . A u g u st u s J u l i as, I I , e t a l


! Michael Rocky Lane! David Henry Titus! Benjamin Lowenstein! Vincent Collura! Andrew Freeman! Nicholas Zizzo! Clinton Strunk

! Dr. Thomas DiBerardino– Chemist, DEA


! For Defense: Patrick Woster, Ph.D.

! Nicholas Vitto Cozzi! Anthony P. DeCaprio

D ist r ic t o f A r i z o n aU .S. A . v . M ic h a e l L a n e, e t a l

N a m e o f D e fe n d a n tN a m e o f D e fe n d a n t Se n t e n ce R ece i ve dSe 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)

T R I A L

Se n t e n ce D u r a t i o nSe n t e n ce D u r a t i o n N u m b e r o f D e fe n d a n t ’sN u m b e r o f 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

P l e d G u i l t y

DEFENDANT SENTENCE DEFENDANT SENTENCEJames Robert Carlson 210 months David Titus 42 monthsLave Marie Haugen 60 months Benjamin Lowenstein 18 monthsJoseph James Gellerman 3 years probation Michael Lane 180 monthsJamie Paul Anderson time served Vincent Collura 5 years probation

Nicholas Zizzo 54 monthsGero 41 months Andrew Freeman 36 monthsCizenski 46 months Clinton Strunk 5 years probationVanCamp 12 monthsWahdan 78 months Stephen McFadden 33 monthsMarshall 30 months Lois Lee McDaniel 28 monthsMcManus 12 months John Walter Collier 2 years probationMassara 37 months Dustin Orange 1 year probationCarter 33 monthsRadway time served Jeremy King 84 monthsoot-Gambuzza time served Augustus Julias II 108 monthsDemott 3 years probation Matthew Comer 72 monthsAllen 3 years probationSorbello time servedTiffany 2 monthsFray 3 years probationDefio time servedGambuzza 188 monthsHarper no dispositionSnell 210 monthsFeria fugitiveZhang fugitiveMieszkowski no disposition

Jury Instructions *XLR-11*

The crime of distributing XLR-11, as charged in Count 1 of the Indictment, has two elements, which are:

O ne, on or about May 28, 2013, the defendant intentionally transferred XLR-11 to another person; and

T w o, 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 i s su f f i c i e n t t h a t t h e d e fe 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 t t e r w h e t h e r t h e d e fe n d a n t k n e w t h e i d e n t i t y o f t h e co n t r o l l e 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.

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:

O ne, on or about June 19, 2013, the defendant intentionally transferred a controlled substance analogue to another person; and

T w o, 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.”

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.

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:

O ne, on or about June 26, 2013, the defendant was in possession of a controlled substance analogue;

T w o, the defendant knew that she was in possession of a controlled substance analogue; and

T h ree, 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.

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.

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 t y 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 l l e d su bst a n ces o r

co n t r o l l e 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.

T u r cotte 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.

N ote th a t the Schedule I or I I Cont r olled Subst a nce referenced in P a r t 2 of the test need not be the sa me Cont r olled Subst a nce referenced in P a r t 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.

T u r cotte inference (cont)

Both parts of this test must be proven by the government beyond areasonable 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 wasintended for human consumption; and

Second: That the defendant knew that the substance at issue was acontrolled 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 asubstance into the person’s body through any method, including bysmoking, snorting, injecting, inhaling, eating, or drinking.

T u r cotte inference (cont)

F u r ther , if you find the gover n ment h as p r oved beyond a reason a bledoubt th a t the defend a nt k new f a cts th a t sa tisf y p a r t 2 of the test a bove, th a t is evidence f r om w hich you m a y , but a re not requi red to, find or infer th a t the defend a nt k new f a cts th a t sa tisf y p a r t 1 of the test a bove.

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 U nited St a tes v . T u r cotte, 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 p r ove that a defendant had such knowledge.

T u r cotte inference(cont)

As a p r ovision a l remed y for this p r oblem, 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.

T u r cotte inference (end)

In T u r cotte, 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.” T u r cotte, 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.” I d.

G ove r n m e n tG ove r n m e n t D e fe nseD e fe nse

!1:167 grams !1:1 gram

SentencingK2

G ove r n m e n tG ove r n m e n t D e fe nseD e fe nse

!1 : 380 grams !1 : .0625 grams

SentencingBath Salts

d e f e n d i n g a sy n t h e tic d r u g case...thomas diberardino– ... for defense: dr. thomas...

Documents